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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 562/2025
In the matter between:
C[...] A[...] B[...] APPELLANT
and
I[...] K[...] B[...] RESPONDENT
Neutral citation: B[...] v B[...] (562/2025) [2026] ZASCA 115 (07 September
2026)
Coram: SCHIPPERS, MBATHA, HUGHES and NORMAN JJA and
MOLITSOANE AJA
Heard: 22 May 2026
Delivered: 07 September 2026
Summary: Civil procedure – condonation and reinstatement of a lapsed appeal
– rule 33(4) separation of issues order – whether the trial court exceeded its
powers by determining issues beyond those separated for adjudication – orders a
nullity – appealable rather than rescindable – condonation and reinstatement
refused.
ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg ( Wepener
and Crutchfield JJ and D’Amico AJ, sitting as court of appeal):
The ap plication for condonation and reinstatement of the appeal is dismissed
with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Norman JA ( Schippers, Mbatha and Hughes JJA and Molitsoane AJA
concurring)
Introduction
[1] The appellant s eeks to reinstate an appeal against an order of Wepener
and Crutchfield JJ and D’Amico AJ, sitting on appeal as the Full Court of the
Gauteng Division of the High Court, Johannesburg (the Full Court). Twala J,
sitting as a court of first instance, refused to grant the respondent a
postponement and proceeded to grant a decree of divorce incorporating a deed
of settlement, concluded by the parties on 20 August 2019. Thereafter he refused
leave to appeal.
[2] The respondent on petition was granted leave to appeal by this Court to
the Full Court. The Full Court upheld the appeal by the respondent against the
order of Twala J. The appellant applied for and was granted special leave to
appeal to this Court against the orders of the Full Court in terms of s 16(1)(b)
and s 17(3) of the Superior Courts Act No. 10 of 2013 (the Act).
[3] The appeal lapsed due to the appellant’s failure to file the record
timeously. This Court is asked to decide whether his default should be condoned
and the appeal reinstated. The appellant furnished an explanation, and his
counsel was directed to address the merits of the appeal so as to enable this
Court to assess the appellant’s prospects of success and to weigh that together
with the factors relevant to condonation.1
Factual matrix
[4] The parties were married on 17 May 1996 , out of community of property
with the application of the accrual system in terms of the Matrimonial Property
Act 88 of 1984 (the MPA). During 2019 , they agreed that their marriage had
broken down irretrievably . In an effort to resolve all patrimonial disputes
between them, they entered into a settlement agreement on 20 August 2019 and
instituted divorce proceedings on 22 August 2019 . Subsequently, the parties
were embroiled in a series of court applications and appeals.
[5] Prior to the order of Twala J, t he first order granting a decree of divorce
incorporating a deed of settlement was made by the high court on an unopposed
basis on 1 October 2019. The respondent succeeded in rescinding that order on
an unopposed basis.
1 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development CO Ltd and Others [2023] ZASCA
5; [2013] 2 ALL SA 251 (SCA); 2014 (5) SA 138 (CC).
[6] In the rescission application , the respondent attacked the settlement
agreement essentially on the grounds that it was drafted by the appellant’s
attorney, Ms Jennifer Scholtz of Jennifer Scholtz Attorneys (who purportedly
acted for both parties ); that he was induced to sign it based on a
misrepresentation concerning the appellant’s ill -health and that the agreement
was necessary to obtain a divorce ; and that it failed to make provision for the
bulk of the parties’ accrued assets . After the grant of the re scission order, t he
matter reverted to the trial roll and was subject ed to normal case flow
management procedures.
[7] On 30 August 2022, the matter served before Dippenaar J for judicial case
management who certified the matter trial ready. Both parties were legally
represented. They agreed that any rulings or directives made were to be
regarded as having the status of orders of court. By agreement a n order was
issued in terms of rule 33(4) of the Uniform Rules of Court (the rule 33(4)
order). The order reads in relevant part:
‘1. The issue as to whether the defendant is entitled to be granted an order that the agreement
of settlement concluded between the plaintiff and the defendant on or about the 20 th day of
August 2019 (“the agreement of settlement issue ”) be separately decided from the issue
relating to the plaintiff and the defendant’s accrual claims (the accrual issue).
2. The agreement of settlement issue be heard and determined before the accrual issue is
heard and determined.
3. The accrual issue is to be stayed until the agreement of settlement issue has been disposed
of.’
[8] The settlement agreement issue was set down for trial on 29 May 2023 for
a period of five (5) days. The parties had agreed in a pre -trial minute that in
determining this issue, witnesses would be called to present viva voce evidence.
Application for postponement of the trial
[9] On 25 May 2023 the respondent requested the appellant to consent to a
postponement of the trial which was set to commence on 29 May 2023 . The
reason for the request was that the respondent’s counsel had informed his
instructing attorneys that he was involved in another trial and that the
respondent should engage another counsel.
[10] The request was refused. The appellant indicated that the trial would
proceed. Consequently, the respondent applied for a postponement of the trial
and tendered the wasted costs occasioned by the postponement.
[11] The reasons for the postponement were that the case had been ongoing
since 2019, the record was extensive and it was not possible for another counsel
at short notice to prepare adequately for trial. Attempts were made by the
respondent’s legal representatives to secure services of another senior counsel,
but without success. If the settlement agreement was left unchallenged, the
respondent would forego over 80% of his life savings and would be left
destitute. The respondent’s attorney explained that although he ha d been
involved in the matter since 2019, he lacked the necessary expertise, and it
would be prejudicial to his client if he proceeded with the trial.
[12] Twala J refused t he application for postponement and indicated that he
would provide reasons later in the judgment. The respondent’s counsel indicated
that he did not have instructions to proceed with the trial and his client was not
at court. Twala J stood the matter down until 14h00 for the respondent to attend
court. At 14h00, the respondent was not in attendance and his attorney withdrew
as the attorney of record. The court stood the matter down until 10h00 the
following day, being 30 May 2023, for the respondent to attend . He failed to
attend court. The appellant then gave evidence on the reasons for divorce and
identified the signatures on the settlement agreement . No further evidence was
adduced in relation to the settlement agreement . On 6 June 2023, Twala J made
the following orders:
‘1. The application for the postponement of this case is dismissed with costs.
2. The plaintiff’s claim is dismissed with costs. [second order]
3. The decree of divorce incorporating the settlement agreement of the 20 th of August 2019 is
granted with costs. [third order]’
[13] As mentioned above, the Full Court upheld the respondent’s appeal with
costs and set aside the orders made by Twala J. It is th is decision of the Full
Court that is the subject of the lapsed appeal. The appellant seeks an order
setting aside the orders of the Full Court and for those to be substituted with an
order dismissing the respondent’s appeal against the orders of Twala J and
directing him to pay all costs of the appeal . The respondent opposes both the
condonation and the reinstatement of the appeal.
The findings of the Full Court
[14] The Full Court found that the high court had overstepped its powers in
that it had to determine the enforceability of the settlement agreement but
instead went beyond that and granted the decree of divorce; thus , rendering its
order null and void . It was not necessary to determine whether the high court’s
refusal of the postponement was correct because the appellant was present when
Twala J refused the postponement application.
[15] The Full Court held that the high court’s order was appealable, because
the decree of divorce incorporating the settlement agreement was a final order. It
further held that by setting aside the orders of Twala J, the parties w ould revert
to the position where the rule 33(4) order would be operative. In the result, the
Full Court upheld the appeal with costs and set aside the orders of Twala J.
Before this Court
Appellant’ s submissions
[16] The appellant submitted that the Full Court misdirected itself by failing to
determine whether Twala J had erred in refusing the postponement application .
The second and third orders of Twala J amounted to default orders as they were
made in the absence of the respondent and were thus not appealable , but
rescindable in terms of rule 42(1)(a). The findings that the trial court’s order was
contrary to the rule 33(4) order and that the second and third orders constituted
nullities, were erroneous. T he fact that the appellant had been granted leave to
appeal does not dispose of the question of appealability of the Full Court’s
order.
Submissions by the respondent
[17] It was submitted on behalf of the respondent that the Full Court was
correct. The trial court was not permitted to deal with issues contrary to the rule
33(4) order. It was not necessary for the Full Court to determine whether the
decision to refuse the postponement was correct. The appealability of Twala J’s
order was raised for the first time from the bar before the Full Court , which the
appellant’s counsel had conceded. The trial court was seized with a separated
issue before it, as contained in the rule 33(4) order and was not permitted to deal
with issues contrary to the separated issue before it . The respondent was not
absent as envisaged in rule 42, he was present and legally represented when the
postponement application was refused. Finally, it was submitted that the appeal
should be dismissed with costs.
Discussion
[18] The appellant’s first hurdle is to show that this case meets the
requirements for special leave to appeal. As this Court has held, ‘reasonable
prospects of success is a necessary but insufficient precondition for the granting
of special leave. Something more, by way of special circumstances, is needed’. 2
These circumstances include that the appeal raises a substantial point of law or
that the prospects of success are so strong that a refusal of leave would result in
a denial of justice. As is shown below, the appellant has not met these
requirements.
[19] Rule 33 of the Uniform Rules of Court provides:
‘33. Special cases and adjudication upon points of law
(1) the parties to any dispute may, after institution of proceedings, agree upon a written
statement of facts in the form of a special case for the adjudication of the court.
…
(4) If, in any pending action, it appears to the court mero motu that there is a question of
law or fact which may conveniently be decided either before any evidence is led or separately
from any other question, the court may make an order directing the disposal of such question
in such manner as it may deem fit and may order that all further proceedings be stayed until
such question has been disposed of, and the court shall on the application of any party make
such order unless it appears that the questions cannot conveniently be decided separately.’
[20] In this case the parties agreed on the issues to be determined and how
they should be determined. This is apparent from the rule 33(4) order.
[21] Where parties reach an agreement to limit issues during trial , they are
bound by the terms of such agreement . This was confirmed by the Appellate
Division found in F & I Advisors (Edms) Bpk en 'n Ander v Eerste Nasionale
Bank van Suidelike Afrika Bpk.3
2 Cook v Morrison and Another 2019 (5) SA 51 (SCA); [2019] ZASCA 8.
3 F & I Advisors (Edms) Bpk en 'n Ander v Eerste Nasionale Bank van Suidelike Afrika Bpk 1999 (1) SA 515 (A)
at 524E-F.
[22] The grounds for rescission are circumscribed. Rule 42(1) provides, in
relevant part:
‘Variation and rescission of orders
(1) The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected rescind or vary;
(a) an order or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby;
(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but
only to the extent of such ambiguity, error or omission;
(c) an order or judgment granted as the result of a mistake common to the parties.’
[23] In Zuma,4 the Constitutional Court considered the requirements for
rescission in rule 42, namely an order granted in the absence of the affected
party and an order erroneously sought or granted. The Court stated:
‘...[A]s I see it, the issue of presence or absence has little to do with actual, or physical,
presence and everything to do with ensuring that proper procedure is followed so that a party
can be present, and so that a party, in the event that they are precluded from participating,
physically or otherwise, may be entitled to rescission in the event that an error is committed. I
accept this. I do not, however, accept that litigants can be allowed to butcher, of their own
will, judicial process which in all other respects has been carried out with the utmost degree
of regularity, only to then, ipso facto (by that same act), plead the “absent victim”. If
everything turned on actual presence, it would be entirely too easy for litigants to render void
every judgment and order ever to be granted, by merely electing absentia (absence).
.... [O]ur jurisprudence is clear: where a litigant, given notice of the case against them and
given sufficient opportunities to participate, elects to be absent, this absence does not fall
within the scope of the requirement of rule 42(1)(a). And, it certainly cannot have the effect
of turning the order granted in absentia, into one erroneously granted. I need say no more than
this: Mr Zuma’s litigious tactics cannot render him “absent” in the sense envisaged by rule
42(1)(a).’
(Emphasis added and footnotes omitted.)
4 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28; 2021 (11) BCLR 1263 (CC)
paras 60 and 61 (Zuma).
[24] In this case the respondent was represented when the application for a
postponement was argued. After the refusal of the postponement , he absented
himself and his legal representative withdrew. Most importantly, Twala J, stood
the matter down twice affording him an opportunity to attend, but he did not.
The first requirement for rescission as laid down in rule 42(1 )(a) is therefore not
satisfied.
[25] Concerning t he second requirement – the order must have been granted
erroneously – an applicant must show that ‘there existed at the time of its issue a
fact of which the Judge was unaware, which would have precluded the granting
of the judgment and which would have induced the Judge, if aware of it, not to
grant the judgment ’.5 Twala J was aware of the rule 33(4) order , which was
quoted in full at paragraph 3 of his judgment . Nevertheless, armed with the
knowledge of its existence and its import , he proceeded to deal with the
settlement issue in a manner not agreed to by the parties (by not hearing viva
voce evidence). He proceeded with the divorce issue , which was not contained
in the rule 33(4) order and was not before him for adjudication . He gave final
and definitive orders. Th is is not a procedural error that can be rescinded under
rule 42(1). It was a substantive error in law that is appealable. This means that
the second requirement for rescission was not met.
[26] There is another reason that militates against the contention that the
second and third orders made by Twala J are rescindable. It is that those orders
were granted after evidence was led. After the leading of evidence Twala J was
functus officio as the orders were final in effect. In Chetty v Law Society,
Transvaal,6 the Appellate Division held:
5 Zuma para 62.
6 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 761.
‘…a distinction is drawn between the rescission of default judgments, which had been
granted without going into the merits of the dispute between the parties, and the rescission of
final and definitive judgments, whether by default or not, after evidence had been adduced on
the merits of the dispute. In the case of a default judgment granted without going into the
merits of the dispute between the parties, the court enjoyed the relatively wide powers of
rescission . . . . In the case of a final and definitive judgment, whether by default or not,
granted after evidence had been adduced, the court was regarded as functus officio. ’
(Emphasis added.)
[27] The orders of Twala J met the Zweni triad and are final in effect. 7 A
decree of divorce was issued and the proprietary consequences of the marriage
were determined, let alone the disposal of a substantial portion of the relief
claimed. Having found that the orders of Twala J were not rescindable but
appealable, it follows that the contention by the appellant that a rescission was
mandated is not only flawed but against established principles, as demonstrated
above. The Full Court was correct in its approach and its findings in this regard.
[28] I now proceed to deal with the finding by the Full Court that the second
and third orders were a nullity because Twala J acted contrary to the clear terms
contained in the rule 33(4) order. The court’s power to act contrary to the
rule 33(4) order implicates its jurisdiction to deal with a matter not properly
before it. It follows that it was incompetent for Twala J to issue the order that he
did. His order was therefore a nullity.8
[29] Where a party takes advantage of the absen ce of his or her opponent and
does not adhere to the agreement reached and made an order of court in terms of
rule 33(4), his or her actions are not erroneous but deliberate. If a court despite
the existence of the rule 33(4) order proceeds to deal with the matter contrary to
the existence of the rule 33(4) order proceeds to deal with the matter contrary to
7 Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) at 532J-533B.
8 The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA
238; 2012 (3) SA 325 (SCA) para 14.
the agreed order between the parties, it does not commit an error but it exceeds
its powers and acts outside its jurisdiction. I ts order becomes a nullity. Setting
aside an order obtained in those circumstances with invalidity levels the playing
fields, so that the party who took advantage of the absence of the other and
acted contrary to the agreed order does not derive a benefit from his or her
actions. Nullifying the order puts the parties back to the position they were
before Twala J made his order. That does not offend the interests of justice ;
instead it entrenches them.
[30] It follows that the respondent has not met the requirements for the grant
of special leave. The prospects of success are remote and the Full Court’s order
placed the parties in a position where the validity of the settlement agreement ,
which it is alleged, was induced by fraud, can be decided. This cannot result in
the denial of justice.
[31] Having had the benefit of all the facts and the legal principles relied upon
by both parties the next question is whether condonation should be granted. And
if so, whether the appeal should be reinstated.
Condonation and reinstatement of the appeal
[32] The explanation given for the appellant’s delay in filing the record was
that it was lodged on 19 August 2025, but the Registrar of this Court returned it
because it was not properly bound, indexed or paginated. After this had been
done, the Registrar directed that the certificate from the Registrar of the high
court needed to be signed and the record was returned. The certificate was
signed only on 12 September 2025, whilst the record ought to have been filed on
5 September 2025. On 11 September 2025, the respondent’s attorneys notified
the appellant’s attorneys that the appeal had lapsed. The appellant’s attorneys
wrote to the Registrar indicating that they would request a maximum extension
of three weeks within which to lodge the record of appeal.
[33] The condonation application was delivered on 30 September 2025. The
respondent opposed the application on the following grounds: the appellant had
sought condonation twice before seeking an extension to file her application for
special leave; the delays were prejudicial to him in time and monetary terms ; he
had incurred considerable legal expenses preparing for the appeal; there are no
prospects of success on appeal ; and the application should be dismissed with
costs.
[34] The delay was for a period of about three weeks from 5 September 2025.
The record had been delivered but was rejected due to the lack of proper
pagination, indexing, the manner in which it was bound and the unsigned
certificate by the Registrar of the high court. The appellant’s heads of argument
were delivered simultaneously with the record. Th e explanation for the delay
lacks details and I shall deal with the adequacy thereof below.
[35] It is trite that when dealing with condonation a party in default must
provide some acceptable explanation not only about the delay in the filing of the
record but also the delay in seeking condonation. There is no explanation why
the appellant needed three weeks to file the record when on her own version by
1 September 2025 she had forwarded the record (referred to as re -numbered and
re-indexed papers) to the correspondent. After filing the certificate from the high
court registrar on 2 September 2025, she made no further enquiries from the
correspondent between 2 to 10 September 2025 , even though the appellant was
aware that the record had to be filed by 5 September 2025. Having been alerted
to the lapsing of the appeal, instead of seeking condonation immediately, she did
so only on 30 September 2025. There is no explanation at all for the delay from
5 to 30 September 2025. In this regard she failed to heed the caution in
Commissioner for Inland Revenue v Burger ,9 that a party should, whenever it
realises that it has not complied with a rule of court, apply for condonation
without delay.
[36] The respondent opposed the reinstatement of the appeal for the following
reasons. He seeks finality in the matter. The matter will be better served by
referring it back to the trial court for a fair and expeditious hearing . The
application for condonation is a delaying tactic as there are no prospects of
success on appeal.
[37] In response , the appellant, in a replying affidavit deposed to by her
instructing attorney, simply denied those allegations and stated that she had
shown good cause for condonation and reinstatement of the appeal. The reply to
the respondent ’s allegations were met with a bare denial. Th e respondent’s
allegations address a crucial requirement for consideration by this Court, namely
the prospects of success . It is no answer simply to say that the appellant has
shown good cause.
[38] The effect of the order of the Full Court was to place the parties back in
the position where the rule 33(4) order is operative. There can be no prejudice to
any party , since the challenge to the settlement agreement will be fully
ventilated and the matter brought to finality.
[39] Having considered the factors to be considered in an application of th is
nature, including the appellant ’s manner of dealing with the application, the
failure to address the allegations made by the respondent on prospects of
success, which allegations called for an explanation, the prejudice suffered by
the respondent, and the prospects of success on appeal, the appellant has failed
9 Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G-H.
to justify condonation and reinstatement of the appeal. In Van Wyk v Unitas
Hospital and Another (Open Democratic Advice Centre as Amicus Curiae),10 the
Constitutional Court stated that ‘the principle of finality in litigation is intended
to allow parties to get on with their lives ’. This principle is apt where the parties
are eager to finalise the divorce proceedings and their accrual claims.
[40] I find that no case has been made out to justify condonation and
reinstatement of the appeal. The appellant failed to show that it would be in the
interests of justice to do so.
[41] In the result the following order is made:
The application for condonation and reinstatement of the appeal is dismissed
with costs.
__________________
T V NORMAN
JUDGE OF APPEAL
10 Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC
24; 2008 (2) SA 472 (CC).
Appearances
For the appellant: S P Pincus SC
Instructed by: Howard S Woolf Attorney, Johannesburg
A P Pretorius & Vennote, Bloemfontein
For the respondent: S J Martin
Instructed by: Anthony Berlowitz Attorneys, Johannesburg
Lovius Block Attorneys, Bloemfontein.