SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 184879/2025
In the matter between:
NEILOPAHR CASSIM Applicant
And
KWIK PROPERTY HOLDINGS (PTY) LTD First Respondent
(Registration No: 1988/005691/07)
JOHN FREDERICK SCHICKERLING Second Respondent
ABRAHAM HENN OF LACANTE HENN INCORPORATED Third Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
21 August 2026 __________________
DATE SIGNATURE
___________________________
_______________________
DATE SIGNATURE
JUDGMENT
VAN DER WESTHUIZEN AJ
INTRODUCTION
[1] The applicant, a practising Senior Counsel who appeared in person, seeks an
order declaring that two warrants of execution — one dated 8 November 2022
and one allegedly dated 14 February 2023, said to have been issued against
her residence, Erf 1[...], 1[...] T[...] Street, Laudium Extension 2, Pretoria —
together with “all such other warrants of execution as may be issued and
unknown to the applicant”, are wrongful, invalid and of no force and effect,
and setting them aside, with costs against the respondents jointly and
severally on the scale as between attorney and client, including the costs of
Senior Counsel.1
[2] The application has its origin in a judgment of this Court (Baqwa J) granted on
29 November 2018 under case number 40867/2014, in terms of which the
applicant was ordered to pay the first respondent the sum of R875 410.60,
together with costs. It is common cause that the judgment stands, that all
appeal remedies have been exhausted, and that the capital sum remains
unpaid.2
[3] The first respondent is the judgment creditor. The second respondent was the
first respondent’s business rescue practitioner from September 2017 until the
1 Notice of Motion, Caselines 001-2 to 001-3; Applicant’s heads of argument, para 1, Caselines 011-2.
2 Answering affidavit, paras 2.2, 4.1.1–4.1.2, Caselines 007-6, 007-9; founding affidavit, para 15,
Caselines 002-4.
termination of the business rescue proceedings in July 2023. He took no part
in these proceedings, filed no notice of intention to oppose and no affidavit.
The third respondent is the attorney (and his firm) who has at all material
times acted for the first respondent and at whose instance the warrant of
execution was sued out. Only the first and third respondents oppose the
application. The answering affidavit is deposed to by Mr Abraham Johannes
Henn on behalf of both opposing respondents.3
[4] The matter came before me on the opposed motion roll and was argued on 10
June 2026. The applicant appeared in person; Adv WH Engelbrecht appeared
for the first and third respondents. The hearing was recorded, and where I
refer in this judgment to oral submissions and to concessions made from the
bar, I do so with reference to the record of the proceedings of 10 June 2026.4
BACKGROUND
[5] The parties’ relationship has a long and unhappy history. During December
2010 the applicant let commercial premises at 3[...] W[...] N[...] Street, Pretoria
West to the first respondent for two years. Upon termination of the lease the
first respondent remained in occupation, and on 26 October 2015 the
applicant obtained an eviction order against it (per Prinsloo J), with costs.5
[6] The first respondent thereafter pursued an action against the applicant for
compensation for improvements to the property under case number
40867/2014. As security for that claim the applicant procured from Nedbank a
bill of costs guarantee, No 6[...], dated 26 March 2014, in the amount of R1,4
million in favour of the first respondent. The guarantee is conditional: payment
is to be made against presentation of, amongst other things, the original
guarantee, a certified copy of the court order and certified copies of the taxed
3 Answering affidavit, paras 1.1–1.6, Caselines 007-5 to 007-6; CIPC certificate, annexure “NC2”,
Caselines 003-15.
Caselines 003-15.
4 Digital sound recording of the proceedings of 10 June 2026, 10h14 to 11h56 (“the record”).
5 Founding affidavit, paras 13–14, Caselines 002-4; eviction order, annexure “NC3”, Caselines 003-
22.
bills of costs. Clause 5 of the guarantee records that it is personal to the first
respondent and “is neither negotiable nor transferable, and must be returned
to the bank upon payment, withdrawal or expiry.” The guarantee was
extended from time to time, most recently to 30 May 2026.6
[7] The first respondent’s improvement lien action succeeded before Baqwa J on
29 November 2018. Following the judgment, three bills of costs were taxed in
the first respondent’s favour : the trial bill in the sum of R373 884.37, a bill in
respect of the application for leave to appeal in the sum of R22 980.63, and a
bill in respect of the petition in the sum of R15 128.50. The applicant, for her
part, holds two taxed costs orders against the first respondent, in the sums of
R110 207.27 and R23 395.54 (R133 602.79 in total). On the respondents’
calculation the applicant’s net indebtedness, after crediting her costs orders,
is R1 153 801.29.7
[8] On 8 November 2022 the third respondent, as the first respondent’s attorney,
sued out a warrant of execution against the applicant’s movable property. The
warrant was issued by the Registrar on 12 December 2022. It directs the
Sheriff, Pretoria South West, to attach and take into execution the movable
goods of the applicant at 1[...] T[...] Street, Laudium Extension 2, to realise the
sum of R875 410.60 (with interest at 0,00% from 29 November 2018) “and the
sum of R240,281.56 for the taxed costs and charges of the said Plaintiff which
it recovered by a judgment of this Court dated the 29 th November 2022”. The
Sheriff attended at the property on 14 December 2022 and again on 16
February 2023. On both occasions the premises were locked and appeared
6 Annexures “NC4”, “NC5” and “NC6”, Caselines 003-24 to 003-28; founding affidavit, paras 16–21,
Caselines 002-4 to 002-5; answering affidavit, para 4.1.3, Caselines 007-9.
7 Answering affidavit, paras 19.3–19.4, Caselines 007-27 to 007-28.
vacant and abandoned; nothing was attached, and no further attempts at
execution have been made.8
[9] On 31 May 2023 the third respondent addressed a letter of demand to
Nedbank claiming payment under the guarantee of R1 115 692.16 (the
judgment debt plus taxed costs, less the applicant’s two costs orders),
payment to be made into the third respondent’s trust account at ABSA. The
letter disclosed, in terms, that neither the third respondent’s office nor the first
respondent had ever received the original letter of guarantee and that only a
copy was held, and it attached an affidavit by the first respondent’s director,
Mr Mohammed Javed Gani, confirming that position. Nedbank required an
indemnity, which Mr Gani signed at the South African Consulate -General in
Dubai in August 2023. The applicant, upon learning of the claim, addressed
numerous objections to Nedbank insisting on strict compliance with the terms
of the guarantee. On 15 November 2023 Nedbank advised that it would not
pay out the guarantee unless (i) the original terms and conditions were strictly
complied with, or (ii) both parties agreed in writing to vary the terms, or (iii) it
was directed to pay by an order of court. On 16 November 2023 the third
respondent invited the applicant to consent in writing to a variation dispensing
with production of the original. She declined, and maintains her refusal.9
[10] Three related proceedings deserve mention. First, the applicant lodged a
complaint of fraud against the third respondent with the Legal Practice
Council. The complaint was dismissed; the applicant’s review of that decision
is pending under case number 2024 -122713. Secondly, an application by the
applicant concerning the second respondent’s conduct as business rescue
practitioner is the subject of case number 2024 -135318, in which leave to
8 Warrant of execution, annexure “AH3”, Caselines 008-10 (also annexure “F” to “NC8”, Caselines
003-60); returns of service, annexure “AH4”, Caselines 008-12, and annexure “NC9”, Caselines 003-
61; answering affidavit, paras 4.1.6–4.1.8, Caselines 007-10 to 007-11.
9 Annexure “NC8”, Caselines 003-31 to 003-33; annexures “AH5” to “AH8”, Caselines 008-13 to 008-
46; answering affidavit, paras 4.1.9–4.1.17, Caselines 007-12 to 007-15; replying affidavit, para 13.12,
Caselines 009-8.
appeal proceedings are pending. Thirdly — and of some significance to the
argument — in March 2026 the first respondent launched an application under
case number 2026 -026420 in which it seeks an order declaring the original
guarantee lost and directing payment to it of the guaranteed amount. The
applicant opposes that application. It was referred to from the bar by both
sides; it stands over for separate adjudication and nothing in this judgment is
intended to pre-empt it.10
THE HEARING AND THE ISSUES THAT REMAIN
[11] The oral argument usefully narrowed the disputes. The applicant’s heads of
argument were filed out of time; she conceded the non -compliance and
moved for condonation from the bar. The respondents did not oppose
condonation, subject to the applicant paying any costs occasioned by the
delay. The explanation — human error under the pressure of a heavy practice
— is thin, but the delay occasioned no prejudice that a costs order cannot
cure, and it is in the interests of justice that the matter be finally determined on
full argument. Condonation is granted. Because condonation is an
indulgence, the ordinary rule that costs follow the event does not apply to it: a
litigant who seeks a condonation of her own default is liable for the costs
reasonably occasioned thereby, including those of reasonable opposition. The
order will so provide, although in the result the point is largely subsumed in
the costs order on the main application.11
[12] The respondents, in turn, abandoned the point in limine of non -joinder of the
Sheriff, correctly so in my view. Where the attack is upon the validity of the
issue of the writ itself, and no attachment or sale stands to be undone, the
10 Answering affidavit, paras 16.3–16.5, Caselines 007-25 to 007-26; founding affidavit, paras 24 and
31, Caselines 002-6 to 002-7; record, 10h23 and 11h47.
11 Applicant’s heads of argument, para 48, Caselines 011-11; respondents’ practice note, para 9.2,
Caselines 019-11; Cilliers Law of Costs (LexisNexis, loose-leaf) paras 2.31 and 2.33 and the
authorities there collected, including Maloney’s Eye Properties BK v Bloemfontein Board Nominees
Bpk 1995 (3) SA 249 (O) at 257G–H and Fourie v Saayman 1950 (3) SA 724 (O).
Sheriff has no direct and substantial interest in the outcome and need not be
joined.12
[13] Two further concessions by the applicant, made in reply after the tea
adjournment, may be recorded at once. When asked where in the papers the
warrant of 14 February 2023 was to be found, the applicant accepted that she
could not produce it, and accepted that what occurred on 16 February 2023
appears from the return of service (annexure “NC9”) to have been a second
attempt to execute the warrant of 8 November 2022, and not the execution of
a separate warrant. She accepted, further, that the words “and all such other
warrants of execution as may be issued and unknown to the applicant” in
prayers 1 and 2 of the notice of motion “must come out”, there being no
evidence of any warrant other than that of 8 November 2022.13
[14] What remains for decision is accordingly: (a) the applicant’s point in limine
that the answering affidavit falls to be struck out; (b) whether any warrant of
execution dated 14 February 2023 exists to be set aside; and (c) whether the
warrant of 8 November 2022 falls to be declared invalid and set aside on any
of the grounds advanced, namely (i) that the first respondent, holding the
Nedbank guarantee as security, was not entitled to execute against the
applicant’s property; (ii) that the warrant was sued out without authority while
the first respondent was in business rescue; (iii) that the warrant contains a
false recital and was obtained fraudulently; and (iv) fraud generally in the
respondents’ dealings with Nedbank. Costs, including the scale thereof, are in
issue.
THE APPROACH TO THE FACTS IN MOTION PROCEEDINGS
12 Respondents’ heads of argument, paras 13–18, Caselines 011-29 to 011-31; Member of Executive
Council Gauteng Department of Community Safety v Universal Knowledge Software (Pty) Limited and
Another [2025] ZAGPJHC 1122 at para 33.
13 Record, 10h44 (“I’ll have to find it for you, my Lord”) and 11h29 (“those words must come out
because there’s no other warrant … it’s only these two, my Lord”).
[15] The applicant seeks final relief on motion. The familiar rule in Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd applies: final relief may be granted
only if the facts stated by the respondents, together with the admitted facts in
the applicant’s affidavits, justify the order, unless the respondents’ denials are
so far-fetched or clearly untenable that they fall to be rejected on the papers. 14
The Supreme Court of Appeal put the corollary bluntly in Lombaard v Droprop
CC:
“Motion proceedings are not designed or intended to resolve disputes of fact.
Therefore, if a party has knowledge of a material and bona fide dispute or should
reasonably foresee its occurrence and nevertheless proceeds on motion that
party will usually find the application dismissed.”
[16] 15 The applicant’s case, moreover, is built upon allegations of fraud levelled
against an attorney, a business rescue practitioner and a company director.
Fraud is not lightly inferred, least of all in motion proceedings, where the
person accused cannot be cross -examined.16 These principles frame
everything that follows.
THE APPLICANT’S POINT IN LIMINE: STRIKING OUT OF THE ANSWERING
AFFIDAVIT
[17] In her replying affidavit and in argument the applicant contended that the
answering affidavit of the first and third respondents falls to be struck out in its
entirety because (a) it was not served on the second respondent, a party to
the proceedings; and (b) there is no confirmatory affidavit from the first
respondent or its director, Mr Gani, with the result — so the argument went —
that the application stands effectively unopposed by the first respondent.17
14 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A)
at 634E–635C.
15 Lombaard v Droprop CC and Others [2010] ZASCA 86; 2010 (5) SA 1 (SCA) at para 31.
16 Loomcraft Fabrics CC v Nedbank Ltd and Another [1995] ZASCA 127; 1996 (1) SA 812 (A) at
822G.
822G.
17 Replying affidavit, paras 2 and 5–8, Caselines 009-4; applicant’s heads of argument, paras 25–29,
Caselines 011-7.
[18] Neither leg of the point has merit. As to the first: the second respondent has
from the outset elected to abide. He filed no notice of intention to oppose,
sought no relief and claims no prejudice. The applicant does not explain what
prejudice she — as distinct from the second respondent — suffered by the
alleged non-service of the answering affidavit on a co -respondent who takes
no part in the proceedings. Striking out an answering affidavit is a drastic
remedy directed at scandalous, vexatious or irrelevant matter or at real
procedural prejudice; it is not a windfall mechanism by which an applicant
may rid herself of an inconvenient opposing version. The affidavit was served
on the applicant’s attorneys of record in terms of Rule 4A; that is the service
that matters for present purposes.18
[19] As to the second leg: Mr Henn deposed to the answering affidavit in his
capacity as director of the third respondent and attorney of record for the first
respondent, annexing a resolution of the first respondent authorising him to
depose on its behalf, and stating that the facts are within his personal
knowledge as the attorney who has had the conduct of the file throughout. 19 It
has long been settled that the deponent to an affidavit in motion proceedings
need not be authorised by the party concerned; it is the institution and
prosecution (or, as here, the opposition) of the proceedings that must be
authorised, and a litigant who wishes to challenge that authority must do so
through the mechanism of Rule 7(1). 20 The applicant delivered no Rule 7(1)
notice. The absence of a confirmatory affidavit by Mr Gani goes, at most, to
the weight of such factual averments as fall outside Mr Henn’s personal
knowledge; it does not render the opposition a nullity. The point in limine is
dismissed.
THE ALLEGED WARRANT OF 14 FEBRUARY 2023
18 Filing notice to the answering affidavit, Caselines 007-2 to 007-3.
18 Filing notice to the answering affidavit, Caselines 007-2 to 007-3.
19 Answering affidavit, paras 1.1–1.3, Caselines 007-5; annexure “AH1”, Caselines 008-1.
20 Ganes and Another v Telecom Namibia Ltd [2003] ZASCA 123; 2004 (3) SA 615 (SCA) at para 19.
[20] The applicant’s founding affidavit alleges, on the strength of her recollection
and of the Sheriff’s return, that a second warrant, directed at her immovable
property, was issued on 14 February 2023. She concedes she has never
seen it and could not obtain a copy from the Sheriff. 21 The respondents’
answer is unequivocal: one warrant, and one only, was ever issued against
the applicant, namely the warrant of 8 November 2022 against movables; no
application under Rule 46A to have the applicant’s residence declared
specially executable has ever been brought; and the Sheriff’s attendance of
16 February 2023 was simply the second attempt to execute the existing
warrant.22
[21] On the Plascon-Evans approach the respondents’ version must be accepted;
it is, in any event, the more probable one, and it is corroborated by the return
of service itself, which records attempts on 14 December 2022 and 16
February 2023 in respect of a warrant in case number 40867/2014. A court
cannot declare invalid, or set aside, a document that does not exist. As
recorded above, the applicant in reply effectively accepted as much. 23 Prayers
1 and 2 must accordingly fail insofar as they relate to a warrant of 14 February
2023 and to “all such other warrants … unknown to the applicant”. What
remains is the warrant of 8 November 2022.
THE GROUNDS UPON WHICH A WRIT OF EXECUTION MAY BE SET ASIDE
[22] The setting aside of a writ of execution is an exceptional remedy, available on
narrow and well -recognised grounds. In Mashego v Mpumalanga Provincial
Legislature and Others the grounds were catalogued as follows:24
21 Founding affidavit, paras 42–47, Caselines 002-9.
22 Answering affidavit, paras 4.1.6–4.1.7, 13.3, 20.1–20.5 and 25.1, Caselines 007-10, 007-23, 007-28
to 007-29 and 007-32.
23 Annexure “NC9”, Caselines 003-61; record, 11h29.
24 Mashego v Mpumalanga Provincial Legislature and Others [2016] ZALCJHB 341; (2017) 38 ILJ 382
(LC) at para 26, with reference to Herbstein & Van Winsen, The Civil Practice of the High Courts of
South Africa 5 ed vol 2 at 1091–1092.
“A writ of execution could be set aside in one of the following circumstances: if
the judgment was not definite and certain and the amount payable under the
judgment can be ascertained only after deciding a further legal problem, when
the debt in respect of which the judgment was obtained has been extinguished
prior to the judgment, when the judgment had been extinguished by
compensation or novation, when the judgment on which the writ is based is
rescinded, when the writ erroneously refers to a certain person as a party or
when the writ of execution is no longer justified by the causa or debt.”
[23] To this may be added that a writ will be set aside where it does not conform to
the judgment on which it is founded, and that a court retains a discretion, as part of
its inherent power to regulate its own process, to set aside a writ whose issue
amounts to an abuse. But the same authority makes plain that inconvenience, the
availability of some different route of recovery, or the debtor’s unhappiness at not
having been consulted, are not grounds:
“… the fact that the Applicant was not consulted about the payment of the debt,
the fact that it could be recovered differently or that the attachment of his bank
account causes inconvenience and difficulties, cannot be grounds to set aside a
validly obtained writ of execution.”
[24] 25 When, in argument, the applicant was invited to identify which of the
recognised grounds she relied upon, she was unable to bring her case within
any of them; her answer, in substance, was that the first respondent “was not
entitled” to execute because the guarantee is the only instrument against
which the judgment of Baqwa J may be satisfied. 26 That contention, together
with the authority and fraud complaints, must now be examined.
THE FIRST GROUND: THE GUARANTEE AS A BAR TO EXECUTION
[25] The applicant’s central submission was that the guarantee is “the only basis”
and “the only instruction” for recovery of the judgment debt; that the first
and “the only instruction” for recovery of the judgment debt; that the first
respondent was obliged first (and only) to enforce the security; and that a
creditor cannot at once claim under the guarantee and levy execution — it
25 Mashego, above, at para 28.
26 Record, 10h41.
must, as she put it in argument, “take the money in terms of the letter of
guarantee or forfeit it and take the writ of execution”, but not both.27
[26] The submission cannot be sustained, for several reasons. The first is one of
principle. A judgment creditor’s right to execute against the assets of its
debtor flows from the judgment itself; it exists independently of, and
concurrently with, any security the creditor may hold. Nothing in the guarantee
— which was procured by the applicant in favour of the first respondent as
security for the improvement lien claim — purports to novate the judgment
debt or to limit the first respondent’s ordinary remedies of execution. The
guarantee gives the creditor an additional avenue of recovery; it does not
extinguish or suspend the primary one. The judgment debt is the causa of the
warrant, and that causa persists unsatisfied.
[27] The Supreme Court of Appeal’s decision in Nkola v Argent Steel Group (Pty)
Ltd t/a Phoenix Steel — to which I referred the applicant during argument and
on which she was given the opportunity to address me after the adjournment
— is instructive. There a judgment debtor contended that the creditor was
obliged first to exhaust identified movable assets before executing against
immovable property. The Court held:28
“I consider that the common law and the rules place no obligation on a creditor to
execute against movable assets where a judgment debtor has failed to point
these out and make them available.”
[28] The principle was applied in Investec Bank Limited v Fraser NO and Another:
“In terms of the common law and the rules, the execution creditor has no
obligation to execute against movable assets where a judgment debtor fails to
point these out and to make them available to the sheriff. If a debtor fails to
27 Founding affidavit, paras 41 and 48, Caselines 002-8 to 002-10; applicant’s heads of argument,
paras 18, 23–24 and 37, Caselines 011-5 to 011-9; record, 10h56.
paras 18, 23–24 and 37, Caselines 011-5 to 011-9; record, 10h56.
28 Nkola v Argent Steel Group (Pty) Ltd t/a Phoenix Steel [2018] ZASCA 29; 2019 (2) SA 216 (SCA) at
para 11; record, 10h47 to 10h50 and 11h26.
point out movable property to satisfy the judgment debt, he behaves in a tricky
manner and deliberately frustrates the creditor’s efforts to obtain payment.” 29 If
a creditor is not even obliged to proceed against pointed -out movables in
preference to immovables, still less is it obliged to abandon execution
altogether in favour of a conditional security which, on the facts, could not be
liquidated.
[29] That is the second, and decisive, difficulty for the applicant: on the
respondents’ version, which I must accept, the guarantee route was — and
remains — blocked. Payment under the guarantee requires production of the
original instrument. The respondents say they never received the original and
do not know its whereabouts; that position was disclosed to Nedbank in the
very letter of demand, supported by Mr Gani’s affidavit. Nedbank declined to
pay except upon strict compliance, written variation by both parties, or an
order of court. The applicant refused — and in her replying affidavit expressly
persists in refusing — to consent to any variation. The result is that the
security which, on the applicant’s argument, is the only permissible source of
payment, is a source she herself has helped to render inaccessible, while the
judgment debt remains unpaid. A debtor who neither pays, nor tenders
payment, nor points out executable assets, nor consents to the unlocking of
the very security she proffers as the answer, and who then attacks the writ
because the creditor should have enforced the security, behaves in precisely
the “tricky manner” described in Nkola and Investec.30
[30] The applicant sought to distinguish Nkola in reply by contending that the
guarantee itself is the “movable” which she has pointed out and made
available.31 The distinction does not assist her. The guarantee is not an asset
of the debtor attached or attachable in execution; it is a conditional
undertaking by a bank in favour of the creditor, incapable of realisation on its
undertaking by a bank in favour of the creditor, incapable of realisation on its
29 Investec Bank Limited v Fraser NO and Another [2020] ZAGPJHC 107; 2020 (6) SA 211 (GJ) at
para 92.
30 Answering affidavit, paras 4.1.4–4.1.5 and 4.1.9–4.1.17, Caselines 007-10 to 007-15; annexure
“AH7” (Nedbank letter of 15 November 2023), Caselines 008-40 to 008-41; replying affidavit, para
13.12, Caselines 009-8.
31 Record, 11h26.
own terms without the original document or the applicant’s cooperation or an
order of court. Pointing to an asset that cannot presently be realised is not
making payment available; it is the opposite.
[31] Nor does the first respondent’s application of March 2026 under case number
2026-026420 — in which it now seeks, as the applicant herself insisted in her
founding papers it should, an order declaring the guarantee lost and directing
payment — assist the applicant in this application. A creditor may pursue
more than one lawful avenue of recovery in respect of the same debt; what
the law forbids is double satisfaction, not parallel pursuit. Should payment be
recovered under the guarantee, the warrant will to that extent no longer be
supported by its causa and execution upon it would be impermissible; the
applicant’s remedy would then be to have it superannuated or set aside on
that ground. The pendency of that application cannot retrospectively invalidate
a warrant lawfully issued in 2022. The first ground therefore fails.32
THE SECOND GROUND: AUTHORITY AND THE BUSINESS RESCUE
[32] The applicant’s second attack was that, since the first respondent was in
business rescue from September 2017 to July 2023, only the second
respondent, as business rescue practitioner — who under section 140(1)(a) of
the Companies Act 71 of 2008 has “full management control of the company
in substitution for its board and pre -existing management” — could have
authorised the suing out of the warrant in November 2022 and the demand
upon Nedbank in May 2023; that there is no affidavit from him; and that the
warrant is for that reason alone “fatally flawed”.33
[33] There are four answers to this contention. First, it is not the case the
respondents were called upon to meet. The founding affidavit nowhere
32 Founding affidavit, paras 27 and 51, Caselines 002-6 and 002-10; record, 10h23 and 11h47.
33 Applicant’s heads of argument, paras 13, 15 and 36, Caselines 011-4 to 011-8; record, 10h32 and
10h53.
alleges that the warrant was issued without the second respondent’s
authority; the point surfaced for the first time in the replying affidavit and in the
heads of argument. An applicant must make out her case in the founding
papers; a respondent is not required to divine, and answer, a case first
formulated in reply.34
[34] Secondly, on the respondents’ version — again to be accepted on the
Plascon-Evans approach — all actions taken, including the communications
with Nedbank, were carried out in the third respondent’s role as attorneys for
the first respondent “and, when applicable, with the Second Respondent’s
approval as business rescue practitioner”. That version is not far -fetched or
untenable. It is consistent with the objective record: the third respondent acted
openly as the first respondent’s attorney of record throughout the litigation
before, during and after the business rescue, including at the taxations,
without demur from the practitioner.35
[35] Thirdly, the proper procedural route for a challenge to the authority of an
attorney to act is Rule 7(1). The applicant, a Senior Counsel, delivered no
such notice at any stage. On the authority of Ganes, the challenge mounted in
affidavit and argument, without more, misfires.36
[36] Fourthly, and in any event: on the morning of the hearing the respondents
uploaded a letter from the second respondent recording that throughout the
business rescue proceedings until their termination the first respondent was
duly represented by Mr Henn, who was duly authorised to act on its behalf.
The applicant objected that the copy uploaded bore no signature and that the
letter does not in terms state that the practitioner authorised the specific
warrant. Both observations are fair, and I have approached the document with
34 Founding affidavit, paras 23–29, Caselines 002-5 to 002-6 (which attack the second respondent’s
failure to enforce the guarantee, not the authority for the warrant); answering affidavit, para 14,
Caselines 007-23; record, 11h38 (Mr Engelbrecht: “that was not the case made out in the founding
affidavit”).
35 Answering affidavit, paras 6.3 and 1.1–1.3, Caselines 007-17 and 007-5.
36 Ganes, above, at para 19.
corresponding caution, treating it as confirmatory at most and as carrying
limited independent weight. But the objection ultimately takes the applicant
nowhere: the onus is hers to establish, on the accepted version, that authority
was absent. She has not done so. A speculative inference of absent authority,
drawn from the practitioner’s silence, cannot found the exceptional remedy of
setting aside a writ — particularly where the practitioner himself, cited as a
party and served, has never once complained that his powers were usurped,
and where the party ostensibly protected by section 140 (the company in
rescue) ratified and embraced the attorney’s actions. The second ground
fails.37
THE THIRD GROUND: THE ERRONEOUS RECITAL IN THE WARRANT
[37] The warrant recites recovery of “the sum of R240,281.56 for the taxed costs
and charges of the said Plaintiff which it recovered by a judgment of this Court
dated the 29th November 2022”. It is common cause that no judgment of 29
November 2022 exists. The applicant contends that this recital is deliberately
false and stamps the warrant as fraudulent; the respondents answer that
“2022” is a patent typographical error for “2018” — the date of the Baqwa J
judgment — and that R240 281.56 is the netted balance of the three taxed
allocaturs (R373 884.37, R22 980.63 and R15 128.50) less the R133 602.79
in taxed costs credited to the applicant, an exercise undertaken to her
benefit.38
[38] During argument the applicant was asked squarely whether she disputes the
three taxed allocaturs. She did not do so; her attack remained fixed on the
non-existent “judgment” of 29 November 2022. 39 The respondents’
explanation is not merely plausible; it is the only sensible reading of the
document. The warrant is founded on case number 40867/2014; it correctly
37 Record, 11h38 to 11h44 and 11h50; section 021 of the Caselines file (uploaded 10 June 2026).
38 Founding affidavit, paras 36–41, Caselines 002-8; answering affidavit, paras 19.1–19.4 and 27.2,
Caselines 007-27 to 007-28 and 007-32; record, 11h35.
39 Record, 11h05.
cites the capital of R875 410.60 and the judgment date of 29 November 2018
in respect of interest; and the taxed -costs figure is arithmetically derived from
allocaturs which are annexed to the papers and were not disputed. A
misdescribed date in the recital of taxed costs, in a warrant otherwise
anchored to an identified and valid judgment, is an irregularity of form, not of
substance.
[39] The law’s response to such an error is amendment, not annihilation. As it was
put in Ebundu (Pty) Ltd v Blake and Others, even where a writ is issued for an
amount larger than it should have been, the writ will not be set aside in the
absence of substantial prejudice to the debtor; the proper course is to amend
it.40 Here there is no prejudice at all, let alone substantial prejudice: nothing
was ever attached under the warrant, the applicant’s liability for the taxed
costs is not genuinely disputed, and the netting exercise reduced, rather than
inflated, the amount recoverable. Mr Engelbrecht accepted in argument that
the recital must be corrected and that the appropriate vehicle is an
amendment of the writ. 41 In the exercise of my discretion I intend to regularise
the position in the order by affording the first respondent leave to amend,
which falls within the further and alternative relief prayed and disposes of the
irregularity without visiting upon a valid judgment debt the windfall of a
nullified execution process. The third ground fails.
THE FOURTH GROUND: FRAUD
[40] The founding papers are strewn with allegations of the gravest kind: that the
warrant “constitutes a fraud on the part of all the respondents”; that the third
respondent “attempted to fraudulently receive” the guaranteed funds; that Mr
Gani deposed to a “perjured affidavit”; and that the respondents’ “modus
40 Ebundu (Pty) Ltd v Blake and Others [2024] ZAMPMBHC 11; 2024 (5) SA 197 (MM) at para 30. I
note that the proposition is there recorded as a contention of the respondent, but it reflects the settled
position; a writ that is amenable to correction to conform to the judgment is amended, not set aside,
absent prejudice.
41 Record, 11h35 (“the proper course is an amendment to the writ … it is clear from the context that it
is just a typographical error”).
operandi” is to await the applicant’s death so as to execute against her
deceased estate. 42 Each allegation is vehemently denied. On the Plascon -
Evans approach that is the end of the matter; but since the allegations were
pressed in argument, and since they are made by one officer of this Court
against another, I do not leave them there.
[41] The objective record refutes, rather than supports, the inference of fraud. A
party bent on defrauding a bank does not disclose to that bank, in the
founding paragraph of its claim, the very fact — the absence of the original
guarantee — that entitles the bank to refuse payment; yet that is precisely
what the third respondent’s letter of 31 May 2023 did. Thereafter the
respondents followed, step by step, the replacement procedure that Nedbank
itself prescribed for a lost guarantee, culminating in the indemnity signed by
Mr Gani at Nedbank’s instance. When Nedbank, moved by the applicant’s
objections, declined payment except on stated conditions, the respondents
sought the applicant’s consent to the least expensive of those conditions, and,
failing it, have now approached the court — the third of Nedbank’s conditions
and the very course the applicant’s own founding affidavit proposed.
Transparency, adherence to the bank’s prescribed process and ultimate
recourse to court are the antithesis of fraud.43
[42] The complaint that payment was demanded into the third respondent’s trust
account in the face of clause 5 of the guarantee likewise does not carry the
freight of fraud. The letter of demand states in its first paragraph that the third
respondent acts “on behalf of our client, Kwik Property Holdings (Pty) Ltd”; the
claim was the client’s claim, and the direction of payment into the attorney’s
trust account — a daily incident of practice — involved no cession, negotiation
or transfer of the guarantee to the attorney. Whether Nedbank could
42 Founding affidavit, paras 19, 29–35 and 41, Caselines 002-5 to 002-8.
42 Founding affidavit, paras 19, 29–35 and 41, Caselines 002-5 to 002-8.
43 Annexure “NC8”, paras 6–7, Caselines 003-31; annexures “AH5”–“AH8”, Caselines 008-13 to 008-
46; founding affidavit, para 27, Caselines 002-6; respondents’ heads of argument, paras 34–38,
Caselines 011-37 to 011-38.
competently pay without production of the original, and to whom, are
questions of compliance with the guarantee’s terms which Nedbank itself
policed by refusing payment, and which will be ventilated in case 2026 -
026420. Non -compliance with the terms of a demand under a guarantee, if
that is what it was, is not fraud; fraud requires a representation known to be
false, made with intent to deceive. Nothing approaching that has been
established. It bears mention that the applicant’s complaint to the Legal
Practice Council on this very score was dismissed, although her review of that
decision remains pending and I attach no decisive weight to it.44
[43] The fraud ground therefore fails on the facts as they must be accepted, and
would in any event have foundered on the applicant’s election to seek final
relief on motion in the teeth of foreseeable and material disputes of fact
concerning knowledge, intent and credibility — disputes which no court can
responsibly resolve on paper.45
THE SECOND RESPONDENT
[44] The applicant submitted that, the second respondent not having opposed, she
is “entitled to the relief sought against him” as of right. 46 The submission
misconceives the position. Default of opposition does not entitle an applicant
to incompetent relief; the court must still be satisfied that a case is made out.
The warrant has been found to be valid, save for a recital amenable to
amendment. There is accordingly no basis for declaratory or setting -aside
relief against the second respondent any more than against the others. Nor,
conversely, is any costs order made in respect of the second respondent:
costs orders are as a general rule made against parties who oppose
44 Annexure “NC8”, para 1, Caselines 003-31; answering affidavit, paras 12.2–12.6, 16.3–16.5 and
23.3, Caselines 007-21 to 007-22, 007-25 and 007-31; record, 11h44.
45 Lombaard, above, at paras 23 and 31; Loomcraft, above, at 822G.
46 Applicant’s heads of argument, paras 3–4 and 27, Caselines 011-3 and 011-7.
proceedings, and the second respondent, having abided, neither incurred nor
caused any costs.47
COSTS
[45] An award of costs is in the discretion of the Court, to be exercised judicially
upon a consideration of the facts of each case; in essence it is a matter of
fairness to both sides. The general rule is that costs follow the event, and I
see no reason to depart from it: the first and third respondents have been
substantially successful and are entitled to their costs. The remaining question
is the scale. In their heads of argument the first and third respondents pressed
for attorney and client costs, characterising the application as vexatious and
an abuse; in the draft order handed up, and in answer to my question at the
hearing, Mr Engelbrecht confined the respondents’ claim to party and party
costs with counsel’s fees on Scale B.48
[46] There is force in the criticism of the applicant’s conduct of this litigation.
Sustained allegations of fraud, perjury and conspiracy were advanced against
fellow practitioners on motion, without the evidential foundation such
allegations demand, and they have been found wanting. An unfounded
allegation of fraud is a serious matter, and courts have not hesitated to mark
their displeasure with punitive costs where litigants — particularly those
versed in the law — abuse process: “[a] court cannot and should not
countenance a flagrant abuse of its processes.” 49 Against that stand three
considerations: the respondents themselves ultimately asked only for Scale B;
the warrant did contain an error which the applicant was entitled to have
corrected, even if her chosen remedy overreached; and the applicant’s belief
in her construction of the guarantee, though wrong, was not shown to be
advanced in bad faith. Weighing these, I consider that a punitive order is not
47 Cilliers Law of Costs (LexisNexis, loose-leaf) paras 2.07 and 2.07A.
48 Cilliers Law of Costs (LexisNexis, loose-leaf) paras 2.03, 2.08 and 2.27; respondents’ heads of
argument, paras 47–49, Caselines 011-40; respondents’ draft order, Caselines 018-3; record, 11h50.
49 Govindsamy and Another v Kganakga and Others [2025] ZAGPJHC 807 at para 32.
warranted. The employment of counsel was clearly reasonable, and having
regard to the factors in Rule 67 A(3) read with Rule 69(7) — the complexity of
the matter, the seriousness of the allegations levelled, and the value of the
underlying judgment debt — Scale B, as sought, is the appropriate scale for
counsel’s fees. This was in any event the scale contended for by the
successful parties, and a court will not readily go beyond the costs relief a
party has itself claimed.
ORDER:
In the result the following order is made:
1. The late filing of the applicant’s heads of argument is condoned.
2. The applicant’s application to strike out the first and third respondents’
answering affidavit is dismissed.
3. The application is dismissed.
4. The first respondent is granted leave, if so advised, to amend the warrant of
execution dated 8 November 2022 issued under case number 40867/2014 by
substituting the date “29th November 2018” for the date “29th November
2022” where the latter appears in the recital of the taxed costs, prior to any
further execution thereunder.
5. The applicant is ordered to pay the first and third respondents’ costs of the
application, including the costs of counsel on Scale B.
_______________________
A VAN DER WESTHUIZEN
Acting Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 10 June 2026
Date of judgment: 21 August 2026
For the applicant: In person (Adv N Cassim SC)
Instructed by: Mbazima Dickson Inc Attorneys, Pretoria
For the first and third respondents: Adv WH Engelbrecht
Instructed by: Lacante Henn Inc, Pretoria
No appearance for the second respondent.