IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-194952
In the matter between:
HANLIE JANSE VAN RENSBURG Applicant
and
MOTLALEPULA CHRISTINAH MARAGELO First Respondent
MASTER OF THE HIGH COURT, PRETORIA Second Respondent
JUDGMENT
LABUSCHAGNE, J
Introduction
[1] The applicant was appointed in 2023 as the Executrix in the estate of the late
husband of the first respondent, John Terry Pidgeon, Estate No. 001481/2023 (“the
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
……………………
SIGNATURE DATE
03/09/2026
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2
estate”). The applicant was removed as Execut rix by means of a judgment of
Mbongwe J dated 22 January 2026 (“the principal order”).
[2] The applicant timeously applied for leave to appeal, which leave to appeal was
dismissed on 18 August 2026. She thereafter applied for leave to appeal to the
Supreme Court of Appeal. The first respondent was appointed by the Master (“the
second respondent”) as Executrix of the estate after lodging of the application for leave
to appeal. The applicant contends that such appointment is an act of execution of the
order, which is precluded by the suspension of the principal order in terms of section
18(1) of the Superior Courts Act 10 of 2013 (“Superior Courts Act”).
[3] The judgment of Mbongwe J made serious and dam ning findings against the
applicant regarding her administration of the estate, and the first respondent is
resisting the attempts of the applicant to resume control of the estate, contending that
her application for leave to appeal lacks bona fides.
The relief sought
[4] The applicant seeks a n urgent declarator that the principal order has been
suspended. She seeks the setting aside of the letters of executorship of the first
respondent in terms of sec tion 95 of the Administration of Estates Act 66 of 1965
(“Administration of Estates Act ”), and interim interdicts against the first respondent
regarding the administration of the estate.
[5] The Master has not participated in these proceedings. This Court would
require the Master’s response to the issues raised below that affect the timing of the
issuing of first respondent’s Letters of Executorship. That does not preclude deciding
the interim position.
Background facts
[6] The deceased died on 8 January 2023. His Will nominated the applicant as
Executrix. Letters of Executorship were issued to the applicant on 26 May 2023. The
first respondent launched an urgent application on 21 October 2025 to have the
applicant removed as Executrix.
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[7] On 22 January 2026, Mbongwe J granted an order removing the applicant as
Executrix and he issued an order directing the Master to appoint the first respondent
as Executrix.
[8] On 23 January 2026 , the applicant filed an application for leave to appeal
against the judgment and order. The first respondent through her attorneys proceeded
to execute the principal order and had bank accounts frozen as directed in the order
of Mbongwe J. The applicant objected , contending that the principal order was
suspended.
[9] On 26 January 2026, the first respondent launched an application in terms of
section 18(3) of the Superior Courts Act to have the principal order put into operation
despite the application for leave to appeal. The section 18(3) of the Superior Courts
Act application was set down for 4 February 2026 and was postponed sine die. It
remains undecided and undetermined.
[10] When the application was postponed on 4 February 2026 before Meyer AJ,
an order was made directing the first respondent (the current applicant) to provide a
copy of the liquidation and distribution in the estate within one day. Pending
finalisation of the application the first respondent (the current applicant) undertook not
to take any further steps in the administration of the estate, save to make relevant
payments to creditors and maintenance to the first respondent as surviving spouse.
[11] On 18 August 2026, Mbongwe J dismissed the application for leave to appeal
and ordered the applicant to pay the costs personally on a scale as between attorney
and client.
[12] The applicant filed an application for leave to appeal to the Supreme Court of
Appeal in terms of section 17(2)(b) of the Superior Courts Act on Thursday, 20 August
2026 by delivering hard copies to the Registrar of the SCA. The Registrar however
required proof of service and that could only be done on 21 August 2026 together with
the court order, as that was not available on 20 August 2026.
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[13] The application was consequently lodged and issued by the Registrar on 21
August 2026 in terms of Rules 6(1) and 6(2) of the Supreme Court of Appeal Rules
(“Rules”) under case number 939/2026. Prior to that the application was served on the
first respondent’s attorneys of record and on the Master.
[14] The Letters of Executorship issued by the Master to the first respondent are
dated 22 August 2026, a Saturday, being a day on which the Office of the Master is
not open. According to the Master’s notification the Letters of Executorship would be
available on 24 August 2026. The Master’s letter communicates that the Letter s of
Executorship were issued on 22 August 2026.
Issues to be decided
[15] There are three issues, namely:
1. Is the establishment of bona fides a prerequisite for an application for
leave to appeal to suspend the order appealed against??
2. If not, has the principal order of Mbongwe J been suspended?
3. If the order is suspended, should the Letters of Executorship issued to the
first respondent be set aside?
Bona fides
[16] The lodging of the applicant’s application for leave to appeal would suspend
the operation of the order of Mbongwe J in terms of section 18(1) of the Superior
Courts Act, subject to subsections (2) and (3), unless the court under exceptional
circumstances orders otherwise.
[17] Section 18(5) of the Superior Courts Act provides that, for the purposes of
section 18(1) and 18(2), a decision becomes the subject of an application for leave to
appeal as soon as an application for leave to appeal is lodged with the Registrar in
terms of the Rules.
[18] Section 18(3) of the Superior Courts Act governs applications to have orders
put into operation pending appeal. As stated, such an application was brought but
was not pursued and in the proceedings before this Court was also not pursued.
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[19] It is against the aforesaid backdrop that it is necessary to determine whether
the first respondent’s contention that bona fides is a requirement before an application
for leave to appeal suspends a judgment has merit or not. The first respondent’s
position is set out in paragraph 3.3 of her answering affidavit which reads:
“I deny the applicant’s interpretation of her rights under section 18 of the Superior
Courts Act. The applicant contends that the mere filing of a petition somehow serves
as a procedural ‘stay’ of the court’s order. This is a gross distortion of the law. The
right to an automatic suspension is predicated on bona fide appellate intent. The
applicant’s six -month delay in prosecuting her leave to appeal is evidence of an
abandonment of legitimate legal redress in favour of obstructionism. She cannot
invoke the protection of a statute to perpetuate the very maladministration that the
court sought to curtail”.
[20] The applicant’s explanation for the long delay is that a date had been
requested from the Registrar of Mbongwe J, but no response was forthcoming.
[21] Applicants for leave to appeal are required by the Practice Directives in this
Division to notify the Judge’s Registrar of an application for leave to appeal once it is
filed. Filing of an application for leave to appeal on CaseLines does not come to the
attention of the Judge concerned, unless specifically brought to the attention of his
Registrar. This may very well be what has happened in this matter. This Court makes
no findings in this regard.
[22] It is a truism that any application of any nature has an inherent requirement of
bona fides. Court proceedings are meant to resolve genuine disputes of law. If a court
is not approached in a bona fide manner, it may be held to constitute an abuse of
process. However, the lack of bona fides is an issue for the first respondent to raise,
unless it is self-evident from the papers. Once established, mala fides may have the
unless it is self-evident from the papers. Once established, mala fides may have the
results envisioned by the first respondent in these proceedings - i.e. it may constitute
exceptional circumstances under which a court may direct that the order appealed
against is not suspended by the filing of an application for leave to appeal in terms of
section 18(1) of the Supreme Courts Act.
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[23] The stay brought about by the mere filing of an application for leave to appeal
is the consequence of section 18(1) and section 18(5) of the Supreme Courts Act. It
is a legal consequence of an administrative act, which is not dependent on a prior
assessment of the application to determine whether it is a bona fide application or
not.
Is the principal judgment suspended?
[24] Sec 18 ( 1) of the Act restates the common law. In University of the Free
State v AfriForum and Another [2016] ZASCA 2018 (3) SA 428 (SCA) the Supreme
Court of Appeal stated at par[5]:
“The well-established common law rule of practice in our courts has been that
generally the execution of a judgment is automatically suspended upon the
noting of an appeal, with the result that, pending the appeal, the judgment
cannot be carried out and no effect can be given thereto, except with the leave
of the court which granted the judgment.”
[25] In Ntlemeza v Helen Suzman Foundation and Another [2017] ZASCA 93
the Supreme Court of Appeal said the following at paragraph 28:
“The primary purpose of s ection 18(1) is to re -iterate the common law position in
relation to the ordinary effect of appeal processes – the suspension of the order being
appealed – not to nullify it. It was designed to protect the rights of litigants who find
themselves in the position of General Ntlemeza, by ensuring, that in the ordinary
course, the orders granted against them are suspended whilst they are in the process
of attempting, by way of the appeal process, to have them overturned. The
suspension contemplated in section 18(1) would thus continue to operate in the event
of a further application for leave to appeal to this court and in the event of that being
successful, in relation to the outcome of a decision by this court in respect of the
principal order. Section 18(1) also sets the basis for when the power to depart fr om
the default position comes into play, namely, exceptional circumstances which must
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be read in conjunction with the further requirements set by section 18(3). As already
stated and as will become clear later, the Legislature has set the bar fairly high.”
[26] From the aforesaid it is apparent that the legal position is clear. It is the lodging
of the application for leave to appeal in the Supreme Court of Appeal in terms of Rule
6(1), and the issuing of that application on 21 August 2026 which has had the effect
of automatically suspending the order of Mbongwe J.
[27] In the aforesaid case in which General Ntlemeza’s position was being
determined, he also had prior damning findings against in a judgment of Matojane J .
He was granted the benefit of section 18(1) of the Supreme Courts Act, i.e. suspension
of the order.
[28] A similar factual scenario presented itself in Olivier v Nieman and Others
(Leave to Appeal) (UM228/2022) [2023] ZANWHC 183 (Olivier) . It involved a
judgment concerning executorship, an application for leave to appeal, and the
subsequent issuing of letters of executorship by the Master.
[29] Judgment in Olivier was delivered on 28 November 2022. An application for
leave to appeal was served on 29 November 2022, and the Master thereafter issued
letters of executorship on 30 November 2022. At paragraph 17, the Court expressly
stated that “the application for leave to appeal suspended the operation of the
judgment in terms of section 18(1) of the Superior Courts Act.”
[30] The High Court then confronted the fact that the Master had nevertheless
issued letters of executorship and significantly observed at paragraph 17 that, “this
muddles the waters as to the basis on which the letters of executorship have been
issued.”
[31] If there is a lack of bona fides , it is for the first respondent to raise and
establish it in her application in terms of section 18(3) of the Supreme Couts Act, and
in opposing the declarator sought . The section 18(3) application was not enrolled
in opposing the declarator sought . The section 18(3) application was not enrolled
before this Court for consideration. In the premises, the consequences of the filing of
the application for leave to appeal has been to suspend the order of Mbongwe J
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pending determination of the application for leave to appeal, and if leave were granted,
the subsequent appeal in the Supreme Courts Act.
[32] The use of emotive language in restating what was found by Mbongwe J does
not assist in proving a lack of bona fides on the part of the applicant. The judgment
has been suspended and is not enforceable at present. Emotions are clearly running
high on both sides of the divide, but the issue of bona fides or lack of it is a factual
matter. It needs to be established though facts if it is to form the basis for exceptional
circumstances under section 18(1) and 18(3) of the Superior Courts Act.
The Letters of Executorship of the first respondent
[33] This leaves the question as to what the import of the aforesaid is on the Letters
of Executorship issued by the Master after the aforesaid lodgement.
[34] The reason for acting as he did has not been answered. The sec 95 review
sought in the notice of motion is consequently not ripe for hearing . The Master has
not been heard. In Olivier the Court stated at paragraph 17 that, “without having any
statement from the Master, it is impossible to determine whether the letters of
executorship were issued in terms of the court order or in terms of the Master’s
discretion despite the court order.”
[35] In the absence of the Master’s evidence the terms of the principal order
become the only guide to the issue of the letter of executorship . The importance of
Olivier therefore lies in the distinction it draws between implementation of a
suspended judgment and the independent exercise of a statutory power by the Master.
[36] Counsel for the first respondent contends that the issuing of the letters of
executorship is a separate administrative act that stands until set aside in terms of the
Oudekraal principle. Normally this would be so. However, the facts of this matter point
in a different direction.
[37] The order of Mbongwe J reads in part:
“[25] In the circumstances the following order is made:
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(d) That the applic ant (first respondent in these proceedings - my
insertion) be appointed Executrix of Estate Late Pidgeon with Estate
number 00148/2023 forthwith;
(e) That the Second Respondent is directed to provide letter of
authority to the applicant within three days of date of this order”
[38] Absent cogent evidence to the contrary, t he Master was ostensibly not
exercising a discretion in appointing the first respondent as Executrix. The Master had
been ordered and directed by Mbongwe J to do so in terms of the order appealed
against. It was
[39] There is thus a second proposition pertaining to the issuing of Letters of
Executorship to the first respondent - that it is part of the execution of the order of
Mbongwe J.
[40] The distinction does not matter on the facts of this case as the same result
ensues. The judgment of Mbongwe J has been suspended as a matter of law and
therefore any steps taken to execute it are suspended as well. Secondly, even if it
were an administrative act , it relies for its validity on the existence of the order of
Mbongwe J. The first respondent’s appointment flowed from the principal order of
Mbongwe J. Once the order of Mbongwe J is suspended as a matter of law, the
substratum for the appointment of the first respondent as Executrix has fallen away.
This is sometimes referred to as the domino effect.
[41] In Seale v Van Rooyen NO and other 2008 (4) SA 43 (SCA), the following
is said at paragraph 13 : “I think it is clear from Oudekraal, and it must in my view
follow, that if the first act is set aside, a second act that depends for its validity on the
first act must be invalid as the legal foundation for its performance was non-existent.”
[42] By the same token, the order of Mbongwe J had no force or effect, when the
Master appointed the first respondent on 22 August , due to the lodging of the
application for leave to appeal at the Supreme Court of Appeal on 21 August 2026.
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[43] The domino effect is a consequence separate from the question on appeal
whether the quoted portion of the principal order was competent or not. In the
premises, the consequence of the aforesaid is that the appointment of the first
respondent as Executrix is in itself suspended.
[44] The principal order is being assailed on appeal based on Bankorp Ltd v
Pienaar 1993 (4) SA 98AD at 107 D-E in terms of which the Supreme Court of Appeal
found that a court does not have the power to appoint an Executrix or an Executor, as
this is by statute a power to be exercised by the Master.
[45] If I err in the aforesaid conclusion that both the principal order and the letters
of executorship are suspended, I am satisfied that the grounds for review and setting
aside of the Master’s decision are strong. The Master followed the dictates of a court
order which conflicts with the Supreme Court of Appeal authority, and which order was
suspended at the time of the appointment of the first respondent as Executrix. A
suspension of the letters of executorship would constitute a just and equitable remedy
in terms of sec 8 of the Promotion of Administrative Justice Act (PAJA)
[46] On either approach, the applicant has established a prima facie right to a
suspension pendente lite.
[47] The risk of irreparable harm is evident. The first respondent, during January
2026 already indicated that she did not appreciate the effect of the suspension of a
court order by virtue of the filing of an application for leave to appeal. She tried to
enforce the order immediately despite the pend ing leave to appeal. She then
commenced with a section 18(3) application after she had already taken steps to
implement the order of Mbongwe J. In these proceedings she raises a legal contention
which, as this Court has indicated above, is not of assistance to the first respondent.
If she wishes to raise bona fides or the lack of it as a reason not to come to the
If she wishes to raise bona fides or the lack of it as a reason not to come to the
assistance of the applicant, she should have pursued the section 18(3) application .
However, as she contends that the appointment by the Master is effective and as she
intends acting as Executrix in the interim, it is necessary to rule on this and the Court
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is therefore satisfied that the matter is both urgent and that the risk of irreparable harm
has been established.
[48] The balance of convenience favours maintaining a holding position until the
Court rules on the validity of the first respondent’s letters of executorship . The
limitation of the applicant’s powers of administration imposed by the order of Meyer
AJ removes the risk to the estate. By contrast, if the first respondent were to administer
the estate on letters of executorship the validity of which is suspect , there is a risk to
the estate.
[49] There is no adequate alternative remedy to suspension of the letters of
executorship of the first respondent.
[50] In light of the Court’s conclusion that the letters of executorship are without
force, this Court does not deem it urgent to en tertain the sec tion 95 of the
Administration of Estates Act review ap plication setting aside the letters of
executorship. Suspension will suffice. In previous references to relief being pendente
lite, it includes the conclusion of a sec 95 review in terms of the Administration of
Estates Act that is referred to.
[51] The need for the interim interdicts sought in the Notice of Motion also falls
away as the suspension of the first respondent’s letter of executorship is an adequate
alternative remedy.
[52] In the premises, this Court makes the following order:
1. The application is found to be urgent.
2. The section 95 review is not ripe for hearing and is postponed sine die.
3. It is declared that the execution of the order of Mbongwe J dated 22
January 2026 is suspended, by operation of section 18(1) read with
section 18(5) of the Superior Courts Act with effect from 21 August 2026,
and that such suspension endures pending the final determination of the
Supreme Court of Appeal proceedings, unless a court orders otherwise
in terms of section 18(3) of the Superior Courts Act.
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4. It is ordered and directed that the appointment of the first respondent as
Executrix in terms of Letters of Executorship issued by the second
respondent on 22 August 2026 is suspended pending finalisation of the
application for leave to appeal and the Supr eme Court Appeal
proceedings referred to above and the sec 95 review proceedings,
unless a court orders otherwise.
5. The interim interdictory relief is refused.
6. This court order is to be provided to the second respondent forthwith.
7. The costs of the application are to be paid by the first respondent on a
party and party scale, Scale B.
_______
E LABUSCHAGNE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 27 August 2026
Date judgment delivered: 03 September 2026
Appearances:
Counsel for the Applicant: Adv A Coertze
Instructed by: Abrams Modira Inc attorney
Counsel for the First Respondent: Mr S.Maqungo
Instructed by: Sivuyile Maqungo Incorporated