SAFLII Note: Certain personal/private details 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: 24274/2014
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
Date 3 September 2026
K. La M Manamela
In the matter between:
L[...] Z[...] Applicant
and
S[...] M[...] Z[...] Respondent
In re:
S[...] M[...] Z[...] Plaintiff
and
L[...] Z[...] Defendant
DATE OF JUDGMENT : This judgment is issued by the Judge whose name is reflected
herein and is submitted electronically to the parties/their legal representatives by email. The
judgment is further uploaded to the electronic file of this matter on CaseLines by the Judge’s
secretary. The date of the judgment is deemed to be 3 September 2026.
JUDGMENT
Manamela, J
Introduction
2
[1] This application - in terms of Rule 42(1)(a) of the Uniform Rules of this Court or the
common law - was brought by Mr L[...] Z[...] for rescission of the order granted in favour of
Ms S[...] M[...] Z[...] by the Court per Skosana AJ on 31 July 2023 (‘the Striking Order’). Mr
Z[...]’s defence in the divorce action instituted by Ms Z[...] was struck out in terms of the
Striking Order. This means that, thenceforth, Ms Z[...] has been entitled to obtain the relief
sought on a default basis. It is Mr Z[...]’s primary view that the Striking Order was
erroneously sought or erroneously granted in his absence as a party affected thereby. This
rescission application is opposed by Ms Z[...].
[2] The divorce action was initiated by Ms Z[...] in terms of summons issued on 25
March 2014 . This is more than twelve years ago . A decree of divorce – dissolving the
marriage in community of property (with inclusion of accrual ) between the parties – was
granted on 16 August 2016 . The parties had concluded a settlement agreement wh ose terms
were incorporated in the divorce order. The settlement catered for a separation of issues with
some of them postponed sine die (without (fixing) a day (for a further meeting or hearing) ).1
The latter issues included the accrual of the parties’ respective estates. This issue remains the
only one still to be determined in the divorce action.
[3] Henceforth, I refer to Mr Z[...] as the applicant and to Ms Z[...] as the respondent .
This, obviously, is in respect of the application for rescission currently before the Court , as
the parties swop references in the other related litigation.
[4] In a quest to pave the way for the determination of the accrual issue , the respondent
sought the applicant to deliver a discovery affidavit in the divorce action. On 7 November
2022, Moshoana J granted an order compelling the applicant to act on the respondent’s Rule
35(3) notice s served already in December 2019 . The applicant failed to comply with the
35(3) notice s served already in December 2019 . The applicant failed to comply with the
1 VG Hiemstra and HL Gonin, Trilingual Legal Dictionary (3rd edn, Juta 1992).
3
order. In due course the respondent brought an application to strike out the applicant’s
defence due to his failure to purge his non-compliance. As stated above, on 31 July 2023
Skosana AJ granted the Striking Order . This is the order the applicant urges the Court to
rescind.
[5] The rescission application came before me as an opposed motion on 17 March 2026 .
Ms A Vosloo -De Witt appeared for the applicant and Ms L van der Westhuizen for the
respondent. The matter was stood down to 20 March 2026, due to issues I will turn to in a
moment. On the latter da te Ms P Bosman replaced Ms Vosloo -De Witt as counsel for the
applicant. I reserved this judgment after listening to submissions by counsel.
Costs in respect of the adjournment of the matter on 17 March 2026
[6] The matter was set down for hearing on 16 March 2026 . There is a disagreement
between the parties whether the set down was provisional or final . It is the essence of the
discussion under this part. In terms of a directive I indicated that the matter will be heard on
17 March 2026 , but it couldn’t proceed on that date due to the unavailability of the
applicant’s counsel, Ms P Bosman. It was stood down for a hearing on 20 March 2026 under
circumstances that I would turn to in a moment . The parties disagreed as to who is liable for
costs of the stand down. To assist the Court when ruling on this, I directed that affidavits be
filed on the issue. I refer to the material from the affidavits and submissions by counsel, next.
[7] On 15 October 2025, the respondent through her att orneys took steps towards the
hearing of this application. Her attorneys delivered ( by serving on their counterpart and
uploading on CaseLines) a practice note, chronology, list of authorities and heads of
argument. They also applied for an opposed motion hearing date by uploading a provisional
notice of set down. The notice did not reflect any date and was blank. They, later, also filed
an application for a hearing date of the m atter on the opposed Family Court roll on 19
4
January 2025. On 6 February 2026, the respondent’s attorneys uploaded a provisional notice
of set down of the application for hearing on 16 March 2026.
[8] The applicant or his attorneys complain that because the notice setting down the
matter for hearing on 16 March 2026 was clearly marked ‘provisional’, the applicant and his
legal team, including his counsel, Ms Bosman, were of a legitimate belief that the set down
was not ‘final’ . They genuinely expected a f inal notice of s et down to be served in due
course. Counsel was nevertheless instructed to prepare heads of argument . The heads were
furnished by counsel on 24 February 2026 , but had to be somewhat approved by the
applicant. The document was only filed on 6 March 2026.
[9] On 11 March 2026, the applicant’s attorneys sent an email to their counterpart for the
respondent in which they, among others, undertook to apply for a ‘final’ date of hearing on
the opposed motion court roll . They also sought in the email some collaboration by their
opponents on the filing of a practice note. It is stated that this confirms that they and counsel
were by that stage still unaware that the matter has been finally set down for hearing on 16
March 2026. This is disputed by the respondent including in her attorneys’ email of 11 March
2026. The respondent’s attorneys indicated in the latter email that their client would oppose
any application for postponement, as the applicant as the dominis litis (master of the suit )2
should have taken the lead in the enrolment of the application.
[10] On 1 2 March 2026 , I caused to be published an allocated roll indicating that the
matter w ould be heard on 17 March 2026 instead of 16 March 2026 . Counsel for the
applicant - by way of a practice note uploaded on CaseLines on 14 March 2026 and a note
sent by the applicant’s attorneys to my secretary on 16 March 2026 - requested that the matter
be allocated for hearing on 20 March 2026, alternatively, during the week commencing on 23
be allocated for hearing on 20 March 2026, alternatively, during the week commencing on 23
2 Hiemstra and Gonin, Trilingual Legal Dictionary (3rd edn, Juta 1992).
5
March 2026. Counsel had other engagements for which she was briefed earlier. It is denied
that she was doubly-briefed. Counsel for the respondent objected against what she considered
unilateral attempts by her counterpart for the applicant to move the date of hearing. I
indicated through a widely shared note on the CaseLines platform and an email (by my
secretary to the legal representatives) that I was amenable to hear the matter on 20 March
2026 provided there was an agreement between the partie s. There were further exchanges,
but no agreement.
[11] On 17 March 2026 , the applicant sought postponement of the hearing of the
application to 20 March 2026 . This was opposed by the respondent. After listening to
counsel, I decided to grant the postponement and stood down the matter for a hearing on 20
March 2026. I directed that the issue of who is liable for cost s of the postponement of the
proceedings on 17 March 2026 be addressed by way of affidavits. In the end, a ruling on the
liability for costs issue, was also reserved with this judgment on the application itself. But I
must mention that the material filed regard ing the costs issue was unnecessarily voluminous,
repetitive and to a large extent argumentative. This contributed to the regrettable delay in the
delivery of this judgment.
[12] According to the applicant, on consideration of the full conspectus of the facts in the
matter, no basis exists to hold the applicant liable for the respondent’s costs of 17 March
2026 on any scale, including a punitive one . The applicant, it is stated, has provided a clear,
cogent and bona fide explanation of the reason why his legal representatives were not aware
that the matter has been set down for 16 March 2026. And the manner in which the
respondent conducted the litigation in this application reveals a pattern similar to that which
led to the granting of the Striking Order. Therefore, a proper order as to costs is that costs
should be in the cause.
6
[13] Further, the applicant’s case includes the following. His counsel had been retained
since the inception of the rescission and due to an extremely dense nature of the facts in the
matter, i t was difficult to brief new counsel on an extremely urgent basis. Besides, the
applicant w ould be prejudic ed by the termination or exclusion of his chosen coun sel from
arguing the matter on his behalf. And the respondent created the ambiguity (whether
provisional or final) as to the date of hearing.
[14] The case for the respondent includes what appears next . She criticises the applicant
for heavily relying on the use of the word ‘provisional’ in the notice of set down , but yet he
has not bothered to explain to the Court his own understanding of the word in the context of
processes of this Court. Further, the applicant did not tell the Court what he understood was
to occur on 16 March 2026. The applicant’s assertions, it is also contended, are weakened by
his delivery of heads of argument and other accompanying material. This does not comport
with his declaration that he genuinely believed that the matter will not proceed as enrolled.
He could have clarified the issue with the registrar of the Court, as far back as 9 February
2026. Also, it is trite that matters are enrolled for the Monday of the week they are to be
heard and the presiding judge will allocate the matters for a hearing on that day or the other
days of the week. This is why the notice of set down is stated as being ‘provisional’ as final
enrolment is the prerogative of the presiding judge , it is further contended . Therefore, the
respondent seeks that the applicant be held liable for the associated wasted cost s on an
attorney and client’s scale, lest the respondent is left out of pocket.
[15] Upon a review of the facts before me, I am of the view that the applicant is
overcapitalising on the inclusion of the word ‘provisional’ in the respondent’s notice(s). This
is so, despite the fact that the applicant should have been the one most eager to enrol the
matter for determination. But - in the end - the same applicant was before the Court during
7
the week of 16 March 2026. The only problem was with the availability of his counsel on 17
March 2026, as the date allocated for the matter to be heard. Such unavailability of counsel is
not uncommon. The problem here is how counsel (to some extent at both ends) handled the
issue, which led to costs being unnecessarily incurred with the stand down. But under the
circumstances I am unable to hold liable either of the parties for the costs incurred as a result.
I will subsume the costs for the postponement or standing down in the ultimate costs order
made.
Brief background
[16] The parties entered a marriage out of community of property (with inclusion of
accrual) on 24 September 1994. On 16 August 2016 , the marriage was dissolved by the order
of this Court. In terms of the settlement agreement (incorporated in the order) the issues in
the divorce action were separated and, currently, the accrual remains the issue still to be
decided by the Court. Therefore, this background only concerns the interlocutory processes
towards the determination of the latter issue, in the main , being the disclosure or discovery of
documents by the applicant which led to the granting of the Striking Order. I will strive to
constitute the background from the common cause facts between the parties or indicate the
area of contestation.
[17] On 3 December 2019, the respondent served seven notices under Rule 35(3) on the
applicant. The notices were , earlier on 15 November 2021 , attached to communication sent
by her attorneys to their counterpart for the applicant. The documents (to be discovered) were
required by Mr Johan Ferreira, the respondent’s expert, to finalise his report. The documents
were referred to in the report by Mr Hardcourt Cook , the applicant’s expert. This is why the
documents were also needed for the experts to compile a joint minute of the ir opinions.
There, further, was correspondence between the attorneys on the issue. In the end the
8
applicant was warned that should he persists in his failure to discover the material documents,
application(s) to compel would be launched by the respondent and punitive costs would be
sought against him.
[18] In July 2022, the respondent indeed launched the application to compel the discovery
of documents by the applicant. According to the respondent, o n 20 October 2022 , the
application was served on the applicant’s previous attorneys . But t he applicant expresses
doubts as to the accuracy of this assertion. He doubts the proof of acknowledgement of
service of the application uploaded on CaseLines, as it comprises a single page. The entire
application ought to have been uploaded . The accusation is rejected by th e respondent as
being devoid of merit. In the respondent’s view ( confirmed under oath by her attorney) all
that was done was to avoid uploading the entire application as it was already on CaseLines .
Further, a notice of ‘provisional’ set down of the application for a hearing on 7 November
2022 was also served on the respondent on 20 October 2022 . The applicant also complains
about being afforded only a few days to signal his intention to oppose the application, despite
the founding papers reflecting that they were ready three months before, in July 2022.
[19] On 7 November 2022 , Moshoana J granted an order compelling the applicant to
respond to the Rule 35(3) notices (‘Compel Order’) in the absence of the applicant. The
respondent says that this confirms that the presiding judge was satisfied that the application
has been duly served, despite the applicant ’s lamentation, stated above . The Compel Order
was served on the applicant’s previous attorneys on 16 November 2022. And the applicant
had ten days, until 30 November 2022, to comply therewith.
[20] The respondent says her attorneys were ready to launch the application to strike out
the applicant’s defence due to his non-compliance with the Compel Order (‘the Striking
the applicant’s defence due to his non-compliance with the Compel Order (‘the Striking
Application’), already at a pre-trial meeting held on 18 May 2023. The applicant’s previous
9
attorneys are said to have refused to accept service of the application at the meeting, citing its
voluminous nature , and request ed t hat it rather be served normally at their offices. It was
served on them on 24 May 2023 and was to be heard on 31 July 2023. This is, also, noted in
the pre-trial minutes. But still the applicant disputes that proper service of the application was
effected. This, again, is on the basis that only a single page has been uploaded on CaseLines
as proof of service. He, also, denies the accusations and states that the respondent’s attorneys
were already aware that the late Mr Selwyn Shapiro , from Shapiro and Haasbroek (i.e. the
applicant’s previous attorneys), was ill-disposed during this period.
[21] On 31 July 2023 , the Striking Order was granted by Skosana AJ and, thus, the
applicant’s defence in the divorce action was struck out . This paved the way for the
respondent to pursue to finality the determination of the accrual issue on a default basis.
[22] In November or December 2024, this application was launched to rescind the Striking
Order on the basis that it was erroneously sought or erroneously granted in the absence of the
applicant, as envisaged in Rule 42(1)(a) or on the basis of the common law. It came before
me for determination towards the end of March 2026 when this judgment was reserved.
Applicant’s case (summarised)
[23] The rescission application , according to the applicant , is aimed at restoring hi s
capacity or right to defend himself in the divorce proceedings in order to fend off the
respondent’s accrual claim. It is submitted on his behalf that due to the Striking Order he now
faces a default judgment in the amount of R18 347 265.75 plus interest and punitive costs.
The Striking Order is drastic, extremely prejudicial and far -reaching in effect . It,
10
consequently, deprived the applicant of his right to a fair trial in terms of section 343 of the
Constitution.
[24] It is submitted that the applicant has bona fide and legitimate grounds to challenge the
quantum of the respondent’s accrual claim, considered to be grossly overstated, in the amount
of R18 347 265.75. According to Mr Johan de Lange (‘Mr De Lange’), the applicant’s new
expert, the total accrual claim is R5 717 453.97. This amount will reduce by payments
already made by the applicant to the respondent to only R2 470 858.72 which, evidently, is a
fraction of the amount claimed on a default basis . Mr De Lange , it is further submitted,
reached his opinion without some documents on the respondent’s assets and liabilities.
[25] The Striking Order, it is submitted, was granted under circumstances which include
Mr Shapiro of the applicant’s erstwhile attorneys being diagnosed with brain cancer in late
2022, taking ill and ultimately passing away on 28 June 2023 . Notably, his death was just
over a month before the granting of the Striking Order on 31 July 2023 , it is pointed out . He
had been receiving treatment for cancer from when he was diagnosed to his death and this
impeded his involvement in the matter . The applicant came to know of the Striking Order
only in May 2024. This was when the respondent launched the application for default
judgment. Notably, this was a period of almost a year after the Striking Order was granted.
[26] On 4 November 2024, the applicant terminated the mandate of his previous attorneys
and instructed his current attorneys, Jaco Coetzee Attorneys. But there had been challenges in
piecing together the chronology of events leading up to the Striking Order due to the
condition of the file kept by the previous attorneys . The current attorneys also discussed the
3 Section 34 of the Constitution of the Republic of South Africa, 1996 provides, that: ‘[e]veryone has the
right to have any dispute that can be resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent and impartial tribunal or forum.’
11
matter with Ms Tammy Kaplan ( ‘Ms Kaplan’) who worked as an associate of the late Mr
Shapiro, but this did not assist in closing all gaps in the chronology, it is declared.
[27] The applicant , as stated above, seriously doubts that the Striking Application was
served on his previous attorneys . The re is no proof of this in the files obtained from his
previous attorneys. Ms Kaplan had advised his new attorney s that the application was not
served. It is common cause that a confirmatory affidavit by Ms Kaplan does not form part of
the papers before this Court . But, it is submitted for the applicant, that whether or not the
Striking Application was served should not be the focus, as the applicant had no knowledge
thereof or it s enrolment until almost a year later when the default judgment application
ensued. This is the basis for the applicant’s case based on Rule 42(1)(a) (i.e. that the Striking
Order was erroneously sought or erroneously granted in his absence) or the common law.
[28] Overall, it is submitted that , the applicant has provided a reasonable and cogent
explanation for his failure to oppose the Striking Application. And, that he has demonstrated
a bona fide defence towards the merits of the respondent’s accrual claim to merit rescission
of the Striking Order. Further, that the application for rescission is being pursued bona fide
and was brought within a reasonable time under the circumstances . It is also submitted that
the interests of justice , the rule of law and the applicant’s Constitutional right to a fair trial
dictate that the prejudicial Striking Order be rescinded to facilitate the applicant ’s
participation in the finalisation of the divorce proceedings.
Respondent’s case (summarised)
[29] According to the respondent , t he rescission application does not constitute t he
applicant’s genuine quest to rescind the Striking Order. It is a tactical manoeuvre on his part
only being pursued after realising that default judgment was imminent. The lack of traction in
enrolling the application for hearing confirms this. The rescission application was enrolled by
12
the respondent after the applicant failed to do so. His failure persisted despite his awareness
since December 2024 that the rescission application was to be heard in March 2026 , it is
contended.
[30] The respondent criticises the applicant’s reliance on Rule 42(1)(a). It is submitted on
her behalf that the rule specifically protects a litigant whose presence had been precluded and
not a litigant who had been afforded procedurally regular judicial process , but only opted to
be absent. 4 Further, that the rule has two separate requirements , that: (a) a party had to be
absent and (b) an error ought to have been committed by the court. Regarding the former, it is
contended that the applicant cannot just simply - through a blanket statement - claim to have
been absent from Court. He ought to have demonstrated that he was precluded from
participating due to conduct attributable to the respondent.
[31] It is further submitted that t here is no merit in the applicant’s assertion that there was
failure to serve either the notice or application to compel. The applicant did not merely ignore
one notice but several independent notices that he discover the material documents. The
notices were accompanied by two substantive applications (i.e. the application to compel and
the Striking Application), as well as correspondences exchanged between the attorneys. The
respondent, it is contended, was left with no option but to proceed with the Striking
Application to halt the applicant’s continued non -compliance with the Compel Order. There
is also no explanation why it took the applicant more than a year to bring the application.
[32] On the merits i t is the respondent’s view that even if the version advanced by the
applicant’s newly retained expert was to be accepted, the applicant would still be liable to pay
the respondent R13 920 421, as ac crual sh aring. In her counterapplication (included in her
the respondent R13 920 421, as ac crual sh aring. In her counterapplication (included in her
opposition of the rescission) the respondent seeks payment in the amount of R18 347 265.75.
4 Zuma v The Secretary of the Judicial Commission of Inquiry into Allegations of State Capture 2021 (11)
BCLR 1263 (‘Zuma v Commission of Inquiry into State Capture’) [60]-[64].
13
But, t he respondent actually complains about inclusion of the report compiled by the
applicant’s new expert in the rescission application . This is considered to be contrary to the
rules of this Court, breached without any explanation by the applicant.
[33] The respondent also finds absurd the approach by the applicant to re scind only t he
Striking Order whilst doing nothing about the Compel Order, granted earlier. After all, it was
the applicant’s non -compliance with the latter that led to the former. Therefore, this
application is an abuse of the process of the Court and simply constitute the applicant’s quest
to litigate the respondent into submission and to drag out the accrual issue . It ought to be
dismissed with costs at a punitive scale.
Issues to be determined
[34] From the facts in the respective cases of the parties, summarised above, the f ollowing
appears to be the issues requiring determination in this matter : (a) rescission of the Striking
Order on the basis of Rule 42(1)(a) or the common law ; (b) the c ounterapplication by the
respondent, and (c) costs.
[35] Additional issues to those identified above may arise during the discussion, but the
above are the issues I consider dispositive of this matter. Some of the issues will be discussed
together due to their interconnection. But, I deal next with the applicable legal principles.
Applicable legal principles
[36] This application for rescission of the Striking Order is premised on Rule 42(1)(a) and the
common law. The requirements thereof serve as the principal applicable legal principles for
current purposes. Some principles may have already been referred to above.
[37] Rule 42(1)(a) forms part of the grounds or instance for variation and rescission of orders
under Rule 42. It reads as follows:
14
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…
[38] The learned author of Erasmus: Superior Court Practice 5 shares the following
commentary with regard to the variation or rescission of orders under Rule 42(1)(a):
There are three ways in which a judgment taken in the absence of one of the parties
may be set aside, namely (i) in terms of this subrule; or (ii) in terms of rule 31(2) (b);
or (iii) at common law.
…
In Kgomo v Standard Bank of South Africa … [in] granting the application and setting
aside the judgment, Dodson J, with reference to Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape) and Lodhi 2 Properties Investments CC v Bondev
Developments (Pty) Ltd held that the following principles govern rescission under rule
42(1)(a):
(a) the rule must be understood against its common-law background;
(b) …
(c) the rule caters for a mistake in the proceedings;
(d) the mistake may either be one which appears on the record of proceedings or
one which subsequently becomes apparent from the information made available in an
application for rescission of judgment;
(e) …
(f) the error may arise either in the process of seeking the judgment on the part of
the applicant for default judgment or in the process of granting default judgment on
the part of the court; and
(g) the applicant for rescission is not required to show, over and above the error, that
there is good cause for the rescission as contemplated in rule 31(2)(b).
…
In general terms a judgment is erroneously granted if there existed at the time of its
issue a fact of which the court was unaware, which would have precluded the granting
of the judgment and which would have induced the court, if aware of it, not to grant
the judgment…6 [footnotes
omitted]
the judgment…6 [footnotes
omitted]
[39] The application for rescission is also based on the common law. The learned author of
Erasmus: Superior Court Practice states that a rescission on this basis is possible under various
grounds, including where judgment had been granted by default .7 The learned author, further,
observes:
5 DE van Loggerenberg, Erasmus: Superior Court Practice (Jutastat e -publications 30 April 2026
(Revision Service 30)) (‘Erasmus: Superior Court Practice’).
6 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 42-16 to RS 27, 2025, D1 Rule 42-19.
7 Erasmus: Superior Court Practice RS 30, 2026, D1 Rule 42-9 (and the authorities cited there).
15
[a]n application on common-law grounds must be brought within a reasonable time.
A court considering an application for rescission under the common law enjoys a
wide discretion. It may refuse rescission if justice and equity so demand
notwithstanding that an applicant has shown formal compliance with the
requirements for granting rescission.8 [footnotes omitted]
[40] Under the common law , an applicant for rescission ought to show good cause or
sufficient cause .9 This, generally, requires that such applicant: (a) provides an acceptable
reasonable explanation for her or his default; (b) show that the application is made bona fide,
and (c) show the existence of a bona fide defence on the merits of the matter which - prima
facie – has some prospect of success. 10 Overall, the court has a discretion to be exercised
(following consideration of all the relevant circumstances ) in a proper fashion .11 A common-
law based rescission ought to be pursued within a reasonable time.12
[41] These principles would be applied in the discussion of the issues necessary for the
determination of this matter, identified above.
Rescission of the Striking Order
General
[42] To recap, the rescission of the Striking Order is sought on the basis of Rule 42(1)(a) or
the common law. The applicable principles or requirements for a successful application in both
respect are reflected above.13 I use the principles or requirements as self-explanatory rubrics
in the discussion below.
8 Ibid.
9 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 42 -11 to 42-12 and the authorities cited there .
See also Zuma v Commission of Inquiry into State Capture [71]; Neelofar and Another v Pahad and
Another (5277/2020) [2021] ZAGPJHC 596 (4 November 2021) [27].
10 De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042F –1043A; Chetty v Law Society,
Transvaal 1985 (2) SA 756 (A) at 764J–765D; Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills
(Cape) 2003 (6) SA 1 (SCA) at 9D –F; Naidoo v Matlala NO 2012 (1) SA 143 (GNP) at 152H –
153A; Government of the Republic of Zimbabwe v Fick 2013 (5) SA 325 (CC) at 350D; Mukhinindi v
Cedar Creek Estate Home Owners Association [24]; Zuma v Commission of Inquiry into State Capture
[71]; Neelofar v Pahad [27].
11 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 42-11 to 42-12 and the authorities cited there.
12 Erasmus: Superior Court Practice RS 30, 2026, D1 Rule 42-9 and the authorities cited there.
13 Pars [37]-[40] above.
16
[43] As appearing above, the Striking Order is not the first material order of this Court for
current purposes. There was the Compel Order granted on 7 November 2022 directing the
applicant to discover some documents specified in number of Rule 35(3) notices served by
the respondent. The applicant considers the notices a fishing expeditio n on the part of the
respondent and an abuse of the process of th e Court. They were not only aimed at documents
relating to his personal financial affairs , but also th ose of companies and other entities in
which he was an interest-holder. And, most of the information sought in terms of the n otices
is irrelevant, the contention concludes . But, objectively considered, the applicant remains in
breach of the Compel Order. And , I searched in vain for any merit in the so -called ‘serious
questions’ alleged by the applicant regarding the service and launch of the applicatio n that
yielded the Compel Order.
Rescission of the Striking Order based on Rule 42(1)(a)
[44] Regarding the Striking Application, the following forms part of the applicant’s case
for current purposes. The applicant complains about the time lapse between when the papers
in the application were finalised (i.e. March 2023) and the service of the application (i.e. on
23 May 2023). He also accuses the respondent and her attorneys of dishonesty regarding the
service of the application simply because a one -page proof of service is furnished. The
accusations are persisted with despite the respondent’s attorney confirming under oath that he
simply avoided uploading the entire application on CaseLines, when it was already there. It is
even mentioned that the files received from the applicant’s previous attorneys by his new
attorneys did not have proof of such service. But, I find this not less than astounding, as these
are the very same files which the applicant blame d elsewhere for their unreliable condition .
are the very same files which the applicant blame d elsewhere for their unreliable condition .
The same files are now considered a model of reliability. Ms Kaplan is said to have advised
Mr Coetzee, the new attorney, that the application was not served . But I do not have her
comments on the role played (or that should have been played) by her firm in other respects. I
17
do not find all these a bona fide and unembedded or objective quest to assist the Court. I,
thus, agree with the respondent’s contention that the presiding judge would not have granted
the Compel Order if he was dissatisfied with the service of the papers in the application. It
comes as no surprise that the applicant’s fall -back position is that even if the application was
served, he had no knowledge of it or its enrolment for hearing on 31 July 2023. Therefore, to
the extent that the applicant intended the issue of the lack of service to constitute a mistake or
error in seeking or granting the Striking Order, his case is without merit. For, the application
was properly served on the applicant’s previous attorneys and the matter properly enrolled.
The proceedings before the Court towards granting the Striking Order, also, appear to have
been without anything by way of an error. Therefore, there was no mistake in the proceedings
evident from th e record thereof or satisfactorily shown in th is rescission application to have
existed on the part of the respondent in seeking the Striking Order or on the part of the Court
when it was granted. This means that rescission of the Striking Order under Rule 42(1)(a) is
unavailable. This then leaves rescission on the basis of the common law.
Rescission of the Striking Order based on the common law
[45] As a point of departure , it ought to be mentioned that an application for rescission
based on the common law ought to be brought within a reasonable time. The applicant says
this was the case. This is disputed by th e respondent . Reasonableness in this regard is
determined from when an applicant, such as in this matter, became aware of the impugned
order (such as the Striking Order) or could have been reasonably aware.
[46] The applicant says he was alerted to the Striking Order around May 2024 when
default judgment was sought by the respondent . His previous attorneys emailed him the
default judgment was sought by the respondent . His previous attorneys emailed him the
application on 24 May 2024. He consulted with Ms Kaplan on 4 June 2024 when she advised
him that it was prudent to attempt amicable resolution of the matter with the respondent . He
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says that he made it clear to her that he is desirous of opposing the application .
Correspondences were exchanged between the attorneys regarding possible settlement, still in
June 2024 . B ut, the respondent’s attorneys categorically informed their counterpart for the
applicant that the default judgment application would not be held in abeyance.
[47] In early October 2024, the applicant consulted with his current attorneys. He says that
it was around this time that he came to know of the Striking Order, despite the fact that it was
a precursor to the default judgment application he had already received months back. He says
he had not ‘scrutinised’ the application enough when he received it in May 2024 to notice the
Striking Order. I must say that I find this very bizarre when considering that the applicant
also consulted with Ms Kaplan back the n when she advised him of the possibility of
settlement and he instructed her to oppose the application. Surely, any attorney even of the
lowest pedigree in prudence, would have explained that the default judgment is based on the
Striking Order. Be that as it may, the applicant says h is new attorneys considered the matter
at the end of Septembe r and consulted with him and counsel on 7 October 2024. But,
thereafter, it took them almost a month to formally come on board as the applicant’s attorneys
of record and to obtain files from the previous attorneys in early November 2024. The files
are now described as ‘extensive’ to work through and Ms Kaplan even had to be engaged to
assist. These are the same files described elsewhere as containing ‘limited documents’ to be
of any assistance in drafting the papers in this application . The applicant - during this period
– is said to have been advised by his new attorneys of the implications of the Striking Order
and the option of an application for rescission. He deposed to the founding papers for this
application on 3 November 2024, a date , evidently, earlier than some of his assertions in the
application on 3 November 2024, a date , evidently, earlier than some of his assertions in the
founding affidavit to the application . The notice of motion also bears the latter date. But it
was served on the respondent only on 3 December 2024.
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[48] The respondent says that the applicant’s newly appointed attorney s of record had
reasonable time to bring th is application, but simply failed to do so . They are now blaming
their predecessors. Also, despite attributing some statements to Ms Kaplan, they have failed
to secure a confirmatory affidavit from her. They were even granted access to the file or
matter on CaseLines as far back as 31 July 2024 , five months prior to them actually bringing
the application. The respondent, as already stated, essentially disputes that the application
was brought within a reasonable time.
[49] Overall, the application was launched after more than a year . The explanation given
by the applicant for the delay falls short of covering the entire period of the delay. I am not
satisfied that the applicant brought the application within a reasonable time . Even if the
explanation is stretched, the applicant ought to have been aware of the Striking Order in June
2024 when he contemporaneously gave instructions for the opposition of the default
judgment. He just did not bother about the rescission of the Striking Order until after the
respondent had applied for a date of hearing of the default judgment application in late
October 2024. This, no doubt, made the applicant realise that his lackadaisical approach was
getting him deeper and deeper in trouble. The ill-disposition and death of Mr Shapiro, his
former attorney on 28 June 2023 – both, no doubt, instances of considerable grief – were by
this stage very far back in the past to serve as any form of justification for his indifference to
the expanding litigation. But, I will move on other aspects of common-law based rescission.
[50] Another requirement for common law rescission is that the applicant ought to show
‘good cause’ or ‘sufficient cause’ . This , generally, entails that the applicant should:
(a) furnish a reasonable and acceptable explanation for his default ; (b) establish that his
(a) furnish a reasonable and acceptable explanation for his default ; (b) establish that his
application is made bona fide, and (c) show that he has bona fide defence on the merits with
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some prima facie prospect of success.14 These requirements form part of the determination of
the application by the Court in the exercise of its wide discretion against the remit of justice
and equity.15
[51] I deal first with whether the applicant has furnished a reasonable and acceptable
explanation for his default . I understand this to refer to an explanation by the applicant as to
what led to the default. This is different from the requirement that a rescission application be
brought within a reasonable time. But , the explanation (constituted by timelines and material
activities) proffered by the applicant as to his timing of the launch of the application may be
relevant. This is so with regard to the part of the explanation that expands to the events prior
to the order sought to be varied.
[52] Essentially, the applicant says he left everything in the hands of his late attorney, Mr
Shapiro, who had assisted him from commencement of the matter. It is submitted that the
evidence points clearly to an applicant who has been failed by his former attorneys in several
critical ways, including the granting of the Striking Order. The applicant, it is also submitted,
should not be punished for the conduct of his former attorneys . He made some enquiries
about developments in the matter during the material times and was not informed of the
Compel Order and the Striking Order. And, the respondent’s suggestion as to the applicant
delaying finalisation of the matter; abusing process of the Court, or attempting to litigate the
respondent into submission, is untrue. The applicant, it is further submitted, has the right to
fend off an accrual claim of an immensely inflated nature from being granted in favour of the
respondent. Although, it is not entirely without blemish, I accept as reasonable the
explanation in this regard based on the circumstances of this matter.
14 Par [40] above.
15 Pars [39]-[40] above.
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[53] I proceed to deal with whether the application is made bona fide. This issue, in my
view, comprises both a factual enquiry and a value judgment. It is submitted for the applicant
that t he Striking Order obliterated the applicant’s defence and, thus, has drastic and far -
reaching effect including depriving him of his right to a fair trial under section 3416 of the
Constitution by way of defending the divorce action. This is extremely prejudicial to the
applicant. Therefore, the rescission application is pursued bona fide . And it is also in t he
interests of justice that the Striking Order should be rescinded, the submission concludes.
[54] The respondent denies that the application is made bona fide. The applicant, she says,
only tactically acted when he realised that the launch of the default judgment was imminent .
He has no genuine attempt to rescind the impugned judgment. This, it is submitted , is
confirmed by t he lack of traction in the finalisation of th is application, until the respondent
took the necessary steps to enrol the application. I will rule on this aspect below.
[55] I turn to the issue of whether the applicant has a bona fide defence showing s ome
prima facie prospect of success. The remaining issue in the divorce is the accrual in the
parties’ respective estates still to be determined by the Court. A fter the Striking Order was
granted the applicant sought default judgment in the amount of R18 347 265,75 in respect of
her accrual claim . But the respondent was candid enough to alert the Court that this figure
was arrived at without being privy to the documents still to be furnished in terms of the
Compel Order. In the application currently before the Court the respondent – by way of
counterapplication – seeks payment in the amount of R9 655 825.75. It is the respondent’s
view that even if the new version put forward by the applicant’s current expert is accepted,
view that even if the new version put forward by the applicant’s current expert is accepted,
the applicant would still be liable to pay to her an amount of R13 920 421 as an accrual
sharing. And because the applicant has already made some payment based on the opinion of
Mr Hart court-Cooke at the time of the divorce. Mr Ferreira , the respondent’s expert, is
16 See footnote 3 above on s 34 of the Constitution.
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accused of overstating the value of the applicant’s shareholding in a private company known
as Southway Refractories (‘Southway’). He, apparently, had to revise some of the figures. On
the other hand, Mr De Lange, the applicant’s expert , in March 2025, valued the applicant’s
entire estate and did not limit it to the Southway shareholding. If the commencement values
are taken into consideration, Mr De Lange concludes, the difference in the estate values of
the parties and, therefore, the total amount of the accrual may change once the respondent’s
documents are verified. I think these figures and the approaches adopted by the experts to
arrive at same would need to be reviewed against all available evidence and the respondent is
on record that such evidence may be derived from documents forming the subject -matter of
the Compel Order. This, clearly, was the very reason why the order was obtained by the
respondent in the first place.
[56] It is submitted on behalf of the applicant that there is clear dispute of fact in relation
to the quantum of the respondent’s accrual claim . This ought to be ventilated lest prejudice
befall the applicant should he remain unable to defend the respondent’s accrual claim. The
applicant’s defence is bona fide and he has reasonable prospects of success.
[57] Considering what is stated above and in the papers before the Court , there is clearly
no unanimity o n the figures and expert opinions. This may be significantly attributed to the
applicant’s non-compliance with the Compel Order. Full and complete disclosure or sharing
of documents ought to occur for a proper determination of the accrual issue . This is not the
same as overlooking the applicant’s non -compliance with the Compel Order. He has no
choice but to comply with same as long as it remains the order of the Court. But, for current
purposes, I am satisfied that the applicant has disclosed a bona fide defence showing some
purposes, I am satisfied that the applicant has disclosed a bona fide defence showing some
prima facie prospect of success. And this application was brought to secure an opportunity to
advance such defence and, thus, is bona fide. Although, the application fell short in respect of
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its timing, which I ruled to be of no reasonable proportion, it is still my view that it would
interest justice and equity for the Striking Order to be rescinded on the basis of the common
law. The rescission would restore to the applicant his right to participate in the determination
of the accrual issue in the divorce proceedings. The path towards finality in this regard is not
so clear when viewed from the horizon of each of the parties and the facts in which their
respective views are embedded . Therefore, an order will be made rescinding the Striking
Order.
[58] I am mindful of the reality that the divorce in this matter is taking a very long time to
conclude. But, the process and rules of the Court may continue to be utilised to guard against
any form of gamesmanship to frustrate early determination of the accrual issue.
Counterapplication by the respondent for payment of the accrual amount
[59] The respondent, as stated above, seeks payment of the accrual in the amount of
R9 655 825,75 plus interest and punitive costs by way of a counterapplication. This, in turn,
is opposed by the applicant.
[60] The applicant’s view is that the respondent’s counterapplication is erroneously
premised on the figures contained in the report by his expert Mr De Lange dated 1 December
2024 (‘De Lange ’s December Report ’). The report is said to only deal with the valuation of
Southway, which is one component of the estate of the applicant, a s s tated above. The
applicant says that Mr De Lange had subsequently explained in his report of 25 March 2025
that there is an error in the De Lange ’s December Repor t. The latter report was included in
the founding affidavit to demonstrate that the applicant has a bona fide defence against the
accrual claim by the respondent. Therefore, the applicant disputes that the respondent is
entitled to the amount claimed in her counterclaim and even the default judgment application,
entitled to the amount claimed in her counterclaim and even the default judgment application,
especially since she has not disclosed the relevant documents previously requested by the
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applicant. The latter sounds like the proverbial ‘pot calling the kettle black’. For, this whole
matter emanates from the Compel Order in terms of which the applicant was directed by the
Court to produce documents or to indicate their whereabouts. But, nothing would turn on this.
[61] For significantly the same reasons as for the rescission of the Striking Order , stated
above, I do not consider the facts in the matter to allow for a determination of the accrual
issue or part thereof in favour of the respondent. Prime, amongst these, is the clear dispute of
fact regarding the figures or the expert opinions in the constitution of the figures. This means,
in the absence of an agreement resolution of the material issues would require oral evidence. I
do not think that the dispute of fact is fictitious, as suggested by the respondent. And, I do not
consider it necessary to express a view on the propriety of the incorporation of new
information or report in this application.
[62] Therefore, the counterapplication will be dismissed with costs . It, actually, bears the
hallmarks of reactive litigation, launched in response to the rescission by the applicant. But it
ought to have been delayed for the attention of the court to be seized with the remaining issue
in the divorce proceedings, the accrual sharing. To avoid doubt, I am not saying the
counterapplication was not bona fide. The respondent appears to have been always motivated
by a genuine quest to conclude the divorce.
Conclusion and costs
[63] Considering what appears above, the applicant is successful in his quest to rescind the
Striking Order, albeit on the alternative claim based on the common law. Be that as it may ,
the rescission application represents an indulgence sought by the applicant from the Court.
Under the facts of this matter t he granting of rescission s hould not , in any way , adversely
affect the respondent beyond the restoration of the status quo. The applicant would be held
affect the respondent beyond the restoration of the status quo. The applicant would be held
liable for costs of the rescission application . And the costs will include those relating to the
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standing down of the hearing of the matter to 20 March 2026, as indicated earlier. The costs
of counsel shall be on scale B.
[64] The counterapplication, as already indicated, will be dismissed with costs. Counsel’s
costs will also be ordered on scale B in this regard.
Order
[65] In the premises, I make the order, that:
1. the application for rescission is granted and the order granted by Acting
Justice Skosana dated 31 July 2023 is rescinded;
2. the applicant, Mr L[...] Z[...], is liable for costs of the application for rescission
on a party and party scale, with counsel’s fees on scale B, and the costs shall
include those relating to the standing down of the hearing of the matter to 20
March 2026;
3. the counterapplication by the respondent , Ms S[...] M[...] Z[...], is dismissed
with costs on a party and party scale, with counsel’s fees on scale B.
___________________________
Khashane La M. Manamela
Judge of the High Court
Dates of Hearing : 17 and 20 March 2026
Date of Judgment : 3 September 2026
Appearances:
For the Applicant : Ms P Bosman (Ms A Vosloo-De W itt on 17 March
2026)
Instructed by : Jaco Coetzee Attorneys, Helderkruin, Roodepoort
c/o Hack Stupel & Ross Attorneys, Pretoria North
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For the Respondent : Ms L van der Westhuizen
Instructed by : Schoeman Esterhuizen Gamberini Attorneys Inc,
Alphen Park, Pretoria