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[2023] ZAECQBHC 39
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Moshabane v Mtshagi (Kave) and Others - Application for Leave to Appeal (70/2022) [2023] ZAECQBHC 39 (20 June 2023)
`
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – GQEBERHA]
CASE
NO.: 70/2022
In
the matter between: -
THANDIWE
ANGELA MOSHABANE
APPLICANT
And
PAMELA
NOSIPHO MTSHAGI (KAVE)
1
ST
RESPONDENT
REMAX
ESTATE AGENT
2
ND
RESPONDENT
XHANTI
MTONGANA
3
RD
RESPONDENT
ZONKE
BUDAZA INC.
4
TH
RESPONDENT
ZONKE
BUDAZA
5
TH
RESPONDENT
SIMONE
JONKER
6
TH
RESPONDENT
MASTER
OF THE HIGH COURT
7
TH
RESPONDENT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
NORMAN
J:
[1]
This is an application for leave to appeal against an order that this
court granted on 16 February
2023. The order reads:
“
1.
The matter be and is hereby postponed to 20 April 2023.
2.
The applicant is to pay today’s wasted costs and those of the
application for postponement.”
[2]
The order came about as a result of an application for postponement
which was brought by the applicant.
The applicant was legally
represented and so were the respondents.
Grounds
for seeking leave
[3]
The main ground for seeking leave is that because the main
application relates to the validity
of a will this court had no
authority to sit as a single judge to deal with the postponement
application. On this basis the applicant
contends that, this court
erred. The applicant accepts that the main issue, namely, the
validity of the will was not dealt with
at all on that day and only a
postponement application was entertained.
[4]
The other ground raised is that when the court furnished reasons for
the order, when they were
sought, it directed the registrar to amend
the order by including, “for postponement” after the
words application.
In this regard the applicant contends that the
court abused its powers as it was
functus officio.
[5]
The applicant also sought condonation for the late filing of the
application for leave to appeal.
The reasons advanced for the delay
were:
(i)
The applicant could not file the application for leave to appeal,
fifteen days, after the
reasons were furnished because the applicant
was acting as a Magistrate and after her acting stint, she had to
wait two weeks to
get a copy of the court order to be sent to her
attorney.
(ii)
Applicant collected the court order. Upon receiving the court order
she requested reasons for
the judgment or order. She was only given
reasons from a single judge instead of reasons from two judges as the
court had to be
constituted by two judges,
(iv)
Upon reading the court order, she wrote an email to the Deputy Judge
President’s secretary and
the registrar requesting the second
judge’s reasons. The applicant did not receive any response or
explanation.
(v)
The applicant continued with a follow request up on 27 April 2023 to
be provided with reasons
of the second judge. The applicant still was
not furnished with the reasons of the second judge. However, the
first respondent’s
attorney decided to respond on behalf of the
court whereas the applicant did not request the first respondent’s
attorney
to reply on behalf of the court officials. This became a
surprise to the applicant as the respondents’ attorney is not
employed
by the court and cannot respond on behalf of the court
officials or the judiciary.
(vi)
The applicant continued to request from the registrar to be provided
with the rule and the practice
directive which grants a registrar
authority to provisionally set the matter down without the parties.
The applicant still did
not get any response from the Deputy Judge
President.
(viii)
She concluded by stating that the delay in filing the notice of
appeal was not her fault but it was caused
by the court and therefore
the applicant is not obligated to bring an application for
condonation.
[6]
The other ground raised for leave to appeal was that the court erred
in finding that the first
respondent was entitled to costs of 16
February 2023 because the first respondent was not properly before
court on that day. This,
applicant argued, was because the first
respondent had not complied with a certain order of court that had
been issued prior to
16 February 2023.
Applicant’s
legal submissions
[7]
Applicant appeared in person. She is a legal practitioner. She
submitted that another court would
find that this court erred in
postponing the matter as a single judge and in awarding costs of the
postponement against her.
[8]
She relied on the matter in
Zuma
v Office of the Public Protector & Others
[1]
where the court stated that: “A
n
appellate court will not interfere with the exercise of that
discretion, unless there was a material misdirection by the lower
court.”
On
this basis she submitted that the discretion that the court had was
not properly exercised and the appeal court will certainly
interfere
with the decision of this court.
[9]
She submitted that she had been severely prejudiced in pursuing the
case because the court in
respect of every matter she brought, she
was not successful. She made several remarks that had racial
connotations, she lacked
court decorum, was unruly and disrespectful
to the court.
Respondents
submissions
[10]
Mr Marais appeared for the first respondent. The
respondent’s contention is that there is no merit
in the
application for leave to appeal. He submitted that an objection to
the jurisdiction of the court must be taken in
limine
and that
a party that submits to the court’s jurisdiction cannot now
complain for the purposes of seeking leave to appeal.
He submitted
that there are limitations imposed on a court deciding whether leave
to appeal ought to be granted or not.
[11]
In this regard he relied on section 17 of the Superior Courts Act 10
of 2023 (SCA Act). He submitted
that leave may only be granted if
this court is of the opinion that the appeal would have reasonable
prospects of success or there
is some other compelling reason why the
appeal should be heard including conflicting judgments on the matter
under consideration.
The decision also does not dispose of all the
issues in the case and the appeal would not lead to a just and prompt
resolution
of the real issues between the parties.
[12]
He further relied on section 16(2)(a) of the SCA Act for the
submission that in any event the order that
is being appealed would
have no practical effect. He raised the fact that the application for
leave to appeal was defective because
it purported to appeal against
the order.
[13]
He submitted that in any event the main
application was disposed of on 20 April 2023 by the Full Court and
the parties were awaiting judgment on the main issue of the validity
of a will and therefore any appeal that relates to the orders
(relating to postponement) that this court made, is rendered of no
practical effect.
[14]
He submitted that this application was vexatious and in this regard
he relied on the decision by Southwood
J in
Johannesburg
City Council v Television and Electrical Distributors
[2]
where
the Court referred, with approval to
In
re: Aluvia
Creek
Ltd
[3]
in support of its statement that “
in
appropriate circumstances the conduct of a litigant may be ‘adjudged
vexatious’ within the extended meaning that
has been placed
upon the term in a number of decisions, that is, when such conduct
has resulted in ‘unnecessary trouble and
expense which the
other side ought not to bear’”.
[15]
He submitted that the applicant is not a layperson. The applicant had
conveyed that she is an attorney and
therefore an officer of the
court. She must have been aware that the application is baseless yet
she persisted with it causing
the first respondent untold trouble and
expense. On this basis, he submitted that the court should dismiss
the application for
leave to appeal and that costs should be ordered
on an attorney and client scale.
Discussion
Condonation
[16]
On 8 March 2023 the applicant requested reasons for the order. Those
reasons were furnished, two days later,
on 10 March 2023. The
application for leave to appeal was only brought on 24 May 2023, two
months later.
[17]
The reasons advanced for the delay are spurious. The applicant knew
that the order was made by a single judge
and any request for reasons
from a “second judge” was simply a waste of time. As
aforementioned the applicant was duly
represented by counsel on the
day in question. He did not object to the fact that for the purposes
of the application for postponement
the court was not constituted as
a Full Court. In any event there was no prejudice to the applicant
because the applicant was granted
the postponement that she sought. I
had furnished the reasons for having made the costs order. The
applicant was seeking an indulgence.
A substantive application for
postponement was brought on the day of the hearing.
[18]
In
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd & Others
[4]
, the Supreme Court of Appeal stated:
“
[11]
Factors which usually weigh with this court in considering an
application for condonation include the degree of non
–
compliance, the explanation therefor, the importance of the case, a
respondent’s interest in the finality of the
judgment of the
court below, the convenience of this court and the avoidance of
unnecessary delay in the administration of justice..”
(footnotes omitted).
[19]
The explanation advanced for the delay is not satisfactory and does
not justify condonation of the late lodgment
of this application. On
this basis, condonation is refused.
[20]
I hasten to record that after argument on the day when the
application was heard, the court had to afford
the applicant an
opportunity to reply to the
ex gratia
heads of argument
submitted by the first respondent, in writing, since she complained
that those heads of argument were only furnished
to her at the
hearing.
[21]
In replying to the first respondent’s heads of argument, the
applicant filed what she termed ‘
APPLICANT’S APPEAL
REPLYING AFFIDAVIT’.
She prepared an affidavit instead of
an argument in reply. She complained in that affidavit that she had
not been afforded a fair
trial. In that affidavit the applicant went
on to deal with cases that relate to contempt of court, which in my
view, do not find
application to the matter at hand.
Amendment
of the order
[22]
I considered the complaint that the court was
functus officio
and ought not to have amended the order. The
amendment was not an invention of a new order. The transcribed record
revealed the
correct order made by this court. The typed order
omitted the two words “for postponement” as
aforementioned. That
was simply intended to clarify with certainty
(as properly recorded in court) that the costs related to the
postponement application.
It was in the interests of justice to do
so.
[23]
In
HLB
International
(South Africa) v MWRK Accountants and Consultants
[5]
,
the
Supreme Court of Appeal dealt with a matter where the high court had
interpreted and corrected its order. The Supreme Court
of Appeal
stated at paragraph 19
:
“
[19]
Rule 42(1)(b) of the Uniform Rules of Court provides that the high
court may, in addition to any other power it may have,
on
its own initiative
or upon the
application of any party affected, rescind or vary an order or
judgment in which there is an ambiguity, or a patent
error or
omission
, but only to the extent
of such ambiguity, error or omission…”( my emphasis).
[24]
The words omitted were contained in the order made
in court evinced on the transcript. Therefore the ‘sense
and
substance’ of the order was not altered
[6]
.
The submission that the correction amounted to an abuse of the
court’s powers, is accordingly, not supported by the provisions
of Rule 42, above.
[25]
I have considered the heads of argument from both parties and “the
applicant’s appeal replying
affidavit” and I am of the
view that there is no merit in the application. The order was
interlocutory in nature and did
not determine any of the issues in
the main application. I have not come across any decision where an
applicant seeks to undo a
postponement that has already been granted
and the applicant did not advance any.
[26]
I find that there is no merit in any of the grounds advanced in this
application. To the extent that leave
is sought against the costs
order, that too, will have no practical effect as envisaged in
section 16 (2) (a) of the Superior Courts
Act. For these reasons the
application must fail. I am satisfied that the court on appeal would
not interfere with the orders made.
Costs
of this application
[27]
On the issue of costs, the first respondent, asked this court to
grant costs on an attorney and client scale.
I do not deem it
appropriate to do so. However, I must add that due to the indecorous
conduct of the applicant during the proceedings
of 9 June 2023, I
will direct that the transcript of those proceedings be forwarded to
the Legal Practice Council. I did inform
Ms Moshabane and Mr Marais
at the hearing that I intended to issue that order.
Order
[28]
In the circumstances I make the following Order:
(i)
The
application for leave to appeal is dismissed with costs.
(ii)
The Registrar is directed to forward the transcribed record of the
proceedings of 9 June 2023
to the Legal Practice Council, Eastern
Cape within fourteen (14) days hereof.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on:
09 June 2023
Judgment
Delivered on:
20 June 2023
APPEARANCES:
For
the APPLICANT:
MS
MOSHABANE (In person)
117
CALEDON STREET, SHERWOOD
GQEBERHA
Instructed
by:
MOSHABANE
ATTORNEYS
c/o:
MR PONGOLA
GODSMITH
STREET
NORTH
END
GQEBERHA
REF:
Moshabane/t/Kave/Estate/007808/2021
Email:
Moshabaneattorneys@mweb.co.za
CELL:
074 114 8099
For
the 1
ST
RESPONDENT:
ADV
MARAIS
Instructed
by:
JACO
HATTINGH ATTORNEYS
28
SEVENTH AVENUE
NEWTON
PARK
GQEBERHA
REF:
MR HATTINGH/rh/KAV04
EMAIL:
jaco@jhla.co.za
TEL:
041 364 2624
[1]
2020 (ZASCA) 138 at para 19.
[2]
1997 (1) ALLSA 455 (A); [1997] JOL 507 (A); 1997 (1) SA 157 (A) 177
D-E.
[3]
1929 CPD 532.
[4]
(619/12)
[2013] ZASCA 5
(11 March 2013) at para 11.
[5]
(113/2021)
[2022] ZASCA 52
(12 April 2022
),
para
19.
[6]
HLB
International, supra, para 20.