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2023
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[2023] ZAFSHC 158
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Smith N.O and Another v Malan N.O and Another (4222.2022) [2023] ZAFSHC 158 (28 April 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
no:
4222/2022
REPORTABLE:
YES/NO
ON
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the matter between
:
ELRICH
RUWAYNE SMITH N.O
1
st
Applicant
ZIYAD
SONPRA N.O
[In
their respective capacities as liquidators of
Golden
Ribbon Trading 86 (PTY) LTD (in liquidation),
Master
of the Free State High Court,
Bloemfontein,
reference no.B62/2019]
2
nd
Applicant
and
JACOBUS
FRANCOIS MALAN N.O
[In
his capacity of the estate late
Jacobus
Francois Malan]
1
st
Respondent
THE
MASTER OF THE FREE STATE HIGH COURT, BLOEMFONTEIN
2
nd
Respondent
CORAM
:
RAMDEYAL AJ
HEARD
ON
:
13
April 2023
DELIVERED
ON
:
28 April 2023
[1] Heads
of argument were delivered as requested. Counsel for the first
respondent requested
to reply to the applicant’s heads of
argument on 19 April 2023 which was permitted but no reply to same
has been received.
I am therefore of the view that I am at liberty to
proceed with writing the judgment in its absence, today the 26
th
of April 2023 as counsel was permitted to reply and file same by the
24
th
of April.
[2] The
court is called upon to adjudicate on whether there should be a
separation of issues
in this matter as the court understood from
counsel for the first respondent in terms of rule 33(4) of the
Uniform rules of Court.
[3] Counsel
made specific reference to paragraph 17 of the Answering affidavit of
the first
respondent in support of its application. Paragraph 17
reads as follows:
“
17.1
The administration of the estate of the deceased has been concluded
and wound-up. The liquidation and distribution account
was accepted
by the Master of this Honourable Court and were the creditors paid
and the distributions done and transferred to the
beneficiaries of
the estate in terms of the provisions of
section 35(12)
of the
Administration of Estates Act no. 66 of 1965
.
17.2
The result of the estate having been distributed, is that the
Applicant’s have no claim against me in my erstwhile capacity
as Executor of the estate or the estate as such. In the event of the
Applicant’s may have had a claim against the beneficiaries
of
the deceased’s Will, they should have claimed from the
beneficiaries of the estate in terms of the condictio indebiti.”
[4] Counsel
for the applicant opposed such late application to be adjudicated on
separation
of issues as no such application was served on the
applicants. Counsel for the first respondent called the court to
adjudicate
this point mero moto as he argued that the estate has been
finalized and there is no money left in the estate so any application
thereafter resulting in an order against the estate will have no
consequences, referring to a
moot
order.
[5]
Whilst
courts generally do not adjudicate on issues were the decision sought
will have no practical effect or result
The
President of the RSA v DA and Others
[1]
there are instances where there have been exceptions to the provision
where a court has exercised its discretion to hear a matter
even
where it was moot.
[6]
In
Independent
Electoral Commission v Langeberg Municipality
[2]
the Constitutional Court said the following:
“…
A
prerequisite for the exercise of the discretion is that any order
which this court may make will have some practical effect either
on
the parties or on others.”
[7] Bearing
this in mind it is important at this stage to consider whether such
application
to separate issues is apposite. Firstly, counsel for the
first respondent bases his application of separation of issues
pertaining
to
rule 33(4).
[8]
Rule
33(4)
states as follows:
“
If,
in any pending action, it appears to the court mero motu that there
is a question of law or fact which may conveniently be decided
either
before any evidence is led or separately from any other question, the
court may make an order directing the disposal of
such question in
such manner as it may deem fit and may order that all further
proceedings be stayed until such question has been
disposed of, and
the court shall on the application of any party make such order
unless it appears that the questions cannot be
decided upon
separately.”
[9] Counsel
however, concedes in his heads of argument that
rule 33(4)
indeed
refers to ‘
any pending action’
and not to
applications.
[10]
It is so that the court called for heads of arguments pertaining to
the aspect
of separation of issues as per the application by counsel
for the first respondent as the argument was detailed and overlapped
with other issues.
[11]
The application of separation of issues is opposed on the ground that
rule 33(4)
cannot be used in this application, neither can the first
respondent now request the court to adjudicate on the first point in
limine as that was not the actual application but in the heads of
argument for the first respondent he requests the “honourable
court to uphold the first point in limine including an order that the
applicant’s application be dismissed with costs.”
[12]
Assuming that
rule 33(4)
did find application in this case the court
must still take heed to what was said by the Supreme Court of Appeal
in matters pertaining
to separation of issues.
[13]
In
Denel
(Edms) Bpk v Vorster
[3]
,
it was said that Rule33(4) entitles a court to try issues separately
in appropriate circumstances aimed at facilitating the convenient
and
expeditious disposal of litigation. It should not be assumed that the
result is always achieved by separating issues….the
expeditious disposal of litigation is often best served at
ventilating all the issues in one hearing…It is only after
careful
thought has been given to the anticipated course of the
litigation as a whole that it will be possible properly to determine
whether
it is convenient to try an issue separately.
[14]
The Supreme
Court of appeal also warned against the separation of issues in
Consolidated
News Agencies (Pty) Ltd (In Liquidation) v Mobile Telephone Networks
(Pty) Ltd & Another
[4]
,
reiterating that piecemeal litigation should be avoided.
[15]
Clearly
Rule 33(4)
is not the premise for separation of issues in
this application and neither can separation be regarded as convenient
in the circumstances.
[16]
I must now consider the question of costs. Counsel for the applicant
has requested
a punitive cost order against the first respondent on
the basis of submissions as filed in its heads of argument. (para 21)
[17]
Counsel for the first respondent found it absolutely essential that
the matter
be separated to consider the first point in limine before
the full application as he was of the opinion that the estate is out
of funds and any order against such will be a moot order with no
effect. There was no actual objection to such application
being
heard in its informal premise.
[18]
The award for costs is a matter wholly within the discretion of the
court,
ensuring that it is just and fair.
“
The
Supreme Court of Appeal has over the years developed a flexible
approach to costs which proceeds from two basic principles the
first
being that the award for costs, unless expressly otherwise enacted,
is in the discretion of the presiding judicial officer,
and second
that the successful party should, as a general rule, have his or her
costs…”
[19]
See
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
[5]
.
[20]
The
Supreme Court of Appeal held in Du Toit No v Thomas NO and Others
[6]
“
that
a punitive costs order is also justified where an applicant displayed
an ‘unconscionable stance’. I am not convinced
that the
applicant instituted the application for leave to appeal merely to
annoy the defendant, or that the application for leave
to appeal is a
deliberate abuse of process. A court must be mindful not to curtail
access to justice. My view is that whilst the
applicant was misguided
in launching this application, that in itself does not suffice to
mulct him with a punitive costs order.
In the circumstances a
punitive costs order will not be appropriate. However, I am of the
view that it will likewise not be appropriate
or fair towards the
respondents if it is ordered that each party must carry its own
costs. I can find no reason why the general
principle that costs
follow the event, should not apply.”
[21]
Whilst the application in terms of Rule33 (4) may have no premise in
the matter
before me, it does not appear that counsel for the
applicant deliberately abused the process in his application, he may
have erred
in his application but that does not warrant a punitive
cost order.
[22]
The application for separation of issues is therefore dismissed with
costs.
RAMDEYAL AJ
On
behalf of the Applicant
Adv.
R Van der Merwe
Instructed
by:
Badenhorst
Attorneys
Bloemfontein
On
behalf of the Respondent:
Adv.
AJR Van Rhyn Sc
Instructed
by:
JAC
N Coetzer Ingcorporated
Hoopstad
C/O
Lovius Block
Bloemfontein
[1]
664/17[2018] ZASCA 79 (31May 2018)
[2]
2001(3) SA 925 (CC) at paragraph 11
[3]
2004 (4) SA 481
(SCA) paragraph 3
[4]
2009 ZASCA 130
;
2010 (3) SA 382(SCA)
paragraphs 90-91
[5]
1996 ZACC 2
;
1996 (2) SA 621
(CC); Paragraph 3
[6]
(635/15)
[2016] ZASCA 94