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[2023] ZAFSHC 481
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Ngququ N.O v Steyn (4133/2022) [2023] ZAFSHC 481 (7 December 2023)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case No:4133/2022
In
the matter between:
ZWELIBANZI
WILLIAM NGQUQU N.O.
Applicant
(In
his capacity as the executor of the deceased estate of the
late
Petru Steyn, Estate Number 360[…])
And
DANE
STEYN
Respondent
IN
RE:
DANẺ
STEYN
Applicant
and
ZWELIBANZI
WILLIAM NGQUQU N.O.
1
st
Respondent
(In
his capacity as the executor of the deceased estate of the
late
Petru Steyn, Estate Number 360[…])
MASTER
OF THE HIGH COURT BLOEMFONTEIN
2
nd
Respondent
THE
REGISTRAR OF DEED BLOEMFONTEIN
3rd
Respondent
WATERLAAGTE
VOERKRAAL (PTY) LTD
4
th
Respondent
MARIETA
STEYN;
5
th
Respondent
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
07
DECEMBER 2023
[1]
This is an application for leave to appeal against the whole of the
order and judgment delivered in January
2023 as well as the variation
order dated 9 June 2023 on the following grounds:
“
1.
The Honourable Justice Mhlambi, while correctly identifying at
paragraph 23 of his judgment, that the controversy between the
parties became moot, erred by in fact granting the order of costs
against the First Respondent, as his decision was based on his
finding that when the Master’s endorsement was granted on 25
August 2022, the contract of sale was concluded in contravention
of
section 42(2) of the Administration of Estate Act 66 of 1995 as
amended (the Act).
1.1
Section 47 of the Act provides as
follows:
“
Unless
it is contrary to the will of the deceased, an executor shall sell
property (other than property of a class ordinarily sold
through a
stock-broker or a bill of exchange or property sold in the ordinary
course of any business or undertaking carried on
by the executor) in
the manner and subject to the conditions which the heirs who have an
interest therein approve in writing: Provided
that-
a)
in the case where an absentee, a
minor or a person under curatorship is heir to the property; or
b)
if the said heirs are unable to agree
on the manner and condition of the sale, the executor shall sell the
property in such manner
and subject to such condition as the Master
may approve.
”
1.2
The Applicant communicated the
disagreement between the heirs to the Second Respondent as early as
April 2022, thus evoking that
the sale of the immovable properties at
the heart of this controversy, be dealt with in terms of section
42(2)(b) of the Act.
2. The Learned
Judge erred in finding that the matter was urgent when there existed
no factual or legal basis for the matter
to be adjudicated on an
urgent basis when there was no live controversy between the matters.
3. The court a
quo erred in making factual findings pertaining the circumstances
surrounding the re-payment of the purchase
price and the auctioneer’s
fees and accepting same to be indicative of termination of the sale
agreement in point.
4. Further, the
Learned Judge erred in find that the First Respondent’s conduct
was unprofessional and warranted that
an order of a punitive cost
order against the First Respondent in his personal capacity.
5. Accordingly,
it will be argued that there are reasonable prospects of success that
another court will come to a different
decision to that of the Court
a quo and find that the Applicant’s application for a final
interdict ought to have been dismissed
with costs. In the
circumstances, leave to appeal ought to be granted in accordance with
section 17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
”
[2] On
03 July 2023 the applicant filed a condonation application for the
late filing of the leave to appeal the
order granted in January 2023.
The application was late by about 5 months. In the founding
affidavit, it was stated that:
“
11.
I was perplexed on 9
th
June 2023, when I was served with a variation order obtained in terms
of uniform court
rule 42(1)(b)
, wherein it was clarified that the
cost order granted on January 2023 was against me in my personal
capacity. It was at this point
that I became aware that there was
reason for me to appeal the judgment and order in toto, particularly
because the rationale for
the grant of the order is premised of the
Court’s finding that my conduct as an Executor in dealing with
the immovable property
at the centre of this controversy...
13. It is my
submission that in light of the fact that the order which motivated
the appeal is the variation order handed down on
9 June 2023.
However, should this Court find that the I should have appealed five
months ago, I bring this condonation application.”
[3] In
paragraph 17 of the affidavit the deponent stated that:
“
17.
I submit that the I have prospects of success in the appeal, because
of the substantial error made by the Learned Judge in both
fact and
law. It follows therefore that there are reasonable prospects of
success that another court will come to a different decision
to that
of the Court a quo and find that the Respondent’s application
for final interdict ought to have been dismissed with
costs.”
[4]
In the heads of argument, it was contended that the presiding officer
erroneously relied on an incorrect sub-section
[1]
and further failed to consider all the facts placed before him.
[2]
As regards the variation order, reference was made to Rule 42 of the
Uniform Rules of Court and it was submitted that this Rule
was
confined by its wording and context to the rescission or variation of
an ambiguous order or an order containing a patent error
or
omission.
[3]
It would seem that
the crux of this appeal is contained in the following passage:
“
25.
It is undeniable that the court a quo’s variation may have been
permissible in law, however, in light of the fact that
the variation
was sought by some form of application by the Respondent, which the
Applicant was not aware of, there are reasonable
prospects that when
afforded an opportunity through the principle of audi alteram partem,
prospects of success exit in such a court.
There was no application
or notice of any form served on the Applicant alerting him of the
sought variation.”
There
is no merit in the submission that prospects of success will exist if
the applicant is afforded
audi alteram
partem.
However, it may be a compelling
reason that the applicant was not afforded
audi
in respect of the payment of costs in
his personal capacity.
[5] The
applicant has not made a proper case for the granting of condonation
as the explanation for the delay
or default is not reasonable or
acceptable.
[6]
Consequently, I make the following order:
Order
1.
The application for condonation is dismissed with costs.
2.
The application for leave to appeal the order and judgement delivered
in January 2023 is dismissed.
3.
Leave to appeal the variation order of June 2023 is granted to the
full bench of this court.
4.
Costs of the appeal in 3 above will be costs in the appeal.
MHLAMBI, J
On
behalf of the Applicant:
Adv.
TM Ngubeni
Instructed
by:
Zwelibanzi
Ngququ Inc.
4
Captain Proctor Street
Westdene
Bloemfontein
On
behalf of the Respondent:
Adv.
R Van Der Merwe
Instructed
by:
Graham
Attorneys
14
Torbet Street
Noordhoek
Bloemfontein
[1]
Section 47 of The Administration of Estate Act 66 of 1965.
[2]
Para
26 of the Applicant’s heads of argument.
[3]
Paragraph 24 of the Applicants Heads or Argument.