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2023
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[2023] ZAGPPHC 1888
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Mnisi and Others v Mawulu Communal Property Association and Others (083533/2023) [2023] ZAGPPHC 1888 (2 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 083533/2023
(1)
REPORTABLE:
YES /
NO
(2)
OF INTEREST TO OTHER JUDGE:
YES /
NO
(3)
REVISED:
YES /
NO
DATE: 2 November 2023
SIGNATURE
In
the matter between:
HARRIET ELIZABETH
MNISI
1st APPELLANT
SAMSON
SHAKOANE
2nd APPLICANT
GABRIEL
MATHEBULA
3rd APPLICANT
JETRO
MSANGO
4th APPLICANT
MARGARET
NDLOVU
5th APPLICANT
and
MAWULU COMMUNAL
PROPERTY
1st
RESPONDENT
ASSOCIATION
LUKE BOB
MASANGO
2nd RESPONDENT
IRVIN NQOBIZITHA
PHENYANE
3rd RESPONDENT
SOLANE MATHE
MALOPE
4th RESPONDENT
JABULILE
MATHETHWA
5th RESPONDENT
MESCHACK
MHLANGA
6th RESPONDENT
GUGILE
NKWINTI
7th RESPONDENT
ZANELE
SIHLANGU
8th RESPONDENT
Coram:
Le
Grange AJ
Heard:
1
November 2023
Delivered:
This judgment and order is handed down
electronically by circulation to the parties’ representatives
by email and uploaded on CaseLines. The date and time for hand-down
is deemed to be 13h00 on 2 November 2023.
ORDER
It is ordered that: -
1.
the requirements relating to form, service
and time periods, as provided for in the rules, are dispensed with,
and that this matter
is dealt with as one of urgency;
2.
the order granted on 1 September 2023 by
Davis J is reconsidered, in terms of Uniform Rule 6(12)(c), and set
aside in its entirety
and replaced with the following order, to read:
-
“
The
application is dismissed with costs to be paid by the first, third,
fourth and fifth applicants jointly and severely, on a scale
as
between attorney and client, such costs to include the costs of the
reconsideration.”
JUDGMENT
LE GRANGE AJ:
[1]
Before this Court is a
sui
generis
application for reconsideration
in terms of Uniform Rule 6(12)(c).
[2]
The applicants herein fiercely opposed the
application on the basis that: - (i) it is not urgent; and (ii) that
the matter is
functus officio
and should therefore be struck from the roll.
[3]
However,
w
hen this
rampart fell the whole house of cards came down.
Functus
officio
[4]
The applicants’ contention in this regard is
wrong due to the provisions of Uniform Rule 6(12)(c).
[5]
The
purpose of the rule is to afford an aggrieved party a mechanism
designed to redress imbalances and injustices associated with
the
order having been granted in
its
absence. It has also been held that the discretion of the court under
the rule is a wide one. The only jurisdictional facts the
court is
required to consider are whether the order was granted in the absence
of the aggrieved party, and whether this was by
way of urgent
proceedings.
[1]
[6]
It is undisputed that the respondents were in
absence of the urgent application, wherefore this Court (having a
wide discretion)
may reconsider the application, and by also having
regard to further affidavits filed.
Urgency
[7]
What
rendered this matter urgent is the fact that there were allegations
of material non-service upon the effected parties, as was
specifically ordered by, and non-disclosure to Davis J. If that be
the case, this court (being the bearer of the judicial authority
of
the Republic of South Africa) should not hesitate, even for a second,
to act expeditiously and swiftly to protect its dignity
and
integrity.
[2]
[8]
To this is added the fact that the matter came as
one of urgency. A reconsideration thereof would be similarly
urgent for
various of the same reasons, even now more so as a
contempt hangs in a balance.
Non-service
[9]
Following a clear directive from Davis J on 29 August 2023 to serve
the
urgent application on the second applicant, first respondent,
second respondent, third respondent and fifth respondent, the
applicants
returned on 1 September 2023 with some returns of service.
[10]
This Court having the privilege of an answering affidavit can find
that: - The second applicant
and third respondent were all ostensibly
‘served’ with the application at “Barvale Farm”,
care of “Rose
Mkhonto” a unbeknown person to the parties.
The second and fourth respondents predeceased this application. There
does not
appear to have been any attempt at service on the first
respondent or fifth respondent in terms of the directive. As shown in
the
answering affidavit, the second applicant and fourth respondent
do not reside at ‘Barvale Farm’, a fact beknown to the
applicants at the time.
[11]
In the
result, this Court finds that there was no effective service,
rendering the application effectively
ex
parte
,
the requirement which had to be adhered to being trite.
[3]
Non- disclosure and
the merits
[12]
The whole application is based upon the allegations that: - (i) the
respondents are in
fact in contempt for non-compliance with the court
order granted in 2017; and (ii) that funds are being misappropriated.
[13]
The applicants did not just fail to provide any proof of these
allegation but also failed
to allege substantial objective facts
supporting the allegations. To this was added the fact that it is now
evident from the undisputed
answering affidavit that the order of
2017 has in fact been complied with.
[14]
Considering the (bare, unaccompanied by
any
confirmatory
affidavit or proof of the serious allegation being made) founding
affidavit, in the light of the answering affidavit,
afresh, it is
clear that the applicant’s case (substantially) lacks
substance, objective facts and proof; and is exclusively
based upon
assertions, hearsay and adjectives. This is further worsened by
the (empty) replying affidavit which met the most
important and
substantial allegations (in the answering affidavit) which were
supposed to be contentious, with a mere comment of
‘noticed’
and/or ‘irrelevant’.
Costs
[15]
The applicants are found to be
mala
fide
and should pay the costs on a
penalising scale.
A J le Grange
Acting Judge
APPEARANCES
:
For the 1
st
,
3
rd
, 4
th
and 5
th
applicants:
M Muchopa
On
instruction of Botha Massyn & Thobejane Associated Attorneys
For
the 2
nd
applicant, 3
rd
, 5
th
and
6
th
respondents:
G R Egan
On
instruction of
Murphy Kwape & Maritz
Attorneys
[1]
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC and Others
1996
(4) SA (W
);
Sheriff Pretoria North-East v Flink and Another
[2005] 3 All SA 492 (T)
[2]
Faraday
Taxi Association v Director Registration and Monitoring MEC for
Roads and Transport and Others
(58879/2021)
[2022] ZAGPJHC 213 (5 April 2022)
[3]
Recycling
and Economic Development Initiative of South Africa NPC v Minister
of Environmental Affairs
2019
(3) SA 251
(SCA) paras 45 – 52.