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[2022] ZAECMHC 42
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Rozani (Born Nohako) and Another v Qoboka and Another (4443/2020) [2022] ZAECMHC 42 (20 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION: MTHATHA)
Case
No.4443/2020
Reportable
In
the matter between:
NOZIPHIWO
ROZANI (BORN NOHAKO
First Applicant
ZUKISWA
NOHAKO O.B.O HLANGALWANDILE
NOHAKO
Second Applicant
And
SHIRLEY
QOBOKA
First Respondent
THE
MASTER OF THE HIGH COURT
MTHATHA
Second Respondent
JUDGMENT
TOKOTA
ADJP
[1]
This application concerns a declaratory order that the appointment of
the first respondent,
as the executrix of the deceased estate of the
late Mzwandile Nohako, dated 25 January 2018 by the Master of the
High Court, is
unlawful and should be set aside. Furthermore, the
applicants seek a declaratory order that the first applicant is the
rightful
person to be appointed as the executrix of the deceased
estate of the late Mzwandile Nohako.
[2]
Although the first respondent has filed opposing affidavit she failed
to file heads
of argument and practice note as required in the
practice directive of this Division.
[1]
The applicants have also failed to comply with Rule 62 of the Uniform
Rules of Court and the Practice Directive in that the papers
are not
properly collated, secured and paginated as required.
[2]
Rule 3(a) of the Practice Directive stipulates that “
This
requirement will be strictly enforced”.
[3]
There appears to be a growing prevalence of failure to comply with
the Rules of Court
and a total disregard for the practice directives.
Rules and Practice Directives are made for the efficient, expeditious
and uniform
administration of justice in the High Courts. Coetzee J,
in
Reitmann v Jansen van Rensburg
1984 (2) SA 174
(W) at
179H, said:
'Rules are made to be
followed and Rules are there so that rights and duties flow; in the
event of non-compliance legal results
flow.'
[4]
It is time consuming, tedious and emotionally draining when a judge
has to trawl through
the papers looking for an annexure not clearly
identified in the index, or if identified, papers are not paginated.
In my opinion
the time has now come to sound a stern warning to the
practitioners that unless there are justifiable circumstances
warranting
condonation for the omission or default, Courts will not
tolerate non-compliance with the Rules of Court and Practice
Directives.
[5]
Rules are made to regulate and facilitate speedy preparation by the
judges as well
as parties themselves and thereby enhance speedy
resolution of the disputes and minimize costs attendant to perusal.
[6]
In the present matter an index has been prepared. According to it the
notice of motion
commences at page 1 to 5. No such pagination has
been made. The printed page 1 of the notice of motion states, inter
alia, that
the applicants will seek “an order in the following
terms” and the next page is a certificate of the deponent who
has
acknowledged that she understands the contents of the affidavit
which was sworn to before the commissioner of oaths. The founding
affidavit, according to the index, is supposed to commence from page
6 to page 18. There is also no such pagination and the founding
affidavit ends at printed page 19. There are unmarked documents
consisting of more than twenty pages.
[7]
It can be assumed that the documents referred to above are annexures.
None of them
have been marked as such. There are also attachments
written in manuscript which are also unmarked. The next document,
after the
founding affidavit and unidentified annexures as well as
confirmatory affidavits, is a filing notice of the answering
affidavit.
This commences by a page numbered 66. There are no page
numbers before page 66. Rule 62(2) of the Uniform Rules stipulates
that
all documents must be clearly and legibly printed or typewritten
in permanent black or blue-black ink on one side only of paper
of
good quality and of A 4 standard size. This has not been complied
with.
[8]
Conduct of this nature can only stop if the Rules are strictly
enforced. The unfortunate
part is that litigation is expensive. Legal
representatives do not lose out in that they still charge fees for
attending court
even if the matter does not proceed. The only way to
force them to comply is to deprive them of the fees for preparation
and appearance
once the matter is struck off the roll. Failure to
comply with the rules is deliberate in that any practitioner can see
the defects
when preparing heads of argument. This is so because when
preparing heads of argument legal practitioners ought to refer to
page
numbers in the record. In the absence of pagination this is not
possible.
[9]
In the circumstances this matter has to be struck off the roll and
reinstatement thereof
will only be allowed once a satisfactory
affidavit is filed explaining why the file was not paginated. I must
sound a warning that
in future this Court will not hesitate to make
an order that legal practitioners concerned for both sides be
deprived of their
fees for preparation and appearances in Court if
the matter is struck off the roll for failure to comply with the
Rules.
[10]
In any event even on the merits of the case I would like to make the
following observations without
deciding whether or not the applicants
will be entitled to the relief sought. A declaratory order need not
have a claim for specific
relief attached to it. Generally, it is not
an appropriate remedy where one is dealing with events which occurred
in the past.
Such events, depending on the nature thereof, may afford
a litigant with a remedy for review. When the Master of the High
court
appoints an executor he/she exercises a power in terms of the
Administration of Estates Act 66 of 1965 (the Act). If any
irregularity
occurs in the process the appropriate remedy is to
review the decision. There is nothing in the Act which specifies that
only a
relative of the deceased must be appointed.
[11]
The declaratory order and the setting aside of the Master’s
decision to appoint the executrix
amounts to a review of that
decision. Consequently the rule of unreasonable delay and the
Promotion of Administrative Justice Act 3 of 2000
apply.
[3]
The appointment was done on 25 January 2018. These proceedings were
launched on 11 December 2020 a period of more than 180 days
from the
date of the decision to appoint. No application has been made for
condonation for the delay. The first respondent has
performed in
terms of the duties imposed on her by the Act and no complaint has
been lodged either by the Master or anyone in connection
therewith.
[12]
Furthermore the appointment and removal of an executor is a duty
assigned to the Master of the
High Court in terms the Act.
[4]
This Court is not entitled to usurp that power.
[5]
The Court is only empowered to remove the executor if the applicant
can establish the factors mentioned in section 54(1)(a) of
the Act.
No reference to this is made in the papers.
[13]
The respondent has not filed heads of argument and has not taken any
points in the matter either
with reference to failure to paginate or
observations made above. This goes to the question of costs.
[14]
In the light of the fact that papers are not properly collated,
secured and paginated, the matter
cannot be entertained.
[15]
Accordingly the following order will issue:
The matter is struck off
the roll.
B
R TOKOTA
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
Appearances:
For
the applicants:
Mr M Wakaba
Instructed
by M Wakaba Attorneys
For
the Respondent:
In Person
Date
of Hearing:
20 October 2022
Date
delivered:
20 October 2022.
[1]
Practice /directive 8(a)
[2]
Practice Directive Rule 3(a); Uniform Rule 62(4).
[3]
Naptosa
v Minister of Education, WC
2001 (2) SA 112
(C) at 126; Lion
Match Co Ltd v PPWAWU
2001 (4) SA 149
(SCA) para.25.
[4]
Section 14,15 and 54(b).
[5]
The
Master of the High Court (GNP) v Motala NO
2012 (3) SA 325
(SCA) ([2011] ZASCA 238) para.14.