Mditshwa v Sabona and Others (4744/2022) [2022] ZAECMHC 53 (8 December 2022)

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[2022] ZAECMHC 53
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Mditshwa v Sabona and Others (4744/2022) [2022] ZAECMHC 53 (8 December 2022)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE: 4744/2022
In matter between:
NOMNTU
MDITSHWA
APPLICANT
And
JACKSON
NKOSIPHENDULE SABONA

1
ST
RESPONDENT
MTWENI
ROYAL FAMILY
2
ND
RESPONDENT
STATION COMMISSIONER:
SOUTH AFRICA

3
RD
RESPONDENT
POLICE STATION:
LUSIKISIKI
JUDGEMENT
NQUMSE
AJ
[1]
Following an urgent application instituted by the respondents. On
15
th
September 2022 Nhlangulela DJP gave the following
relief:
1.
“
That a Rule Nisi be issued calling
upon the respondent’s to show cause, if any, to this Honorable
Court on a date to be arranged
with the Registrar, why the following
order cannot be made final. Reviewing and setting aside any decision
that appointed Jackson
Nkosiphendule Sabona as the iNkosi /Senior
Traditional Council, Lusikisiki.
1.1.
Reviewing and setting aside any decision
that appointed Jackson Nkosiphendule Sabona as the iNkosi/Senior
Traditional and Head of
Mtweni Traditional Council Lusikisiki.
1.2.
Reviewing and setting aside any decision of
Mtweni Royal Family awarding Jackson Nkosiphendule Sabona any
leadership position and
robing him with leopard skin or any
traditional leadership attire within the area of jurisdiction of
Mtweni Traditional Council,
1.3.
Interdicting and restraining Jackson
Nkosiphendule Sabona to proclaim himself as the iNkosi/ Senior
Traditional Leader and Head of
Mtweni Traditional Council, Lusikisiki
and addressing any gathering and or any funeral professing to be an
iNkosi and Head of Mtweni
Traditional Council, Lusikisiki,
1.4.
Interdicting
and restraining Jackson Nkosiphendule Sabona and Mntweni    Royal
Family from hosting his installation
as the iNkosana/ Senior
Traditional Leader and Head of Mtweni Traditional Council and on 16
th
September 2022 and/ or any ceremony anywhere within the area of
jurisdiction of Mtweni Traditional Council without the consent of
the
applicant.
1.5.
Authorising  and directing the Station
Commissioner of the South African Police Service in Lusikisiki to
deploy members of South
African Police Service to disperse any
gathering of people at the so called Mphopomeni Great Place
(Sandlulube locality) within the
area of jurisdiction of Mtweni
Traditional Council, Lusikisiki,
1.6.
That paragraphs 1.3, 1.4 and 1.5 above
shall operate as an interim interdict and mandamus pending
finalization of the application”.
[2]
On 4
th
October 2022 the matter came before me in essence for contempt of
court against the 1
st
and 2
nd
respondents and for the enforcement of the Order of Nhlangulela DJP.
[3]
It is necessary to sketch the
background of this matter which can be briefly stated.
[4]
The applicant, a Senior Traditional
Leader and Head of Mtweni Traditional Council who resides at
Nzimankulu Great Place (Komkhulu) in Lower Ntafufu Administrative
Area Lusikisiki, instituted an application on an urgent basis that
resulted in the Order of Court referred to in paragraph 1 above.
(“the Order”)
[5]
On the same date of the issuing of the
Rule Nisi, the 1
st
and 2
nd
respondents served an application for leave appeal the order of 15
th
September 2022. The application for leave to appeal is premised on a
number of grounds which I do not intend to deal with nor are
they
relevant in there proceedings, save the first ground which I find
central to the opposition of the respondents and a significant
factor
in determining the allegation of contempt by the respondents. I shall
deal later in the judgement with this aspect.
[6]
According to the applicant’s
founding affidavit, on 16 September 2022 the 1
st
and 2
nd
respondent hosted the ceremony to install the 1
st
respondent as the iNkosi and Senior Traditional Leader of Mtweni
Traditional Council. In support of the allegation.annexed to the
founding affidavit is the picture marked “NM8” which
depicts a young girl wearing a T Shirt with the words
,”
Mtweni Royal Family Coronation of chief Sabona on 16 September 2022”.
The applicant further annexed a copy of a picture marked “NM9”
which depicts the 1
st
respondent wearing a leopard skin sitting along people from a faction
of the Sigcau Royal Family who are according to the applicant
included Nkosi Ndabankulu from Flagstaff, Mr. Dumelani Sigcau who
presided over the “Coronation”, Nkosi Mdutshane and Mr.
Cetywayo.
In a picture marked “NM10” depicted therein are
people who attended the ceremony.
[7]
In addition to the pictures indicated above
are Facebook screenshots which   described
the event
with posters which indicate the excitement to what was taking place.
The first screenshot marked “NM9 “is written in
the
vernacular language with no interpretation thereof. Whilst the other
screenshot reflects the words”
Angel
C. More is with Amanda, Rubuluza Amanda and 6 others
”.
It continues “
My father the King
of uMthwa Royal family the Founder, the vision bearer and Apostle of
Peculiar Christian Centre now when we see
him we all say “ahh
Zanoxolo”
[8]
In his answering affidavit, the 1
st
respondent opposed the
application on the grounds that:
a)
the application is lis pendens, pending
before this court under case number 4442/2022.
b)
lack of urgency in the application,
if any, it is self-created.
c)
the relief sought is incompetent and not
capable of being granted:
d)
the applicant failed to meet the
requirements for contempt of court proceedings.
e)
the  applicant failed to
establish a proper cause of action, and
f)
the application is bad n law.
[9]
According to the 1
st
respondent, the applicant instituted on 7 September 2022 an
application against him and other respondents under case number
4744/2022.
The 1
st
respondent contends that since the previous application was not
withdrawn and since the relief sought in the present application
is
identical to the previous one, the present application is therefore
lis pendens. It is further contended by the 1
st
respondent that the applicant seeks to have this court determine
issues which are similar to those pending before this court.
[10]
The 1
st
respondent further contends that the Order of 15 September 2022 by
Nhlangulela DJP has no effect nor capable of being executed, since
there is an application pending for leave to appeal of the said
order. As a result, so it is contended, the relief for contempt of
the court order cannot be granted.
[11]
He denies that he defied the Order of the court nor causing any
division or destabilising the area, but instead
as the leader of the
Mtweni Royal Family, is duty bound to ensure the unity peace and
stability in his family. He also stated that
the royal family had
taken a resolution to remove the applicant as the acting Senior
Traditional Leader on account of her marriage
to Chief Nonkonyane.
The process of her removal is still a subject of administrative
process.
[12]
He avers that the event of 16 September 2022 which he
was part of, was a ritual ceremony hosted by the Mtweni
family to
appease their ancestors and it had nothing to do with his
installation or appointment as a Traditional Leader. His robing
with
a leopard skin which was accompanied by gifts, was an acceptable
practise and was not intended to harm or injure anyone.
[13]
He further contends that he was never served with the court
order, a necessary requirement for court of court proceedings.
He alleges that the returns of service annexed in the founding
affidavit as “NM3” and “NM4” were served upon
the 2
nd
and 3
rd
respondents. He however, admits being advised by his attorney of the
existence of the court order of 15 September 2022 for which
he
launched an application for leave to appeal. He further contends that
whilst the said order is final in its nature, the filing
of the leave
to appeal, suspended its force and its effect was suspended.
[14]
Regarding the issue of costs, it is contended by
the 1
st
respondent that the applicant is abusing the court process for
launching this application despite having launched previously a
similar
application which was struck off the roll with costs.
Furthermore, the applicant has despite knowledge that there is a
pending appeal
against the order of 15 September 2022 went ahead and
launched this application, a conduct, so it was contended, which
amounts to
mendaciousness and frivolity which warrants the court to
show its disapproval by awarding a punitive costs order against the
applicant.
[15]
In his reply, the applicant contends that, whilst
the present application bears the same case number 4442/2022
as the
previous application, the former application is no longer on the roll
since it was struck off. Therefore, it is not pending
before this
court and it was not necessary for its withdrawal. The applicant
further disputes that the matter is not urgent, since
contempt of
court proceedings are urgent in their nature. It is further contended
that the 1
st
respondent was aware of the Order since he was present in court when
the Order was made and he consulted with his legal representative,
Mr. Notyesi. Their consultation resulted in the notice for
application for leave to appeal the Order which is not appealable, so
it was contended.
[16]
The applicant alleges further that the gathering
of men in mountains with some members of the community who
have fled
their homes and the need that has caused her to engage private
security for protection and that of the iKomkhulu (Great
Place) has
rendered the matter very urgent. The applicant also stated that as
iNkosi and Head of Mtweni Traditional Council and as
the extended
family member of Sabona family she would have been advised of the
ceremony that allegedly took place on 25
th
August 2022, to visit, the graves of the ancestors and their
appeasement ceremony which culminated in the ceremony of 16 September
2022.
[17]
This matter has brought to bear a number of issues
namely,
17.1
The validity or competence of the Order of 15 September
2022 by Nhlangulela DJP, more specifically whether the Rule”
Nisi’ that was made is final in effect since it has no
“specific “return date,
17.2
Whether the filling of the leave to appeal the said
Order suspends it in terms of section 18 of the Supreme Courts
Act
[1]
.
17.3
Whether the matter is lis dependens and
17.4
Whether the applicant has met the requirements for
contempt of court.
[18]
The other ancillary questions such as urgency of
the application and the dispute of facts that may have arisen
will in
my view be properly addressed depending on the answers to the five
main issues in paragraph 17 above. It is also worthy to
note that
each of the four main issues above may be dispositive of the
application. I shall deal with the issues not in any order
of
preference but only on the basis of convenience and practicality.
I
find it convenient to first deal with the issue of lis pendens. The
close relationship between a plea
of res
judicata
and the
lis
pendens
is best described in Voet
44.2.7 as follows:
“
E
xception
of lis pendens also requires same persons, thing and cause, the
exception that suit is already pending is quite akin to the exception
of the
res
judicata
in as much as when the suit is pending before another judge, this
exception is granted just so often as, and in all those cases in
which after a suit has been ended there is no room for the exception
of res judicata in terms of what has already been said. Thus,
the
suit must have started to the mooted before another judge between the
same persons, about the same matter and on the same cause,
since the
place where a judicial proceedings has once been taken up is also the
place where it ought to be given its ending”
[2]
In
Nestle (South Africa) Pty Ltd v Mars. Incorporated
[3]
,
Nugent, AJA (as he then was), observed. “The defence of lis
alibi pendens shares features in common with the defence of res
judicata
because they have a common underlying principle which is
that there should be finality in litigation. Once a suit has been
commenced
before a tribunal that is competent to adjudicate upon it
the suit must generally be brought to its conclusion before that
tribunal
and should not be replicated (lis alibi pendens). By the
same token the suit will not be permitted to be revived once it has
been
brought to its proper conclusion (res judicata). The same suit,
between the same parties should be brought only once and finally”
[4]
.
[19]
It is trite therefore that the three elements for
a successful reliance on the plea of lis pendens are:
1)
The litigation is between the same parties,
2.)
That the cause of action is the same, and
3.)
That the same relief is sought in both sets of proceedings.
[20]
In the present matter the circumstances are
slightly different in that the present application was brought
previously on a different case number namely, 4442/2022, seeking the
same relief but was struck off due to lack of urgency. It was
submitted by Mr. Nomlala for the 1
st
respondent that since the previous application had not been withdrawn
but struck off the roll, it was still pending before this court.
In
support of his contention he relied on the case of
Jojwana
v Regional Court Magistrate and
Another
[5]
by Tokota J. In that matter the court dealt with a situation
where the magistrate had struck off the roll the matter due to
the
absence of the respondents. In an application launched by the
respondent for the review of the magistrate’s decision placed
reliance therefore on the case of
Zuma
v Democratic Alliance and others
2018 (1) SA 200
(SCA) and Thring
Holdings (Southern Africa) (Pty) Ltd v National Director of Public
Prosecutions, Zuma v NDPP
[2008] ZACC 14
,
2009 (1) SA 141
(CC),
the learned Tokota J had this to say:
“
[10]
In my view the above cases do not lay down a general rule that if a
matter is struck from the roll it is thereby
terminated and may not
be re- enrolled. The striking of the matter from the roll has
nothing to do with the merits of the case.
In civil matters it often
happens that if a party has either failed to comply with practice
directives such as pagination, filing
of heads of arguments etc. or
that the applicant or plaintiff failed to appear when the matter was
called, the matter is struck
from the roll. In practice, where the
matter has been struck from the roll under those circumstances it
may be re- enrolled upon
the delivery of an affidavit explaining the
reasons for the failure to comply with   the practice directive
and /or failure
to appear when the matter was called. In this context
therefore striking of the matter from the roll is not aimed at
terminating
the proceedings but merely suspends the hearing thereof
pending an application for re
-
instatement.
The learned judge continued and said “the word “terminate”
was not used in the context of its general meaning,
namely to bring
to an end, to close, or to ‘discontinue’. In my view when
the courts said the proceedings were ‘terminated’
they
meant suspension thereof pending any decision to reinstate them:”
[21]
The issue that falls to be determined therefore in
the matter at hand is whether it was permissible for the
applicant to
bring the subsequent application in the manner he did.
[22]
Whilst it may be so that the initial application
has not run its full course and thereby not come to a close,
it is
however, not ‘technically “pending for any consideration
until it is reinstated. The matter referred to of Jojwana is
distinguishable
from the circumstances of this matter. It therefore
does not follow that in circumstances such as the present, lis
pendens should
serve as a bar to hearing the latter application
simply because the requirements of lis pendens have been met. My view
is further
bolstered by what was said in
Loader
v Dursot Bros (Pty) Ltd
[6]
where the court held:
‘
It
is clear on the authorities that a plea of lis alibi pendens does not
have the effect of an absolute bar to the proceedings in
which the
defence is raised. The court intervenes to stay one or other of the
proceedings, because it is prima facie vexatious to
bring two actions
in respect of the same subject- matter. The Court has a discretion
which it will exercise in a proper case, but
it is not bound to
exercise it in every case which a lis alibi pendens is proved to
exist…..’
[23]
In
Eksteen
v Road Accident Fund
[7]
,
Petse AD, as he then was, held:
”
[53]….when
a court upholds a plea of lis alibi pendens it has the discretion to
stay one or other of the two actions. A court is
vested with such
discretion because it is prima facie vexatious to bring two actions
in respect of the same subject matter.
[54]
The high court before which the second action was
pending undoubtedly enjoyed a wide discretion to determine whether
the interest of justice dictated that the second action should be
allowed to proceed. The high court did not take in to account
this
aspect in its judgement”.
[24]
Regard being had to the authorities above, it
seems to me, it would be unjust to stay the proceedings in the
present matter, or to uphold the respondents’ defence even if
it was to be accepted that the cause of action in both applications
are the same. I therefore find that the defence on lis alibi pendens
ought to be dismissed
[25]
Central to the application by the applicant is
contempt of court by the respondents. I now turn to deal with
the
question whether the applicant has succeeded in establishing contempt
against the respondents.
[26]
In
Fakie
NO v CC 11 Systems (Pty) Ltd
[8]
the requirements for contempt of court are stated as the following:
a)
the existence of the order,
b)
the order must be duly served
on, or brought to the notice of the alleged offender,
c)
there must be non-compliance with the
order and
d)
the non – compliance must be
wiful and
mala fide
.
Once these elements have been established, wilful and
mala
fide
are presumed and the respondent
bears an evidentiary burden to establish a reasonable doubt. Should
the respondent fail to discharge
this burden, contempt will have been
established (See
Secretary, Judicial
Commission of Inquiry with allegations of State Capture v Zuma and
Others
[2021] ZA CC 18
,
2021 (5) SA 327
(CC) para 37).
[27]
In Fakie
[9]
the requirements for willful and mala fides were stated thus:
“
[9]
the test for when disobedience of a civil order constitutes contempt
has come to be stated
as whether, the breach was committed
deliberately and mala fide. A deliberate disregard is not enough,
since the non-complier may
genuinely albeit mistakenly believe him
or herself entitled to act in the way claimed to constitute the
contempt. In such a case,
good faith avoids infraction. Even a
refusal to comply that is objectively unreasonable may be bona fide
(though unreasonableness
could evidence lack of good faith”,
]10]
“These requirements- that the refusal to obey should be both
willful
and mala fide, and that unreasonable non- compliance, provided it is
bona fide, does not constitute contempt- accord with the broader
definition of the crime, of which non-compliance with civil orders is
a manifestation. They show that the offence is committed not
by mere
disregard of court order, but by the deliberate and intentional
violation of the court’s dignity, repute or authority that
this
evinces. Honest belief that non-compliance is justified or proper is
incompatible with that intent”.
It
should follow therefore that before an enquiry is made whether the
respondents’ alleged non-compliance was
wilful
and
male
fide,
it has to be determined whether
the first three requirements for contempt as propounded in Fakie have
been met.
[28]
It is not dispute that on 15 September 2021 an order by way of a Rule
Nisi was granted against the respondents.
The 1
st
respondent does not dispute that he was present in court when the
judgment was pronounced, however, disputes hearing it being
pronounced
[10]
. His emphasis
is on the lack of personal service of the order and as a result, so
it was contended, the applicant has failed to meet
the requirements
to support the allegation for contempt of court. The problem with the
1
st
respondent’s submission is that he limits the interpretation of
the requirement only to the order being duly served on the contemnor
and ignores the alternative option that the order should be brought
to the notice of the alleged offender. In paragraph 42 of the
answering affidavit, he admits that he was advised by his attorneys
of the existence of the court order and filed an application
for
leave to appeal the very order on the very same day it was issued.
Undoubtedly, on his own version the 1
st
respondent admits that he did gain knowledge of the court order. He
can therefore not hide behind the fact that it was not served
on him
personally. I am therefore satisfied that the 1
st
respondent was made aware of the existence of the court order made
against him and had acquired the full knowledge thereof. His
contention
of lack of knowledge has no merit and is dismissed
[29]
The next element that has to be satisfied is
whether the 1
st
respondent failed to comply with the order. This aspect has raised a
lot of dispute between the parties. In response, the 1
st
respondent’s approach is multi – pronged.  He
attacks the validity of the court order for its lack of a return
date. Therefore,
the Rule Nisi has no life and of no force and
affect, so the argument went. Second, the application for leave to
appeal the order
has suspended its effect. Thirdly, it is contended
by the 1
st
respondent that the order was not defied since there has been no
event hosted by the 1
st
respondent for his installation as Inkosi (Senior Traditional
Leader). Whilst the three points referred to above have not been
submitted
as alternatives to each other but are raised as individual
defences. I shall approach them as if they are pleaded in the
alternative
to each other in the following manner. That in the event,
I hold that order is valid, I must in the alternative, find that as a
result
of the leave to appeal, its effect was suspended.
Alternatively, if I hold that it is not suspended by the application
for leave
to appeal, I should find that the 1
st
respondent has not disobeyed the said order
[30]
In the heads of argument for the applicant as well as in
oral argument before me, Mr. Nonkonyane argued that the
order of 15
September is not appealable due to its interim nature. He however,
did not make any submission on the effect of the order
due to its
lack of a return date. He also submitted that based on the pictorial
material and, the social media posts, they are sufficient
to show
that the 1
st
and 2
nd
respondents are guilty for non- compliance with the court order.
[31]
The 1
st
respondent does not deny the hosting of a ceremony by the Mtweni
Royal Family albeit a Traditional ceremony to appease their
ancestors
[11]
. At this point I
find it necessary to pay a closer look at the order of the court more
particularly paragraph 2.4 thereof. The interdict
and restraint in
this paragraph of the order appears to me to be wide so as to
interdict the respondents from hosting a coronation
ceremony and/or
any ceremony within the area of jurisdiction of the Mntweni
Traditional. Council unless with the consent of the applicant.
I
however, did not have the benefit of being addressed by either
counsel on this point.  That notwithstanding I find it necessary
to deal with this aspect albeit in a brief manner.
[32]
A cursory reading of the words… “and /or any
ceremony” can suggest or be interpreted to mean that, not
only
are the respondents interdicted from hosting a coronation ceremony
but  are also prohibited from hosting any kind of ceremony,
be
it a celebratory function, such as a wedding, a birthday party even a
funeral service..
[33]
A proper approach to interpretation of documents, legislation,
statutory instruments including a judgment
of court was formulated in
Natal
Municipality Pension Fund v Endumeni Municipality
[12]
thus:
“
whatever the
nature of the documents, consideration must be given to the language
used in the light of the ordinary rules of grammar
and syntax, the
context in which the provision appears, the apparent purpose to which
it is directed
and
the material known to those responsible for its production. The
process is objective, not subjective. A sensible meaning is to
be
preferred to one that leads to insensible or unbusinesslke results or
undermines the apparent purpose of the documents’
[13]
.
In
Fishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Limited
and Others
[14]
the court dealing with the interpretation of a court order said: “The
starting point is to determine the manifest purpose of the
order.
In interpreting a judgement or order the court’s
intention is to ascertain primarily from the language of the
judgement or order in accordance with the usual, well-known rules
relating to the interpretation of documents. As in the case of
a
document, the judgment or order and the court’s reason for
giving it must be read as a whole in order to ascertain its
intention’.
(See also
Firestone
South Africa (Pty ) Ltd v Genticuro AG 1977(4)SA 298(A)
[34]
In my view, the use of the words “any ceremony”
as indicated in the order could never have been intended
to mean that
ceremonies that have nothing to do with the coronation of the 1
st
respondent, such as the examples referred above, were also prohibited
by the order. Such an interpretation will be absurd. I therefore
interpret the order, paragraph 2.4 thereof to be concerned with
restraining the respondents from hosting any ceremony wherein the
1
st
respondent is coronated as Inkosi/ Senior Traditional Leader or
addressing any gathering where he introduces himself as such. As
alluded earlier the 1
st
respondent admits the hosting of a ceremony a day after the order.
However, the ceremony was not for his installation but for another
purpose. In support of this contention is Annexure E which shows the
program of the ceremony held. Notably the purpose of the program
is
indicated as
Robing Prince J
N Sabona with Royal Blanket”.
There are two items which are conspicuously absent from the program.
The first item is the mention of robing the 1
st
respondent with a skin of a leopard and his coronation as Inkosi. The
second item that is missing is reference to the appeasement
of
ancestors as contended by the 1
st
respondent. Nevertheless, the 1
st
respondent is adamant that he never advertised on social media his
coronation or installation as Inkosi nor does he bear any knowledge
of the WhatsApp posts.
[35]
What is glaringly lacking in the applicant’s case
is evidence that the first respondent was first recognized
by way of
a certificate by the necessary authorities as Inkosi. an event that
precedes his installation or coronation. In the absence
thereof, the
allegation that the event of 16 September was an installation of the
1
st
respondent is not supported by the necessary evidence. Therefor, it
is apparent that there is a dispute on whether the event of 16
September 2022 was a coronation /installation of 1
st
respondent as Inkosi or whether it was a traditional ceremony of the
Mtweni Royal Family.
[36]
In dealing with disputes of fact in motion proceedings
,
Conradie
J in
Cullen
v
Haupt
[15]
said: “I have consulted some of the better known decisions
concerning the referral of applications to evidence or to trial. The
leading decision in this regard is, of cause,
Room
Hire CO (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162,
where Murray ADJP said that if a dispute cannot properly be
determined it may either be referred to evidence or to trial, or it
may
be dismissed with costs, particularly when the applicant should
have realized when launching his application that a serious dispute
of fact was bound to develop”.  The next of better known
case on this topic is that of
Conradie
v Kleingeld
1950 (2) SA 594
(0) at 597
.
Where Hurwitz J said that “a petition may be refused where the
applicant at the commencement of the application should have realized
that a serious dispute of fact would develop”.
[37]
My view in this matter is that the applicant has
not succeeded to show convingly that the 1
st
and 2
nd
respondents disobeyed the order of the  court. Thus, on this
ground alone the allegations for contempt of court cannot be
sustained
and as a result the application cannot succeed
[38]
In view of my findings above, I do not find it
necessary to deal with the appealability of the court order
or its
force and affect pursuant the application for leave to appeal. Nor do
I find it necessary to deal with the urgency or absence
thereof in
bringing the application by the applicant. Consequently, I find that
the applicant ought to be dismissed with costs. I
was invited by the
respondents to order costs against the applicant on a pruntive scale,
ostensibly on the grounds that the application
is vexatious and lis
pendens. I decline the invitation and instead, it is my view that an
order of costs on a party and party scale
will be appropriate in the
circumstances.
[39]
I therefore make the following order:
1.
The application is dismissed with costs on
a party and party scale.
M.V NQUMSE
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCE:
Mr.
NONKONYANE
: COUNSEL
OF THE APPLICANT
Mr.
NOMLALA
:  ATTORNEY FOR RESPONDENTS
DATE
OF HEARD
:   04 OCTOBER 2022
DATE
OF DELIVERY
:   08 DECEMBER
2022
[1]
See
sections 18(2)
and (3) of the
Superior Courts Act, 10 of 2013
[2]
Sacratous
v Grindstone Investment
2011 (6) SA 325
(SCA) para 13.
[3]
(333/99)
[2001] ZASCA 76
,
[2001] 4 ALL SA 315
(A) (31May 2001)
[4]
I
bid at para 16
[5]
2019
(6) (SA 524 ECM
[6]
1948(3)SA
136 (T) at 138
[7]
(873/2019)
[2021} ZASCA 48
[8]
[2006]
ZASCA 52; 2006 (4) SA 326 (SCA)
[9]
id
[10]
See
Answering Affidavit paragraph 25
[11]
Answering
affidavit, paragraphs 31 and 32
[12]
2012
(4) SA (SAC)
[13]
Id
para 18
[14]
2013
(2) SA 204
(SCA) para 13
[15]
1988
(4) SA 39
(C ) at p 40 F-H