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South Africa: North Gauteng High Court, Pretoria
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2021
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[2021] ZAGPPHC 285
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Mnisi v Makhubela and Another (465/2020) [2021] ZAGPPHC 285 (14 April 2021)
In the High Court of : South Africa
Gauteng Division,
Pretoria
Case No.465/2020
In
the matter between:-
Blantina
Mnisi
Applicant
And
Lamiel
Makhubela
1
st
Respondent
The
Master of the High Court
2
nd
Raspondent
Judgment
As an
LI Vorster AJ:
1.
This is
an opposed application which started as a n urgent application during
September 2020. It was struck from the roll due to
lack of urgency.
Thereafter it was enrolled again as an opposed motion for 30
November 2020. It was struck from the roll
again for want of
compliance with the practise manual. The applicant was ordered to pay
the wasted costs. To this day the Applicant
has not complied with the
practise manual The result is that as of today the Applicant has not
served pr per heads of argument
listing authorities. What is before
me is the Respondent with a proper practise note and heads ot
argument.
2.
The
applicant claims a series of interdicts against the First Respondent
which are based on alleged unlawful actions of the
First
Respondent in connection with the deceased estate of her late
husband. The first Respondent denies each and every such allegation.
3.
The
Applicant did not as it should have done, ask for referral to oral
evidence of the various factual disputes so that the matter
could be
properly tried and decided. The result is that no progress at all has
been made to finalise this allegedly urgent application
since
September 2020.
4.
It
is trite that opposed application procedure was designed to provide
more expeditious ways to decide disputes. Application procedure
is
much more expeditious than action procedure. It follows inevitably
that opposed application procedure is only, feasible where
all
relevant facts are common cause between the parties. Because
application procedure is faster litigants have erroneously embarked
upon application procedure where relevant facts are in dispute. That
gave rise to the well known Plascon Evans decision and many
others to
follow. The simple truth has not changed: the courts cannot make
decisions unless the factual basis of the decision is
not in dispute.
5.
ln the
instant case the applicant cannot succeed with any of the prayers in
the notice of motion simply, because the relevant facts
on which the
cause of action rests is in dispute.
6.
Consequently
the application cannot succeed. As far as costs is concerned, the
1stRespondent asks for a punitive costs order. In
my view that
request has merit. The Applicant since the first appearance of
September2020 never followed the correct procedure
as I have
indicated, thereby causing unnecessary trouble to 1
st
Respondent and committing an abuse of process
7
In the result I make the following order:
The application is dismissed with
costs on the scale of attorney and client, such costs to include
costs which were previously reserved
between the parties in this
application
LI
Vorster AJ
14 /4 21
Counsel:
1
st
Respondent AJ Schoeman.