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2021
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[2021] ZAGPPHC 465
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Mampuru and Others v Executor of the Estate of the Late Phillip Tbobakgale Estate and Others (32099/21) [2021] ZAGPPHC 465 (19 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32099/21
In
the matter between:
PORTIA
ITUMELENG
MAMPURU FIRST
APPLICANT
DINEO
HAZEL
THUBAKGALE SECOND
APPLICANT
ANGELINE
THOBAKGALE THIRD
APPLICANT
and
THE
EXECUTOR OF THE ESTATE FIRST
RESPONDENT
OF
THE LATE PHILLIP TBOBAKGALE
ESTATE
NO. 42351/21
BUSISIWE
THOBAKGALE SECOND
RESPONDENT
MASTER
OF THE HIGH COURT THIRD
RESPONDENT
PRETORIA
ORDER
HAVING
heard argument and considering the papers filed of record it is
ordered that:
1. The
application is struck from the roll.
2. The
applicants, jointly and severally the one to pay the other to be
absolved, are to pay the costs of the application.
E
van der Schyff
Judge
of the High Court, Gauteng, Pretoria
REASONS
The
cursory reasons underpin the order granted. Comprehensive reasons
will be furnished to any party on application in terms of
Rule
49(1)(c) of the Uniform Rules of Court.
[1]
The
court was approached on the basis of extreme urgency. The application
was issued on 12 July 2021 and the matter was set down
to be heard on
15 July 2012. In the notice of motion, the respondent is directed to
notify the applicants’ attorneys in writing
of their intention
to oppose, if any, within 2 days and to file their answering
affidavit within 5 days. This directive is not
synchronised with the
matter being enrolled for hearing on 15 July 2021.
[1]
[2] The
matter was, however, previously enrolled on the urgent court roll of
6 July 2020. The applicant, however,
unilaterally removed the matter
from the roll after receipt of the respondent’s answering
affidavit in order to file a reply.
[3] The
applicants did not follow the Judge President’s Directive of 11
June 2021. It is provided in paragraph
183 thereof, that the urgent
court roll closes at noon on a Thursday afternoon for the following
Tuesday. No urgent application
may be enrolled for a date further in
the future. The applicants decided to set the matter down for hearing
on 15 July 2021. No
reason was provided for the applicants’
failure to ensure that the matter was timeously enrolled and not set
down for Tuesday
13 July 2021.
[4] The
fact that the applicants unilaterally removed the application from
the roll of 6 July 2021 belies the urgency
of the matter. The facts
underpinning the application, do not support a finding that the
application is urgent. The applicants
seek an order directing the
executor of the Estate Late Phillip Thobakgale to restore their
alleged possession of two motor vehicles.
The applicants aver that
the third applicant and the deceased mother of the first and second
applicants, are the respective owners
of the vehicles. No executor
was appointed for the first and second applicants’ mother’s
deceased estate. The facts
indicate, however, that the applicants
were never in possession of the vehicles before or after Phillip
Thobakgale’s demise.
If it is considered that Mr. Thobakgale
passed away on 21 February 2021, it is evident that if there is
urgency in the applicants’
claim to the vehicles, the urgency
is self-created by the applicants’ failure to act soon after
his death. In fact, the applicants
do not indicate why they never
attempted to restore their possession while the late Mr. Thobakgale
was still in life.
[5] In
addition, the ownership of the vehicles is in dispute. It is trite
that litigants should not use motion
proceedings to resolve their
disputes when material facts are in dispute. The applicants should
reasonably have foreseen this factual
dispute. The applicants did not
approach the court for
interim
relief pending the institution
or finalisation of action proceedings. Even if I was of the view that
the matter required the court’s
urgent attention, the factual
dispute would have posed a hurdle for the applicants to pass.
E
van der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
The order and reasons are handed down electronically by uploading it
to the electronic file of this matter on CaseLines.
As a courtesy
gesture, it will be sent to the parties/their legal representatives
by email. The date for hand-down is deemed to
be 19 July 2021.
Counsel
for the applicants: Adv.
T Mokgotsane
Instructed
by: Zamisa
Shisinga Attorneys
Counsel
for the 1
st
and 2nd respondents: Adv
A Khosa
Instructed
by: Molosi
Attorneys
Date
of the hearing: 17
July 2021
Date
of judgment: 19
July 2021
[1]
The
matter was, however, only heard on 17 July 2021 because a virtual
connection could not be secured and I postponed the matter
to be
heard in open court.