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[2021] ZAGPJHC 641
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Ledwaba N.O v Mthembu and Others (25312/2016) [2021] ZAGPJHC 641 (30 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
1.
REPORTABLE:
NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED:
NO
DATE:
30 August 2021
Case no: 25312/2016
In
the matter between:
MPOYANA
LAZARUS LEDWABA
N.O.
Applicant
and
MILONG
LAZARUS
MTHEMBU
First Respondent
LANNIS
FATHER
MAKUME
Second Respondent
THE
REGISTRAR OF THE DEED
OFFICE
Third Respondent
THE
ESTATE MAGISTRATE, JOHANNESBURG
MAGISTRATE
COURT
Fourth Respondent
THE
MASTER OF THE HIGH COURT, JOHANNESBURG
Fifth Respondent
THE
MASTER OF THE HIGH COURT, PRETORIA
Sixth Respondent
In
re:
MILONG
LAZARUS
MTHEMBU
Applicant
and
LANNIS
FATHER
MAKUME
First Respondent
THE
REGISTRAR OF THE DEED
OFFICE
Second Respondent
THE
ESTATE MAGISTRATE, JOHANNESBURG
MAGISTRATE
COURT
Third Respondent
THE
MASTER OF THE HIGH COURT, JOHANNESBURG
Fourth Respondent
JUDGMENT
Delivered
:
This judgment was handed down electronically by circulation to the
parties’
legal representatives by email. The date and
time for hand-down is deemed to be 10h00 on 30 August 2021.
PRETORIUS AJ:
[1]
This matter has a protracted history with a
number of legal proceedings which preceded the present application.
It may therefore
be necessary to set out some background.
A brief history
[2]
The immovable properties forming the
subject of this matter, described as erven 1506, 1507, and 1508,
Orlando East (“
the Properties
”),
belonged to Mr Oupa Makume (“
the
deceased
”) prior his passing on 8
April 1993. According to the deceased’s death
certificate, he passed without being married.
On 4 May 1993 the
brother of the deceased, the second respondent (“
Mr
Makume
”), was appointed in terms
of regulation 4(1) of the Regulations for the Administration and
Distribution of the Estates of
Deceased Blacks as the executor of the
estate. Mr Makume submitted an inventory in terms of section 9
of the Administration
of Estates Act on 4 May 1993. The
inventory listed amongst other assets five immovable properties.
[3]
A dispute ensued regarding the
estate and on 22 June 1993, Mrs Khosi Gladys Makume (“
Mrs
Makume
”) obtained an order
granted by Van der Walt J directing the Master of the Supreme
Court (as it then was) to accept
a will apparently signed by the
deceased on 7 April 1993 as a valid will (“
the
1993 order
”). In terms of
the will the deceased had appointed Mrs Makume as the executor of his
estate and bequeathed a fifty
percent share of his estate to Mrs
Makume.
[4]
On 13 September 1993 Mr Makume launched a
rescission application seeking to rescind and set aside the 1993
order. Unfortunately,
neither the applicant nor the first
respondent before me has knowledge what the fate of the said
rescission application was.
Despite attempts by the first
respondent’s attorney she was not able to locate any order
which may have been granted in respect
thereof. Assuming
that the rescission application was not successful or finalised, Mrs
Makume was the appointed
executrix in the estate during the period
1993 to at least 2010. There is however no evidence that Mrs
Makume performed any
executory functions during this period.
There is also no affidavit deposed to Mrs Makume before me.
[5]
On the other hand, there is evidence that
Mr Makume acted as if was the appointed executor. It bears
mentioning that Mr Makume
has also since passed away.
[6]
It appears that the dispute regarding the
estate resurfaced when it became known that Mr Makume was involved in
a lease agreement
in terms of which the first respondent leased the
Properties in terms of a lease concluded in February 2008 for a
period of three
years.
[7]
The applicant was appointed as executor of
the estate on 18 August 2010. On 3 December 2010 the applicant
wrote to Mr Makume
advising of his appointment as executor and
requesting details regarding the lease in respect of the Properties.
There is
no evidence that Mr Makume responded to the letter.
[8]
On 31 May 2011, the first respondent
purchased the Properties for the amount of R500 000. The first
respondent contends that,
having leased the Properties for three
years, he believed that Mr Makume was the duly appointed executor and
was unaware of any
facts which may have prevented him from taking
ownership of the Properties. Transfer of the Properties to the
first respondent
was registered on 24 January 2012.
[9]
The first respondent contends that he made
extensive improvements to the properties since becoming owner.
In this regard the
first respondent states that he constructed a
block of flats housing 23 families on one of the erven and businesses
on the other
two erven, which businesses serve the needs of 60 people
in the community and provide employment for eight people.
[10]
The applicant addressed a further letter to
Mr Makume on 4 April 2013. In the letter the applicant afforded
Mr Makume sixty
days to vacate the properties and cancel any leases
in respect thereof, failing which the applicant would launch eviction
proceedings.
The applicant also addressed a letter to the
first respondent on 16 July 2013 in which he advised of his
appointment as executor.
In the letter the applicant demanded
that the first respondent enter into a new lease agreement with the
estate or vacate the Properties,
failing which the applicant would
launch eviction proceedings.
[11]
The first respondent denies receiving the
said letter. The applicant did not launch the intended eviction
applications.
[12]
Instead, on 29 August 2014 the applicant
instituted an application in the Gauteng Division, Pretoria (case
number 73286/2014) in
which he sought an order declaring the sale
agreement invalid (“
the 2014
application
”). The first
respondent contends that it is at this point that he learnt of the
dispute concerning the estate. The
first respondent opposed the
2014 application on the grounds he was a
bona
fide
purchaser and that a declaration
of invalidity would cause him severe prejudice.
[13]
The first respondent contends that he
requested his erstwhile attorney (who has also subsequently passed)
to seek a transfer of
the 2014 application to this court.
Instead, so the first respondent contends, his attorney instituted a
fresh application
under the present case number to have the sale
agreement declared valid. The applicant was not cited as a
respondent in the
application and was, according to him, not aware of
the application despite the notice of motion having been published in
the Star
Newspaper on 25 July 2016.
[14]
The first respondent contends that he was
not aware that the applicant was not cited and that he was surprised,
at the hearing thereof,
that the applicant was not present. The
first respondent contends that he assumed that the applicant had
abandoned the application.
[15]
On 31 August 2016 an order was granted by
Monama J in the following terms:
“
1.
A declaratory Order is hereby made confirming the Notice issued and
granted by the 3rd Respondent
on behalf of the First Respondent under
Estate No. 943/93 on the 4
th
May 1993 that was made final by the Third Respondent on the 3
rd
January 2003 under the provisions of regulation 4(2) of Government
Notice NO. 200 of 1987, promulgated in terms of Section 23(10)
of Act
38 of 1927 is hereby declared lawful and binding.
2.
A declaratory Order is hereby made confirming the Certificate of
Appointment of the First
Respondent under Estate Number 943/93 that
was issued in terms of Regulation 4(1) of the regulations published
under GN. R200 of
6/2/1987.
3.
The Fourth Respondent is directed within thirty (30) Court days from
service of this Order
on the Fourth Respondent by the Sheriff of this
Honourable Court to re-issue and/or re-report to the First Respondent
the letters
of Executorship in terms of Section 13 and 14 of the
Administration of Estates Act, Act No. 66 of 1965 as amended, bearing
Estate
No. 943/1993.
4.
The Deeds of Sale of the immovable properties Erf 1506, Erf 1507 and
Erf 1508 Orlando East
entered into by the First Respondent and the
Applicant herein attached to the Applicant's founding affidavit is
hereby declared
lawful.
5.
The Sale of Agreements entered into between the Applicant and the
First Respondent in respect
of the immovable properties Erf 1506, Erf
1507 and Erf 1508 Orlando East is hereby declared lawful.
6.
The transfer and registration done by the Registrar of the Deeds
Office Johannesburg (herein
referred thereto as the Second
Respondent) to the Immovable properties Erf 1506, Erf 1507 and Erf
1508 Orlando East to the name
of the Applicant (Milong Lazarus
Mthembu) is hereby declared lawful.
7.
The First Respondent is directed within thirty (30) court days from
service of this Court
Order to the First Respondent to furnish and
provide a written report under oath and/or on affidavit to the Third
and Fourth Respondents
with regard to the liquidation and
distribution account under Estate Number 943/1993.
8.
There is no order as to costs.”
[16]
It is this order which the applicant seeks
to rescind in the present application.
[17]
The applicant contends that he learnt of
the order on 7 August 2017 when the 2014 application was heard. The
2014 application
was then removed from the roll.
[18]
The present application was launched by the
applicant and served on the first respondent on 20 August 2018.
The applicant
seeks that the late filing of his application be
condoned and, if condoned, that the 31 August 2016 order be set
aside.
The first respondent’s
opposition
[19]
Only the first respondent opposes the
relief sought in the application. The opposition can be
summarised thus:
(19.1)
The application was not launched within a
reasonable period of time, that the applicant’s application for
condonation be dismissed
and, as such, that the application be
dismissed; and
(19.2)
Should condonation be granted, the
applicant has not made out a case for relief under rule 42(1)(a) or
under the common law.
[20]
The first respondent has in addition
launched a conditional counter application to which I will return
below.
[21]
I will deal with the merits of the
recission application to the extent necessary when dealing with the
applicant’s application
for condonation.
Condonation
[22]
Unlike
rule 31(2)(b), neither rule 42 nor the common law specifies a time
period within which a rescission application in terms
thereof should
be launched. It must accordingly be launched within a
reasonable period of time. What is a reasonable
time depends
upon the facts of each case.
[1]
[23]
The
Constitutional Court
[2]
held in respect of condonation for special leave to appeal:
“
It
is appropriate that an application for condonation be considered on
the same basis and that such an application should be
granted if
that is in the interests of justice and refused if it is not. The
interests of justice must be determined by reference
to all relevant
factors, including the nature of the relief sought, the extent and
cause of the delay, the nature and cause of
any other defect in
respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness
of the
applicant's explanation for the delay or defect.”
[24]
In my view this is equally applicable to an
application for condonation in the present circumstances.
[25]
The relevant facts pertaining to this issue
are the following:
(25.1)
Mrs Makume was appointed as executrix in
1993 but apparently performed no functions as such until 2010 when
the applicant was appointed
as executor;
(25.2)
Apart from the letters addressed by the
applicant to Mr Makume and the first respondent there is no further
evidence that the applicant
performed any functions as executor until
the launch of the 2014 application;
(25.3)
The 2014 application was removed from the
roll in August 2017;
(25.4)
The 2016 order was granted on 31 August
2016 pursuant to the 2016 application;
(25.5)
The applicant became aware of the 2016
order on 7 August 2017;
(25.6)
The present application was launched in
July 2018 and served on the first respondent on 20 August 2018.
(25.7)
The present application was set down for
hearing three years after it was launched.
[26]
The applicant contends in the founding
affidavit that the application was launched within a reasonable time
having regard to the
to the launching of the 2014 application and the
removal thereof for this application to be launched. The
applicant further
contends that he “
had
to wait for the deceased (sic) wife to put [him] in funds to pursue
the matter further.
” The
applicant’s contention has little relevance to the issue of
condonation or the reasonableness of the delay.
It was for
instance not explained why the applicant was dependent on funding
from the deceased’s wife for purposes of the
present
application. Moreover, a lack of funds is not an appropriate
reason not to timeously launch proceedings. I
will return to
this issue below. The applicant’s explanation for the
delay in the founding affidavit is inadequate.
[27]
A further attempt was made in the
applicant’s heads of argument to explain the delay.
However, the explanation in the
heads of argument is not supported by
the evidence on affidavit and cannot be given regard to.
[28]
The first respondent challenged the
applicant’s explanation that he was dependent upon funding from
Mrs Makume in his answering
affidavit. Despite the challenge,
the applicant did not take the issue further in his replying
affidavit.
[29]
In
Uitenhage
the SCA
[3]
held:
“
[6]
One would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would
be trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be
had merely
for the asking; a full, detailed and accurate account of the causes
of the delay and their effects must be furnished
so as to enable the
Court to understand clearly the reasons and to assess the
responsibility. It must be obvious that, if the non-compliance
is
time-related then the date, duration and extent of any obstacle on
which reliance is placed must be spelled out.”
[30]
The principles expressed apply equally in
the present matter.
[31]
I am not satisfied that the applicant has
set out sufficiently the facts upon which he places reliance for the
delay in launching
and advancing the present application. In
particular, the applicant did not deal adequately with the extent and
cause of
the delay, the effect of the delay on the administration of
justice, prejudice and the reasonableness of his explanation for the
delay.
[32]
The
reasons given by Fisher J in
Northern
Wholesale
for dismissing a condonation application are equally applicable in
the present matter:
[4]
“
The
defendant only brought this application for rescission a year after
the judgment coming to his attention. The defendant explains
this
substantial delay on the basis that he did not have the financial
means to bring the application. The assertions made in this
regard
are vague and uncompelling.”
[33]
The applicant’s explanation for the
late launching of this application is limited to the lack of funds to
launch the application
timeously. His explanation for launching
the application a year after obtaining knowledge of the order is
ambiguous and unconvincing.
[34]
Other factors such as the applicant’s
lack of action since 2010 when he was appointed as executor and the
lapse of time since
the 2014 application was launched are also
weighing factors when considering condonation.
[35]
The dispute regarding the estate has
commenced in 1993. Almost 28 years later there is still
continuing litigation.
It is apparent from the documents before
me that the applicant has not only been dilatory in this application
but also in the 2014
application and his duties as executor.
[36]
The
principle of finality of litigation expressed in the maxim
interest
rei publicae ut sit finis litium
(it
is in the public interest that litigation be brought to finality)
dictates that the power of the court should come to an end.
[5]
After years of litigation, the parties, particularly the first
respondent – who is a
bona
fide
purchaser
of the properties and who was before the 2014 application not
involved in the dispute regarding the estate - are entitled
to the
assurance that once an order of court has been made, it is final and
they can arrange their affairs in accordance with that
order.
Prospects of success
[37]
I will deal with the applicant’s
prospects of success to the extent necessary.
[38]
The
court has a discretion whether or not to grant an application for
rescission under rule 42
[6]
subject thereto that one of the jurisdictional facts in rule
42(1)(a)-(c) do exists. In the absence thereof, the court does
not have a discretion to set aside an order.
[7]
[39]
The
test for rescission under rule 42(1)(a) is whether there existed at
the time of the granting of the order a fact of which the
court was
unaware, which, firstly, would have precluded the granting of the
order and, secondly, would have induced the court,
if aware of it,
not to grant the order.
[8]
[40]
When requesting the applicant’s
counsel during the hearing of the matter to identify the fact of
which Monama J was unaware
when he granted the order and which may
have precluded him from granting the order, the applicant’s
counsel submitted that
had Monama J been made aware of the fact that
the applicant was the executor of the estate, it would have precluded
him from granting
the order.
[41]
It is not clear from the papers what
exactly transpired before Monama J. The papers in the 2014 and
2016 applications were
not made available in the present application
and as such it is not possible to determine from them whether the
applicant’s
appointment as executor was withheld.
[42]
The applicant contends in his founding
affidavit that “
the reasons for
the applicant’s absence before the honourable court on 20 July
2016 was never disclosed in these proceedings
”
and as a result “
a gross error in
law as in procedure has occurred
”.
The applicant contends further that the “
court
would not have considered granting the order if the court was
favoured with the correct facts and information that there is
an
appointed executor of the deceased estate
”.
In answer the first respondent contends that he was not aware that
the 2016 application was a new application but
was under the
impression that the application was aimed at transferring the 2014
application to this division. The first
respondent contends
that he did not fail to “
cite [the
applicant] with maleficent intent of depriving him the opportunity to
be heard.
”
[43]
Is the failure to disclose the applicant’s
appointment a fact which would have precluded the court from granting
the 2016
order? Possibly, but it depends on what facts the
applicant would have placed before the court had he been cited.
Would
the mere fact that the applicant was appointed as the executor
have induced the court, if aware of it, not to grant the order?
Unlikely. The mere fact that the applicant was the executor
would in my view not be sufficient to induce the court not to
have
granted the order.
[44]
What is it that the applicant would have
brought to the court’s attention had he been joined in the 2016
application?
I can only assume the issues which the applicant
would have raised in the 2016 application had he been cited are the
same as the
issues he raised in in 2014 application. But the
applicant’s evidence before me in this regard is inadequate.
[45]
Having regard to the nature of the relief
granted in terms of the 2016 order, I find it difficult to believe
that the history of
the matter, including the appointment of
executors (Mr Makume, Mrs Makume and the applicant) would not have
featured. However,
as I have mentioned, the papers of the 2016
application (nor the 2014 application) were placed before me.
In conclusion
[46]
I conclude that upon a consideration of the
pertinent factors, particularly the length of time, the inadequate
explanation for the
delay, the prejudice to the first respondent and
others occupying the properties, and the fact that there are limited
prospects
of success, I am of the view that condonation should be
refused in the interests of justice.
[47]
In
the exercise of my discretion I am satisfied that, even if the
applicant demonstrated the requirements of rule 42(1)(a), he should
not be heard to complain after the lapse of a reasonable time.
[9]
[48]
The normal principle
is that costs follow the result. There is no reason to deviate
from this principle.
In the circumstances I make the
following order:
1.
The application is dismissed with costs.
JF
PRETORIUS
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
DATE
OF HEARING:
10 August 2021
DATE
OF JUDGMENT:
30 August 2021
COUNSEL
FOR THE APPLICANT:
NS Mteto
INSTRUCTED
BY:
Mpoyana Ledwaba Inc.
COUNSEL
FOR THE RESPONDENT: D Gondo and N
Nyembe
INSTRUCTED
BY:
P Nkosi
[1]
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
1996
(4) SA 411 (C) 421G
[2]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000
(2) SA 837
(CC) [3]
[3]
Uitenhage
TLC v SARS
2004 (1) SA (SCA) [6]
[4]
Northern
Wholesale Tiles CC v K Warmback
2017 JDR 1066 (GJ)
[5]
Zondi
v MEC, Traditional and Local Affairs
2006
(3) SA 1
(CC) [28];
Freedom
Stationery (Pty) Ltd v Hassam
2019
(4) SA 459
(SCA) at 465A–B;
Thobejane
v Premier of Limpopo Province
2020
JDR 2799 (SCA) [6]
[6]
First
National Bank of Southern Africa Ltd v Van Rensburg NO
1994
(1) SA 677
(T) 681F;
Van
der Merwe v Bonaero Park (Edms)Bpk
1998
(1) SA 697
(T) 703G
[7]
Van
der Merwe v Bonaero Park (Edms) Bpk
1998
(1) SA 697
(T) 702H;
Swart
v Absa Bank Ltd
2009
(5) SA 219
(C) 222B–C
[8]
Nyingwa
v Moolman NO
1993
(2) SA 508
(Tk) 510D–G;
Naidoo
v Matlala NO
2012
(1) SA 143
(GNP) 153C;
Rossitter
v Nedbank Ltd
(unreported,
SCA case no 96/2014 dated 1 December 2015) [16];
Thomani
v Seboka NO
2017
(1) SA 51
(GP) 58C–E;
Occupiers,
Berea v De Wet NO
2017
(5) SA 346
(CC) 366E–367A
[9]
First
National Bank of Southern Africa Ltd v Van Rensburg NO: in re First
National Bank of Southern Africa Ltd v Jurgens
1994
(1) SA 677
(T) 681B–G;
Firestone
South Africa (Pty) Ltd v Gentiruco
AG
1977 (4) SA 298
(A) 306H;
Kisten
and Another NNO v Absa Bank Limited
(unreported,
KZP case no AR179/15 dated 23 August 2016) [13]