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[2021] ZAECMHC 3
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Mandela v Toti and Others (3508/20) [2021] ZAECMHC 3 (26 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[Not
Reportable]
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 3508/20
Heard
on: 21/01/21
Delivered
on: 26/01/21
In
the matter between:
CHIEF
ZWELIVELILE MANDELA
Applicant
and
BHITO
TOTI
First Respondent
MXOLISI
NIKANI
Second Respondent
LUCKY
NKUNDLENI
Third Respondent
MQAYI
MQHAKAYI
Fourth
Respondent
BAMBATHA
TYHALAKHULU
Fifth Respondent
BRANCH
COMMANDER, BITYI POLICE STATION Sixth
Respondent
ANY
UNKNOWN PERSONS
Seventh Respondent
JUDGMENT
ON COSTS
NHLANGULELA
DJP
[1]
This matter served before me for the purposes of a determination of
the issue of costs.
[2]
On 02 October 2020 Jolwana J granted an
interim
order
interdicting and restraining the respondents from burying the remains
of one Khaya Nkundleni, the deceased, on a piece of
land which is
described as Mvezo Great Place; and as an ancillary thereto,
directing the respondents to refill the dug grave thereon;
stop
damaging the issue of the premises and to repair the damaged fence.
The relief sought was opposed by the respondents.
To that end,
answering papers were delivered on 09 October 2020, the step which
was followed by filing of a replying affidavit
on 13 October 2020.
It appears that the parties appeared before court on the return day,
which was on the same day of their
appearance in court on 13 October
2020, where the following order was granted:
“
1.
Rule
Nisi
issued on 02 October 2020 is confirmed on paragraph
(sic)
3/1 and 3.2.
2.
The matter is postponed to opposed court
(sic)
to determine
costs in the court order
(sic).”
[3]
The ancillary relief seems to have been omitted in the order dated 13
October. As
is apparent from the developments of the matter
since 02 October 2020, that omission is innocuous.
[4]
It is common cause that the main relief stopping the burial of the
deceased in the premises
was confirmed by Jolwana J on 13 October
2020. However, the stance adapted by the respondents is that
since the ancillary
relief was omitted in the court order, it
remained to be finally determined by the court. When the matter
served before me,
counsel for the applicant revealed the fact, not
disputed by the respondents, that the ancillary relief had been
abandoned by the
applicant well before 13 October 2020 with the
result that it became unnecessary for the court to make reference to
it in the order.
[5]
The significance of the final order dated 13 October 2020 is that the
main interdict against
the burial was decided finally. Mootness
cannot arise from that order. As correctly submitted on behalf
of the applicant,
on the general rule that cots follow the result
see:
Union Government v Gass
1959 (4) SA 401
(A) at 413, I am
not persuaded by counsel for the respondents that the applicant
should be deprived of costs willy-nilly.
In the absence of a
valid reason for bending the general rule, I cannot exercise
discretion in favour of the respondents that each
party should pay
its own costs.
[6]
The issue(s) for consideration regarding the costs flowing from the
abandonment of the ancillary
relief is, though a different one, not
separate from that of the order dated 13 October 2020. The
consequences of the decision
to abandon a relief would ordinarily be
followed by a tender of costs. In this case the abandoned
relief is, I repeat, ancillary
to the main relief in that it is so
much interwoven into the main relief that an award of costs in favour
of the applicant would
be appropriate. In a play of open game,
the applicant had immediately abandoned the ancillary relief the
moment he discovered
that the remains of the deceased had been
interred in different premises. The abandonment happened to be
the only route to
be followed because of unreasonable resistance on
the part of the respondents to allow the entire application be laid
to rest on
13 October 2020. Further, I say that the resistance
was unreasonable on the following considerations of undisputed facts
emerging from the affidavits:
(a)
The
applicant is the lawful custodian of Mvezo Great Place at the behest
of Mvezo Traditional Council, of which he is a part.
(b)
A
permission to inter the remains of the deceased had not been obtained
by the respondents.
(c)
The
respondents had no right to use Mvezo Great Place for burial
purposes.
(d)
There
was actual and imminent threat posed by the respondents to conduct
unauthorized burial on the premises.
(e)
Attempts
to force way into the premises through the fence surrounding Mvezo
Great Place was made by the respondents. The averment
that the
respondents were not seen cutting the fence is a red-hearing; the
main point of the matter being that it was necessary
for the
applicant to stop the respondent from gaining access into the
premises. In my opinion, the dispute of fact, which
is not
genuine, that the respondents were not seen damaging the fence did
not weaken the applicant’s case. Nonetheless,
for the
purposes of costs the court does not have to decide if any of the
parties is the winner – see:
Fripp
v Gibbon & Co
1913 AD 354
at 363;
Intercontinental
Exports (Pty) Ltd v Fairless
19199
(2) SA 1045 (SCA) at 1055. Perhaps to be
straight-forward, since the respondents have not been able to place
before court a credible version that would deprive the applicant of
an award of costs, an appropriate decision is the one that gives
costs to the applicant. The fact of abandonment alone is of no
moment. Likewise, a case for payment of costs on a punitive
scale has not been made up.
[7]
In the result the following order shall issue:
“
The
respondents to pay costs of the application, including appearance
costs of 13 October 2020, jointly and severally; the one paying
and
the others to be absolved from liability.”
Z. M. NHLANGULELA
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff :
Adv. P.V.
Msiwa
Instructed
by
: Mjulelwa Inc
MTHATHA.
Counsel
for the defendant :
Mr Meyers
:
c/o Enzo Meyers Attorneys
EAST LONDON.