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[2018] ZAECMHC 40
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Mbaba and Others v Executor Estate Late Ngqele and Others (3129/2017) [2018] ZAECMHC 40 (14 August 2018)
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – MTHAHTA
Case
No: 3129/2017
Date
Heard: 23 March 2018
Date
Delivered: 14 August 2018
In
the matter between:
SIYABULELA
MBABA
First
Appellant
PUMLA
NOTHOZAMILE
MBABA
Second
Appellant
ZANELE
MAYEKISO
Third
Appellant
SIPHOKAZI
MAYEKISO
Fourth
Appellant
SIPHIWO
MAYEKISO
Fifth
Appellant
and
EXECUTOR:
ESTATE LATE NGQELE
EDWIN
MBABA
First
Respondent
MASTER
OF THE HIGH COURT:
MTHATHA
Second
Respondent
MDA
MNCEDANE
INC.
Third
Respondent
NKULULEKO
MEHLO
Fourth
Respondent
LUSANDA
NOMPANDANA
Fifth
Respondent
KHOLEKILE
NDAMASE
Sixth
Respondent
MZIWOTHANDO
JIVASI
(A
MINOR DULY ASSISTED BY
HER/HIS
MOTHER)
Seventh
Respondent
SOLAM
MBADA
Eights
Respondent
AZAZOLE
MBABA
Ninth
Respondent
MDA
MNCEDANE
INCORPORATED
Tenth
Respondent
STANDARD
BANK: MTHATHA
WEST
Eleventh
Respondent
JUDGMENT
MAKAULA
J:
[1]
The genesis of this matter is the death of Ngqele Edwin Mbaba who
died testate. As can be gleaned from the papers, the
second
appellant purports to be the sole surviving spouse of the deceased
and sought an order declaring her as such. Nobelisi
Mbaba (born
Ndamase) on the other hand disputes that the deceased was married to
the second appellant and claims to be the sole
surviving spouse of
the deceased. The issues in this matter are compounded and
confused by the various applications which
were launched by the
second appellant. Needless to mention that all those
applications were dismissed with costs.
[2]
On the 27
th
March 2015 the appellants (applicants in the
court
a quo
) brought an application against the respondents
herein for the following order:
“
1. That, the FINAL
LIQUIDATION AND DISTRIBUTION ACCOUNT relating to the LATE NGQELE
EDWIN MBABA (hereinafter referred to as “THE
DECEASED”)
dated 15 JANUARY 2014 and signed by one VUYOKAZI MNCEDANE an attorney
a partner of the ATTORNEYS MDA MNCEDANE
INCORPORATED (TENTH
RESPONDENT) be and is hereby set aside and declared of no legal valid
effect.
(Sic)
2. Directing the First
Respondent to approach the SOUTH AFRICAN REVENUE SERVICE for tax
directives/liabilities of the said deceased
for incorporation of that
liability in the future drafting of a fresh FINAL LIQUIDATION AND
DISTRIBUTION ACCOUNT of the said deceased.
3. The FIRST and SECOND
RESPONDENTS be and are hereby directed to consider the claims lodged
against the said estate by SECOND,
THIRD, FOURTH and FIFTH APPLICANTS
within a period of 30 (THIRTY) DAYS from the date of finalization of
these proceedings.
ALTERNATIVELY
, to hold
an enquiry giving them an opportunity to be heard before they could
come to a conclusion dismissing their claims.
4. The SECOND RESPONDENT
be and is hereby directed to consider the written objections that
were lodged with him by the FIRST APPLICANT
during the month of JULY
2015.
ALTERNATIVELY
,
to hold an inquiry giving her an opportunity to be heard before they
could come to a conclusion dismissing her claim.
5. The FIRST RESPONDENT
and/or the TENTH RESPONDENTS be and are hereby directed not to draw
any cheques from the said estate banking
account number –
061046523 kept by ELEVENTH RESPONDNET until such time the present
proceedings are finalized.
6. The FIRST RESPONDENT
be ordered to pay the costs only if she opposes this application
which costs should be
DE BONIS PROPRIS
on an attorney and
client scale only if she opposes this application.
7. Any other Respondent
who opposes this application should be directed to pay the costs
thereof on an attorney and own client scale.
8. Granting other
alternative relief”.
[3]
The first, third and tenth respondent’s opposed the application
and raised the following points:
“
7.1 The
application is vexations. It is the 5
th
Application
against me. It is an abuse of the
court process.
7.2 As against the 1
st
and the 2
nd
Applicants the application is
res judicata.
As against the 2
nd
Applicant it was disposed under
Case No. 2655/14
per
Mey AJ.
It
appears on
page 6 paragraph 12
of his judgment.
Find attached same marked
NM’6’
. As against
the 1
st
Applicant it was disposed of by
Mgxaji AJ
.
Find attached a copy of the order marked
NM’7’
.
7.3 The
2
nd
,
3
rd
, 4
th
and
5
th
Respondent lack the legal
standing to make the application as they are not heirs of the
deceased.
7.4 The
1
st
and
2
nd
Applicants have failed to
pay taxed costs on demand. This application should be stayed pending
payment of those costs. Find
attached allocator for both marked
NM’8’
and ‘
9’
respectively.
7.5 The estate of Ngqele
Edwin Mbaba has already been finalized and all beneficiaries have
been paid except the
1
st
Applicant
whose payment has been delayed by his refusal to submit his banking
details and the taxed costs he is refusing to pay.
Whatever order can be
granted it will have no effect as the estate has been wound up. The
application has been overtaken by events
known to the applicants.
It is vexatious and frivolous.
7.6 The orders sought in
1, 2, 3, 4, and 5 are simply not competent as the estate has been
wound up. They are academic.
On these points alone this
applications ought and should be dismissed with costs as prayed.
8. This application as a
whole is academic. This fact is known to the applicants and
their attorney. It is now time
that the attorney of the
applicants be ordered to pay
de bonis propris
on an attorney
and client scale. The deponent is made to pay attorneys for
applications that have no merit. The
1
st
and
2
nd
Applicants have lost all
cases against the deponent. The question is when will they stop
this unfounded and expensive litigation.
They are badly advised
by their attorney who knows that they will not be able to pay costs
and the deponent will suffer by continuously
paying costs. It
is for this reason that I ask that their attorney should be saddled
with costs. In all the previous
cases
Messrs A.F. Noxaka
was the attorneys of record and they know the facts very well”.
(Sic)
[4]
The matter was argued before the court
a quo
. The court
a quo
made the following order:
“
In this matter I
have just listened to points
in limine
to the application by
the first, third and fourth applicants. Yes, and with regard to
res
iudicata,
the issue that I have to determine is whether
the same parties have been before Court on the same issues. It has
been held
over a number of times in our courts that disputes have to
– the determination of dispute has to come to some finality at
some point and no litigation can continue perpetually. It is common
cause that these issues – some of the issues have been
before
the same Court up to the fifth time now. But I am also of the view
that the respondents’ legal representative is correct,
that all
that happening is that the parties come in and out, changing
terminology and changing the appearances or the parties.
But
centrally they seek to set aside the same liquidation and
distribution account and also centrally to determine whether the
third and fourth and fifth applicants should be declared to have
benefits under the estate of the deceased. My view is that those
issues have been ventilated quite a number of times before and the
matter is indeed
res iudicata
and I would dismiss the
applications for the first, third, fourth and fifth applicants with
them to pay the costs of the application”.
(Sic)
[5]
The appeal is premised against the above order. The grounds of
appeal are couched in the following terms:
“
1. That, the
learned Honourable Judge misdirected herself on the question how the
doctrine of RES JUDICATA could be applied in a
situation where one of
the four Appellants was never been to court before on any
matter against the ESTATE LATE EDWIN NGQELE
MBABA on one hand and on
the other hand one of the Appellants had previously been
before court against the said Estate but
on a different matter as
opposed to the matter from which this appeal arises.
(Sic)
2. That, the learned
Honourable Judge erred in dismissing the Appellants’ case only
on that point of RES JUDICATA that was
raised by the Respondents even
though it was the first time for other Appellants before court for
the first time (without even
hearing the merits of their case at
all).
3. That, the learned
Honourable Judge should have found that the main principle of RES
JUDICATA is that, in order for that principle
to find application,
the parties and the issues before court in the case presently before
court should be same as in the previous
case”.
(Sic)
[6]
The appeal is with the leave of the court
a quo
. The
matter appeared before us for the first time on 9 February 2018.
However, it was postponed to 23 March 2018 because
the file was not
in order.
[7]
Before anything else, I shall deal with the various applications and
in particular the parties and the orders sought and granted.
In
Case Number 1192/09, the applicant is the second appellant herein.
The orders sought in that matter are different to the
current orders
sought. Summarily, the orders sought by the second appellant in
that matter were:
(a) that the respondents
should handover/surrender the letter of Executorship to the
applicant;
(b) stopping the
respondents from finalising the winding up of the estate;
(c) not to pay out money
to the beneficiaries;
(d) delivery to the
applicant of the original Identity document, original Death
Certificate and all the deceased property for safe
keeping; and
(e) the respondents are
directed to expunge from the registers the purported customary
married believe Nobelusi Mbaba and the deceased.
The court
dismisses the application with costs.
(Sic)
[8]
On 12 June 2014 the second appellant launched another application
under Case Number 2462/2013 against Nobelusi Mbaba wherein
she sought
an order that she be declared the only surviving spouse of the
deceased. Mey AJ dismissed the application on the
basis that
there was a factual dispute as to whether the applicant or respondent
were married or not to the deceased. Furthermore,
Mey AJ found
that the very issue was referred to the hearing of oral evidence in a
previous judgment.
[9]
Again on 4 April 2014, the second appellant launched an
ex parte
application against Estate late Ngqele Edwin Mbaba, the Master of
the High Court and Mda Mncedane Attorneys Incorporated as
respondents,
interdicting them from:
(a) continuing with the
administration and distribution and paying out of any money to any
would be beneficiaries;
(b) directing Mda
Mncedane Attorneys to deposit any money collected into their Trust
Account pending finalization of Case Number
2462/13; and
(c) the Master of the
High Court to take back and keep the original Letters of Executorship
pending the finalization of the estate.
[10]
The interim relief sought by the second appellant was denied on 13
March 2014 by Msizi AJ.
[11]
The last order was issued by Mgxaji AJ on 6 May 2015 under Case
Number 2655/14. The applicant was Siyabulela Mbaba and
the
respondent Nobelusi Ndamase and the Master of the High Court. The
order reads:
“
It is ordered:
1.
That the Master of the High Court is directed to ensure finalization
of the Estate of Late Ngqele Edwin Mbaba in terms of
section 18
of
the
Administration of Estates Act 66 of 1965
as amended.
2.
That the applicant pays costs of the application on a party and party
scale”.
[12]
The origin and requirements of the doctrine of
res
judicata
were
traced and dealt with by Muller JA
[1]
,
as follows:
“
Because SHEARER,
J., found in favour of the club by applying the doctrine of
res
judicata
, it is necessary to restate briefly the requirements for
the application of that doctrine.
Voet
, 44.2.3 (
Gane’s
trans., vol. 6, p. 554) states as follows:
“
There
is nevertheless no room for this exception unless a suit which had
been brought to an end is set in motion afresh
between
the same persons about the same matter and on the same
cause for claiming, so that the exception falls away
if one of these
three things is lacking”.
And in
Custom Credit
Corporation (Pty.) Ltd. v Shembe,
1972 (3) S.A. 462
(A.D.), Van
WINSEN, A.J.A., stated, at p. 472A:
“
The
law requires a party with a single cause of action to claim in one
and the same action whatever remedies the law accords him
upon such
cause. This is the
ratio
underlying the rule that, if a
cause of action has previously been finally litigated between the
parties, then a subsequent attempt
by one to proceed against the
other on the same cause for the same relief can be met by an
exceptio
rei judicatae vel litis finitae”.
[13]
Except for the second appellant and the first respondent, the parties
in all three applications and the orders sought are not
the same.
Therefore the defence of
res iudicata
is not applicable and
the court
a quo
erred in this regard.
[14]
Furthermore, the Liquidation and Distribution Account (L&D)
referred to in paragraph 1 of the order sought by the appellants
in
this matter is not the same as the one referred to under Case No.
2655/14. The latter Liquidation and Distribution Account
is
dated 10 February 2014 and was signed by the Executrix. In the
present application the Liquidation and Distribution Account
dated 15
January 2014 and is signed by Ms Vuyokazi Mncedane in her capacity as
an attorney assisting the Executrix. Therefore,
the relief
sought in paragraph 1 of the current matter has not been dealt with
nor decided before.
[15]
Consequently, the appeal succeeds.
It
is ordered:
1. The appeal is upheld.
2. The first and third
respondent are to pay the wasted costs jointly and severally one
paying the other to be absolved.
___________________
M
MAKAULA
Judge
of the High Court
Brooks
J: I agree.
__________________
RWN
BROOKS
Judge
of the High Court
Bodlani
AJ: I agree.
__________________
AM
BODLANI
Acting
Judge of the High Court
For
the Appellants: Mr Peko & Mr AF Noxaka
Instructed
by: AF Noxaka & CO
Mthatha
For
the Respondents: Mr Mantyi
Instructed
by: Mantyi Attorneys
Date
Heard: 23 March 2018
Date
Delivered: 14 August 2018
[1]
African
Wanderers F.C. v Wanderers F.C.
1977
(2) SA page 38 at 45 E – G.