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[2015] ZAECBHC 5
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Naku and Others v Naku and Others (332/2014) [2015] ZAECBHC 5 (10 March 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Case
no: 332/2014
Date
heard: 4.12.2014
Date
delivered: 10.3.2015
In the matter between:
BULELWA
NAKU
First
applicant
FUNDISWA
NAKU
Second
applicant
SIMPHIWE
NAKU
Third
applicant
and
MTHUTHUZELI
NAKU
First
respondent
ESTATE
NOMZUZU C. YOLO
Second
respondent
MASTER
OF THE HIGH COURT (BHISHO)
Third
respondent
ASANDA
PRUDENCE BACA
Fourth
respondent
NCEBA
BACA
Fifth
respondent
REGISTRAR
OF DEEDS
Sixth
respondent
JUDGMENT
MALUSI AJ:
[1]
This matter served before me to consider a final relief in an
application where an order had earlier
been granted in favour of
applicants by this Court. The first, second, fourth and fifth
respondents set down the application
for hearing. I will refer
to them in this judgment as the respondents. The third and sixth
respondents did not participate
in the application. The application
was vigorously opposed by the applicants.
[2]
It is necessary, as it will become apparent later in the judgment, to
provide a background to
the application. The dispute between
the parties arose from the death of
Nomzuzu Christophina Yolo
who
died intestate on the 31
st
March 2011. The first
respondent was appointed by the third respondent (The Master) to be
an executor of the deceased estate
on the 6
th
May 2011.
In that capacity the first responded sold an immovable property
situated at 4[...] NU8 Mdantsane belonging to the
second respondent
(the deceased estate) to the fourth and fifth respondents on the 10
th
December 2013. On the 15
th
May 2014, the fourth and
fifth respondents initiated eviction proceedings in the Mdantsane
Magistrate’s Court against the
second and third applicants.
This led to the applicants launching an urgent application to this
Court on the 9
th
June 2014.
[3]
The relief sought by the applicants was in two parts. In part
A, the applicants applied
for an interdict against the first
respondent prohibiting him from occupying the immovable property;
presenting himself as
a lawful owner of the immovable property and
‘coming close’ to the immovable property and the
applicants. The
fourth and fifth respondents were likewise to
be prohibited from ‘coming close’ to the immovable
property or presenting
themselves as lawful owners.
[4]
In part B of the application, the applicants sought a declaratory
order effectively setting aside
all the steps and decisions taken in
the administration of the deceased estate from the appointment of the
first respondent to
the registration of transfer of the immovable
property. It is important to state that none of the orders
sought either in
part A or B were to be interim relief as no rule
nisi
was proposed in the notice of motion.
[5]
On the 12
th
June 2014, the learned Maseti AJ granted an
order (the June order) in the following terms:
“
1.
The 1
st
Respondent is interdicted from occupying
ERF
4[...] MDANTSANE Unit [...] (known as NU8 [...]) (‘the
property’).
2.
The 1
st
Respondent is further interdicted from representing to anyone that he
has authority or that he is a lawful owner of the property
in (2)
above. He may not come close to the said property for as long
as this interdict is in force. Furthermore he
may not come
close to the persons of the 1
st
,
2
nd
and 3
rd
Applicants, may not attempt to communicate with them and he may not
remove or attempt to remove any movable property.
3.
The 4
th
and 5
th
Respondents are interdicted from occupying
ERF
4[...] MDANTSANE Unit [...] (known as NU8 [...] (‘the
property’).
They may not
come close to this property and they are not allowed to represent to
anyone that they are lawful owners of this property
for as long as
this interdict is in force.
4.
The Letter of Executorship granted to the 1
st
Respondent in the estate of the late
MS.
NOMZUZO CHRISTOPHINA YOLO
is null and
void.
5.
The agreement of sale entered into between the 1
st
,
4
th
and 5
th
Respondent is null and void.
6.
The endorsement of the sale of
ERF
4[...] MDANTSANE Unit […] (known as NU8 [...]) (‘the
property’)
by the 3
rd
Respondent is null and void.
7.
The registration of the property into the names of the 4
th
and 5
th
Respondents is null and void.
8.
The 6
th
Respondent is instructed to cancel the registration of the property
that has been registered into the names of the 4
th
and 5
th
Respondents.
9.
This order is an interim order pending the decision of the Master of
the
High Court regarding the appointment of the Executor in the
Estate of the 2
nd
Respondent.
10.
The 1st, 4
th
and 5
th
Respondents are ordered to pay the costs of this application.”
[6]
The respondents applied for leave to appeal against the June order
either to the full Court of
this division or the Supreme Court of
Appeal. On the 9
th
September 2014, the application
for leave to appeal was dismissed with costs. The Court
reasoned in its judgment that the
applicants before me had satisfied
the requirements for the grant of an interim relief. The
learned Judge held at paragraph
29 of his judgment, that ‘none
of issues in the interim order have the effect of a final relief
other than restoring the
status
quo
ante pending the final
determination of the rights of the parties’.
[7]
On the 6
th
October 2014, the Master submitted a report on
the administration of the deceased estate to the Court. In the
introduction
to his report, the Master stated categorically that the
report had been prepared in purported compliance with paragraph 9 of
the
June order.
[8]
The respondents set down this application for hearing on the 20
th
November 2014. It was then postponed to 4
th
December
2014 when it served before me.
[9]
At the hearing I raised the issue with both counsel whether or not
the June order was final in
effect. I was informed by counsel
that the judgment on the application for leave to appeal had held the
June order to be
interim. I enquired whether the June order, if
interim, had not lapsed as there was no rule
nisi
which had
been extended to the date of the hearing. I was informed from
the bar that there was ‘an understanding between
the parties to
revive the order if it had lapsed’. I thereafter heard
argument on the merits of a final interdict.
[10]
The question whether an interdict is interim or final is not a matter
of form but of substance. The
question depends on the effect of
the interdict upon the issue and not upon its form. An interim
interdict is defined as
a court order preserving or restoring the
status
quo
pending the final determination of the rights of the parties.
It does not involve a final determination of these rights and
does
not affect their final determination. The applicant must prove
the requirements for the grant of a final interdict if
the relief
sought is interim in form but final in substance
[1]
.
[11] A
reading of the June order makes it abundantly clear that the rights
of the respondents, at least, were
finally determined. Their
rights to visit the immovable property, own the immovable property,
register ownership of the immovable
were all finally determined.
The right of the first respondent to administer the deceased estate
was likewise finally determined.
There is no indication in the
order that there will be a reconsideration of the final
determination. I am fortified in my
view by the fact that the
parties filed a full set of papers, the heads of argument were
filed and the contesting parties
were heard in argument. In
such circumstances the practice in this division is to finally
determine the issues unless there
are exceptional factors requiring a
re-hearing.
[12]
The ninth paragraph of the June order evinces an intention by the
learned Judge for the June order to be
interim pending the provision
of the report by the Master. In my view, that does not salvage
the situation. The intention
of the learned Judge would not
prevail in circumstances where there is no ambiguity in the order nor
an error on his part.
I have no evidence that the learned Judge
did not intend to grant the June order in the specific terms he
granted it. In
those circumstances, I only have to consider the
substance of the order.
[13]
The ninth paragraph of the June order may only reasonably be read to
provide that the Master ought to consider
the appointment of an
executor afresh. The Court appears to have intended to exercise
supervisory jurisdiction over the Master
to appoint an executor
without necessarily fettering with the discretion of the Master to
decide on the person. This is in
view of the evidence which
alleged bias and impropriety on the part of members of staff of the
Master’s office.
[14] I
did not read paragraph 9 of the June order to indicate that the
learned Judge intended to hand down a structural
interdict.
There is no indication that the declaratory order would not have
served its purpose. There is also no time
frame within which
the Master had to provide the report. The report of the Master
was not to be used to assess progress nor
to finally determine the
issues. Ordinarily, the status
quo
is preserved and a
report is sought from the Master or other state institution before a
determination of the issues.
In casu
, the learned Judge
specifically indicated in the judgment of the application for leave
to appeal, that he intended to restore the
status
quo
ante. On the facts of this case, once that was done it had the
effect of finally determining the rights of the parties and
finally
disposing of the relief claimed.
[15]
Even if I am wrong and the June order was an interim interdict, the
respondents have another insurmountable
hurdle. The June order
was valid until the Master made a decision regarding the appointment
of the executor in the deceased
estate. That eventuality
occurred on the 3
rd
October 2014. The report was filed at Court on the 6
th
October 2014. Effectively, the interim order lapsed on the 6
th
October 2014 at the latest. Once the period of validity had
expired and had not been renewed by an order of Court, the original
order automatically lapsed
[2]
.
[16]
The respondents set down the matter for hearing only on the 30
th
October 2014. By then the interim order had long lapsed.
There was no substantive application before me to revive the
lapsed
order. I am of the view that a Court has no authority to
mero
motu
revive a lapsed order. This is based on the authority that an
interim order has no independent existence but is conditional
upon
confirmation by the same Court (albeit not the same Judge) in the
same proceedings after having heard the other side
[3]
.
It will also be irregular to revive a lapsed order ‘on the
understanding between the parties’ (whatever that
means)
without a substantive application before me.
[17]
It must be manifest that I need not consider the merits of the
application owing to the opinion expressed
above. The only
other issue I need to adjudicate upon is the costs of the
postponement on the 20
th
November 2014 and the hearing on the 4
th
December 2014. The respondents took it upon themselves to set
the matter down. There was no need to do so. The
respondents
ought to have petitioned the
President of the Supreme Court of Appeal if they were not satisfied
with the judgment of Maseti AJ,
and believe that the order is still
in force and has not lapsed. It seems to me fair and just to
mulcate them with costs.
[18] In
the circumstances and for the above reasons, it is ordered:
[18.1]
The application for final relief is dismissed as incompetent.
[18.2]
The first, second, fourth and fifth respondents are ordered to
pay
the wasted costs occasioned by the postponement on 20
th
November 2014 and the costs of the hearing on 4
th
December
2014.
T. MALUSI
ACTING JUDGE OF THE
HIGH COURT
On
behalf of the applicants
Mr
S. Nzunzo
Instructed
by
Nomjana
Attorneys
EAST
LONDON
On
behalf of the respondents
Mr
N.B. Bangisi
Instructed
by
Godongwana
Ngonyama Pakade Attorneys
EAST
LONDON
[1]
LAWSA
Vol II (First Reissue) para 314 and the authorities cited therein;
Oasis Group Holdings (Pty) Ltd and Another vs Bray
[2006] 4
ALL SA 183
(C) at para 13
[2]
Fisher
v Fisher
1965 (4) SA 644
(W); NDPP v Walsh & Others [2008]
JOL 22905 (T)
[3]
MV
Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA) para 6