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[2015] ZAECMHC 64
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Jobe v Tyesi and Others (1075/2013) [2015] ZAECMHC 64 (3 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO: 1075/2013
In
the matter between
NOMATHAMSANQA
CYNTHIA JOBE
:
APPLICANT
AND
BEATRICE
TINKY TYESI
:
1
ST
RESPONDENT
VUYANI
VICTOR MSINDO
:
2
ND
RESPONDENT
MASTER
OF THE HIGH COURT
:
3
RD
RESPONDENT
GWILIZA
UNDERTAKERS
:
4
TH
RESPONDENT
FIRST
NATIONAL BANK, MTHATHA
:
5
TH
RESPONDENT
JUDGMENT
MASETI,
AJ:
[1]
This is an application by the applicant for leave to appeal to the
full Court of this Division against the judgment handed down
by this
Court on 18 September 2014.
[2]
Leave to appeal is based on the legal and factual grounds set out in
paragraphs 1 to 6 and additional paragraphs 1 to 4 of the
amended
application for leave to appeal. The matter was heard on 9 June 2015.
[3]
The First Respondent opposed the application mainly on the ground
that the provisions of
Section 16
of the
Superior Courts Act 10 of
2013
prohibit the hearing of the appeal from the judgment of two
judges by the full Court and that the appeal should be noted directly
to the Supreme Court of Appeal.
[4]
None of the parties filed Heads of Argument. The judgment was
reserved upon hearing argument.
THE
FACTS
[5]
The following are the grounds on which the judgment is sought to be
impugned:
5.1.
The Court a quo, erred in granting all the prayers sought by the
Applicant in her counter-application but still dismiss same
with the
applicant to pay her own costs.
5.2.
The Court a quo misdirected itself on the facts and evidence in
finding that the applicant and the deceased agreed that the
proprietary consequences of their marriage inter se would be that of
a marriage concluded in community of property.
5.3.
The Court a quo erred and misdirected itself in relying on the case
of
Josephina
Nangula Mofuka V Teofilus Mofuka
for its conclusion on the issue as to whether the proprietary
consequences of the deceased and the First Applicant’s marriage
inter se, were that of a marriage concluded in community of property.
5.4.
The Court a quo, erred in declaring invalid and setting aside the
customary marriage between Vuyisile Archibald Tyesi and the
First
Respondent.
5.5.
The Court a quo, erred in directing the Master of the High Court,
when administering the estate of Vuyisile Archibald Tyesi,
to dispose
by Will of Vuyisile Archibald Tyesi only 50% of the joint estate and
to give the other 50% to the only surviving spouse
of the deceased,
namely Mrs Beatrice Tinky Tyesi.
5.6.
The Court a quo erred in finding that costs of the application be
costs in the joint estate.
[6]
The applicant further stated in his Notice of Appeal that during the
hearing it will be argued that the applicant has reasonable
prospects
on appeal and that another Court may come to a different conclusion
to the one reached by the Court a quo in that:
6.1.
Having granted all the orders sought by the applicant, there was no
basis, in law, for the dismissal of the counter-application
by the
Court a quo;
6.2.
On the evidence before the Court a quo, there was no evidence to
support the finding that the applicant and the deceased had
an
agreement that the proprietary consequences of their marriage inter
se would be that of marriage concluded in community of property.
6.3.
The decision in
Josephina
Nangula Mofuka V Teofilus Mofuka
is no authority for the conclusion reached by the Court a quo; and
6.4.
In law, the marriage relationship between the late Vuyisile Archibald
Tyesi and Mrs Beatrice Tinky Tyesi had the consequences
of a marriage
out of community of property and of profit and loss.
THE
ISSUES
[7]
The issues are whether there are reasonable prospects of success and
whether another Court may come to a different conclusion.
THE
LAW
[8]
The application for leave to appeal is brought in terms of
Section 16
of the
Superior Courts Act No. 10 of 2013
and Rule 49 of the Uniform
Rules of this Court.
[9]
Section 16 (1) provides; “Subject to Section 15 (1), the
Constitution and any other law:-
(a)
an
appeal against any decision of a Division as a court of first
instance lies upon leave having been granted-
(i)
if
the Court consisted of a single judge, either to the Supreme Court of
Appeal or to a full Court of that Division, depending on
the
direction issued in terms of Section 17 (6); or
(ii)
if
the Court consisted of more than one judge, to the Supreme Court of
Appeal.”
[10]
In the present case the application for leave to appeal does not
comply with the provisions of
Section 16
(1) (a) (ii) of the
Superior
Courts Act No. 10 of 2013
since there were two Judges who constituted
the Court a quo, and if leave to appeal is granted, it should be
directed to the Supreme
Court of Appeal and not the full Court of
this division.
[11]
The application for leave to appeal complies with
Rule 49
(1) (b) as
it was lodged within the period prescribed by the Rule.
[12]
Erasmus
in his book titled “
Superior
Court Practice”
(B1-356) in his commentary under
Rule 49
(3) stated that there are
four objects to be served by a Notice of Appeal namely:
12.1. to enable the
Presiding Officer to frame his reasons for judgment.
12.2. to give the
respondent an opportunity of abandoning the judgment.
12.3. to inform the
respondent of the case he has to meet.
12.4.
to notify the appeal court of the points to be raised. See
Kilian
V Geregbode Uitenhage
1980 (1) SA 808
(A) at 815.
Erasmus
states that the requirements of the subrule are peremptory and an
invalid notice of appeal cannot be validated by the Court
of Appeal
allowing an amendment (See
Van
Aswegen Vs De Swardt Motors (Edms Bpk
1958 (1) SA 579
(O); Harvey Vs
Brown
1964 (3) SA 381
; T.ZOURAS Vs SA Wimpy (Pty) Ltd
1978 (3) SA 204
(W) at 205.
[13]
An appeal can be noted only against the judgment itself (i.e. the
substantive order), not against the reasons for judgment;
and a
notice which purports to appeal against the reasons for judgment is
bad. See
Hollard
Vs Daysel
1970 (1) SA 90
(A) at 93E, LIPSCHITZ N.O. Vs SA
AMBOUNASIONALE BOUVEREENING
1979 (1) SA 527
(T) at 529 H
and Erasmus B1-357.
[14]
In
Harvey
Vs Brown
1964 (3) SA 381
at 383 O’ Hagan J
stated that the respondent in an appeal is entitled to be informed in
the Notice of Appeal in clear and unambiguous terms exactly
what case
he must be prepared to meet on appeal.
[15]
In
Himunchol
Vs Moharom
1947 (4) SA 778
(N) at 780 Hathorn J.P.
ruled that a ground of appeal is bad if it is so widely expressed
that it leaves the appellant free to canvas every finding of
fact and
every ruling of law made by the Court a quo in relation to the
subject matter of the appeal; or which specifies the findings
of fact
or rulings of law so vaguely as to be of no value either to the Court
or the respondent.
[16]
In considering the reasonableness of the grounds of appeal, that is,
the reasonable prospects of success and whether another
Court may
come to a different conclusion this Court has to address the question
of law and facts in the following manner:
16.1.
In addressing paragraph 7.1. above of the grounds of appeal, the
appellant filed a Counter-application seeking a declaratory
order to
the validity of the Will and also seeking the same interdict sought
by the applicant against her to be granted against
the applicant.
(See paragraph 5 of my brother Pakade J’s judgment). The Will
was declared valid in paragraph 39.1. of the
judgment and the other
relief sought in the counter-application was dismissed in paragraph
39.4. Therefore there is absolutely
nothing wrong with the judgment.
16.2.
In addressing paragraph 7.2. above, the evidence reflected in
paragraph 21 and its sub-paragraphs support the finding that
the
first respondent and the deceased had an agreement that the
proprietary consequences of their marriage inter se would be that
of
a marriage in community of property.
16.3.
This Court, in coming to its conclusion that the proprietary
consequences of the marriage between first respondent and the
deceased inter se were that of a marriage concluded in community of
property, never relied on
Josephina’s
Case
which only had a persuasive effect but relied entirely in the
Judgment of
Watermeyer
CJ in Exparte Minister of Native Affairs in re Molefe Vs Molefe
1946
AD 315
; judgment of Corbett JA in Exparte Spinazze and Another NNO
1985 (3) SA 650
(A) and; judgment of Stegman J. in Mathabathe
1987
(3) SA 45
(w) at 51C-D.
(See paragraphs 16.2., 17 and 18.1. of the judgment appealed against.
16.4.
Paragraphs 30 to 32 of the judgment appealed against with reference
to
Palesa
N.O. Vs Moleko
2013 (4) All SA 166
(GSJ) and Motsoatsoa Vs Roro and
Another 2011 (2) all SA 324 (GSJ)
support the finding by the Court a quo why the customary marriage
allegedly contracted between the applicant and the deceased was
declared null and void.
[17]
From the aforesaid it is clear that the grounds of appeal are bad in
law in that they are so widely expressed as to leave the
appellant
free to canvas every finding of fact and every ruling of law (See
Himunchol
Moharom
cited in paragraph 17 above).
[18]
The four objects to be served by a notice of appeal stated by
Erasmus
in paragraph 14 above have not been achieved.
[19]
As stated by
O’
Hagan J. in Harvey Vs Brown
cited in paragraph [16] supra, the respondent is entitled to be
informed in the Notice of Appeal in clear and unambiguous terms
exactly what case he must be prepared to meet on appeal. The present
application for leave to appeal does not comply with this
requirement.
[20]
In the premises the application for leave to appeal against the
judgment delivered by this Court on 18 September 2014 does
not have
any reasonable prospects of success.
[21]
I now make the following order:
The
application for leave to appeal is dismissed with costs.
______________________________
P.L.C
MASETI
ACTING
JUDGE OF THE HIGH COURT
I
CONCUR
______________________________
L.P.
PAKADE
JUDGE
OF THE HIGH COURT
For
the Applicant
: MR M. BODLANI
Instructed
by
: L.G. NOGAGA ATTORNEYS
45 LEEDS ROAD
MTHATHA
For
the First Respondent
:
MR V. KUNJU
Instructed
by
: ABDO & ABDO ATTORNEYS
33 TECOMA STREET,
BEREA
EAST LONDON
Date
Heard
: 09 JUNE 2015
Date
Delivered
: 03 SEPTEMBER 2015