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[2013] ZAECMHC 7
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Mandela and Others v Dalibhunga (Mandela) and Others (1552/13) [2013] ZAECMHC 7 (3 July 2013)
THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
no: 1552/13
In
the matter between:
MAKAZIWE
PUMLA MANDELA
....................................................
1st
APPLICANT
NDILEKA
MANDELA
.......................................................................
2nd
APPLICANT
NANDI
MANDELA
.............................................................................
3rd
APPLICANT
TUKWININOBUHLALI
MANDELA
................................................
4th
APPLICANT
NDABA
MANDELA
.............................................................................
5th
APPLICANT
DOROTHY
ADJOA AMUAH
.............................................................
6th
APPLICANT
KWEKU
GLADIEL MANDELA
........................................................
7th
APPLICANT
MBUSO
MANDELA
............................................................................
8th
APPLICANT
ANDILE
MANDELA
...........................................................................
9th
APPLICANT
THEMBELA
MANDELA
..................................................................
10th
APPLICANT
HLANGANANI
MANDELA
.............................................................
11th
APPLICANT
PUMLA
DEBORAH MANDELA
.....................................................
12th
APPLICANT
GRACA
SIMBINE MACHEL-MANDELA
.....................................
13th APPLICANT
ZENANIDLAMINI-MANDELA
.......................................................
14th
APPLICANT
ZINDZISWA
MANDELA
..................................................................
15th
APPLICANT
ZWELIVELILE
MANDLE SIZWE DALIBHUNGA
(ALSO
KNOWN “MANDLA” MANDELA)
...................................
1
st
RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL: EASTERN CAPE DEPARTMENT OF HEALTH
.
....................................................
2ND
RESPONDENT
THE
PREMIER, EASTERN CAPE.
...............................................
3
rd
RESPONDENT
PAKADE,
ADJP:
BACKGROUND
[1]
The sequel to this hearing is the final Order that was issued by this
Court on Friday, 2S June 2013 in the absence of the respondents.
[2]
Subsequent thereto, three applications served before me yesterday.
The first and second applications (herein after referred
to as the
Variation and the Striking off applications) were brought by the
applicants on Monday the 1st July 2013 and the third
application (
herein after referred to as the rescission application) was brought
by the first respondent orally from the bar yesterday.
[3]
The variation application was brought in terms of Rule 42(1) of the
Uniform Rules of the High Court to correct ” Saturday,
29
th
July 2013, to read Saturday ,
29th June 2013” in paragraph 4 of the Order issued on the 28
June 2013 .
[4]
In the Striking out application, the nature of the relief sought by
the applicants is an order striking out averments contained
in
certain paragraphs of the answering affidavit to the variation
application on the ground that they are irrelevant, vexatious
and
scandalous. The striking out application is brought in terms of Rule
6(15) of the Uniform Rules.
[5]
The rescission application is brought in terms of Rule 42 (1) (a) of
the Uniform Rules on the ground that the Order of the 28
June 2013
was erroneously sought and erroneously granted in the absence of the
first respondent.
[6]
Before the commencement of the hearing of the three applications
referred to above, Mr Smith, Counsel for the applicants, moved
an
application from the bar for the amendment of the Notice of Motion to
be in accord with the variation order sought. After brief
submission
from Mr Zilwa, Counsel for the first respondent I granted the
amendment to the Notice of Motion in the following terms;
“
4A:
That in the event of the First Respondent failing to immediately
return the remains, but no later than Wednesday 3 rd July 2013
at
15:00, the Sheriff of this Court, or his Deputy, (or nominee)
performs, subject to the fulfillment of the medical protocols
by a
medical practitioner, the exhumation of the remains on the First
Respondent’s property, for reburial at the applicants'
family
homestead (farm) situated at Qunu, Mthatha, Eastern Cape
[7]
In view of the fact that all the three applications are interlinked
and factually overlapping, I granted leave for them to be
heard
simultaneously so that I give one judgment encompassing all of them.
I will now herein after deal with the applications in
turn, starting
with the striking out application.
STRIKING
OUT APPLICATION
[8]
The striking out application is directed at paragraphs 3-23 of the
answering affidavit which Mr Smith submitted are irrelevant,
scandalous and vexatious, Mr Zilwa countered Mr Smith’s
submission that these paragraphs are not irrelevant scandalous and
vexatious. He submitted that the averments embodied therein are
relevant because they support the first respondent’s
application
for rescission which he has orally brought in terms of
Rule 42 of the Uniform Rules. The submission goes on to say that the
averments
show that the first respondent was denied
andi alteram
partem
before the order was granted last Friday.
[9]
A reading of paragraphs 3-11 reveals that the averments stated
therein are confined to the lack of service of the application
to the
first respondent, before the issue of the order while paragraphs
12-17 deal with the issue of urgency, paragraphs 18-20
relate to the
rightful person to bury former President Mr Nelson Mandela and
paragraphs 22 and 23 deal briefly with the person
entitled to the
remains of the threesome. On these averments, Mr Zilwa urged this
Court to rescind the order issued on the 28 June
2013.
[10]
Rule 6(15), reproduced in relevant parts, enjoins the court to strike
out from an affidavit any matter which is scandalous
, vexatious or
irrelevant with an appropriate costs order. The meaning of these
terms has been stated as follows:
(a)
scandalous matter -means allegations which may or may not be relevant
but which are so worded as to be abusive or defamatory;
(b)
Vexatious matter -means allegations which may or may not be relevant
but are so worded as to convey an intention to harass or
annoy, and
(c)
Irrelevant matter -means allegations which do not apply to the matter
in hand and do not contribute in one way or the other
to a decision
of the matter (see cases cited in footnote 8 in Erasmus Bl-57 ? see
also the unreported judgment of this Court in
Baphathe Fana
Makaula and Another v Mzimvubu Municipality and 5 Others ,
Case
No.367/2005(1333/06). Again in its interpretation of Rule )(15) the
Court in
Vaartz
v
Law Society of Namibia , 1991(3) SA 573
(Nm HC) while reaffirming the meaning ascribed to these terms
also added the requirement of prejudice to the other party if the
material is allowed to remain in the affidavits . This means ,in my
view , that even if the material is irrelevant, scandalous or
vexatious the court may hesitate to strike it out unless the other
party would be prejudiced if it were to be allowed to remain
in the
affidavit. If the court allows it to remain in the affidavit on the
ground that it is not prejudicial to the other party
the material may
be relevant on the issue of costs and the deponent to the material
may be punished by an order for costs .This
is the basis upon which
the irrelevant scandalous and vexatious material was considered in
Mzimvubu Municipality v Certain Occupiers of Immovable Property
,
known as Remainder of Erf 351 Mount Frere Southern Side Near the
Reservour v Mzoli Diko and 6 Others
? unreported case
no.845/2002 of this Court.
[11]
To the extent that the averments in the first respondent’s
answering affidavit are directed at the rescission application,
on
the contention of Mr Zilwa* they are irrelevant to the striking out
application because the order to which they are directed
to rescind
is a final order to which the court is
functus officio
. This
is so because under common law the general rule is that a Judge has
no authority to amend the substantive content of his
or her own
order. The rationale for this principle is twofold. In the first
place he or she is
functus officio
and secondly, there is a
public interest element in the finality of litigation (
Zondi v
MEC Traditional And Local Government Affairs
2006 (3) SA CC1
at
par .[28] . This is unlike interlocutory orders which stand on a
different footing. These can be rescinded, reconsidered or varied
on
good cause shown. The rationale for interlocutory orders to be
subject to variation is that they do not dispose of any issue
or any
portion of the issue in the main application or action.
[12]
These averments are, in my view neither relevant to the striking out
application nor to the variation application. Now having
said this, I
now consider the variation application.
VARIATION
APPLICATION
[13]
Rule 42(1) in terms whereof the application for the variation of the
order of the 28 June 2013 is premised provides in relevant
parts
relied upon by the applicants that:
"The
court may, in addition to any other powers it may have
jnero motu
or upon the application of any party affected, rescind or vary:
(a)
............................
(b)
an order or judgment in which there is an ambiguity , or a patent
error or omission, but only to the extent of such ambiguity
or, error
or omission;
(c)
an order or judgment granted as the result of mistake common to the
parties”.
[14]
This rule contemplates final orders in which variation is sought on
purely procedural grounds or grounds incidental thereto,
in instances
where fresh facts have arisen since the granting of the order and
where the order does not reflect the intention of
the applicant or
serve the object for which it was sought.
[15]
The Court was approached as a matter of urgency on Friday, the 28
June 2013 to issue an order which would be executed on the
following
day, Saturday, the 29 June 2013. The court intended to issue an order
which would be executable on the following day,
Saturday, 29 June
2013 and in no other day. The applicants sought that order and the
2nd, 3rd respondent and the Court understood
the object of the order
sought to be that. The applicants never sought and the court did not
grant an order to be executed on the
29 July 2013. That was a clear
typographical error on which no one could climb on and sought to
build his opposition on. Having
said this, I accordingly find that
any opposition of the variation of this patent error was frivolous
and should not have been
undertaken in the light of the clear
intention of the parties who were present when the order was granted.
No factual opposition
could have been averred by the first respondent
because he was not present when the order was granted and that is the
reason his
affidavit is pretty lacking material on variation.
RESCISSION
APPLICATION
[16]
Mr Zilwa premised his rescission application on Rule 42(1) (a) that
the order was sought and granted erroneously in the absence
of the
first respondent. He submitted that on the basis that the first
respondent was not served with the application papers before
the
order was granted coupled with the fact that the Court’s
Directive to the applicants to bring the application on notice
to the
respondents was not heeded to by the applicants, the court should
dismiss the application
mero
motu
.No
notice of this application was given to the court and as submitted by
Mr Smith a few minutes notice was given to him. This was
improper.
Rule
42 (2) provides in peremptory language that a party seeking relief
under this rule shall make an application therefor upon
notice to the
parties whose interests may be affected by the variation sought .The
first respondent has used the contents of the
answering affidavit to
the variation application as grounds for rescission , I have already
alluded to the fact that the order
sought to be rescinded is final
and that the court is
functus
officio
.
The court sitting here is not considering the merits of the
application as those merits have been disposed off.
It is trite that a
judgment or order is erroneously granted if there existed at the time
of its issue a fact of which the judge
was unaware, which would have
precluded the granting of the judgment or order and which would have
induced the judge, if aware
of it, not to grant the judgment or order
. When relying on the rescission
mero
motu
by
the court the first respondent had to show good cause which is
lacking in his answering affidavit.
[17]
The order of the 28 June 2013 restores
ante
omnia
the
remains of the three deceased persons to the applicants to be
reburied in Qunu . The nature of the proceedings which gave birth
to
that order is mandament
van
spolie
in
terms whereof the spoliated goods have to be returned to the
applicants speedily and
ante
omnia.
The
spoliation proceedings do not involve the hearing on the merits of
the dispute. The first respondent has been given an opportunity
to
say something in his defence but has only raised irrelevant material
to the spoliation. He does not deny possession of the remains
of the
deceased. He does not deny that he took them from Qunu to rebury them
in his place in Mvezo Great Place. He failed to raise
any defence
relevant to spoliation. The material embodied in his answering
affidavit is directed at achieving the results of an
appeal
improperly on a rescission application and on an application which is
no longer before the court. It is directed at prejudicing
the
applicants who have already got the relief against the first
respondent. In that respect the material on paragraphs 3-23 in
the
answering affidavit is scandalous and vexatious and has to be stuck
out. Much as the order of the 28 June 2013 is the order
issued in
spoliation proceedings, the said paragraphs are on irrelevant to
those proceedings .As already said, no defence relevant
to the
spoliation has been tendered by the first respondent. Therefore, he
must restore possession of the remains to the applicants
forthwith
speedily and
ante
omnia
.
That is the object of the order of the 28 June 2013.
COSTS
The
salutary principle’s that costs should follow the event. This
means that the successful party must get its costs. In my
view the
applicants have achieved substantial success in all the applications
which they had instituted against the first respondent
and have
successfully defended his rescission application.
ORDER:
In
the result I make the following Order:
1.
The Striking out application succeeds and paragraphs 3-23 of the
answering Affidavit are struck out as irrelevant, scandalous
and
vexatious;
2.
The Variation of the Order issued on the 28 June 2013 is granted in
the following terms:
2.1."Saturday
29 July 2013 is amended to Saturday, 29 June 2013";
2.2.
By the addition of sub paragraph 4A: That in the event of the first
respondent failing to immediately return the remains, but
not later
than Wednesday 3 rd July 2013, at 15:00, the Sheriff or his Deputy, (
or such nominee) performs , subject to the fulfillment
of the medical
protocols by a medical practitioner, the exhumation of the remains on
the first respondent’s property , for
reburial at the
applicants' family homestead ( farm) situated at Qunu, Mthatha,
Eastern Cape.
3.
That the rescission application is dismissed with costs, such costs
to be taxed on the opposed scale;
4.
That the first respondent shall pay costs of the striking out
application such costs to be taxed on the opposed scale;
5.
The first respondent shall pay costs of the variation application,
such costs to be taxed on the opposed scale.
LP
PAKADE
ACTING
DEPUTY JUDGE PRESIDENT
For
the Applicant: Adv Smith
Instructed
by: Messrs Wesley Hayes Attorneys
C/O
Keightley Inc
60
Cumberland Street
Mthatha
For
Respondent: Adv Zilwa with Adv Mpahlwa
Instructed
by: Randal Titus & Associates
C/O
XM Petse Inc
4th
Floor - Suite 452
Development
House
York
Road
Mthatha
Date
Heard: 02 July 2013
Date
Delivered; 03 July 2013