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2011
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[2011] ZAECMHC 15
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Gama-Mpantsha and Others v Mpantsha (CA 16/11) [2011] ZAECMHC 15 (18 August 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION : MTHATHA
REPORTABLE
CASE NO: CA 16/11
In
the matter between :
NONCEBA
PRESENTIA GAMA-MPANTSHA
.......................................
First
Appellant
ODWA
WOPULA
…......................................................................
Second
Appellant
NWABISA
WOPULA
…......................................................................
Third
Appellant
and
NKOSIVUMILE
HAROLD MPANTSHA
…..................................................
Respondent
FULL COURT APPEAL
JUDGMENT
STRETCH AJ :
During February 2008 the
respondent brought a vindicatory application (also seeking other
relief) in this Division claiming return
of ownership of Erf 1220
(2055) Lusikisiki (hereinafter referred to as “the property”).
[1] On 8 January 2009
Matiwane AJ (granting the relief sought) made the following order (in
citing the order, the parties are referred
to as they were in the
Court
a quo
) :
1.1 That the resolution
taken by the fifth respondent’s council
(the Qaukeni
Local Municipality) on 28 February 2007 to sell Erf 1220 (2055)
Lusikisiki is hereby declared wrongful, unlawful and
irregular and is
set aside.
1.2 That the power of
attorney signed by the fourth respondent (the municipal manager) on
15 June 2007 to pass transfer of Erf 1220
(2055) Lusikisiki is
declared unlawful
and irregular and is set
aside.
1.3 That the sale of the
said property by the fifth respondent to the first respondent
(NONCEBA PRESENTIA GAMA- MPANTSHA) is declared
wrongful, irregular
and of no force or effect and is set aside.
1.4 That the sale of the
said property by the first respondent to the second and third
respondents (ODWA WOPULA and NWABISA WOPULA)
without the co-operation
of the applicant (NKOSIVUMILE MPANTSHA) is declared wrongful and
unlawful and is set aside.
1.5 That the fifth
respondent is ordered and directed to cancel deeds of transfer
T001297/2007 and T001298/2007 registered by him
in respect of Erf
1220 (2055) Lusikisiki in favour of the first, second and third
respondents.
1.6 That Erf 1220 (2055)
Lusikisiki is hereby declared to be the joint property of the
applicant and the first respondent by virtue
of their marriage in
community of property.
1.7 That the second and
third respondents and any other respondents acting in consort with
them are interdicted and restrained from
evicting the applicant from
Erf 1220 (2055) Lusikisiki.
1.8 That the respondents
are directed to pay the costs of the application on the party and
party scale jointly and
severally, the one paying
the other to be absolved.
[2] On 13 January 2011 the
Supreme Court of Appeal granted the first, second and third
respondents leave to appeal to the Full Court
of this Division,
setting aside the costs order granted by the Court
a quo
in
dismissing the application for leave to appeal and directing that the
entire costs of the application for leave are to be costs
in the
appeal.
[3] I shall hereinafter refer
to the erstwhile first, second and third respondents as the first,
second and third appellants, and
to the erstwhile applicant as the
respondent.
BACKGROUND
[4] The third appellant (born
in 1983) is the first appellant’s natural daughter.
[5] In 1986 the first
appellant married her first husband LUVUYO EARNEST GAMA (“Gama”).
[6] In 1987 the first
appellant and Gama had a boy by the name of Olwetu.
[7] Gama died in 1990.
[8] The first appellant
married her second husband (the respondent) in 1999.
[9] The respondent together
with the first appellant, the third appellant and Olwetu lived in a
house situated on the property in
question.
[10] During 2006 the first
appellant was appointed as the executor of Gama’s deceased
estate.
[11] During the same year the
first appellant caused a divorce summons to be served on the
respondent.
[12] During February 2007 the
council of the erstwhile fifth respondent (the Quakeni Local
Municipality) passed a resolution to
sell the property to the first
appellant.
[13] During June 2007 the
erstwhile fourth respondent (as manager of the Quakeni Local
Municipality) signed a power of attorney
to effect the transfer of
the property from the municipality to the first appellant, which
transfer was duly effected.
[14] During the latter half
of 2007 the first appellant transferred the property to the second
appellant (son-in-law) and the third
appellant (her daughter, married
to the second appellant in community of property) and the property
was registered in the names
of the second and third appellants.
[15] On 3 December 2007 the
first appellant’s attorney (Mr Atkins Noxaka) advised the
respondent that the property had been
sold and he was given until 31
December 2007 to vacate.
THE
RESPONDENT’S VERSION
[16] The respondent alleges
that he is married to the first appellant in community of property.
The first appellant confirms this
in her answering affidavit. Indeed
this fact is confirmed in all the documents which served before the
Court
a quo
.
[17] Their marriage
certificate reflects that he and the first appellant entered into a
civil marriage at Port Shepstone on 19 March
1999.
[18] In her particulars of
claim in the divorce action the first appellant confirms that she is
married to the respondent in community
of property. This is not only
confirmed on oath by the third appellant, but is stated as an
undisputed fact in a judgment delivered
by Luthuli AJ in this
Division, in a matter where the respondent and the first and third
appellants were all parties to proceedings
which were finalised
during 2007 (TkD case no. 1184/06).
[19] The respondent says that
about a year after he married the first appellant he bought the
property in question from a developer
by the name of James Roderick
Todd Arthur (hereinafter referred to as “Arthur Homes”)
who then represented the municipality
of Lusikisiki by virtue of the
provisions of section 170(2)(a) read with section 172(1) of the
Municipalities Act, 1979
(Act no. 24 of 1979).
[20] His founding papers are
supported by a deed of sale reflecting an agreement entered into
between the Lusikisiki Municipality
as represented by Arthur Homes
and the respondent. This document also describes the marriage between
the first appellant and the
respondent as being in community of
property.
[21] This sale agreement
appears to have been signed by the respondent on 10 January 2000.
Annexed to his documents is a receipt
from Arthur Homes dated 13
February 2000 reflecting that the respondent had paid R1 497-00 for a
“title deed”. The
respondent’s evidence is that he
was told by Arthur Homes that this title deed had subsequently been
destroyed in a fire.
[22] The respondent alleges
that thereafter and at his own costs he built a home on this property
and he and the first appellant
lived in this home together with her
two children.
[23] In the premises the
respondent avers that the property belongs to him and the first
appellant jointly by virtue of their marriage
in community of
property.
[24] The third appellant on
oath verifies that the property in question was acquired after the
marriage in community of property
between the respondent and the
first appellant was entered into. She says that both the respondent
and the first appellant acquired
the property.
[25] The respondent adds that
the letter which he received from the first appellant’s
attorney on 3 December 2007 (to vacate
the property) was not the
first attempt to evict him from his home. The problems began in 2006
when the marriage was already taking
strain and the first appellant
sought to secure his eviction by way of a domestic violence
interdict.
[26] He says that although
she obtained
ex parte
interim relief in the Lusikisiki
Domestic Court, the Court restored his occupation on 27 September
2006.
THE
FIRST APPELLANT’S VERSION
[27] The first appellant
disputes that the respondent acquired the property in question after
her marriage to him or at all.
[28] She says that she
acquired the property in February 1997, after the demise of her first
husband Gama and before she married
the respondent.
[29] She says that when she
was appointed as the executor of Gama’s deceased estate in 2006
she, believing that this property
formed part of a joint estate which
she had enjoyed with the deceased Gama, used her powers as the
executor of Gama’s deceased
estate to transfer the property to
the second and third appellants. The certificate recording her
marriage to Gama however, reflects
a marriage out of community of
property.
[30] In her opposing
affidavit she makes much of the fact that the original notice of
motion cited seven respondents, with attorney
Atkins Noxaka as the
fourth respondent.
[31] She relies on
discrepancies between the citations in the notice of motion and those
in the respondent’s founding affidavit.
It appears from this
founding affidavit that the present respondent refers to the
Municipal Manager as the fourth respondent (instead
of the fifth
respondent as cited in the notice of motion), to the Qaukeni Local
Municipality as the fifth respondent (instead of
the sixth respondent
as cited in the notice of motion), and to the Registrar of Deeds as
the sixth respondent (instead of the seventh
respondent as cited in
the notice of motion).
[32] It was clarified during
argument before this Court that at some stage attorney Atkins Noxaka
was “released” as
a respondent in the Court
a quo
.
[33] Not only is this obvious
from a proper reading of all the papers, but attorney Noxaka who
himself appeared on behalf of the
three appellants, did not argue the
contrary. Subsequent to the hearing of this appeal, and with the
consent of the parties, this
Court received replying papers which
pertinently confirm the fact that attorney Atkins Noxaka is no longer
a party to these proceedings.
My comments on why this attorney, who
is also the appellants’ attorney of record, failed to include
these papers in the appeal
record, will follow.
[34] The first appellant in
her affidavit before the Court
a quo
avers that the respondent
had previously before Luthuli AJ admitted that she (the first
appellant) acquired the property in question
after Gama’s death
and before she married the respondent.
[35] This averment is
incorrect. The respondent in his affidavit in that matter refers to
Erf 1143 Lusikisiki and Erf 1165 Lusikisiki.
The subject matter of
these proceedings is Erf 1220 (also known as Erf 2055).
[36] For the reasons set
forth hereinafter, it is in any event not relevant to the
determination of this matter whether the first
appellant acquired the
property after Gama’s death but before she married the
respondent (as she avers) or whether the respondent
acquired the
property after he married her (as he avers).
CREDIBILITY
FINDINGS
[37] Having said this I am of
the view that it is necessary at this point to comment on the adverse
credibility findings made by
the Court
a quo
particularly with
respect to the appellants.
[38] On 3 July 2007 the first
appellant, having apparently taken transfer of the property from the
Quakeni Municipality on 15 June
2007, signed a power of attorney in
favour of M Barnard and/or P Botha, to pass transfer of the property
to the second and third
appellants. Significantly, the first
respondent fails to explain why the Municipality’s council sold
the property to her
for R180 000-00 on 28 February 2007 (as
recorded in the Municipality’s power of attorney to pass
transfer), when she,
on her version, was already the owner of the
property by virtue of her acquisition thereof in February 1997.
[39] This power of attorney
reveals that the first appellant is incorrectly described as an
unmarried person by the name of “Nonceba
Presentia Gama”,
whereas in various other documents of record she either describes
herself as “Nonceba Presentia Mpantsha
- born Xaki” (as
in her divorce particulars of claim) or as “Nonceba Presentia
Gama-Mpantsha” (as in her affidavit
in the present matter).
[40] The aforesaid power of
attorney also does not describe her as acting in her capacity as
executor of Gama’s estate (as
she avers in her affidavit) but
describes her as selling the property to the second and third
appellants in her personal capacity
as the lawful owner thereof.
[41] In the absence of any
evidence explaining these misdescriptions (which coincidentally are
also reflected not only in the deed
of transfer in favour of the
second and third appellants, but also in the power of attorney to
pass transfer to the first appellant
allegedly signed by the
Municipal Manager of the Qaukeni Local Municipality, as well as in
both the deeds of transfer in favour
of the first appellant and the
second and third appellants jointly), I am constrained to accept that
not only did this false information
emanate from the first appellant,
but that the second and third appellants, having been aware that the
information was false, nevertheless
appended their signatures to the
relevant documents without correcting or questioning these
misdescriptions.
[42] The Court
a quo
,
in referring to section 17(2)(c) of the
Deeds Registries Act,
1937
(Act no. 47 of 1937) found that the Registrar of Deeds
would have refused to register the transfer of the property firstly
into
the first appellant’s name and secondly into the names of
the second and third appellants, had it been brought to the
Registrar’s
attention that the first appellant was at the time
of registration of transfer, married to the respondent in community
of property.
We agree.
[43] The relevant portion of
the
Deeds Registries Act
reads
as follows :
“
17
Registration of Immovable Property in Name of Married Persons
(1)
From the commencement of the Deeds Registries Amendment Act, 1987,
immovable property, real rights in immovable property and
notarial
bonds which would upon transfer, cession or registration thereof form
part of the joint estate shall be registered in
the name of the
husband and the wife.
(2)
Every deed or any other document lodged with the Registry for
execution, registration or record shall –
(a)
State the full name and marital status of the person concerned;
(b)
Where the marriage concerned is governed by the laws in the Republic
or any part thereof state whether the marriage was contracted
in or
out of community of property or whether the matrimonial
property
system is governed by customary law in terms of the Recognition of
Customary Marriages Act, 1998;
(c)
Where the person concerned is married in community of property, state
the full name of his spouse; and
(d)
Where the marriage concerned is governed by the law of any other
county, state that the marriage is governed by the law of that
country.
(3)
Where a marriage in community of property has been dissolved by the
death of one of the spouses before property which on transfer
or
cession thereof would have formed part of the joint estate could be
transferred or ceded, that property shall be transferred
or ceded to
the joint estate of the spouses, pending the administration thereof,
and is, subject to the provisions of any disposition
with regard to
that property, deemed to be the joint property of the surviving
spouse and of the estate of the deceased spouse.”
[44] From the aforegoing it
is clear is that the Court
a quo
correctly and with sufficient
cause had serious misgivings about the credibility of the appellants.
THE
APPEAL NOTICE
[45] As stated hereinbefore,
the Supreme Court of Appeal granted leave to appeal to the three
appellants only. Having been granted
this leave, the appellants, in
their notice of appeal, proceeded to attack a number of aspects of
the order granted by the Court
a quo
which is set forth at the
beginning of this judgment.
[46] It is clear that the
Court
a quo
was not asked to make a determination on the
status of the marriage regime between the first appellant and the
respondent, it having
been common cause when the matter came before
that Court, that the parties were married in community of property.
[47] The status of the
marriage is surprisingly raised for the first time in the notice of
appeal.
RELEVANT
LEGISLATION
[48] Mr Noxaka appearing for
the appellants, urges this Court to interfere with the judgment of
the Court
a quo
in the event of this Court finding, as a
matter of law, that the marriage between the first appellant and the
respondent was not
in community of property.
[49] He argues that although
the marriage was entered into and solemnised in what is now known as
KwaZulu-Natal, it is governed
by section 8 of the Transkei
Marriage
Act, 1978
(Act No. 21 of 1978).
[50] This section reads as
follows :
“
8.(1)
Any
person who is under the provisions of this Act authorized to
solemnize any civil marriages in any country outside Transkei -
–
(a)
may solemnize such civil marriage only if the parties thereto are
both citizens of Transkei and domiciled in Transkei; and
(b) shall solemnize any
such civil marriage in accordance with the provisions of this Act.
(2) any civil marriage so
solemnized shall for all purposes be deemed to have been solemnized
in the district in which the male
party thereto is domiciled.”
[51] The equivalent of this
section is section 10 of the South African
Marriage Act, 1961
(Act No. 25 of 1961) which reads as follows :
“
10.
Solemnization
of marriages in country outside the Union
(1) Any person who is
under the provisions of this Act authorised to solemnize any marriage
in any country outside the Union -
(a) may so solemnize any
such marriage only if the parties thereto are both South African
citizens domiciled in the Union; and
(b) shall solemnize any
such marriage in accordance with the provisions of this Act.
(2) Any marriage so
solemnized shall also be deemed to have been solemnized in the
province of the Union in which the male party
thereto is domiciled.”
[52] The
Marriage Act,
Extension Act, 1997
(Act No. 50 of 1997) extended the operation
of the 1961 Act to the whole of South Africa on 12 November 1997,
with retrospective
effect from 27 April 1994.
[53] The purpose of this was
to make the 1961 Act apply to the former independent territories of
Transkei, Bophuthatswana, Venda
and Ciskei, whose own marriage laws
had remained in force even after they were integrated back into South
Africa.
[54] Although the Act was
only published on 12 November 1997 it was deemed to be retroactive as
from 27 April 1994, being the date
on which these independent
territories were reintegrated as a consequence of the commencement of
the 1993 Constitution of the Republic
of South Africa.
[55] The effect of this is
the following :
55.1 Section 8 of the
Transkei Marriage Act does not apply to this marriage entered into on
19 March 1999, as it did to the first
appellant’s marriage to
Gama in 1986.
55.2 By 1999 the Transkei had
already been reintegrated
back into South Africa and as
such neither the
respondent nor the first
appellant were either citizens
of the Transkei or domiciled
in the Transkei (assuming
for the moment that there is
evidence of this before us, which there is not).
55.3 Neither does section 10
of the South African Marriage Act apply to the marriage between the
parties. This section refers to
a marriage solemnised
in a country outside the
Union. The marriage in question was solemnised in Port Shepstone
which is part of South Africa, formerly
known as the Union.
[56] Mr Noxaka has attempted
to extend this argument by submitting that if section 8 of the
Transkei Marriage Act applies, then
so does section 39(1) thereof,
which reads as follows :
“
39.(1)
Subject to the provisions of sub-section (2), a marriage contracted
in terms of the provisions of this Act shall produce
the legal
consequences of a marriage out of community of property and of profit
and loss.
(2) It shall be competent
for the parties to any intended civil marriage who desire that
community of property and of profit and
loss shall result from their
marriage –
(a) to enter into an
antenuptial contract which provides for community of property or of
profit and loss; or
(b) to declare jointly
before a magistrate or marriage officer, at any time prior to the
solemnization of their civil marriage and
substantially in the
prescribed form, that it is their intention and desire that community
of property and of profit and loss shall
result from their civil
marriage ….”
[57] This section was
repealed by the
Recognition of Customary Marriages Act, 1998
(Act
no. 120 of 1998) which came into operation on 15 November 2000 after
the first appellant’s marriage to the respondent
was concluded.
[58] That this happened after
the wedding date is neither here nor there.
[59] The extension of the
South African Marriage Act to the former independent territories with
retrospective effect as from 27
April 1994 means that all marriages
after this date are deemed to be South African marriages.
[60] Why then was it
specifically necessary for the legislature to declare that section 39
of the Transkei Marriage Act had been
repealed by the
Recognition of
Customary Marriages Act with
effect from 15 November 2000?
[61] The answer is simple.
Section 39
did not only deal with the presumption against community
of property but also, and more importantly, entrenched the Draconian
concept
of male marital power in a civil marriage.
CASE
LAW
[62] This concept was
declared to be inconsistent with the Constitution on 11 December 1997
by Miller J in the matter of
Pryor v Battle and Others
1999 (2) SA
850
TkD.
This declaration was subsequently elevated to a
declaration of invalidity in the
Recognition of Customary
Marriages Act
(sections
6 and 7), resulting in the Schedule to
that Act confirming that section 39 of the Transkei Marriage Act had
been repealed.
[63] Universal community of
property is the normal matrimonial proprietary regime in this
country. Where there has been derogation
from it, the onus of proving
any derogations from the normal incidents of the law rests upon the
person averring it :
Edelstein v Edelstein N.O.
& Others
1952 (3) SA 1A
at 10
[64] Mr Noxaka has invited
this Court to find that this presumption does not apply to the
marriage between the first appellant and
the respondent for the
following reasons :
64.1 The provisions of
section 8 of the Transkei Marriage Act applies to a person who was
domiciled in
Transkei at the time of the
marriage;
64.2 The respondent was
domiciled at Flagstaff (in the former Transkei) at the date of his
marriage.
[65] In support of these
submissions Mr Noxaka relies on the
Pryor
judgment which I
have already alluded to.
[66] As mentioned many times
before, it is a common cause on the papers that the parties are
married in community of property. Indeed
the marriage certificate
describing this marriage (which was issued in terms of the
regulations made under the 1961 South African
Marriage Act), is
remarkably different from the first appellant’s marriage
certificate describing her marriage to her first
husband, Gama, 13
years previously. The Gama marriage certificate, describing a
marriage which appears to have been solemnised
at Bizana (in the
former Transkei) not only states that the certificate was issued in
terms of the Transkei Act 21 of 1978, but
also describes both parties
as Transkeian citizens. More specifically, it also states that the
marriage is without antenuptial
contract or by declaration, thereby
making it clear that
ex facie
the document the marriage is out
of community of property as envisaged in the then applicable section
39 of the Transkei Marriage
Act.
[67] Similar to the Gama
marriage,
Pryor’s
case also describes a marriage entered
into before this country’s Marriage Act became applicable as
from 27 April 1994. In
fact the
Pryor
marriage was solemnized
but a week before this on 21 April 1994 at Port St Johns in the
former Republic of Transkei. It was in
any event common cause in that
case that that marriage was solemnized in terms of the Transkei
Marriage Act 21 of 1978
.
[68] These facts are not even
remotely similar to the facts before us.
[69] The marriage between
this respondent and the first appellant was entered into outside of
the former Republic of Transkei and
there is no evidence before us
that the parties intended the marriage to be anything other than a
marriage in community of property.
Indeed, Mr Noxaka has conceded
that there is also no evidence that the respondent (or either of the
parties for that matter), was
domiciled in and a citizen of the
former Republic of Transkei when the marriage was entered into (as
required by section 8 of the
Transkei Act).
[70] This being the case, the
Court
a quo
correctly accepted that the marriage is in
community of property.
[71] Accordingly the
provisions of the
Matrimonial Property Act, 1984
(Act no. 88
of 1984) apply to any property forming part of this community estate,
either by virtue of having been brought into
the estate on marriage,
or having been acquired during the marriage.
[72] It is clear that the
property in question forms part of the joint estate irrespective of
which version is preferred. The first
appellant seems to suggest that
she acquired the property from Arthur Homes in 1996, after the death
of her first husband, and
before she met the respondent. The
respondent says that he bought the property from Arthur Homes during
the year 2000 (after his
marriage to the first appellant). Indeed,
the deed of sale which he refers to reflects that he is married in
community of property,
an admission which happens to favour the first
appellant.
[73] The third appellant (the
first appellant’s biological daughter) also confirms that the
property was acquired after the
first appellant’s marriage to
the respondent. She says that the respondent and the first applicant
in fact acquired the property
together.
[74] This version seems to
dovetail far more with the respondent’s version than with the
version of her own mother.
[75] Notwithstanding the
differences in these three versions, in respect of all of them, the
property (in the absence of any evidence
to the contrary) falls
squarely into the community estate.
[76] It is clear from the
provisions of
section 15(2)
of the
Matrimonial Property Act, that
the
first appellant is prohibited from alienating or from entering into
any contract for the alienation of any immovable property
forming
part of the joint estate, without the written consent of the
respondent.
[77] An order similar to the
one made by the Court
a quo
was made by Dlodlo J in the matter
of
Visser v Hull and Others
2010 (1) SA 521
WCC
.
[78] In that matter, the
applicant approached the High Court on motion to set aside an
agreement in terms of which the applicant’s
deceased husband,
to whom she had been married in community of property, had sold
immovable property, belonging to himself and
to the applicant, to the
first and fourth respondents. The sale was concluded and the property
was transferred to the respondent
without the knowledge and consent
of the applicant. The applicant discovered this when she was served
with eviction papers. The
applicant averred that the sale was void
because it had been concluded without her consent, and that the
respondents had at the
time known that she and the deceased were
married to one another. In support of this averment she relied on the
fact that the respondents
were related to the deceased and had
visited the applicant and the deceased at the property where they
resided as husband and wife.
The applicant averred further that the
deceased concluded the sale in deliberate fraud of her rights in the
joint estate. The respondents
resisted the application on the ground
that, although they knew that the applicant and the deceased lived
together at one stage
and had children together, they did not know
that they were married to one another. In support of their
contention, they referred
to the transfer documents in which the
deceased had declared that he was unmarried and to the fact that the
applicant’s name
did not appear in the title deeds.
[79] Dlodlo J held that a
third party was required to take reasonable steps to establish
whether the contracting spouse had obtained
the consent of the
non-contracting spouse. The third party could not simply rely on a
bold assurance by the contracting spouse
that he/she was unmarried.
An adequate enquiry by the third party was required. He held that an
enquiry into the marital status
of the applicant and the deceased was
all the more necessary when the respondents were related to the
deceased and knew that they
were living together. He held that the
respondents had connived with the deceased and that the purpose of
this was obviously to
prejudice the applicant’s interest in
that asset of the joint estate. The sale was declared null and void
and was set aside.
CONCLUDING
REMARKS
[80] I am of the view that
these appellants similarly connived to prejudice the respondent’s
interest in the joint estate,
particularly when, in terms of the
divorce particulars, the first appellant claims forfeiture of the
assets in the joint estate
in any event.
[81] Accordingly the Court
a
quo
did not err in making the orders resulting in the setting
aside of the respective sales and in restoring the property to the
joint
estate.
[82] The appellants have not
challenged the remaining orders and I see no reason to interfere with
them, save to amend the costs
order to ensure that the joint estate
is not mulcted with the costs order.
CONDUCT
OF PROCEEDINGS
[83] One further issue
deserves mention.
[84] On 15 February 2011 the
appellants submitted heads of argument comprising 21 pages. On 5 May
2011 the appellants submitted
“supplementary” heads of
argument comprising a further four pages.
[85] On 17 May 2011 the
respondent submitted relatively concise heads of arguments to which
the appellants immediately replied with
a further six page response
headed “Further Appellants’ Supplementary Heads of
Argument”.
[86] Sub-rule 8(d) of the
Rules of Practice pertaining to this Division reads as follows :
“
Heads
of Argument :
- shall consist of a
concise and succinct statement of the main points which will be
argued and should not contain unnecessary elaboration;
- in particular, shall not
contain lengthy quotations from either the record or from authorities
to which reference will be made;
- are not to refer in
general to the record and authorities but to the specific pages and
paragraphs of relevance;
- shall be accompanied by
a list of the authorities to be quoted in support of the argument;
- shall, if any such
authority is not readily available, be further accompanied by copies
of the text to which reference is made
– particularly in the
case of unreported decisions, where a copy of the entire judgment
should be attached.”
[87] None of these rules have
been complied with by the parties. On the contrary, there has been
substantial non-compliance on the
part of the appellants’ legal
representatives.
[88] My criticism does not
begin with the heads of argument. It goes back further to the
affidavits with which the Court
a quo
was seized.
[89] The affidavits submitted
on behalf of all the parties before the Court
a quo
, exude
emotion and are charged with irrelevant verbage and sarcastic
remarks.
[90] I am constrained to
express my disappointment and displeasure about the manner in which
lawyers have failed this Court and
their clients by burdening the
record with this type of vitriol instead of confining the papers to
the succinct issues before the
Court.
[91] When this matter was
argued, it became apparent that the record which served before this
Court not only missed certain relevant
pages of the first appellant’s
answering affidavit which served before the Court
a quo
(for
example where she avers that she bought the property from Arthur
Homes in 1996) but also all the documents in reply where the
respondent not only deals with the citation of the erstwhile seven
respondents, but annexes a supporting affidavit from the person
who
signed his sale agreement on behalf of Arthur Homes.
[92] The appellants (on whom
the duty rests to ensure that a full record of the proceedings in the
Court
a quo
is placed before this appeal court) not only
omitted relevant portions of this record but their legal
representative confined much
of his argument to the incorrect
citation of parties and the status of the respondent’s sale
agreement, all of which had
been adequately (in my view) addressed in
reply.
[93] This was only discovered
after the matter was argued before this Court when the replying
documents which served before the
Court
a quo
were handed in
by consent. This, after the appellants’ attorney had certified,
in writing that “
the record filed in these proceedings is
correct
”.
[94] I am of the view that
this shoddy presentation of the appeal record and the deliberate
abuse of this Court’s lack of
knowledge of the existence of
relevant documents which served before the Court
a quo
, is a
serious abuse of the position of trust which lawyers hold when they
present their clients’ respective cases.
[95] These legal
representatives and any other representatives who are inclined to
follow suit are warned that this Court will not
hesitate, should this
tendency continue, to make punitive costs orders to emphasize its
disapproval of such conduct, irrespective
of the merits of any
particular matter.
[96] Having accordingly dealt
with the conduct of this matter and having considered the merits of
the appeal, the following order
is made :
ORDER
(a) The appeal is dismissed.
(b) The order of the Court
a
quo
is confirmed.
(c) The appellants are
directed (jointly and severally, the one paying the others to be
absolved), to pay the costs of this appeal,
including the costs of
the applications for leave to appeal before the Court
a quo
and
before the Supreme Court of Appeal.
(d) All costs orders
pertaining to this matter shall be excluded as liabilities of the
first appellant’s and the respondent’s
joint estate.
____________________________________
I. T. STRETCH
ACTING JUDGE OF THE HIGH
COURT
I agree :
__________________________
F DAWOOD
JUDGE OF THE HIGH COURT
I agree, and it is so ordered
:
__________________________
Y EBRAHIM
JUDGE OF THE HIGH COURT
Matter heard on : 10 June
2011
Judgment delivered on : 18
August 2011
Attorney for the appellants :
Mr A F Noxaka
of A F Noxaka & Company
Counsel for the respondent :
Mr N R Mtshabe
Instructed by Mduma
Mjobo Attorneys,
c/o Fikile Ntayiya
& Associates