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[2024] ZAECMHC 28
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Manzi v Manzi (Born Ntsizi) and Others (896/2024) [2024] ZAECMHC 28 (14 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case No: 896/2024
In
the matter between:
NTSIKELELO
MANZI
APPLICANT
and
NONDUMISO
MANZI (BORN NTSIZI)
1
ST
RESPONDENT
NOTHABO
MANZI
2
ND
RESPONDENT
AVBOB
FUNERAL SERVICES – MTHATHA
3
RD
RESPONDENT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
NOTUNUNU
AJ:
[A]
Introduction
[1]
This is an application for
leave to appeal the order I issued on the 24th of February 2024. In
that order I had granted the application
for the reconsideration of
the order granted by my brother Pitt AJ the previous day. I had set
aside this order and discharged
the rule.
[2]
The applicant filed their notice of an application for leave to
appeal on the 28
th
February 2024. In the said
application, it is stated that their reasons for appeal may be
amended on receipt of my reasons
for the order I issued. The reasons
for my order were received by the applicant’s attorney on the
12
th
of April 2024. As at that date of hearing of this
application, no further reasons had been filed by the applicant. This
to me seems
to mean that they are content with their reasons for
leave to appeal.
[3]
I had also issued a directive calling on the parties to file their
written submissions
and had given some dates before which they should
so file the said submissions. Both parties have not complied with my
directive.
The applicant had filed his, one or two days later than
the date I had given to them. It is worse with the respondent. They
have
only filed theirs yesterday, 2
nd
May 2024 at 12hours.
I must mention the fact
that at the time I was preparing my reasons for the order I issued, I
had already had the advantage of seeing
the applicant’s reasons
for appeal. In my reasons for judgment, I have dealt with those
reasons for appeal. This, I did so
that the applicant should weigh
their options as to whether to still proceed with the application.
[B]
Applicants’ reasons for leave to appeal
[4]
The first ground is that I have erred in totally overlooking the fact
that the respondent
had filed their Notice in terms of Rules 6(5)
(d)(iii) which was not compliant with the time frames provided for in
the rules.
He complained that they were given only two hours. During
the hearing of this application, I invited counsel for the applicant
to expand on this and refer me to the relevant rule which he alleged
I had misconstrued. He argued that in terms of uniform rule
6(5)(c)
the respondent was supposed to give them a notice of anticipation
which should not be less than 24 hours. The respondents
hauled them
to court on a 2hour notice, he argued.
With respect, counsel for
the applicant got it wrong. Rule 6(5)(c) does not make provisions for
anticipation of an interim order
granted by the court under rule
6(12)(1) in urgent applications. Further, reconsideration of
applications is governed by rule 6(12)(c).
This rule is silent on the
issue as to when a notice should be given to the other party by the
party who desires reconsideration.
Common sense dictate that this
should be so. Rule 6(12) is about truncating of the normal time. It
cannot be, therefore, that the
applicant would seek and obtain an
indulgence from the court to dispense with the form and time frames
provided for in the rules
and with the same breath complaint that the
respondent has truncated the time periods. Such is the nature of the
urgent applications,
that is, truncating of time frames. There is,
therefore, no merit on this argument.
[5]
Their second reason was that I misdirected myself by stating that
their first application
had to be served on the respondent before the
hearing of their urgent application. He further states that I
disregarded directive
of my brother Pitt AJ who had directed that the
matter be heard as one of urgency. It is, indeed, correct that Pitt
AJ did not
direct the applicant to serve the papers on the
respondent. He also, however, did not order that the papers should
not be served
on the respondent before the application is heard. I
have dealt extensively with this in my reasons for judgment
emphasizing the
golden rule of the principle of
audi alterum
partem
rule. I have nothing to add thereon.
[6]
Their third ground was that in my
reconsideration of the previous order granted by Pitt AJ, I have
acted as a reviewing judge. I
had reviewed the order of Pitt AJ.
A
court that sits and adjudicate an application brought under Uniform
Rule 6(12)(c) does not sit as one of review or appeal. The
rules
relating to reviews and appeals are dealt with elsewhere and are not
applicable in the reconsideration application. The dominant
purpose
of rule 6(12)(c) is to afford an aggrieved party a mechanism designed
to redress the imbalance in, and injustices and oppression
flowing
from an order granted as a matter of urgency in the absence of the
said party. Of importance is that reconsideration of
the order
whether interim or final in its operation may involve
deletion
(the underlying is mine) of the whole order or pert thereof or even
amend the order.
[1]
It cannot be, therefore,
that, by setting aside the prior order by Pitt AJ I was reviewing his
order. I am empowered in law to delete
the whole order of Pitt AJ.
[7]
The fourth ground was that I made my ruling without having taken into
account all
the papers filed by the applicant. This cannot be so.
Again, I refer the applicant to my reasons for judgment where I have
a paragraph
under the heading “Merits of first application.”
Surely, I would not have been able to deal with the merits of the
first application without reading the papers. They have also dealt
with my reasons for judgment.
[8]
The fifth reason was that I misdirected myself by allowing the
deceased to be buried
at the homestead of the first respondent which
is the home of the second respondent. The argument goes further that
the second
respondent does not have her own homestead. In his
founding affidavit, in the first application, the applicant had put
the reason
for disqualification of the second respondent as being
just “
a child
.” During the hearing of the
reconsideration application, I had specifically asked counsel for the
applicant what he meant
by saying that the second respondent was a
child. Counsel had advised me that they meant that she did not have
her own homestead
but that she was not a minor. I have dealt with
this in my reasons for judgment. In particular, I re-iterate that the
fact that
the applicant is a boy as opposed to the second respondent
who is a girl is of no moment. Their status is the same in the eyes
of the law. They are both the children of the deceased. They both
stay at different homesteads that had been built by their respective
mothers and the deceased.
[9]
It is stated that I misdirected myself by not taking into account
that the applicant
had wanted the deceased to be buried at a neutral
place. I do not understand what is meant by this neutral place. I say
this because
the place at which the deceased was to be buried was at
his other homestead, that is, a homestead built by him and the first
respondent
in the same manner as he built the homestead with the
mother of the applicant the homestead where the applicant resides. I
note
that the applicant deposed that the deceased would be buried at
Mthonyameni Location Tsolo as per his wish. I have dealt with this
issue of the wishes of the deceased in my judgment.
[10]
The sixth reason is that I focused on the merits of the application
in piece-meal. No further
information beyond this bare allegation is
placed before me. It is just bones without meat. It also contradicts
what the applicant
had stated above when they had argued that I had
not read the papers supporting their application.
[11]
The seventh ground being that I have considered the application in
peace-meal have been dealt
with above.
[12]
The eighth reason is that I misdirected myself by again considering
the matter in piece-meal
and not considering the wishes of the
deceased. This I dealt with at length in my reasons for judgment.
[13]
The ninth and last reason is that I had misdirected myself by not
taking into account the harm
that the applicant would suffer if I
were to set aside the order of Pitt AJ. In his founding affidavit in
their papers the applicant
had deposed that he would suffer
prejudice. At paragraph 48 he explained his prejudice as the fact
that under custom and tradition
and even common law, as the eldest
son of the deceased he had a right to determine the burial of his
late father. How this would
be termed as prejudice, escapes my mind.
Perhaps the prejudice the applicant would suffer if I were to set
aside the order of Pitt
AJ would lie on the fact that I had not
recognized custom and tradition. With respect, I do not believe that
the status of being
the eldest son gives the applicant the rights he
claims to have. In my reasons for judgment, I had dealt with the
issue of inconvenience
that would be suffered by the respondents if I
were not to set aside the order by Pitt AJ.
[C]
Legal analysis
[14]
Applications for leave to appeal are governed by
Section 17
of the
Superior Courts Act 10 of 2013
. The section reads: -
“
17
(1) Leave to
appeal may only be given where the judge or judges concerned are the
opinion that –
(a)(i) The
appeal would have a reasonable prospect of success; or
(ii) There is
some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.
(b)
the decision sought on appeal does not fall within the ambit
of
section
16
(2)(a);
(c) where the
decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just and
prompt resolution of
the real issues between the parties.”
[15]
It is not clear in the application of the applicant under which head
of the section is the application
brought. In fact, it is not stated
at all. This alone is fatal to the application. During arguments I
had brought this to the notice
of the applicant’s counsel and
requested him to address me on this issue. He advised the court that
his application was premised
on
Section 17
(1) (c) of the
Superior
Courts Act. This
sub-rule states that an application for leave may
only be given: - “
(c) where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and
prompt resolution of the real issues between
the parties.”
Much as counsel
for the applicant had not stated this in his application for leave
papers, he was at pains to argue it or direct
the court to where this
is dealt with in their papers. During the address on this issue,
counsel for the applicant stated that
another court would come to a
different finding than this court’s decision. Perhaps, what he
wanted was to rely on the provisions
of
section 17(1)(a)
that
provides that leave to appeal may be granted if “
the appeal
would have a reasonable prospect of success.”
Again,
counsel for the applicant was at pains to argue this point. It would
appear, therefore, that counsel for applicant had no
clue of what he
wanted this court to do and the reasons thereof other than just
moving an application for leave to appeal on grounds
which I believe,
with respect to be baseless. This is so, especially, if counsel for
applicant had paid attention to my reasons
for judgment and the
authorities referred thereto. They cover many, if not all, of his
grounds for application for leave to appeal,
[16]
In his application for leave the applicant requests that the interim
order granted by Pitt AJ
should remain in force pending the
finalization of the appeal. This does not make sense to me, with
respect, it cannot be that
this court discharges the rule but in the
same breath it orders that it remains in force pending the
finalization of the appeal.
[17]
I now deal with the issue of mootness. The first application by the
applicant was to interdict
the burial of the deceased at Ziphunzana
Administrative Area Libode. There was an interim order that had been
granted in favour
of the applicant by Pitt AJ. It is that interim
order that I set aside and also discharged the rule paving the way
for the respondents
to proceed and bury the deceased.
During the
hearing of this matter, I had requested applicant’s counsel to
address me on the issue of mootness of this application.
He had
argued that the matter was not moot because they seek an order
declaring either the applicant or the respondent as the rightful
person or persons to decide where the deceased should be buried. With
respect, this argument is misplaced. The application by the
applicant
was never about the determination of rights of a person to bury the
deceased. It was all about interdicting the respondents
from burying
the deceased at Ziphunzana.
I had set aside
the interim order by Pitt AT and discharged the rule. This issue
should not detain me further as there are many
other reasons why this
application should fail, this also being one of them.
[18]
I have, however, nevertheless decided to deal with the reasons for
leave to appeal as filed by
the applicant. As indicated above, I am
not clear on which grounds listed in
section 17(1)
of
Superior Courts
Act applicant
’s application is predicated. I assume that the
only ground the applicant may rely on is that the appeal would have a
reasonable
prospect of success.
[19]
In
MEC
for Health: Eastern Cape
[2]
it is stated in paragraphs 16 and 17: -
“
[16] Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly
is a reasonable
prospect of success.
Section
17(1)
(a)
of
the
Superior
Courts Act 10 of 2013
makes
it clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal
would
have
a reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough.
There must be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.”
[20]
The test of what reasonable prospects of success postulates was dealt
with by the SCA in
S
v Smith
[3]
where Plasket AJA stated: -
“
[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court.
In
order to succeed, therefore, the appellant must convince this court
on proper grounds that he has prospects of success on appeal
and that
those prospects are not remote but have a realistic chance of
succeeding. More is required to be established than that
there is a
mere possibility of success, that the case is arguable on appeal or
that the case cannot be categorised as hopeless.
There must, in other
words, be a sound, rational basis for the conclusion that there are
prospects of success on appeal.”
[D]
Costs issue
[21]
Counsel for the respondents urged me to order payment of costs on a
punitive scale. He argued
that this is one application which ought
not to have seen the door of this court. He says it is bad in law. He
pointed to the fact
that despite the applicant having promised to
amend his papers on receipt of the reasons for judgment, he never did
anything.
[22]
The decision to order costs is something that is with the discretion
of the court, which of course,
must be exercised judiciously.
In
Plastic
Converters Association of South Africa on behalf of members v
National Union of Metalworkes of SA
[4]
it was stated: -
“
[t]he
scale of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible
[manner]. Such an award is exceptional and is intended
to be very
punitive and indicative of extreme opprobrium.”
In
Fisheries
Development Corp v Jorgensen and Another
[5]
vexatious was held to mean: -
“
[F]rivolous,
improper: instituted without sufficient ground, to serve solely as an
annoyance to the defendant. Vexatious proceedings
no doubt include
proceedings which, although properly instituted, continued with the
sole purpose of causing annoyance to the defendant;
‘
abuse
’
connotes a misuse, an improper use, a use
mala fides
, a
use for an ulterior motive.”
[23]
In this matter the applicant filed his application for leave to
appeal on the 28
th
February 2024. He had craved leave to
supplement his grounds on receipt of reasons for judgment. The said
reasons were handed to
him on 12
th
April 2024. He was not
moved. He did not do anything about the grounds in his application.
My reasons for judgment were very extensive
and they dealt with his
grounds for application for leave.
Again,
the applicant was not moved. He proceeded with his application and
filed his written submissions. One would have expected
him to take a
breath and re-consider his options as to whether to proceed or not
with the application. Applicant did no do that.
He filed his written
submissions that did not address fully the grounds tabulated in his
application for leave. He dealt in his
written submissions with
issues that some of which were not in his papers. It is not
permissible for a party to put in his heads
of argument for the first
time, something that is not in his papers. Dealing with this issue
Band AJ in
Amen
Njokweni v Thanduxolo
Qina
[6]
had this to say at paragraph 40: -
“
The
further allegations upon which the applicant seeks to rely under this
heading, which were raised in the applicant’s heads
of argument
for the first time, presumably to address the shortcomings on the
applicant’s papers, are not properly before
me and cannot serve
to assist the applicant.”
A litigant
cannot rely and hide behind the tardiness and negligence of his
attorney. I am of the view that this moving of this application
and
the further continuation with it even after the applicant had
received the reasons for judgment was not called for. It was
frivolous, improper and pursued without sufficient grounds, bearing
in mind that it is not even clear and stated under which ground
of
those listed in
section 17
of the
Superior Courts Act is
this
application brought.
[E]
Conclusion
[24]
Having taken all the above facts into account and also the relevant
legal principles I am not
convinced that the applicant has made a
case for the grant of this application. I do not believe that the
appeal would have a reasonable
prospect of success. In turn I believe
that such an appeal would be dismissed possibly with a punitive costs
order against the
applicant.
[25]
In the circumstances the following order shall issue:
(a)
The application for leave to appeal the order granted on the 24
th
February 2024 is refused.
(b)
The applicant shall pay costs on an attorney and client scale.
MN NOTUNUNUNU
ACTING JUDGE
OF THE HIGH COURT
Appearances
For the
applicant
: Mr
Mzinzela
Instructed by
:
Mzinzela & sons Attorneys
No. 27 Victoria
Street
Cathedral Building
Mthatha
For the 1
st
and 2
nd
Respondents :
Mr Zilwa
Instructed
by
: N.Z
Mtshabe Inc.
137 York Road
Mthatha
Heard on
: 03 May
2024
Delivered on
: 14 May
2024
[1]
Erasmus
D1
Rule 6
–
60
; ISDN Solutions Pty Ltd v CSDM Solutions CC1996
(4) (W) at 486 I – 487 A.
[2]
MEC
for Health: Eastern Cape (case 1221/2015 ZASCA (25 November 2016) at
paras 16 and 17.
[3]
S
v Smith
2012 (1) SACR 567
(SCA) at paragraph 17.
[4]
Plastic
Converters Association of South Africa on behalf of members v
National Union of Metalworkers of SA
[2016]
ZALAC 39
;
[2016] 37 ILJ 2815 (LAC).
[5]
Fisheries
Development Corp v Jorgensen and Another
1979
(3) SA 1331(W)
at
1339 E – G.
[6]
Njokweni
v Qina and Others (3839/2022) [2023] ZAECMHC 13 (23 March 2023).