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2024
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[2024] ZAMPMBHC 22
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Zitha N.O and Others v Smith N.O and Others (A61/2023; 1726/2021) [2024] ZAMPMBHC 22 (25 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
Case No.: A61/2023
A Quo Case No.:
1726/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE:
25 March 2024
SIGNATURE
In
the matter between:
MS
H N ZITHA N.O.
First
Appellant
(Acting
Head of the Department
Third
Respondent in the Court
a
quo
Of
Human Settlements: Mpumalanga)
THE
DEPARTMENT OF
HUMAN
SETTLEMENTS: MPUMALANGA
Second Appellant
Sixth
Respondent in the Court
a
quo
SIZAMPILO
PROJECTS (PTY) LTD
Third Appellant
Seventh
Respondent in the Court
a
quo
and
STEFANUS
GUSTAVUS SMITH N.O.
First
Respondent
First
Applicant in the Court
a
quo
ERNEL
MAJAWODWA MASILELA N.O
Second
Respondent
Second
Applicant in the Court
a
quo
JACOB
VAN GARDEREN N.O.
Third Respondent
Third
Applicant in the Court
a
quo
Interim Trustees for the
time of the
Ingwenyama Simhulu Trust
No. IT 6[...]
INGWENYAMA
SIMHULU TRUST
Fourth Respondent
(Trust
No. IT 6[...])
Fourth Applicant in
the Court
a
quo
JUDGMENT
CORAM:
Mashile J, Ratshibvumo J, Bhengu AJ
Judgment:
Bhengu AJ
Date
heard:
09 February 2024
Date
delivered: 25 March 2024
On
appeal from: High Court, Mbombela Main Seat (Sibuyi AJ sitting as
court of first instance).
[1]
This is an opposed appeal against the whole of the judgment and order
granted by Sibuyi
AJ (Court
a quo
) dated 26 September 2022. In
that judgment the Court
a quo
dismissed the Appellant’s
application for condonation and postponement of the matter pending an
interlocutory application.
It also granted the judgment in favour of
the Respondents on an unopposed basis.
The appeal
to the Full Court is with the leave of the Supreme Court of Appeal
granted on 23 June 2023, the Court
a quo
having dismissed the Appellants’ application for leave to
appeal.
Issues
for determination on the appeal
[2]
The first issue for determination by this Court is whether the Court
a quo
failed to exercise its discretion judiciously in
refusing the Appellants’ application for postponement and for
condonation.
[3]
The second issue is whether the Court
a quo
misinterpreted the
principles applicable to a condonation and postponement application.
[4]
Whether the decision of the Court
a quo
in deciding the main
application pending an interlocutory application infringed upon the
Appellants’ constitutional right
to a fair trial.
Brief background facts
[5]
The
Ingwenyama Simhulu Trust was established to receive transfer of the
farms within Tenbosch 162 JU, Komatipoort area, in the Barberton
District, Mpumalanga Province. The Trust’s mandate is to hold
the said farms on behalf of the beneficiaries of the land restitution
claims and to facilitate the development of the said farms in the
interest of the beneficiaries.
[1]
The trustees were appointed in terms of a court order dated 5 April
2019 by the High Court of South Africa, Gauteng Division.
[6]
The dispute
between the parties relates to the trust property desc
ribed
as Potion 1 of the farm Pholani 578 Registration division J.U.,
measuring 83.3497 hectares
[2]
.
The above Trust Property was allegedly sold by the previous trustees
to the Inkomazi Local Municipality (Fifth Respondent in the
main
application in terms of a sale agreement dated 23 July 2013 (“the
sale agreement”) for an amount of R1,00 (One
Rand)
[3]
.
The land has not yet been transferred to the Local Municipality.
[7]
Consequentially
to the sale agreement, a Land Development Agreement dated 03 August
2020 (“the Development Agreement”)
[4]
was entered into between the Fourth Respondent in the main
application and the Appellants. The Respondents in their
papers
averred that they were not aware of the Land Development Agreement
until it was shared with them by a concerned citizen.
[8]
On 14 May 2022, the Respondents launched an urgent
application against the Appellants seeking a declarator setting aside
a sale
agreement dated 23 July 2013 and
the Development
Agreement dated 12 August 2020 and further declaring both agreements
null and void, and or alternatively unenforceable.
The Respondents
also sought further ancillary relief interdicting the Appellants from
proceeding with the development. The main
application was opposed by
the Appellants.
Chronology
of events
[9]
It is common cause between the parties that the settlement
negotiations between them failed
in June 2021. The Respondents
thereafter informed the Appellants that their answering affidavit was
due on 26 August 2021.
[10]
On
17 September 2021, the Appellants caused a Notice to produce in terms
of Rule 35(12)
[5]
to be served
on the Respondents calling for the documents quoted below:-
a)
“
Minutes of the Interim Trustees meeting from date of
appointment on 5 April 2019 to date of dealing with the matters
referred to
at paragraph 2.5 of the Founding Affidavit.
b)
Document or list of verified Beneficiaries referred to in
paragraph 2.5 of their Founding Affidavit.
c)
Minutes of the meetings or the general meeting referred to in
paragraph 2.5 of the founding affidavit.
d)
A full list and particulars of the trust beneficiaries who
were supposed to approve the alienation of the trust property,
referred
to in paragraph 3.7.2.
e)
Full particulars of the Committee of the Elders referred to in
paragraph 7, including documents evidencing their appointment or
election of the said committee, their term of office, a copy of the
constitution or contract they operate under.
f)
That their decisions were binding on the respondents and other
trust beneficiaries.
g)
With reference to paragraph 11.2.3 and considering that the
challenged agreement was concluded on 23 July 2013, and that the
former
trustees were only removed on 05 April 2019, the respondents
request that they be furnished with copies of document(s) evidencing
that;
h)
Respondents were informed, presumably during the tenure of the
former trustees, that the sale of land was unlawful.
i)
The respondents request to be furnished with documentary proof
of all payments made to. Messrs. SG Smith and J van Garderen,
referred to. In paragraph 1.10 and 1.11, respectively, of Annexure B
of the founding affidavit,
j)
Copies of the Notice calling for the General Meeting, which
they are supposed to hold within six (6) months of the end of the
financial
year referred to in clause19:
k)
Copies of the minutes of the Annual General Meeting they held
since their appointment as trustees;
l)
Copies of the annual report which they were supposed to table
at the Annual General Meeting referred to in clause 19.2 of the Deed
of Trust.
m)
Copies
of the audited financial statements of the Trust for the preceding
financial year which they were supposed to table at the
Annual
General Meeting, which in terms of close 19.2 of the Trust Deed, they
were supposed to hold within six (6) months of the
end of the
financial year”.
[11]
On
30 September 2021, the Respondents replied to the appellant’s
notice in terms of Rule 35(12)
[6]
.
In their reply the Respondents stated that none of the documents
referred to in the Appellants’ Rule 35(12) were mentioned
in
the Respondents’ founding affidavit and that the Appellants
were therefore not entitled to the requested documents.
[12]
On 17
November 2021, the parties attended a Case Management Conference
where they agreed that the main application be set-down for
hearing
on 24 May 2022. During the Case Management Conference, it was
indicated that the Appellants were out of time for filing
their
answering affidavit. It was then agreed that the Appellants will file
an application for condonation for late filing of the
answering
papers by no later than 24 November 2021, failing which the matter
will proceed on the 24 May 2022 on the papers as they
stand.
Paragraph 5 of the case management agreement recorded that the
parties confirm that such timelines are reasonable and achievable.
The case management directive
[7]
was then made an order of Court by agreement between the parties.
[13]
On
24 November 2021 the Appellants served and filed an application to
compel discovery in terms of “
Rule
35(12)”
[8]
(the interlocutory application). The application was opposed by the
Respondents. Paragraph 2 of the Notice of application reads
as
follows:-
“
Failing
compliance with paragraph number 1 above, leave to be granted to the
Applicant to approach the Honourable Court on the papers
duly
supplemented, for an order striking the Respondent’s claim
and/or defence in the main action”
[14]
The
interlocutory application was set down for a hearing date on 04
October 2022. The Case Management Directive dated 16 May 2022
[9]
recorded that the application to compel falls outside the Uniform
Rules and applicable directives as the main application is before
court on 24 May 2022. It was recorded further that the interlocutory
application can only be considered if the Appellants obtain
a
postponement of the main application. The Respondents indicated their
intention to oppose the application for postponement if
it was
brought.
The Judgment of the Court
a quo
[15]
As can be
gleaned from the judgment of the Court
a
quo
,
the matter was allocated to be heard on 24 May 2022. The Court
directed that the matter be heard on 26 May 2022. The Appellants
served an application for postponement and condonation on 25 May 2022
at 14h47 via email.
[10]
The
application for postponement and condonation was dismissed by the
Court
a
quo
.
After the handing down of the judgment dismissing the application for
postponement, the Appellants’ counsel informed the
Court that
he will not be participating in the proceedings. The matter then
proceeded unopposed. The Court
a
quo
granted the declarator together with the ancillary relief sought in
the main application for reasons as contained in the judgment.
Case
for the Appellants
[16]
Counsel for the Appellants, Mr Mokhare, argued that the Court
a
quo
failed to exercise its discretion in refusing the Appellants’
application for postponement and for condonation. Alternatively,
if
the Court finds that it did exercise its discretion, then it was
submitted that the discretion was not exercised judiciously.
According to Mr Mokhare, the Court
a quo
elevated the practice
directive into law whereas the practice directive of the Court is to
facilitate a proper functioning of the
Court and administration of
justice. He argued that the Directive is not there to supersede the
discretionary powers of the judge.
He is of the view that the
Appellant is entitled to seek postponement even on the date of trial
if the circumstances in the litigation
changed and the Directives
cannot prescribe that postponement on the date of trial would not be
allowed. He submitted that the
Court needs to exercise its discretion
judiciously and consider all the facts and evidence before it in
reaching a decision.
[17]
In
support of this argument, Mr Mokhare quoted para 22 of the judgment
where the court
a quo
said that “
postponement and
condonation falls to be dismissed for failure to comply with the case
management order”.
He contends
that this statement shows that Court
a
quo
felt as if its hands were tied and
it could not depart from the directive. He argued that the case
management directives do not
have the status of a Court order. When
the Court is conducting Case Management, it is performing an
administrative function and
not sitting as a Court in terms of
Section 165 of the constitution.
[18]
He contends that Court
a
quo
failed to apply
and
misinterpreted the principles applicable to a condonation and
postponement application. He argued further that the Court
a
quo
erred in deciding complex issues
without the benefit of the other party as it requires both parties to
put their versions before
it. According to Mr Mokhare the main
application was not ready for hearing because the interlocutory
application was set down in
the date in the future. The Court
a
quo
could have granted a punitive cost
order to show its displeasure at the manner in which the matter was
handled, but not to refuse
to postpone the matter.
[19] If
the interlocutory application was successful, the Respondents would
have been compelled to produce the
documents and if the Applicants
failed to produce the documents, then the Appellants would have been
entitled to go back to court
and ask for the dismissal of the
application. The matter could have been disposed off in favour of the
appellants based on the
interlocutory application. Because the main
application was heard first then it meant that the appellants’
right to have
its interlocutory application heard was taken away from
it.
[20]
He
is of the view that because the Respondents failed to produce the
documents, in the interest of justice, the main application
should
have been postponed pending the adjudication of the interlocutory
application. He asked the Appeal Court to uphold the appeal
with
costs and that the matter be remitted back to the Court
a
quo
for adjudication of both the
interlocutory and the main application.
The case for the
Respondents
[21]
Counsel for the Respondents, Mr Bensch, in
his heads of argument argued that the use of Rule 35(12) was meant to
delay the main
application. This is shown by the fact that even after
the appellants were directed by the Court during Case Management to
apply
for condonation for late filing of the answering affidavit by
no later than 17 November 2021, the application for condonation was
never filed until the date of hearing.
[22]
According to Mr Bensch Rule 35(12) process
did not have an effect of suspending time frames for filing the
Appellants condonation
application for late filing of the answering
affidavit. Therefore Rule 35(12) application was not a valid ground
for postponement
because the Respondents had already replied to the
notice. According to Mr Bensch, the Appellants failed to meet the
requirements
of a condonation application as they failed to provide a
reasonable explanation for the delay and also failed to satisfy the
requirements
for postponement.
[23]
He argued that the condonation application
filed on the date of the hearing was in respect of the late filing of
the application
for postponement and that condonation for late filing
of the answering affidavit was never filed. Regarding the application
for
postponement, he argued that the Court
a
quo
had discretion whether to grant a
postponement or not. It is not a right guaranteed to a litigant just
because they asked for it.
The party’s reasons for failure and
inability to proceed must be fully explained. The prejudice that the
party seeking postponement
should postponement not be granted must be
spelled out. He further argued that the party who is asking for
postponement must offer
to pay wasted costs which the Appellants
failed to do.
[24]
He argued that the Court
a
quo
’s decision in dismissing the
application for postponement was correct because the Appellants
failed to comply with the Case
Management Order. Mr Bensch argued
that Rule 27 of the Uniform rules provides that where there is a
change of circumstances and
one cannot comply with the time frames
set out in the Judicial Case Management, a party may approach the
court. The other option
is to enroll the matter before a judge and
explain why compliance is not possible. A party cannot ignore the
directive as if it
did not exist.
The Law
[25]
The
law relating to postponements is trite. The Constitutional Court in
Lekolwane
and Another v Minister of Justice
[11]
held that:-
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A postponement will not be granted,
unless this Court is satisfied that it is in the interests
of justice
to do so. In this respect the applicant must ordinarily show that
there is good cause for the postponement. Whether
a postponement will
be granted is therefore in the discretion of the court.
In exercising that
discretion, this Court takes into account a number of factors,
including whether the application has been timeously
made, whether
the explanation given by the applicant for postponement is full and
satisfactory, whether there is prejudice to any
of the parties,
whether the application is opposed and the broader public interest.
All these factors, to the extent appropriate,
together with the
prospects of success on the merits of the matter, will be weighed by
the court to determine whether it is in
the interests of justice to
grant the application.’
Analysis
[26]
In order for this Court to be able to answer
the first question whether the Court
a
quo
failed to exercise its discretion
judiciously in refusing the Appellants’ application for
postponement and application for
condonation, this Court has to first
consider the application for postponement itself in order to assess
whether the appellants
complied with the principles applicable in an
application for postponement.
[27]
The main reason put forward by the Appellants in
their application for postponement was that there was a pending
application to
compel in terms of Rule 35(12) that was set down for
04 October 2022.
[28]
The Appellants’ counsel argued that the
refusal by the Court
a quo
to grant postponement resulted in a matter proceeding without the
Appellants’ version when they have shown a clear indication
that they are opposing the application. This according to the
Appellants, constituted an infringement of their fundamental right
to
a fair trial which is guaranteed in section 34 of our constitution.
The Appellants argued that interlocutory application could
have an effect of disposing the matter in that failing compliance by
the Respondents to comply with the order compelling them to furnish
the documents, the Appellants could approach the Court on the
papers
duly supplemented, for an order striking the Respondent’s
claim.
[29]
Uniform Rule 35(12) provides that:-
(12)
(a) Any party to any
proceeding may at any time before the hearing thereof deliver a
notice in accordance with Form 15 in the First
Schedule to any other
party in whose pleadings or affidavits reference is made to any
document or tape recording to—
(i) produce such
document or tape recording for inspection and to permit the party
requesting production to make a copy or transcription
thereof; or
(ii) state in writing
within 10 days whether the party receiving the notice objects to the
production of the document or tape recording
and the grounds
therefor; or
(iii) state on oath,
within 10 days, that such document or tape recording is not in such
party’s possession and in such event
to state its whereabouts,
if known.
(b) Any party failing
to comply with the notice referred to in paragraph (a) shall not,
save with the leave of the court, use such
document or tape recording
in such proceeding provided that any other party may use such
document or tape recording
[30]
What can be seen above is that there is no
provision in terms of Rule 35(12) itself to compel discovery. In the
event of non-compliance
with the notice, the result will be that a
party cannot use that document/s or recording in a trial or hearing.
In essence Rule
35(12) is intended for the documents that party is
relying on to prove its case. That such documents should be provided
to the
opponents in order to enable them to respond to such
information.
[31]
It
is not in dispute that the Respondents did respond to the Appellants’
Notice in terms of Rule 35(12). In paragraph
6.2 of the
application to compel,
[12]
the
Appellants conceded that the Respondents filed their reply to the
notice to produce on 30 September 2021. In their reply, the
Respondents stated that the requested documents were not referred to
in the main application. If the Respondents had failed to
reply or to
furnish the documents requested, the Appellants had an option to
bring a Rule 30A notice to enforce compliance with
the rules. I am,
however, of the view that there is no basis for a Rule 30A notice
when the Respondents have already responded
to the Appellants’
Notice to Produce.
[32]
I
considered all the documents requested in Rule
35(12) Notice and noted that none of them were referred to by the
Respondents in
the Founding Affidavit of the main application. If any
reference was made, it was by inference which, it is trite, is not to
be
countenanced. The said documents were, however, not relevant to
the dispute in that the sale agreement and the land development
agreement which the Respondents sought to set aside were attached to
the Founding Affidavit. It follows therefore that the Appellants
failed to show that there was a good cause in the envisaged
application, which entails prospects of success. As a result, the
Respondents’ argument that the request was an attempt to delay
the adjudication of the main application cannot be said to
be
baseless.
[33]
In
the absence of a legal basis for the interlocutory application, then
the reliance on the pending interlocutory application for
a
postponement had to fail.
[34]
After having found that the interlocutory
application and the relief sought thereto is incompetent, this Court
must still consider
if the Court
a quo
in the proper exercise of its discretion should have granted the
postponement and condonation applications. This must be done without
regard to the interlocutory application.
[35] Mr
Mokhare argued that the Court
a quo
could not have exercised
its discretion because it felt as though the Practice Directives were
prescriptive to Court as to when
a party must apply for postponement.
In Mr Mokhare’s words, “
the Court felt as though its
hands were tied
”. I now turn to deal with the Case
Management Directives.
Judicial
Case Management
[36]
Judicial Case Management was introduced by amended Uniform Rule 37A.
Uniform Rule 37A(2) provides that
(2) Case management
through judicial intervention—
a)
shall be used in the interests of justice to alleviate
congested trial rolls and to address the problems which cause delays
in the
finalisation of cases;
b)
the nature and extent of which shall be complemented by the
relevant directives or practices of the Division in which the
proceedings
are pending; and
c)
shall be construed and applied in accordance with the
principle that, notwithstanding the provisions herein providing for
judicial
case management, the primary responsibility remains with the
parties and their legal representatives to prepare properly, comply
with all rules of court, and act professionally in expediting the
matter towards trial and adjudication.
c)
[37]
Counsel for the Appellants contended that the Court
a quo
elevated the practice directive to law, he submitted that the
Directives are not binding to the to the Court and that the Court
can
depart from them if the directives interfere with the administration
of justice. I am Inclined to agree with Mr Mokhare in
as far as the
fact that the Practice Directives are not binding to the Court in
that the Court, in the exercise of its discretion,
can condone
non-compliance with the directive on good cause shown by the affected
party. However, I am of a firm view that Practice
Directives have a
place in our Courts to facilitate proper administration of justice
provided that they are reasonable, not arbitrary
and are not in
conflict with the law.
[38] In
the application of the Practice Directives, the Court must ensure
that its application does not interfere
with the proper
administration of justice which may in turn infringe upon a
litigant’s right to a fair trial as alleged by
the Appellants.
It is important to note that the Case Management Directive in
this matter allows the parties to determine
for themselves the time
frames to file the necessary process in order to get the matter ready
for hearing. The Practice Directive
further, granted the Appellants
an opportunity to file an application for condonation for its late
filing of the answering affidavit
which they simply did not do.
[39]
Paragraph 6.5 of the Mpumalanga High Court Practice Directives
provides that “
A request for a postponement on the date of
trial or hearing is discouraged”.
16.9
Further provides that “
any request for a postponement
shall be on a substantive application to be enrolled for hearing on
the unopposed motion roll and
such hearing to place at least 7 clear
court days before the trial or hearing date or may be enrolled on the
urgent roll provided
the circumstances justifying such enrolment on
the urgent roll are spelled out in the founding papers”.
[40] It
is clear from the Directive that its purpose is to avoid applications
for postponement on the date of
trial by providing a mechanism that
the parties can use when postponement is sought. It is common cause
that the Appellants failed
to comply with the Practice Directive as
evidenced by the Appellants’ application for condonation and
postponement launched
on 25 May 2022 at 14h47.
[41]
In
paragraph 22 of the judgment, the Court
a
quo
[13]
stated that “Therefore, the postponement and condonation
application ought to be dismissed for failure to comply with Practice
Directives of the Court”.
I
agree with the Appellants that this conclusion is wrong as it would
mean the Court is bound by the Practice Directive in its exercise
of
its discretion
.
Erasmus
II
[14]
provides as follows: -
“
The object of
the rules is to secure the inexpensive and expeditious completion of
litigation before the courts: they are not an
end in themselves.
Consequently, the rules should be interpreted and applied in a spirit
which will facilitate the work of the
courts and enable litigants to
resolve their disputes in as speedy and inexpensive a manner as
possible”.
[42]
Having said that, the parties to a litigation
cannot simply ignore the Directives as it would defeat the purpose of
trying to expedite
the finalization of matters and alleviating
backlog. However, when the party has failed to comply with the
Directives, the Court
is duty bound to give them a fair hearing as to
the reasons for non-compliance. In this case the Court was still
bound to entertain
the application for postponement and condonation
even if it was filed out of time and consider whether the Appellants
satisfied
the requirements for postponement.
[43]
In
order to determine whether the Court
a
quo
misdirected itself in refusing the
application for postponement one has to read the judgment as a whole.
It is argued correctly
by the counsel for the Respondents that when
the court is faced with an application to postpone a matter, the
order postponing
the matter is not there for the taking, but the
Court still has a duty to consider the merits of the application for
postponement.
When a litigant applies for postponement, especially on
the date of trial, the applicant must satisfy the Court that the
requirements
for postponement are met.
[44]
In
the same paragraph 22 referred to above, the Court
a
quo
went further to state that
“
Even
if I were wrong in this conclusion, the application for condonation
and postponement ought to be dismissed because the dictates
of
justice requires that such postponement should be dismissed”.
After this paragraph the Court
a
quo
continued to consider whether granting the postponement was in the
interest of justice. The Court
a
quo
considered the requirements as set out by the Constitutional Court
decision of
Lekolwane
[15]
.
This tells me that that even though the Court
a
quo
was of the view that the application for postponement ought to have
been dismissed for non-compliance with the Case Management
Directive,
the Court was mindful of the fact that a decision to dismiss the
application for postponement could not be decided solely
on the
ground of non-compliance with the Case Management Directives.
[45]
The law places a duty on the applicant for
postponement to place before the Court all the necessary information
in order for the
Court to be able to exercise its discretion
judiciously. One of these requirements is that the applicant must
address prospects
of success in the main application. In paragraph 27
of the judgment, the learned Acting Judge stated correctly that the
Appellants
failed to deal with prospects of success in their founding
affidavit.
Application for
Postponement
[46]
The
second issue to be considered by this Court is whether the Court
a
quo
misinterpreted the principles applicable to a condonation and
postponement application. To answer this question, one need to look
at the Appellants’ application for postponement
[16]
.
Of note is the fact that save for paragraphs stating the chronology
of events, the Appellants’ founding affidavit lacks
the crucial
information that is required in order for the Court to exercise its
discretion judiciously. There is no attempt to
explain why the
application was not timeously made, no averment on the issue of
prejudice and no averment on the prospects of success
in the main
application was made.
[47]
Paragraph 32 of the founding affidavit deals with
the interest of justice and the Appellants averred that “
due
to the complexity of the issues in the main application and the
public interest
-
it
is for the convenience of the Court and in the interest of justice
that the Respondents answering affidavit be before court.
This will
allow for a proper ventilation of the dispute between the parties. It
would be undesirable to adjudicate the main application
solely on the
Applicant’s version, which we submit is unreasonable”.
[48]
Having considered the merits of the application for postponement
before the Court
a quo,
I am satisfied that the Appellants
failed to make out a case for postponement. The only conclusion for
the Court to reach is that
the application was brought solely for
purposes of delaying the main application and I am inclined to agree
with the Respondents’
contention that granting the postponement
would have subjected the Respondents to vexatious and frivolous
litigation. I am therefore
satisfied that the Court
a quo
exercised its discretion judiciously in dismissing the postponement
application.
[49] In
the result, I propose the order in the following terms:
The appeal is dismissed
with costs.
JL
BHENGU
ACTING
JUDGE OF HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
I
agree and it is so ordered
BA
MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
I
agree
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
For
the Appellants:
Adv
WR Mokhare SC briefed by Nkadimeng Attorneys
For the
Respondents:
Adv
GJ Bensch briefed by Murphy Kwape Maritz Attorneys
Date heard:
09 February 2024
Date of Judgment:
25 March 2024
[1]
Preamble
of the Trust Deed, Vol 1 p48
[2]
Deeds
Search Property, Vol 1 p72-73
[3]
Sale
agreement dated 03 July 2012 Vol 1 p85-90
[4]
Land
Development Agreement, Vol 1 p94-105
[5]
Appellant’s notice to produce in terms of Rule 35(12), Vol 2
p184-186
[6]
Respondent’s reply to Appellants’ notice in terms of
Rule 35(12), Vol 2 p192 - 195
[7]
Case
Management Order or Directive dated 17 November 2021, Vol 3 p246-251
[8]
Notice
to Compel Discovery in terms of Rule 35(12), Vol 2 p168-170
[9]
Case Management Directive for the interlocutory application, Vol 3
p324-326
[10]
Judgment
and order of Sibuyi AJ dated 26 September 2022, Vol 4 p339, para 14
[11]
Lekolwane and Another v Minister of Justice
[2006] ZACC 19
; 2007(3)
BCLR 280 (CC) para 17
[12]
Para
6.2 of the application to compel, Vol 2 p179
[13]
Judgment a quo dated 26 September 2022, Vol 4 p343 para 22
[14]
Erasmus Superior Court Practice 2 ed (Juta & Co Ltd, Cape Town
2018) vol 2 (Erasmus II)
[15]
See
Para 27 above
[16]
Application
for postponement and condonation dated 25 May 2022, Vol 3 p294 - 308