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[2024] ZAECQBHC 61
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Deceased Estate Late Zamokuhle Madaka v Summer Shuttle Services (Pty) Ltd and Others (1922/2024) [2024] ZAECQBHC 61 (8 October 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
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
Case
Number.: 1922/2024
In the matter between:
THE DECEASED ESTATE
LATE ZAMOKUHLE MADAKA
(ESTATE
NUMBER:
0[...])
Applicant
and
SUMMER
SHUTTLE SERVICES (PTY) LTD
First
Respondent
LUXOLO
PHATHEKA
Second Respondent
MASTER
OF THE HIGH COURT
Third Respondent
CAPITEC
BANK (PTY) LTD
Fourth Respondent
JUDGMENT
Beshe
J
[1]
An urgent applicant was launched on behalf of the applicant seeking
an order in the following terms:
‘
2. That the
rule nisi
hereby issue calling upon the First and Second
Respondent to show cause on 20 June 2024, why an order should not be
made in the
following terms:
2.1(a) That the First
Respondent pays to the Applicant’s First National Bank, Account
Number 6[...] at the Pretoria Branch
with Code 2[...], all the moneys
due and payable to the deceased ZAMOKUHLE MADAKA for the utilisation
of the taxis [belonging]
which bear the following description: (i) a
Toyota Quantum with registration number J[...] 7[...] E[...]; (ii) a
Toyota Quantum
with the registration H[...] 5[...] E[...]; and (iii)
a Toyota Quantum with the registration K[...] 0[...] E[...].
ALTERNATIVELY
2.1(b) As an alternative
to prayer 2.1(a): That the First Respondent retains all such monies
in its bank account pending the determination
of this Honourable
Court;
2.2 That the account of
the Second respondent held at Capitec Bank, Account Number 1[...]
and/or any account, be frozen forthwith;
2.3 That the First
Respondent be ordered to submit, within 24 hours of the issue of this
Court Order, a written notification to
this Honourable Court and
serve upon the Applicant [of] the details of all bank accounts to
which it has deposited any monies due
and payable to the deceased
from July 2023 to date. The written submission shall contain detail
of the date on which the deposits
were made; the actual amount and
the breakdown thereof and each of the bank accounts to which the
monies were deposited;
2.4 That in the event
that the written submission of the First Respondent reveals that it
paid the monies referred to in 2.2 above
to a bank other than that of
the Fourth Respondent, such account be frozen immediately after the
service of this Court order upon
such a bank; and
2.5 That the Second
respondent refund all the monies belonging to the Applicant it has
been paid by the First Respondent since the
dates referred to in
paragraph 2.3 above.
3. The provisions of
paragraphs 2.1 to 2.5, all inclusive, shall operate as an interim
Order pending the return date.
4. That the applicant is
hereby granted leave to approach this Honourable Court on the same
papers duly amended at a later stage
when the need arises.’
[2]
Having heard the application Noncembu J
issued the following order on the 24 May 2024, which order
was
returnable on the 20 June 2024:
‘
IT
IS ORDERED THAT:
1. The application is
urgent.
2. A
rule nisi
hereby issue calling upon the First and Second Respondent to show
cause on
20 June 2024
why an order should not be made in the
following terms:
2.1 The First Respondent
retains all monies due and payable to the deceased
ZAMOKUHLE
MADAKA
for the utilization of the taxis which bear the following
description: a Toyota Quantum with registration number J[...] 7[...]
E[...]; (ii) a Toyota with registration H[...] 5[...] E[...] and a
Toyota with the registration K[...] 0[...] E[...].
2.2 The First Respondent
submit within 5 days of the issue of this order, a written
notification to this Court and serve upon the
Applicant details of
all bank accounts to which it has deposited any monies due and
payable to the deceased from July 2023 to date.
The written
submission shall contain all the details of the dates on which the
deposits were made to the Second Respondent, the
actual amounts and
the breakdown thereof and each bank account to which the monies were
deposited.
3. The provisions of
paragraphs
2.1
and
2.2
shall operate as an interim
order pending the return date.
4. The applicant is
hereby granted leave to approach this Court on the same papers duly
amended at a later stage when the need arises.
5. The First and Second
Respondents file their answering affidavits on or before
11 June
2024
. The Applicant file its replying affidavit and heads of
argument on or before
15 June 2024
. The First and Second
Respondents file their heads of argument on or before
18 June
2024
.’
[3]
On the 20 June 2024 (the return date) the
following order was issued by Makaula J:
‘
IT
IS ORDERED THAT:
1. The First Respondent
pays the amount of R 66 544.00 to the Applicant’s First
National Bank, Account Number 6[...], held
at Pretoria, Code 2[...]
within 14 days of the grant of this order;
2. Paragraph 2.1 of the
rule nisi granted in 24 May 2024 is discharged;
3. The application is
postponed to
15 August 2024
and the rule nisi issued in
paragraph 2.2 of the order of 24 May 2024 is extended to 15 August
2024.
4. Costs reserved.’
[4]
The matter served before me on the 15 August
2024. Paragraph 2.2 of the
rule nisi
and the only outstanding
issue in my view, directed the first and the second respondents to
show cause why the first respondent
should not be ordered to submit
within five days of the issue of the order, a written notification to
this court and serve upon
the applicant details of all bank accounts
to which it has deposited any moneys due and payable to the deceased
from July 2023
to date. Which written submission should contain all
the details of the dates on which the deposits were made to second
defendant,
the actual amounts and the breakdown thereof and the bank
accounts to which these moneys were deposited. No
rule nisi
was issued in respect of the refund of the sum of R111 124.00 by
the second respondent. No
rule nisi
was issued in respect of
the restoration or return of applicant’s taxi to serve as
student shuttles by first respondent.
This prayer was not even part
of the notice of motion. No order was issued for first respondent to
show cause why it should not
be declared to be in contempt of court.
Yet, according to applicant’s practice note, the court was
required to determine
these issues. In addition, thereto, the court
according to practice note was going to be called upon to order the
first respondent
to file the information spelled out in paragraph 2.2
of the
rule nisi
. That first respondent’s late filing of
its answering affidavit should not be condoned, and it should be
disregarded.
[5]
Briefly stated, what precipitated the
application for an order in terms of the notice of motion was
the
alleged failure by the second respondent to pay over to the deponent
to the founding affidavit Mr Landile Philiso, monies due
to the
estate of the late Zamokuhle Madaka in respect of the use of the
latter’s three minibus taxis. These monies would
have been
received from first respondent. In turn, second respondent was
required to pay these monies over to Mr Philiso/deceased’s
estate. In terms of paragraph 2.3 of the notice of motion first
respondent was to be ordered to submit details of all bank accounts
to which it has deposited any monies due and payable to the deceased,
date of deposit as well as amounts deposited.
[6]
It is alleged on behalf of the applicant’s
estate that second respondent replaced deceased’s
banking
details with his as the banking account to which monies due to the
deceased should be paid by the first respondent. One
such account
being second respondent’s Capitec Bank account. After Mr
Philiso’s intervention from September 2023, second
respondent
deposited the monies to him every month. However, in April 2024 no
payment was received from the second respondent by
Mr Philiso.
Attempts to resolve the matter out of court or without recourse to
court failed. Instead, first respondent suspended
deceased’s
taxis from operating.
[7]
Second respondent filed an “explanatory
affidavit”. Therin, he states that he admits that
he received
payments from first respondent for use of deceased’s minibuses.
At paragraph 7.2 thereof, he states that he started
receiving these
payments in August 2023 following deceased’s death in July of
the same year. However, at paragraph 9 he states
that he started
receiving these payments in September. He further states that he
diligently transferred the payments received to
the bank account of
Mr Philiso. To this end, he attached his Capitec Savings account bank
statement. He furthermore states that
this application was triggered
by the fact that he did not pay the money over in April 2024. He
explained that he did not do so
because Mr Philiso failed to account
for the monies to deceased’s family. So, instead he transferred
the money received from
first respondent to deceased’s father
Mr Nkosinathi Phatheka. This, according to him is also reflected in
his bank statement.
He denied that he withheld any money received in
respect of deceased’s minibuses for his personal use. He
provides a bank
statement comprising of 39 pages spanning from
September 2023 to May 2024.
[8]
First respondent on the other hand filed its
notice of opposition on 24 May 2024. First respondent’s
answering affidavit is dated the 19
th
of June 2024. It is
not clear when it was filed. At that stage, applicant’s
replying affidavit had already been filed. It
is dated the 14 June
2024. To this end, first respondent states that the answer is
triggered by what is contained in the reply.
It would also appear
that first respondent has an issue with paragraph 2.2 of the order
(
Rule nisi
). According to Mr Ngejane who deposed to the
answering affidavit, this was not in accordance what the parties
agreed upon. Be that
as it may, the order was issued in those terms,
and it is extant. Condonation of the late filing of the answering
affidavit is
sought on the basis
inter alia
that some time was
spent in trying to establish how it came about that the interim order
was issued in those terms, yet the parties
had not agreed to those
terms. The delay was also occasioned by the appointment of a new firm
of attorneys following a fallout
with their erstwhile attorney of
record. A process that took some time. It is contended on behalf of
first respondents that the
intention has always been to abide with
the relief sought even though first respondent had an issue with the
truncated time periods
and felt it was an abuse of the court process
by the applicant. The answer was only precipitated by what is
contained in applicant’s
replying affidavit labelling the first
respondent as being in contempt of court and seeking an order that
the deceased’s
taxis be restored to being part of the shuttle
services.
[9]
Applicant’s contention that first
respondent is in contempt of the court’s order of the
24 May
2024 is premised on the alleged failure by first respondent to comply
with the said order. It is contended that he failed
to pay regard to
what applicant has stated in its founding affidavit namely that it is
in the dark as to how much, if any amount,
first respondent owes to
the applicant and how much it has paid over to the second respondent.
[10]
It is apposite to reproduce applicant’s
averments in this regard. Under the rubric:
The Grounds for the
Relief Sought
. In the founding affidavit, the following averments
are made:
‘
19. The relief I
seek in the notice of motion is an interim order, namely that:
19.1. The First
Respondent should not pay moneys due to the deceased into any of the
accounts of the Second Respondent but to the
estate account of the
Applicant alternatively keep the money in its coffers until the
determination of this matter by this Honourable
Court;
19.2. The Second
Respondent’s Capitec account should be frozen forthwith;
19.3. In the event that
that payment has been paid into the bank account of the Second
Respondent other than the Capitec account,
the First respondent
should divulge the details of that account within 24 hours of the
service of the interim order upon it. The
order is given that such
account should also be frozen and the service of the court be made
upon that bank for immediate compliance
therewith; and
19.4. The Second
Respondent be ordered to allow the three taxis of the deceased to
continue providing the business of transporting
the students
forthwith.’
And
later at paragraph 27 of the founding affidavit, the following is
stated:
‘
27
I also seek that the First Respondent should release all the
information relating to all the monies that it has paid out to the
Second Respondent, or any other person, relating to the deceased’s
mini bus taxis from when he passed away in July 2023 to
date. As I
have already adverted to, the Second respondent has not been
transparent regarding how much he has been paid by the
First
Respondent. To date, the Applicant has just been accepting what it is
being given.’
[11]
I have already adverted to the allegations that
the parties had not agreed that an order as it appears on
paragraph
2.2 of the
rule nisi
should be issued. But, once again the
order is extant and first respondent claims to have complied
therewith. This aspect
is however brought up by first
respondent to explain its lateness in filing an answer. It is not
clear to me what the complaint
regarding how 2.2 found its way to the
rule nisi
is because, save for the time when the first
respondent was to file the requisite written notification which was
no longer 24 hours
but five days, it mirrors paragraph 2.3 of the
draft order. This is the draft order the parties are alleged to have
agreed upon.
The draft order is annexed by the first respondent as
annexure AA1 to the answering affidavit.
[12]
Be that as it may, the first respondent filed a
written notification in compliance with paragraph 2.2 of
the order
issued on 24 May 2024, on the 11 June 2024. (Annexure 1 to the
replying affidavit.) The said document records that the
letter serves
to confirm that the late Mr Z Madaka received the following amounts
from first respondent for transport services
rendered from July 2023
to May 2024. The document proceeds to give a breakdown of the work
performed (by the Shuttles) the amount
due and the amount paid out
from July 2023 to April 2024. In respect of May 2024, the same
details are provided save that the amount
which is due, R66 544.00
has not yet bee paid over.
[13]
It is contended on behalf of first respondent that
it is not in contempt of court. That in any event an
application for
contempt of court should be brought on notice to the party concerned
and not under the guise of an answering affidavit.
I am inclined to
agree with the first respondent in this regard.
[14]
Regarding the prayer that the first respondent be
ordered to allow deceased’s taxis to continue to
transport
students, first respondent points out, rightly so, that this did not
form part of the notice of motion. Further, that
even though the
court allowed the applicant to approach the court at a later stage on
the same papers duly amended, the applicant
had not supplemented or
amended its notice of motion, nor has it filed a supplementary
affidavit in this regard. I have already
expressed the view that as
far as I am concerned, the only outstanding issue is the confirmation
or otherwise of paragraph 2.2
of the
rule nisi
. Applicant
concedes that the return of the applicant’s minibuses to the
provision of shuttle services was not part of the
notice of motion –
is not part of the notice of motion. The court is however urged to
grant this relief on the basis of being
further and or alternative
relief. This in view, so it is contended, of the fact that this
aspect was covered in founding affidavit.
The parties aver that the
court that issued the
rule nisi
was not amenable to issue an
order in this regard on the basis that it did not have sufficient
information in this regard. As I
understand, it was not clear whether
there was a contract that was concluded between the parties regarding
shuttle services. In
the replying affidavit the court’s
attention is drawn to second respondent’s answering affidavit
where he states that
after deceased’s death he looked after the
latter’s minibus taxis that were
contracted
with first
respondent for scholar transport. This however is not of much
assistance as we are not privy to nature of the contract
between the
parties, the terms of such contract and the duration thereof. Whilst
it is so that there was a prayer for further and/or
alternative
relief in the notice of motion, the court is still in the same
position as the court that issued the
rule nisi
. Nothing has
changed. This matter has not been adequately ventilated in the
papers. It is trite though that the prayer for further
and/or
alternative relief can be invoked to entitle a party to an order
other than set out in the notice of motion where the relief
sought is
clearly set out in the founding affidavit, in respect of applications
and is established by satisfactory evidence on
the papers. In
circumstances where the party against whom the relief is sought is
given the fullest opportunity to deal with the
relief sought. In
casu
, it is clear in what respect/s the respondents were
called upon to show cause why the
rule nisi
should not be
confirmed. The return of applicant’s minibus taxis to being
part of the shuttle services clearly not being
one of them.
[15]
Applicant counters this submission by stating that
there was no need to supplement its papers because this
is adequately
set out in the founding affidavit. But the notice of motion has not
been amended. And as I stated earlier, the matter
is before court for
the determination of paragraph 2.2 of the
rule nisi
of the
24
th
instant. Whether same should be confirmed or
discharged. The terms of this paragraph 2.2 are clear and unambiguous
as to what is
expected of first respondent. Namely, to show cause why
an order should not be made that first respondent submits written
notification
to this court of bank accounts to which it deposited any
moneys due and payable to the deceased, including dates on which
deposits
were made to second respondent and the actual amounts. In my
view, the first respondent has adequately complied with paragraph 2.2
of
rule nisi
.
[16]
I am of the view that first respondent has
succeeded in showing cause that the order stipulated in paragraph
2.2
of
rule nisi
should now be discharged. Allied to this is the
issue of the condonation of the late filing of his answer. In my
view, this delay
has been sufficiently explained. Accordingly, the
late filing of first respondent’s answering affidavit is
condoned. I am
also of the view that first respondent has complied
with the direction issued in terms of paragraph 2.2 of
rule nisi
.
Accordingly, paragraph 2.2 of the
rule nisi
issued on 24 May
2024 and later extended to 20 June 2024 is hereby discharged.
Costs.
[17]
Applicant was made to approach the court to seek
the relief set out in the notice of motion. This was after
he had
tried to reach out to the respondents to resolve the matter out of
court. In my view, he had been predominantly successful
against both
respondents in that they complied with the
rule nisi
. I
however do not think the matter calls for a punitive costs order.
Accordingly, the respondents will be ordered to pay applicant’s
costs, jointly and severally the one paying the other to be absolved.
Order
[18]
(a) Paragraph 2.2 of the
rule nisi
issued on 24 May 2024 is
hereby discharged.
(b) First and second
respondents are ordered to pay applicant’s costs, jointly and
severally the one paying the other to be
absolved.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant :
Adv:
N Msizi
Instructed
by:
LITHEMBA
NCANYWA INC
3
rd
Floor, Africa House
6
Graham Street
North
End
GQEBERHA
Ref:
L Ncanywa/EST/1
Tel.:
072 4077 588
For
the 1
st
Respondent :
Adv:
Y Cetywayo
Instructed
by :
YBI
ATTORNEYS INC
21
Somerset Street
Richmond
Hill
GQEBERHA
Ref.:
COM.SSS0002.2024
Tel.:
087 821 6309
For
the 2
nd
Respondent :
Adv:
S Cubungu
Instructed
by :
LONWABO
ZONKE ATTORNEYS
5
th
Floor, Capitol Building
545
Govan Mbeki
North
End
GQEBERHA
Ref.:
L Zonke001/lp
Tel.:
078 7031 259
Date
Heard
:
15
August 2024
Date
Reserved
:
15
August 2024
Date
Delivered
:
8
October 2024