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(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
__________
DATE SIGNATURE
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NUMBER : 1908/2022
27/03/2025
POPY ELIZABETH NDLOVU APPLICANT
and
OLD MUTUAL LIMITED 1ST RESPONDENT
KHABANINA JABULILE MAZIBANE 2ND RESPONDENT
JUDGMENT
Shai A J
Introduction
[1] This is an application brought on an urgent basis by the applicant.
[2] The applicant seeks for a relief, inter alia, in the following terms:
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2.1 That the respondent be ordered to pay to the applicant her 50% share in terms
of community of property;
2.2 That the respondent be ordered to pay the applicant her share of the deceased
estate.
[3] It would appear from the applicant’s papers that re ference to “respondent”
means the first respondent.
Background
[4] The applicant is the surviving spouse of Gijimane Mhaule Mazibane (“the
deceased”).
[5] During his lifetime and while still married to the applicant, the deceased got
married to the second respondent. This marriage contravened the Marriages Act and
was consequently nullified by this Court on 12 June 2023.
[6] The deceased died testate and in terms of his will, Old Mutual Trust (Pty) Ltd
were nominated the executor of the estate.
[7] There had been numerous correspondence s between the applicant and Old
Mutual Claims department since the nullification of the marriage of the second
respondent. In the email of 7 January 2025, Old Mutual pointed out that they awaited
confirmation on who Poppy Elizabeth Ndlovu is. They also indi cated that the
application would be kept on hold for 30 days and thereafter it would be processed
[8] The applicant interpreted the email of 7 January 2025 to mean that a payout
would be effected after the 30 days , hence this urgent application.
[9] In its answer, the first respondent raised points in limine , including that the
application lacks urgency.
Issues
[10] The issues for determination herein are:
10.1 Whether the matter is urgent; and
10.2 If urgent, is the applicant entitled to the relief a s claimed.
Urgency
[11] A litigant that approaches the court for relief on an urgent basis must comply
with Uniform rule 6(12)(b), which provides as follows:
“(b) In every affidavit filed in support of any application under paragraph (a) of this
subrule, the applicant must set forth explicitly the circumstances under which is
averred render the matter urgent and the reasons why the applicant claims that
applicant could not be afforded substantial redress in due course.”
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[12] This rule allows the court to c ome to the assistance of a litigant because if the
latter were to wait for the normal course laid down by the rules it will not obtain
substantial redress. The matter will be urgent if the applicant can demonstrate, with
facts, that the applicant requires immediate assistance from the court, and that if his
application is not heard on an urgent basis that any order he might later be granted
will by then no longer be capable of providing him with the legal protection he requires.
[13] A determination on urge ncy precedes a finding on merits. This means that
before a court makes a finding on the merits of an urgent application, the court must
first consider whether the application is indeed so urgent that it must be dealt with on
the urgent roll. Should an appl icant not succeed in convincing the court that he will not
be afforded substantial redress at a hearing in due course, the matter will be struck
from the roll. This enables the applicant to set the matter down again on proper notice
and compliance (see SARS v Hawker Air Services (Pty) Ltd1). Where the facts indicate
that the urgency is self -created, the application will, likewise, be struck from the roll.
[14] The correct and crucial test to be applied in urgent applications is whether or
not an applicant will be afforded substantial redress in due course2.This is determined
by asking whether if the matter were to follow its normal course as laid down by the
rules, an applicant will be afforded substantial redress. If they cannot be afforded
substantial red ress in due course, the matter should be enrolled and heard on an
urgent basis.
[15] If there is a delay in instituting the proceedings, an applicant has to explain the
reasons for the delay and why despite the delay they claim that they cannot be
afforded substantial redress at a hearing in due course.
[16] The fact that the applicant wants to have the matter resolved urgently does not
render the matter urgent. The urgency of a matter depends on the relief sought seen
in context with the facts of a case. This calls for courts to determine urgency on a
case -by-case, context specific basis.
[17] It is this determination of urgency within a given context which renders the
factual matrix of a case relevant in determining its urgency. The factual matrix should
at no stage be confused with merits determination. The factual matrix is an intertwined
blend of facts and circumstances that determine legal outcome. It refers to the context
1 [2006] ZASCA 5;2006(4) SA 292 (SCA)
2 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite Pty Ltd and Others (11/33767[2011]
ZAGPJHC 196 (23 September 2011)
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APPEARANCES
Counsel for the Plaintiff: Adv DJ Sibuyi
Instructed by: Mthunzi Chambers
C/O Thobela Sindy Attorneys Inc
Counsel for the Defendant: Adv VKruger
Instructed by: Walkers Inc
C/O Du Toit Smuts Attorneys
Date of Hearing 18 March 2025
Date of Judgment: 27 March 2025