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[2025] ZANCHC 23
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Frankel Engelbrecht N.O and Another v Mokitimi and Others (CA & R: 44/2024) [2025] ZANCHC 23 (19 March 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Reportable
Case no: CA & R:
44/2024
In the matter between:
FRANKEL ENGELBRECHT
N.O
In his capacity as
executor of the estate
Simangele Agnes
Mabotsa First
Appellant
MMABATHO
LUCIA MAKOBO
Second
Appellant
and
LOUISE
MMAPHUTI MOKITIMI
First
Respondent
THE MASTER OF THE HIGH
COURT,
KIMBERLEY
Second Respondent
FIRST
NATIONAL BANK TRUST
Third
Respondent
TEBOGO
CLIFFORD LOUW
Fourth
Respondent
SHANE
MATHEBULA
Fifth
Respondent
ITUMELENG
NKOPANE
Sixth
Respondent
QING
ZHANG
Seventh
Respondent
CHAOQIANG
HUANG
Eighth
Respondent
CHARISMA
FUNERAL DIRECTORS CC
Ninth
Respondent
In re:
FRANKEL
ENGELBRECHT N.O
In his capacity as
executor of the estate
Simangele Agnes
Mabotsa
First Applicant
MMABATHO
LUCIA MAKOBO
Second Applicant
CHARISMA
FUNERAL DIRECTORS CC
Third
Applicant
and
LOUISE
MMAPHUTI MOKITIMI
First
Respondent
THE MASTER OF THE HIGH
COURT,
(KIMBERLEY)
Second Respondent
FIRST
NATIONAL BANK TRUST
Third
Respondent
TEBOGO
CLIFFORD LOUW
Fourth Respondent
SHANE
MATHEBULA
Fifth Respondent
ITUMELENG
NKOPANE
Sixth Respondent
QING
ZHANG
Seventh
Respondent
CHAOQIANG
HUANG
Eighth
Respondent
Neutral
citation:
Frankel
Engelbrecht N.O and Another v Mokitimi and Others
(Case
no CA & R: 44/2024) (19 March 2025)
Coram:
Tlaletsi JP et Phatshoane DJP et Mamosebo J
Heard
:
19 November 2024.
Delivered
:
19 March 2025.
Summary
:
Rule nisi issued on 09 September 2022 returnable on 14 April 2023.
First respondent failed to adhere to the terms of the interim
order.
Appellants sought a contempt of court order set down for 10 March
2023. Court a quo
mero motu
rescinding
the interim order invoking Rule 42(1)(a) of the Uniform Rules of
Court. No
Audi Alteram Partem
observed
and no notice to the affected parties of intended order as
contemplated in Rule 42. Court a quo erred in considering the
main
application which was not before it and rescinding the interim order.
ORDER
1.
The appeal is upheld and the order of the
Court
a quo
dated 10 March 2023 is set aside and substituted with the following
order:
“
1.
The first to the eight respondents are called upon to show cause on
11 April 2025 why the rule nisi issued by Lever J, on 09
September
2022 under case number 1424/2022, which is hereby extended to that
date, should not be confirmed.
2.
The first respondent is further called upon
to show cause, if any, on the date referred to in para 1 above why
the following order
ought not to issue:
2.1.
The first respondent is found to be in contempt of the court order
issued by Lever J on 09 September
2022.
2.2.
The first respondent is sentenced to 60
days imprisonment which sentence is suspended on condition that the
first respondent complies
fully with the terms of the order referred
to in para 2.1 above and until the administration of the deceased
estates of MDA and
SA Mabotsa have been finalised.
2.3
The first respondent is ordered to pay the
costs of the application.”
2.
The parties are to bear their own costs of the appeal, including the
costs in respect of
the applications for leave to appeal
JUDGMENT
THE COURT
[1]
This
appeal raises matters of great importance as it explores the
functions of a judicial officer and adherence to basic tenets.
The
appeal is with leave of the Supreme Court of Appeal against the order
of Nxumalo J dated 10 March 2023 and the whole of the
judgment handed
down on 28 July 2023.
[1]
[2]
The appeal is premised on the following
grounds set out in the Notice of Appeal dated 08 August 2024,
paraphrased, that the court
erred:
1.
By adjudicating the main application which
had been postponed to the opposed roll for argument on 14 April 2023
and issuing an order
when the main application did not serve before
the court on 10 March 2023, but only the contempt of court
application.
2.
In finding, by clear implication, that a
court of equal standing erroneously failed to consider and apply the
relevant provisions
of the Administration of Estates Act 66 of 1965
(‘the Act’) and/or the other relevant legal principles,
and as such
took up the role of a court of appeal, whereas and in
fact it had no authority, constitutionally, statutorily or otherwise,
to
do so.
3.
In considering the rescission of the rule
nisi granted in the main application and handing down the judgment
without affording the
parties to the main application the opportunity
to state their case, or to properly and fully state their case,
regarding the consideration
of the main application and as such
failing to afford the applicants a fair hearing and thereby comply
with its duty to observe
the letter and spirit of the
Audi
alteram partem
rule.
4.
In finding that the order in the main
application was erroneously sought and granted based on the secondary
erroneous findings that
the first appellant was guilty of a
misrepresentation to the Court as to whether the appellants had an
adequate remedy; whereas
there was indeed an alternative remedy at
their disposal in terms of section 13(1) read with 102(1)(g)(iii), of
the Act; and a
further adequate alternative to safeguard the funds of
the deceased estate under the uncontroverted circumstances as stated
in
the affidavits filed in the main application.
[3]
This
seminal exposition of the functions of a judicial officer
by
Harms DP in
National
Director of Public Prosecutions v Zuma
[2]
is
apposite
:
‘
It
is crucial to provide an exposition of the functions of a judicial
officer because, for reasons that are impossible to fathom,
the court
below failed to adhere to some basic tenets, in particular that, in
exercising the judicial function, judges are themselves
constrained
by the law. The underlying theme of the court's judgment was that the
Judiciary is independent; that judges are no
respecters of persons;
and that they stand between the subject and any attempted
encroachments on liberties by the Executive (paras
161 – 162).
This commendable approach was unfortunately subverted by a failure to
confine the judgment to the issues before
the court; by deciding
matters that were not germane or relevant; by creating new factual
issues; by making gratuitous findings
against persons who were not
called upon to defend themselves; by failing to distinguish between
allegation, fact and suspicion;
and by transgressing the proper
boundaries between judicial, executive and legislative functions.’
[4]
A
further instructive reminder on the powers entrusted upon judicial
officers were echoed by Cachalia JA in
Motswai
v Road Accident Fund
[3]
in this fashion:
‘
Through
the authority vested in the courts by s 165(1) of the Constitution
judges wield tremendous power. Their findings often have
serious
repercussions for the persons affected by them. They may vindicate
those who have been wronged but they may condemn others.
Their
judgments may destroy the livelihoods and reputations of those
against whom they are directed. It is therefore a power that
must be
exercised judicially and within the parameters prescribed by law. In
this case it required the judge to hold a public hearing
so that the
interested parties were given an opportunity to deal with the issues
fully, including allowing them to make all the
relevant facts
available to the court before the impugned findings were made against
them. The judge failed to do so and in the
process did serious harm
to several parties.’
It is against the
aforementioned fundamental principles that we are enjoined to examine
the role played by Judge a quo in the proceedings
before him and to
consider whether the court observed the parameters within which it
had to adjudicate the matters serving before
it.
[5]
On 09 September 2022, Lever J issued a
rule
nisi
(interim interdict) out of this
court interdicting and prohibiting the first respondent (Ms Mokitimi)
from receiving and/or utilising
the rental income due to the estates
of the late Mr and Mrs Mabotsa, and the third applicant, (Charisma
Funeral Directors CC),
and interdicting and prohibiting the said
first respondent from dealing with the assets of the estate. The
first to sixth respondents
were ordered to effect the monthly rental
income due to the estates into the estate account as reflected in the
order. The funds
were to be deposited into the trust account of
Engelsman Magabane Inc, a local firm of attorneys representing the
first appellant.
The sheriff of Randburg West personally served the
first respondent with this interim order on 28 September 2022. The
same order
was also served on all the other respondents personally by
the sheriff of Kimberley on 05 October 2022.
[6]
The first respondent ignored the
aforementioned order and continued to collect the monthly rental from
the fourth to the eighth
respondents and failed to pay the money over
to the estate account or the trust account as ordered. The fourth to
the eighth respondents
also continued to pay the first respondent.
Only one payment of R10 000 was deposited by one of the respondents
into the trust
account of Engelsman Magabane on 26 October 2022. On
the return date, 18 November 2022, the respondents were present in
court.
Before the matter was called Mrs Shaneal Andrea Feltman, an
attorney at Engelsman Magabane as well as Johané van der
Merwe,
also from the same firm, explained to the respondents the
significance of the order and that their failure to comply therewith
would attract a contempt of court sanction. Adv Johan Harmse, for the
appellants, repeated the explanation pertaining to the effect
of the
order to the respondents before Sieberhagen AJ, who postponed the
matter and had the rule extended. Their confirmatory affidavits
form
part of the papers.
[7]
On 06 January 2023, the matter came before
Lever J who explained the consequences of not adhering to the court
order to the first
respondent and postponed the case to 17 February
2023 for the opposing papers to be filed. The first respondent was
warned not
to disobey the court order. No further payments were made
into the estate account or the trust account of Engelsman Magabane.
[8]
The first appellant, Frankel Engelbrecht
N.O, in his capacity as executor of the estate of Simangele Agnes
Mabotsa, filed a contempt
of court application which was set down for
10 March 2023, seeking the following relief:
1.
That the first to sixth respondents be
found to be in contempt of the court order issued out by this court
on 09 September 2022
(the Lever J order);
2.
That a sentence of imprisonment be imposed
on the first to sixth respondents for such period as the court may
deem fit; and
3.
Costs of suit.
[9]
The contempt of court application served
before Nxumalo J on 10 March 2023. The court was made aware that
the return date for
the
rule nisi
was 14 April 2023. It was made plain that what was before court was
only the non-adherence by the respondents to the Lever J order
of 09 September 2022. The following digression then transpired:
‘
Court
:
…There are a few concerns that have arisen in the course of
studying your papers and I want you to address me on them,
and if you
are not able to do so, immediately reflect on them and revert. The
first one is, is it not so that the applicant in
these proceedings
Frankel Engelbrecht is the executor of the estate of the late Mrs
Mabotsa? Which firm of attorneys is he…
under which firm does
he practice?
Female
speaker:
Engelsman Magabane Attorneys.
Court:
And you are therefrom as well?
Female
speaker:
Correct M’Lord
Court:
So here is an applicant essentially for
all intents and purposes appearing for itself against another
applicant in person, is it
so? Both of you are self-represented for
all intents and purposes effectively.
Female
speaker:
My Lord could it be said that
the applicant is self-represented if they use an attorney from the
law firm.
Court:
Yes.
Female
speaker:
The applicant himself is not
in court.
Court:
No I’m just saying to the extent
that what I’m going to engage with you now essentially would be
a reflection on your
firm. So, I must take your submissions with a
pinch of salt.
Female
speaker:
Never My Lord.
Court:
We’ll use my discretion, but it gets even
trickier. The rule nisi was granted on the 9
th
September 2022 right?
Female
speaker:
Yes M’Lord.
Court:
As an interdictory order and one of the mantras
that we aver in interdictory relief, correct me if I’m wrong,
is that there
is no other alternative relief other than the one
sought in terms of the interdict, is it not so?
Female
speaker:
That’s correct, M’Lord.
Court:
In other words, there is no effective satisfactory
relief which the applicant might avail itself other than the one
sought there.
Now you must remember that the whole issue here is
about the incarceration of an individual and you know you are flying
very close
to the sun with wings of wax. Now I’m enjoined to
interpret the law and any other order subject to the Bill of Rights
and
to promote the rights and [indistinct] value. In other words, I
should look and scrape the pot to find whether there is no other
way
I can enforce and all. The law contemplates the enforcement or
compliance without necessarily trammelling into the fundamental
rights. So, your first port of call was in order for the right thing
to be done an incarceration application … or the contempt
of
court application should be lodged. Now you have the …. and
your… this whole … this whole averments are
predicated
against the Administration of Estates Act of 1966. I beg your pardon
1960… I mean Act 66 of 1965. Isn’t
it. No wonder I can’t
read it properly I wasn’t born then. Now do you have a copy
thereof that?
Female
speaker:
Of what My Lord?
Court:
Of the Administration of Estates
Act.
Female
Speaker:
I do not have it [with] me
M’Lord but I can access it.
Court:
Please do so. If you have an Android you can ask
people who have a faster phone. Okay. Are you there ma’am?
Female
speaker:
Thank you M’Lord.
Court:
Let’s go to page… let’s go to
section 13. Are you at section 13?
Female
speaker:
I’m at section 13
M’Lord.
Court:
One three ma’am.
Female
speaker
: Yes M’Lord.
Court:
Are you there? Section 13(1), do you
want to read that?
Female
speaker:
“
No person shall
liquidate or distribute the estate of any deceased person, except
under letters of executorship granted or signed
and sealed under this
Act, or under an endorsement made under section 15, or in pursuance
of a direction by a Master.”
Court:
Now that is the nub of this application is it not
so?
Female
speaker:
That is so M’Lord.
Court
:
That is what you are … the… [intervenes]
Female
speaker:
[Indistinct]
Court
:
…facts and the circumstances fly in the face of section 13.
Female
speaker:
Correct M’Lord.
Court:
Right. Let’s read section 102(g).
Just read it contemporaneously with section… with (iv). In
other words, read the
section following from section….
Subsection (1)(g)(iv) contemporaneously.
Female
speaker:
“
Contravenes or fails to
comply with the provisions and then it mentions certain.”[intervenes]
Court
:
Or let me read it this time around. The heading is “Penalties”
aptly so, is it not so?
Female
speaker:
Correct M’Lord.
Court:
Now you and I know that if a statute penalises its
contravention and provides for the penalty therein, it is not our
business to
go outside the four corners of that act to enforce it.
So, in light before what I read what I’m reading… or let
me
read in order to give you a chance. Any person who [indistinct]
subsection (g) “contravenes or fails to comply with the
provisions
of section 1(1) of section 13 [indistinct] section 13,
section 27(1).” And so forth and so on. “Or with any
notice
under section 9(2) and (iii) “In the case of an offence
referred to in paragraph (f) or (g), to a fine or to imprisonment
for
a period not exceeding twelve months.”
And then the generic…ja.
Now in light of that you still aver that there is no alternative
relief other than the one you obtained
on the 09 September 2022.
Female
speaker
: M’Lord I would like an
opportunity to reflect on that and address M’Lord on that
because the question would be who
would enforce the imposition of
that penalty set out in that Act.
Court:
But
it’s a criminal… it’s a criminal offence. The Act
says that much and we will not… I will not stand
there without
a volunteer. It’s an offence. In the case of an offence
referred to in paragraph f and g (f) and (g) is to
a fine or an
imprisonment for a period not exceeding 12 months. And then you read
it and there’s a background of section
35, which is arrest
detained and accused person. It has a rubric of rights that go to a
person accused of committing an offence
and the bulwark of this is
equal protection and enjoyment of the law in section 9. And remember
I approach the encroachment of
the Bill of Rights with trepidation,
and you are saying, or you said, there is no alternative relief. And
I found a relief in the
four corners of the very administration act
which you are the agent of and all the facts you alleging turn around
13 and 13 has
a relief therein. And once you accuse a person of
an offence you trigger section 35(3) of the Constitution. Every
accused
person has a right to a fair trial, which include the rights
to be informed of the charge with sufficient detail to answer it, to
have adequate time and facilities to prepare a defence.
Now
with the greatest respect I’m not going to tell you what the
Constitutional Court did to Zuma. I’m not gonna do
that. I
might be a [indistinct] judge but I know something about fundamental
rights. I’m not going to convict somebody of
contempt of court
in circumstances when there is an alternative relief right within the
four corners of the very Act that is being
enforced. It would be
egregious and very career limiting.’
[4]
[10]
Lest
it be suggested that the remarks captured in bold are condoned. They
are egregious, uncalled for and unprincipled. Their import
is plainly
that “what the Constitutional Court did to Zuma” was a
misdirection. They fly in the face of the doctrine
of precedent or
the stare decisis system. In
Ex
Parte Minister of Safety and Security and Others: In Re S v
Walters
[5]
the Constitutional Court per Kriegler J said the following regarding
precedent:
‘
The
first ancillary question relates to the application of the principle
of the binding authority of judicial precedent where constitutional
issues are involved. The High Court, in finding the section
constitutionally invalid to the extent stated, consciously departed
from a decision delivered shortly before in the Supreme Court of
Appeal (the SCA) in the case of
Govender
v Minister of Safety and Security
. In
this latter judgment the SCA, putting a particular construction on ss
(1) of s 49, held it to be constitutionally valid. The
High Court
rejected both the interpretation and the resultant finding of the
SCA, saying that these were constitutional questions
on which the
decisions of this Court and not those of the SCA were binding on
other courts. Decisions of the SCA on constitutional
questions, so
the trial Court reasoned, should not be followed by High Courts when
they find them to be wrong. This line of reasoning
and conclusion
have serious implications for established interrelationships in our
hierarchy of courts and consequently for the
administration of
justice in general. It also has implications for the rule of law.’
[11]
There was further extensive engagement
between the court and the appellant’s representative which
pertained to whether the
first appellant was correct when he
alleged in the papers that there was no alternative remedy. The
court’s remarks
continued in this fashion:
‘
Court:
I’m sitting here with Rule 42
ex
mero motu
on my own backing gives me
the authority to look at an order that is patently wrong and set it
aside, and my inclination is to say
you received and you obtained a
rule nisi genuinely and in good faith, which is bad in law because it
doesn’t meet the one
fundamental
sine
qua non,
i.e, that you don’t have
an alternative in law. And I have pointed out to you where you should
have hung your jacket. All
you should have done is… otherwise
if somebody breaks into my house, I must get an interdict because
that is the essence
of what you’re saying. Somebody is breaking
our penal law. That person must be tried and must be charged and be
brought before
the court and I should do so summarily today until
sunset I’m not going to do that.’
[12]
The court was referred to an unreported
judgment of
Cilibia v Cilibia
Case
No 3460/2021 delivered by Snellenburg AJ on 17 May 2022 in the Free
State High Court on a violation of a maintenance order
where the
Judge granted the order having made the distinction between a
coercive order where an applicant is entitled to the enforcement
of
that order and a punitive order where a coercive order might serve no
purpose. The Court considered the requirements to be met.
In response
to those submissions, the court a quo remarked:
‘
What
madam doesn’t want to appreciate is that you have made an
allegation at a prima facie level and this court has now had
a chance
because you brought the matter before this court and you’re
saying I want to enforce it. And the court now looks
at it with four
eyes and say why should I willy nilly enforce an order, which is
[indistinct]. It is not legally sound. …’
[13]
What the appellants were essentially
seeking was a simple declarator in respect of their contempt of court
application. That
did not materialise because, very bizarrely, the
court
a quo
,
per Nxumalo J, rescinded the
rule nisi
issued by Lever J on 09 September 2022 and made no order as to costs.
The applicants then sought leave to appeal against the order
issued
by Nxumalo J but it was refused. The applicants thereafter petitioned
the SCA which granted them leave to the Full Court
of this Division.
[14]
Mr van Niekerk SC was assisted by Ms
Erasmus to argue the appeal before the Full Court. There was no
appearance by the respondents
despite them having knowledge that the
appeal had been set down for that day. The sheriff served a copy of
the Notice of Motion,
founding affidavit and annexures in the
contempt of court application on the first respondent personally on
17 February 2023. She
was also served with the Notice of Appeal. We
were satisfied that proper service had been effected and therefore
allowed counsel
for the appellants to argue the appeal.
[15]
It
is for the parties, either in the pleadings or affidavits to set out
and define the nature of their dispute, and it is for the
court to
adjudicate upon those issues alone. That is so even where the dispute
involves an issue pertaining to the basic human
rights guaranteed by
our Constitution. There may also be instances where the court may
mero
motu
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case provided that no prejudice
will be caused to any party by its being decided. Beyond that, it is
for the parties to identify the dispute and for the court
to
determine that dispute and that dispute alone. It is certainly not
for the court to raise new issues not traversed in the pleadings
or
affidavits, however interesting or important they may seem to it, and
to insist that the parties deal with them.
[6]
[16]
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
[7]
Yacoob J, writing for
a unanimous court in
De
Beer NO v North-Central Local Council and South-Central Local Council
and Others (Umhlatuzana Civic Association Intervening)
[8]
said:
‘
This
s 34 fair hearing right affirms the rule of law, which is a founding
value of our Constitution. The right to a fair hearing
before a court
lies at the heart of the rule of law. A fair hearing before a court
as a prerequisite to an order being made against
anyone is
fundamental to a just and credible legal order. Courts in our country
are obliged to ensure that the proceedings before
them are always
fair. Since procedures that would render the hearing unfair are
inconsistent with the Constitution courts must
interpret legislation
and Rules of Court, where it is reasonably possible to do so, in a
way that would render the proceedings
fair. It is a crucial aspect of
the rule of law that court orders should not be made without
affording the other side a reasonable
opportunity to state their
case. That reasonable opportunity can usually only be given by
ensuring that reasonable steps are taken
to bring the hearing to the
attention of the person affected. Rules of Courts make provision for
this. They are not, however, an
exclusive standard of reasonableness.
There is no reason why legislation should not provide for other
reasonable ways of giving
notice to an affected party. If it does, it
meets the notice requirements of s 34.’
[17]
The above constitutional principle was
unquestionably not adhered to by the Court at first base when it
adjudicated the main application
which not only did not serve before
it but more significantly, did so in the absence of the affected
parties. Unlike the respondents
who were served with all the
necessary papers and elected not to participate in the proceedings,
the appellants were neither served
nor made aware that the main
application would be adjudicated on 10 March 2023.
[18]
We
have had the benefit of reading the entire transcript of the
proceedings of 10 March 2023
[9]
before Nxumalo J. Nowhere in the entire record does it appear that
the parties were informed beforehand that the court would adjudicate
all the issues traversed at the instance of Nxumalo J. It is not
surprising that the appellant’s representative seemed
unprepared
when questioned on aspects which did not form part of the
contempt of court application and the relief sought. The court only
stood
the application down for the applicant’s legal
representative to consider the applicant’s position having
subjected
her to intense questioning on, among other things, the
provisions of the Administration of Estates Act which were irrelevant
to
the application that served before him.
[19]
Even more disconcerting are the adverse
findings made against the first appellant who was not afforded an
opportunity by the court
to clarify his ‘purported’
misrepresentation. The first appellant is not only an attorney and
therefore an officer
of the court, but he is also wearing the hat of
an executor of the estate of the late Ms Mabotsa. It was understood
that the averments
levelled against the respondents were to be dealt
with on the return date of 14 April 2023 as ordered by Lever J. It
was further
of no consequence that the first appellant and the
attorney seeking the contempt of court remedy were attorneys from the
same firm,
provided there was no conflict or prejudice. None was
alleged or shown to exist. The court claimed to have relied on the
Constitution
and protecting the constitutional rights of the
respondents, particularly, the first respondent. However, the court
failed to afford
the appellants the same protection or courtesy.
[20]
Was the court
a
quo
correct to invoke the provisions of
Rule 42 of the Uniform Rules of Court
mero
motu
in rescinding the interim
interdict granted by another court? Rule 42 stipulates that:
‘
42
Variation and rescission of orders
(1)
The court may, in addition to any other
powers it may have,
mero motu
or upon the application of any party affected, rescind or vary:
(a).
An order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby;
(b).
an order or judgment in which there is an
ambiguity, or a patent error or omission, but only to the extent of
such ambiguity, error
or omission;
(c).
an order or judgment granted as the result
of a mistake common to the parties.
(2)
Any party desiring any relief under this rule
shall make
application
therefor upon notice to all parties whose interests
may be affected by any variation sought.
(3)
The court shall not make any order rescinding or varying any order
or judgment unless satisfied that all parties whose interests
may be
affected have notice of the order proposed
.’ (emphasis
added)
[21]
In
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape
[10]
Jones AJA held:
‘
Rule
42 is confined by its wording and context to the rescission or
variation of an ambiguous order or an order containing a patent
error
or omission (Rule 42(1)(b)); or an order resulting from a mistake
common to the parties (Rule 42(1)(c)); or 'an order erroneously
sought or erroneously granted in the absence of a party affected
thereby' (Rule 42(1)(a)). In the present case the application
was, as
far as the Rule is concerned, only based on Rule 42(1)(a) and the
crisp question is whether the judgment was erroneously
granted.’
[22]
There is no evidence which shows that the
interim order granted by Lever J on 09 September 2022 was erroneously
sought or erroneously
granted. Neither the appellants nor the
respondents filed an application for its variation or rescission.
What the court needed
to do was to consider whether the applicant had
satisfied all the requirements pertaining to the relief sought in the
contempt
application. When the court found an ‘error’
upon which it relied, it supposedly entertained a possible defence
that
the first respondent may raise in a different forum and did not
confine itself to the procedural error that Rule 42 aims to correct.
It therefore follows that the invocation of the rule by the court
defeated the purpose of Rule 42 and is not encouraged.
[23]
The Lever J order of 09 September 2022 was for all intents and
purposes a
valid order. It did not deserve the following gratuitous
attack in a
busy
open unopposed motion court proceeding: “…the order
is not worth
the ink it has been typed with. It’s just a nuisance because
you are
going
to come again on 14
th
and pester the applicant again and
threaten [her]
freedom which is [indistinct]”.
It was further mentioned “….Why
should the
respondent come
again here on an order that was… to put
as low and I
don’t
want to go any lower. Things have been going very
low recently
in South
Africa.”
[24]
The insistence by the court of first instance of the existence of an
alternative
remedy, referring to s 13(1) read with 102(1)(g)(iii) of the
Administration
of Estates Act, to safeguard the funds of the estate should
not have even featured. We accept that when the application was first
considered
by
Lever J the appropriate considerations were made before
the interim relief
was granted. It is also apparent from the papers
that the first
appellant
bears the responsibility to protect the assets of the
estate and
immediate
interim relief was warranted. Regard being had to the
papers before
us,
we are of the view that no other remedy would have
offered the appellants
immediate relief than the interdictory relief
granted by
Lever J. The upshot
of the aforegoing is that the court
a
quo
erred in
rescinding the Level J order and in finding that there was an
appropriate
alternative relief.
[25] On
the question of costs. The appellants were entitled to bring contempt
of court
proceedings before Nxumalo J. The application was unopposed.
There
is no
reason why costs should not follow the result in that regard.
The
first
respondent is to pay costs of the contempt of court
proceedings. In
as far as the appeal costs are concerned, including
the costs for
leave
to appeal, the parties are to bear their own costs.
An order is therefore
made:
1.
The appeal is upheld and the order of the
Court
a quo
dated 10 March 2023 is set aside and in its place is substituted the
following:
“
1.
The first to the eight respondents are called upon to show cause on
11 April 2025 why the rule nisi issued by Lever J, on 09
September
2022 under case number 1424/2022, which is hereby extended to that
date, should not be confirmed.
2.
The first respondent is further called upon
to show cause, if any, on the date referred to in para 1 above why
the following order
ought not to issue:
2.1.
The first respondent is found to be in contempt of the court order
issued by Lever J on 09 September
2022.
2.2
The first respondent is sentenced to 60 days imprisonment which
sentence is suspended on
condition that the first respondent complies
fully with the terms of the order referred to in para 2.1 above and
until the administration
of the deceased estates of MDA and SA
Mabotsa have been finalised.
2.3
The first respondent is ordered to pay the
costs of the application.”
2.
The parties are to bear their own costs of the appeal, including the
costs in respect of
the applications for leave to appeal.
On
behalf of the Court
___________________________
TLALETSI
JP
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
Appearances
For the appellants
Adv. J van Niekerk SC
Adv S
Erasmus
Instructed
by: Engelsman
Magabane
Attorneys
For the
respondent: No appearance
[1]
Engelbrecht
N.O and Another v Mokitimi and Others
(1424/2022)
[2023] ZANCHC 56
(28 July 2023).
[2]
[2009] ZASCA 1
;
2009
(2) SA 277
SCA) para 15.
[3]
2014
(6) SA 360
(SCA) para 59. See also Molusi v Voges NO
2016 (7) BCLR
839
(CC) paras 27 and 28
[4]
Reference
to
“Female Speaker” is to the attorney who appeared on
behalf of the applicants in the court
a
quo.
[5]
2002
(2) SACR 105
(CC) para 12.
[6]
Fischer
and Another v Ramahlele and Others
2014 (4) SA 614
(SCA) paras 13-14.
[7]
See
s 34 of the Constitution of the Republic of South Africa, 1996.
[8]
[2001] ZACC 9
;
2002
(1) SA 429
(CC) para 11.
[9]
The practice in this Court is that transcripts of the deliberations
and arguments in court do not necessarily form part of the
record
for the appeal. However, the appellant obtained leave of this Court
for the transcript to form part of the record to place
the issues in
the appeal in the proper context.
[10]
2003
(6) SA 1
(SCA);
[2003] 2 All SA 113
(SCA) para 7.