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[2025] ZAKZPHC 105
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Moore and Associates v Ndwandwe and Others (AR93/2024; AR 94/2024) [2025] ZAKZPHC 105 (24 October 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NUMBERS:
AR93/2024 & AR 94/2024
In the matter between:
MOORE &
ASSOCIATES
APPELLANT
And
MBONENI MOFFAT
NDWANDWE
FIRST RESPONDENT
PRECIOUS NC
NGCOBO
SECOND RESPONDENT
NOMPHELO
TUKCO
THIRD RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1] No
heads of argument were filed on behalf of First Respondent nor was
there any appearance on
his behalf.
[2] As
the issues in the two appeals AR93/2024 and AR94/2024 are very
similar and concerns the same
parties it is convenient to deal with
the two appeals together. The parties will be referred to as
they are in these proceedings.
Appellant was Second Respondent
in both matters in the court
a quo
and First Respondent,
Applicant in both matters.
[3] In
both appeals Appellant seeks condonation for the late delivery of the
application for an appeal
date and the subsequent late prosecution of
the appeals.
[4] The
orders in both cases were granted on the same day on 31 May 2023 by
the learned magistrate
in the court
a quo
.
[5]
Requests for reasons in both matters in terms of Rule 51(1) were
filed on 6 June 2023. To
date the learned magistrate has not
provided any reasons in either of the matters nor has she responded
in any way to the said
requests. The notices of appeal in both
matters were filed on 31 October 2023. There were numerous
requests in writing
by Appellant for the said reasons but they were
never replied to which necessitated that the appeals be proceeded
with without
such reasons or response from the learned magistrate.
It is of concern that the learned magistrate ignored the requests for
reasons and did not even acknowledge such requests.
[6] The
reasons for requesting condonation in both matters have been fully
explained and Appellant
has made out a case for the relief claimed.
In both appeal AR93/2024 and AR94/2024 condonation is granted to
Appellant for
the late delivery of the application for an appeal date
and the late prosecution of the appeal.
[7] On 1
March 2023 First Respondent (Applicant in the court
a quo
)
brought an
ex parte
application in both cases in the
magistrate’s court Nongoma on an urgent basis in respect of
both claims under case number
54/2019 and case number 36/2018 that
the writs of execution issued on 12 August 2022 be stayed and that
Appellant and the Sheriff
be restrained and interdicted from removing
any asset of First Respondent in terms of the writs of execution
dated 12 August 2022
Appellant to pay the costs on an attorney and
client scale in case number 54/2019 appeal AR93/2024 and case number
36/2018, appeal
AR942024.
[8] In
both cases First Respondent submitted in his founding affidavit that
the cost orders which
resulted in the writs of execution should not
have been granted and therefore the writs should be stayed on an
urgent basis.
In the transcript of both matters there is a form
completed in manuscript and signed by the magistrate which states:
“
The court
finds that the application is urgent and requires urgent attention.
Application for the writ of execution to be
stayed granted.”
[9] It
appears that on 1 March 2023 the learned magistrate granted a
rule
nisi
returnable on 11 April 2023 for the relief set out in the
notice of motion and that Appellant pay the costs on an attorney and
client scale.
[10] An opposing
affidavit was filed and served by Appellant in each of the cases on
12 April 2023. There
was then an application for a postponement
on 24 April 2023 to 11 May 2023 and then a note that the rule
nisi
was confirmed on 31 May 2023.
[11] In appeal
AR94/2024 (case number 36/2018) the court
a quo
granted an
order on 31 May 2023 staying the writ of execution issued on 12
August 2022, interdicting the Sheriff and Appellant
from removing any
assets of First Respondent and ordered that Appellant pay the costs
de bonis propriis
. A similar order was granted on 31 May
2023 in Appeal AR93/2024 (case number 54/2019).
[12] The cost orders
in both matters in terms of which the writs were issued were taxed
and the warrants of execution
against property issued on 12 August
2022. The taxation was not attended by First Respondent’s
attorney. The
taxed bill of costs were emailed to First
Respondent’s attorneys on 25 May 2022.
[13] Notice of
appeal in both matters were filed and served on all the parties.
None of the Respondents
opposed the appeal.
[14] Third
Respondent cancelled her instruction to Appellant who accordingly at
this stage is the only Appellant,
Third Respondent no longer the
Second Appellant as appears from the notice of appeal but the Third
Respondent.
[15] A reading of
the record and the proceedings in the court
a quo
indicate no
inappropriate conduct by Appellant except performing her duties as an
attorney. There was firstly no basis for
granting a cost order
against Appellant who acted on behalf of her client. What is
even more difficult to understand is on
what basis costs were granted
against Appellant
de bonis propriis
in both the matters.
It was not even an order in terms of the notice of motion.
[16] The warrants of
execution have been stayed as per the orders referred to above.
There is no indication
until when it is to be stayed. It cannot
be stayed indefinitely. It must be pending some further relief
which is to
be sought. The original order was also granted
ex
parte
. There should have been notice to the Respondents.
By not providing reasons for her orders it is impossible to determine
why they were granted rendering them inappropriate.
The orders can accordingly not stand
and the appeals must succeed. The following order is made.
1.
The appeals succeed.
2.
The orders by the court
a quo
dated 31 May 2023 in appeal
AR93/2024 (case number 54/2019) and appeal AR94/2024 (case number
36/2018) are set aside.
3.
First Respondent is ordered to pay the costs of the appeals.
P C BEZUIDENHOUT J.
I agree.
CHITHI J.
JUDGMENT
RESERVED ON:
17
OCTOBER 2025
JUDGMENT
HANDED DOWN ON:
24
OCTOBER 2025
COUNSEL
FOR APPELLANT:
S
MOORE
Instructed
by:
Moore and Associates
Umhlanga
Tel:
010 446 0721
Email:
storm@moore-law.co.za
Ref:
S Moore/O10037
c/o:
Viv Greene Attorneys
Tel:
033 342 2766
Email:
tracy@vglaw.co.za
COUNSEL
FOR RESPONDENTS:
NO
APPEARANCE
Instructed
by:
Sandile Khumalo Incorporated
Ulundi
Tel:
035 870 1882
Ref:
WSZ/111/2017
Email:
info@sandileattorneys.co.za
Precious
Ngcobo
Ulundi
Email:
precious.ngcobopnc@gmail.com