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2026
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[2026] ZAMPMBHC 33
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Sibiya v Mavimbela (Reasons) (A77/2024; MRCD-657/2022) [2026] ZAMPMBHC 33 (13 April 2026)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
Appeal no: A77/2024
Aquo Case No.:
MRCD-657/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
DATE
13 APRIL 2026
SIGNATURE
In
the matter between:
SILINDILE
PRISCILLA SIBIYA
APPELLANT
And
BONGANI
MAFFOT MAVIMBELA
RESPONDENT
REASONS FOR THE
JUDGMENT
CORAM
:
Ratshibvumo DJP and Ngwenya AJ
Ngwenya
AJ
[1]
These are our reasons for having struck off
on the 6
th
of June 2025, the Appellant’s application to be released wholly
from paying security for costs in an appeal against the Magistrates’
Court decision dated 01 August 2024, dismissing the Appellant’s
claim for divorce.
[2]
The Appellant’s notice of motion
consisted of Part A and Part B. Part A is the application to be
released from paying security.
We shall refer to this application as
the ‘security application’. Part B is an
application for condonation for
the late noting of the appeal. The
Appellant did not move the latter application. Therefore, our reasons
are confined to the security
application.
[3]
The notice of motion in Part A
reads as follows:
“
PART
A
Security for costs
1. That the Appellant
be released wholly from paying security for costs for the appeal.
2. That the Respondent
be ordered to pay the costs of this application in the event of
opposition.”
[4]
In paragraph 10 of her founding affidavit,
the Appellant relies on Rule 51(4) of the Magistrates’ Court
Rules for the relief
she seeks in the notice of motion.
Paragraph 10 reads as follows:
“
10.
I request the Honourable Court to absolve me from paying security for
costs in terms of rule 51(4) of the Magistrate’s
Court Rules
for the following reasons...”
[5]
The Respondent did not oppose the
application nor the appeal but delivered a notice to abide dated the
24
th
of January 2025 via email on the same day.
[6]
Having prepared and read the contents of
the file, we held a
prima facie
view that we lacked jurisdiction to hear the security application.
Accordingly, at the hearing, Counsel for the Applicant
was invited to
address us on the question of jurisdiction.
[7]
Counsel submitted that we had the necessary
jurisdiction to adjudicate the matter and referred us to Rule 51(4).
However,
he referred us to the provisions of the old Rule 51(4),
which provided as follows:
“
(4)
An appeal shall be noted by the delivery of notice,
and,
unless the Court of appeal shall otherwise order
,
by giving security for the Respondent’s costs of appeal to the
amount of R1 000.00: provided that no security shall
be required
from the State or, unless the court of appeal otherwise orders, from
a person to whom legal aid is rendered by a statutorily
established
Legal aid board.”
[8]
We need to mention that Counsel had not
prepared heads of argument in relation to the security and
condonation applications. He
had prepared heads only for the appeal.
[9]
He seemed taken aback when confronted
with the question of jurisdiction. Nevertheless, he tried his
best to persuade us that
we had jurisdiction.
[10]
In his quest to persuade us, it became
apparent that he was unaware that Rule 51(4) had been amended by
Government Gazette R4476
of 08 March 2024, with effect from 12 April
2024. The amended 51(4) reads as follows:
“
(4)(a)
Unless the respondent waives his or her right to security or
the
court subsequently on application to it has released the appellant
wholly or partially from that obligation
,
the appellant shall, before lodging copies of the record on appeal
with the registrar or clerk of the court, enter good and sufficient
security for the respondent's costs of appeal.
(b)
In the event of failure by the parties to agree on the amount of
security, the registrar or clerk of the court shall fix the
amount
and the appellant shall enter
security
in the amount so fixed or such percentage thereof as the court has
determined, as the case may be: Provided that no security
shall be
required from the State or, unless the court of appeal otherwise
orders, from a person to whom legal aid is rendered by
a statutorily
established legal aid board.
[11]
Once the amended Rule was read to him and
told that ‘Court’ in the subrule is in reference to the
Magistrates’
Court or the Magistrate whose order was being
appealed, he insisted that ‘Court’ means the Court of
Appeal. It
was then put to him by my brother Ratshibvumo DJP
that the legislature would have clearly stated that ‘Court’
meant
the Court of Appeal, as it had done in the previous Rule.
In that regard, my brother referred Counsel to Rule 51(9), which
governs the prosecution of an appeal arising from the Magistrates’
Court. In subrule 9, the Legislature clearly states that
the
prosecution of the appeal shall be dealt with in terms of the Rules
of the ‘Court of Appeal’. Rule 51(9)
reads as
follows:
“
(9)
A party noting an appeal or a cross-appeal shall prosecute the same
within such time as may be prescribed by rule of the court
of appeal
and, in default of such prosecution, the appeal or cross-appeal shall
be deemed to have lapsed, unless the court of appeal
shall see fit to
make an order to the contrary.”
[12]
Whereas ‘Court’ is not defined
in the Magistrates’ Court Rules, the empowering statute, being
the Magistrates’
Court Act, no 32 of 1944, defines
'Court'
as “a magistrate's court for any district or for any
regional division.” (See section 1).
[13]
In Kader v Chix
1958
(4) SA 207
(N), at page 208, the Court, dealing with a similar
application, observed that such applications were rare and that there
was uncertainty
and thus decided to lay down general principles for
future guidance. We quote exactly what the Court said:
“
Applications
such as this one are rare, and the practice in the division has been
uncertain; we think it is desirable to lay down
the following general
rules for future guidance. The Judge President has indicated
his general agreement with them.”
[14]
At the time the above matter was decided,
Rule 47(4) of the Magistrates’ Court Rules was applicable to
the question of security
for costs for appeal, and it provided that
‘an appeal shall be noted by the delivery of notice and, unless
the court of appeal
shall otherwise direct, by giving security for
the Respondent’s costs of appeal in the amount of forty
pounds’.
Rule 47(4) is substantially similar to
Rule 51(4) before its amendment on the 12
th
of April 2024, except that it referred to an amount of forty pounds
instead of R1000.00.
[15]
For certainty, we also deem it necessary to
provide written reasons and to formulate some guidance for future
matters, especially
given that the amended Rule 51(4) differs
entirely from Rule 47(4) and Rule 51(4) in their unamended forms.
[16]
In the
Kader
,
the Court held that the full bench has jurisdiction (meaning the
Court of Appeal) to hear security applications.
[17]
The amended Rule 51(4) has brought about
material changes, and these can be summarised as follows:
17.1
Firstly, the right of the Respondent to waive the need for security
payment is re-established.
17.2
Secondly, it has done away with a predetermined amount of security
and affords parties
an opportunity to agree on an amount which is
considered good and sufficient;
17.3
Thirdly, it has given the Clerk of the District Magistrates’
Court and Registrar
of the Regional Magistrates’ Court (the
court
a quo
), the power to determine security in the event
that the parties do not agree on the amount; and
17.4
Lastly, it has given the District Magistrate’s Court and the
Regional Magistrates’
Court (the court
a quo
), the power
to hear security applications to release an appellant wholly or in
part from paying security.
[18]
In light of the clear provisions of the
amended Rule 51(4), Counsel’s submission that the meaning of
‘Court’ is
in reference to the Court of Appeal cannot be
sustained. The Commentary by
Jones &
Buckle
on what is contemplated in the
amended Rule 51(4), states the following:
“
Sub-rule
4(a)
:
the
court, subsequently on application to it has released the appellant
wholly or in part
. In
terms of this sub-rule, it is the Magistrates’ Court where the
appeal has been noted that can release the appellant,
either wholly
or in part, from putting up security. The court has a
discretion to dispense with the giving of security for
costs of
appeal and will usually do so where the appellant appears in forma
pauperis. It is submitted that the word application
in this
sub-rule means apply on motion as defined in rule 2(1).”
[19]
We trust the following general guidelines
will be helpful in relation to appeals emanating from the
Magistrates’ Court regarding
the question of security for
costs:
19.1
Firstly, parties ought to engage on the possible waiver of the
payment of security
for costs by the Respondent.
19.2
Secondly, parties ought to engage on the amount of security and seek
to reach a consensus.
19.3
Should the engagement referred to above yield no results, they ought
to approach
the Clerk or Registrar of the Magistrates’ Court
which delivered the judgment or ruling sought to be appealed, to
determine
the appropriate amount of security.
19.4
Lastly, and importantly, should a party wish to be released to pay
security, wholly
or in part, or when one of them is dissatisfied with
the amount determined by the Clerk of the Court or the Registrar, as
the case
may be, they must approach the Magistrate whose order is
being appealed, to make a determination on being partially or fully
released,
or the appropriate amount of security for costs.
[20]
Accordingly, the application was struck
from the roll for lack of jurisdiction and no order as to costs was
made.
[21]
DATED
AT
MBOMBELA
ON
10
APRIL 2026
TS Ngwenya
A
cting
Judge of the High Court
Mbombela
(Main Seat)
I agree.
TV Ratshibvumo DJP
Deputy Judge President of
the High Court
Mbombela (Main Seat)
Appearances
For
the Appellant:
Mr TS
Dlamini
Instructed
by Dlamini TS Attorneys
072 094
8432
013 752
2503
info@dlaminiattorneys.co.za
Ref:
For
Respondent:
No
appearance
Date
of hearing:
06
June 2025
Date
of Judgment:
06
June 2025
Reasons
for the Judgment given on:
13
April 2026