Mnisi and Others v Mawulu Communal Property Association and Others (083533/2023) [2023] ZAGPPHC 1242 (2 November 2023)

 

 

 

 

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 083533/2023

DELETE WHICHEVER IS NOT APPLICABLE

1. REPORTABLE: YES / NO

2. OF INTEREST TO OTHER JUDGE: YES / NO

3. REVISED: YES / NO

 

_______________ ________________________
DATE SIGNATURE

 

 

 

 

 

In the matter between:

HARRIET ELIZABETH MNISI SAMSON SHAKOANE GABRIEL MATHEBULA JETRO MSANGO MARGARET NDLOVU	1st APPELLANT 2nd APPLICANT 3rd APPLICANT 4th APPLICANT 5th APPLICANT
and
MAWULU COMMUNAL PROPERTY ASSOCIATION LUKE BOB MASANGO IRVIN NQOBIZITHA PHENYANE SOLANE MATHE MALOPE JABULILE MATHETHWA MESCHACK MHLANGA GUGILE NKWINTI ZANELE SIHLANGU	1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT 5th RESPONDENT 6th RESPONDENT 7th RESPONDENT 8th RESPONDENT

 

Coram: Le Grange AJ

Heard: 1 November 2023

Delivered: This judgment and order is handed down electronically by circulation to the parties’ representatives by email and uploaded on CaseLines. The date and time for hand-down is deemed to be 13h00 on 2 November 2023.

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ORDER

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It is ordered that: -

 

1. the requirements relating to form, service and time periods, as provided for in the rules, are dispensed with, and that this matter is dealt with as one of urgency;

2. the order granted on 1 September 2023 by Davis J is reconsidered, in terms of Uniform Rule 6(12)(c), and set aside in its entirety and replaced with the following order, to read: -

“The application is dismissed with costs to be paid by the first, third, fourth and fifth applicants jointly and severely, on a scale as between attorney and client, such costs to include the costs of the reconsideration.”

 

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JUDGMENT

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LE GRANGE AJ:

 

1. Before this Court is a sui generis application for reconsideration in terms of Uniform Rule 6(12)(c).

2. The applicants herein fiercely opposed the application on the basis that: - (i) it is not urgent; and (ii) that the matter is functus officio and should therefore be struck from the roll.

3. However, when this rampart fell the whole house of cards came down.

 

Functus officio

4. The applicants’ contention in this regard is wrong due to the provisions of Uniform Rule 6(12)(c).

5. The purpose of the rule is to afford an aggrieved party a mechanism designed to redress imbalances and injustices associated with the order having been granted in its absence. It has also been held that the discretion of the court under the rule is a wide one. The only jurisdictional facts the court is required to consider are whether the order was granted in the absence of the aggrieved party, and whether this was by way of urgent proceedings.1

6. It is undisputed that the respondents were in absence of the urgent application, wherefore this Court (having a wide discretion) may reconsider the application, and by also having regard to further affidavits filed.

 

Urgency

7. What rendered this matter urgent is the fact that there were allegations of material non-service upon the effected parties, as was specifically ordered by, and non-disclosure to Davis J. If that be the case, this court (being the bearer of the judicial authority of the Republic of South Africa) should not hesitate, even for a second, to act expeditiously and swiftly to protect its dignity and integrity.2

8. To this is added the fact that the matter came as one of urgency. A reconsideration thereof would be similarly urgent for various of the same reasons, even now more so as a contempt hangs in a balance.

 

Non-service

9. Following a clear directive from Davis J on 29 August 2023 to serve the urgent application on the second applicant, first respondent, second respondent, third respondent and fifth respondent, the applicants returned on 1 September 2023 with some returns of service.

10. This Court having the privilege of an answering affidavit can find that: - The second applicant and third respondent were all ostensibly ‘served’ with the application at “Barvale Farm”, care of “Rose Mkhonto” a unbeknown person to the parties. The second and fourth respondents predeceased this application. There does not appear to have been any attempt at service on the first respondent or fifth respondent in terms of the directive. As shown in the answering affidavit, the second applicant and fourth respondent do not reside at ‘Barvale Farm’, a fact beknown to the applicants at the time.

11. In the result, this Court finds that there was no effective service, rendering the application effectively ex parte, the requirement which had to be adhered to being trite.3

 

Non- disclosure and the merits

12. The whole application is based upon the allegations that: - (i) the respondents are in fact in contempt for non-compliance with the court order granted in 2017; and (ii) that funds are being misappropriated.

13. The applicants did not just fail to provide any proof of these allegation but also failed to allege substantial objective facts supporting the allegations. To this was added the fact that it is now evident from the undisputed answering affidavit that the order of 2017 has in fact been complied with.

14. Considering the (bare, unaccompanied by any confirmatory affidavit or proof of the serious allegation being made) founding affidavit, in the light of the answering affidavit, afresh, it is clear that the applicant’s case (substantially) lacks substance, objective facts and proof; and is exclusively based upon assertions, hearsay and adjectives. This is further worsened by the (empty) replying affidavit which met the most important and substantial allegations (in the answering affidavit) which were supposed to be contentious, with a mere comment of ‘noticed’ and/or ‘irrelevant’.

 

Costs

15. The applicants are found to be mala fide and should pay the costs on a penalising scale.

 

 

________________________

A J le Grange

Acting Judge

 

APPEARANCES:

For the 1st, 3rd, 4th and 5th applicants: M Muchopa

On instruction of Botha Massyn & Thobejane Associated Attorneys

 

For the 2nd applicant, 3rd, 5th and 6th respondents: G R Egan

On instruction of Murphy Kwape & Maritz Attorneys