McGregor v Crabtree and Others (748/2017) [2018] SZHC 128 (11 June 2018);

 

IN THE HIGH COURT OF SWAZILAND

 

 

JUDGMENT

 

In the matter between:                                                                     Case No.748/2017

 

 

ALAN ALEXANDER McGREGOR                                            Applicant

 

and

 

ROBERT CRABTREE                                                                   1^st Respondent

KRISTOPHER ASHWORTH CRABTREE                              2^nd Respondent

EMILY ANNE CRABTREE                                                         3^rd Respondent

KATIE JANE CRABTREE                                                           4^th Respondent

 

In re:

 

ROBERT CRABTREE                                                                   1^st Applicant

KRISTOPHER ASHWORTH CRABTREE                              2^nd Applicant

EMILY ANNE CRABTREE                                                         3^rd Applicant

KATIE CRABTREE                                                                       4^th Applicant

 

And

 

ALAN ALEXANDER McGREGOR                                            1^st Respondent

SONIA LYNDALL McGREGOR                                                2^nd Respondent

ROSEMARIE KARINE McEWEN                                             3^rd Respondent

RINA DU TOIT                                                                               4^th Respondent

INEZ KATHERINE McGREGOR                                              5^th Respondent

ALEXANDER LYNDALL McGREGOR                                   6^th Respondent

ROBERT WILLIAM ASHWORTH McGREGOR                  7^th Respondent

ALASDAIR ALARIC ASHWORTH McGREGOR                 8^th Respondent

WALTER BENNET                                                                        9^th Respondent

NEDBANK SWAZILAND LIMITED                                         10^th Respondent

MASTER OF THE HIGH COURT                                             11^th Respondent

ATTORNEY GENERAL                                                   12^th Respondent

 

 

Neutral citation:     Alan Alexander McGregor v Robert Crabtree and Others (748/2017) [2018] SZHC  128  (11^th June, 2018)

 

 

 

Coram           :           M. Dlamini J

 

Heard            :           19^th March, 2018

 

Delivered      :           11^th June, 2018

 

 

 

 

Civil procedure          -consolidation of matters does not mean consolidation of issues, it became imperative that a sequence of hearing the matters be decided by the court in terms of Rule 11(c)

 

Recusal                      - the mere knowledge of a litigant cannot disqualify a presiding judge from adjudicating upon a matter and especially so when considering the size of our jurisdiction

 

- Courts of law do not grant orders which are practically impossible to effect and simple logic dictates so as well

 

- a rule nisi is an order directing that the respondents be served in order for them to exercise their right to a hearing

 

 

 

Summary        :          A recusal application is serving before me at the instance of the applicant on the basis, mainly, that following directions and rulings of this court in the main application, the presiding judge is biased against him.  The application is opposed by the respondents on the allegations that the grounds raised do not justify the recusal application.

 

Citation of the parties

 

[1]                   The Notice of Motion reads partly:

 

“BE PLEASED TO TAKE NOTICE THAT the 1^st2^nd, 5^th, 6^th, 7^th, and 8^th Respondents in the above matter intend to make an application to the above Honourable Court on Tuesday the 13^th day of February, 2018 at 09:30 a.m. or so soon thereafter as Counsel may be hear for an Order in the following terms;-

 

TAKE FURTHER NOTICE THAT the Founding Affidavit of ALAN ALEXANDER McGREGOR together with its annexures and the Supporting Affidavits of the 2^n, 5^th, 6^th, 7^th and 8^th Respondents will be used in support of this Application.” (My emphasis)

 

[3]                   The above allegation creates the impression that there are more than one applicants viz., 2^nd, 5^th, 6^th, 7^th and 8^th applicants, to the recusal application.  This view finds further support from the allegation that the 2^nd, 5^th, 6^th, 7^th and 8^th have filed supporting affidavits to the 1^st applicant’s recusal application.    However, on perusal of the recusal application, it contains only the founding affidavit deposed to by the applicant herein.  There are no supporting affidavits by the 2^nd, 5^th, 6^th, 7^th and 8^th applicants except for two confirmatory affidavits deposed to by applicant’s attorneys, Mr. M. Magagula and his assistance Ms. S. Matsebula.  It is for this reason therefore that the court considered that in effect there was only one applicant to this recusal application and for this reason, the applicant is cited alone.  Further, on the basis that Counsel for the applicant in drafting the recusal application, maintained the parties’ citation as they appeared in the main application, the court had to cite them accordingly, for the recusal application to be easily identifiable from the main application following that the same case number had to be used. 

 

                        The Parties

[4]                   The applicant is an adult male who ordinarily resides at 63 Rathfielder Avenue, Constantia, Cape Town, Republic of South Africa.  He is the executor testamentary of the estate late Solveig Crabtree (estate).

 

[5]                   The 1^st respondent is an adult male Swazi, presently residing in Germany and the United Kingdom.  He is not a beneficiary to the estate but is clothed with the power of attorney signed by 2^nd, 3^rd, and 4^th respondents.  The 2^nd, 3^rd and 4^th respondents are the children of the 1^st respondent and beneficiaries to the estate.

 

                        Applicant’s contentions

[6]                   The applicant commenced by giving a narration of the “background” and the “context to the litigation”[1].  It is apposite to point out that under this heading, applicant spent much time proffering his innocence on issues defined in the main application.  One would expect that the applicant would reserve the same for the determination in the main application.  The result is that the recusal application is now unnecessarily burdened.  I shall therefore say nothing further on this sub-heading by applicant.

 

[7]                   The applicant has deposed as follows as a basis culminating to the grounds for recusal:

 

“22.     On 8 December 2017, I was advised by my attorneys at around lunch time that they were informed by Robert Crabtree’s attorneys that Her Ladyship informed them that the consolidated application scheduled or hearing on Monday the 11^th December 2017 will not proceed as earlier arranged and that only Case No. 748/2017 will be heard on the day.

 

23.       I immediately become (sic) worried about this and enquired from my attorneys as to whether the sudden change in the manner the case was to be heard was usual or procedural.  Of particular concern was the fact that my lawyers were informed of this development by Robert Crabtree’s attorneys who had access to information which my lawyers did not have.  I was advised to ignore this because it was not official.

 

24.       At around 5:00pm on the same day I received a call from my Attorney, Mr. Magagula who informed me that he has just been told by Her Ladyship’s Clerk that the hearing scheduled for Monday the 11^th December 2017 will only be in respect of the proceedings under Case No. 748/2017 and that the proceedings under Case Numbers 2006/2016 and 299/2017 were postponed to the next session.

 

25.       I was very disturbed by this development having regard to the fact that once consolidated, the proceedings were to be dealt with as one and Her Ladyship had indeed directed the hearing of the matters as one.  It came as a surprise that Her Ladyship mero motu varied the order she had given on the 18^th October 2017 regarding the hearing of the matter.  No reasons were given for the variation of the order of 18 October 2017.  The latter order was made in open Court and in the presence of all parties affected thereby.

 

26.       Only Robert Crabtree’s attorneys were aware that the hearing of 11 December 2017 was in respect of Case No. 748/17 and that Case Numbers 2006/2016 and 299/2017 were postponed to be dealt with in the next session.

 

27.       .More importantly, it also transpired during the hearing that Mr. Mdladla acting for PSPF was advised by Robert Crabtree’s attorneys that on Friday the 8^th December 2017 they were served with a book of pleadings under Case No. 748/2017 (which they had previously not been served with) by Robert Crabtree’s attorneys and when he enquired why they were being served, he was informed that they got a directive from Her Ladyship that they should be served.

 

28.       This directive to serve the pleadings was not made at a hearing in which the other parties to the proceedings were present.  It is only Robert Crabtree’s attorneys who were aware of the directive.  This directive was not made in the presence of the other parties to the matter.  The order the Court made regarding the hearing of 11 December 2017 was made in open Court in the presence of all the parties.

 

29.       I had a reasonable expectation that anything to do with the consolidate application would be dealt with in open Court and in the presence of all parties involved.  This enables the parties to made representation to the Court regarding any orders it may make regarding the matter, particularly those that are prejudicial to a party.

 

30.       The variation of the consolidation order made by Her Ladyship on 18 October 2017 violated my rights to a fair hearing.  Her Ladyship was keen to complete the proceedings under Case No. 748/2017 than ensuring that all parties were afforded a fair hearing.  For example, my attorneys were preparing for the matter on the basis of the consolidation.  They only became officially aware that the initial order had been varied at the end of the last working day before the hearing.  All attempts to persuade Her Ladyship to hear the matter as originally planned or to have the proceedings postponed to allow me to supplement my case to meet the new situation brought about by the variation of the order, were dismissed by Her Ladyship.” (My emphasis)

 

[8]                   Having deposed the above, applicant under a sub-heading, “Grounds for recusal” then set out to justify his application.  The first point taken for the application is that during the hearing of case number 299/2017, the presiding judge revealed that she “knows quite well some of the Crabtree’s, in particular the lady who was operating a pre-school and her children.”[2]

 

[9]                   A second point taken as evidence of bias which is described by applicant as in favour of the 1^st respondent was that on the day of consolidation, I proceeded to grant a joinder application which “was not served on any of the other parties who are involved in the matter and was not brought as an ex parte application or under a Certificate of Urgency.”   Applicant further deposed on this ground, “Her Ladyship issued a Rule Nisi calling upon the Executor to show cause why Robert’s children should not be joined as parties.”[3]

 

[10]                 The third ground was that I made utterances to the effect that one of the applicants (Rosemary) be represented in the proceedings.  Applicant attested in this regard, “She insisted that someone had to be her representative for her to take cognizance of her affidavit.”[4]

 

[11]                 The fourth ground is stated that in chambers when applicant’s attorney moved the recusal application I became angry and put time lines which were not suitable thereby denying applicant the right to fair hearing.  I also declined applicant the right to have the matter postponed on the 11^th December 2017 but insisted that it be heard the following day.

 

[12]                 The fifth ground is that I granted orders “with far reaching implications for the estate without hearing,”[5] him.  This follows an application by the respondents herein and applicant deposed, “I erroneously paid on the estate transactional account (current account) which was frozen by the Court order dated 16 June, 2017.”[6]  Further, since a recusal application was pending before court, I ought not to have entertained the application for the contempt charges against applicant.  I should have recused myself.  When the contempt of court charges were heard, he had not filed his answering affidavit and therefore he was according to his deposition, judged without being heard.  He attested further that Mr. Walter Bennet “illegally obtained” the information that he paid attorney’s fees from the said account.  Now that this court is privy to illegally obtained information, it is disqualified from hearing the matter.

 

                        Respondents’ au contraire`

[13]                 It is imperative to point out that respondents take the view that on the averments by applicant under the sub-title, “Brief background and context to the litigation” are irrelevant to the present application and that they are challenged by the respondents.

 

[14]                 Respondents aver that a consolidation of the three cases, namely, 2006/2016, 748/2017 and 299/2017 were consolidated by my sister Langwenya J on 15^th September, 2017 following an application brought by the applicant.  Mr. Walter Bennet later moved an application for rescission of the consolidation order which was dismissed on 18^th October, 2017. 

 

[15]                 The respondents further pointed out that despite that applicant made reference to the record of proceedings and made certain quotations, he had failed to file the record of proceedings.  Respondents attorney refuted the applicant’s averments that he advised applicant’s attorney that he received information from the presiding judge or her office that only case number 748/2017 would be heard on 11^th December, 12017.  On the contrary, according to respondents’ counsel, he was advised by Mr. Magagula, applicant’s attorney that “he was dissatisfied that the presiding judge had decided to ‘separate’ the hearing of the matters despite a court order to the effect that they were consolidated.”[7]  Respondent’s attorney further pointed out that on the 10^th December, 2017, he received a call from Mr. Magagula advising him that he had communicated with Mr. Shongwe (one of the attorney serving at respondents’ counsel office).  He obtained such information from Ms. S Matsebula who serves at applicant’s attorney offices following the deponent’s communication with her.  Mr. Vilakati denied ever communicating this information to Ms. S Matsebula.  He attested that the only communication with Ms. Matsebula related to the replying affidavit which was filed late by the respondents. 

 

[16]                 On the merits, the respondents state that the applicant’s application lacks substance.  They point out that a number of orders were made in open court as the matter was enrolled on several occasions on the basis that applicant was failing to comply with an order for discovery.  They further point out that the applicant has misconstrued the meaning behind consolidation.  The respondents have called for dismissal of the application with cost de bonis propriis.

 

                        Legal principles on recusal

[17]                 The world’s famous legal parlance on recusal was eloquently crafted by Lord Hewart[8]  sitting at the King’s Bench in England in 1924 as follows:

“It is…of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done…”

 

[18]                 Corbett CJ [9] propounded:

                                   

“The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person accused before a court of law should have a fair trial.”

 

[19]                 Chaskalson P., Langa DP, Ackermann, J, Kriegler J, Madala J, Makgoro J, O’Regan J, Sach J and Yacoob J[10]  pointed out:

 

“A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before the courts and other tribunals.  This applies, of course, to both criminal and civil cases as well as to quasi-judicial and administrative proceedings.  Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the apprehension of bias in the official or officials who have the power to adjudicate on disputes.”(My emphasis)

 

[20]                 In tackling the question of bias, there is firstly the presumption prescribed by common law that owing to the oath of office associated with their training and experience, judicial officers are impartial in their duties of determining where the truth lie in contradictory evidence presented before them.  In the case of Smith & Whiteway Fisheries[11] the court expressed, firstly by citing Blackstone in Commentaries on the Laws of England III at 361, this position of the law as follows:

 

“ ‘…[t]he law will not suppose possibility of bias in a Judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.’  Thus, reviewing Courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a Judge, in the absence of convincing evidence to that effect.”(My emphasis)

 

[21]     Chaskalson P et al[12] concluded on the above presumption:

 

“The test should be applied on the assumption that a reasonable litigant would take these considerations into account.  A presumption in favour of Judges’ impartiality must therefore be taken into account in deciding whether such a reasonable litigant would have a reasonable apprehension that the judicial officer was or might be biased.”(My emphasis)

 

[22]                 The principle of our law on bias reflects that it is a two-fold objective test.  Firstly, the litigant alleging bias must be reasonable and secondly, the apprehension of bias itself must also be reasonable.  My duties herein therefore are to apply this double objective elements test to the circumstances defined by the present applicant.

 

Determination

 

[23]                 It is appropriate that I commence the interrogation of bias by placing certain circumstances in their perspective.  I do so guided by the record of proceedings as transcribed and notes recorded in the judge’s file and note book.

 

[24]                 On the 16^th October, 2017, an application by one of the beneficiaries to the estate late Solveig Crabtree (Estate), Mr. Walter Bennet interdicting mainly the applicant as executor from transferring 1% of the immovable property to a purchaser, served before me.  This application was under case number 299/17.  The beneficiary, Mr. Walter Bennet was represented by Mr. M Simelane while Mr. M. Magagula represented the executor, applicant herein.  During the course of submissions on behalf of Mr. Bennet, learned Counsel, Mr. M. Simelane, kept on making reference to averments which were said to form part of another file which was not before Court.  I noted this and enquired on why the matters were not consolidated in order for the submissions to flow.  I must pause to point out that a similar trend in submission was observed by me on the 6^th October, 2017 as the matter appeared for the second time on the 16^th October, 2017.  I must further point out that on this date (6^th October, 2017), I pointed out that I knew one of the Crabtrees who was a lady who used to run a pre-school.  At that juncture, Mr. M. Magagula stood up and submitted that what the court why enquiring upon had been suggested by him but Mr. Simelane objected to it.  It was pointed out further that there were more than one files which were not before court but concerned the estate.  These files were identified as case numbers 2006/16 and 748/2017.  On this submission, I ordered that the matter be postponed and that all parties concerned be present on the 18^th October, 2017 for purposes of arguing consolidation of all the matters.

 

[25]                 On the 18^th October, 2017, the parties were present.  Mr. M. Magagula supported the consolidation of the three cases while Mr. M. Simelane objected to it.  At the end, the court ordered that the three matters be consolidated.  Mr. M. Shongwe who appeared for the applicant under case number 748/17 submitted also that pleadings had not closed under case number 748/17.  He further pointed out that there was a pending application to compel discovery under case number 748/2017.  The court then postponed the application for discovery to the 23^rd October, 2017.  The court ordered inter alia that pleadings must have closed under case number 748/2017 and postponed the consolidated matter to 11^th December, 2017.  Parties were put to terms on filing pleadings and to ensure that pleadings ought to have closed by the 11^th December, 2017.

 

[26]                 On the 23^rd October, 2017, Mr. M. Shongwe on behalf of the applicants (who are respondents herein) pressed for the discovery against the applicant herein.  Applicant resisted the application for discovery.  At the end of each Counsel’s submission, the court reserved its ruling to the 27^th October, 2017.  On the return date, Ms. S. Matsebula appeared and applied that the matter be postponed as Mr. M. Magagula was indisposed.  The court granted the postponement to 31^st October, 2017.  On the 31^st October, 2017, the applicant together with the Master of the High Court as 11^th respondent were ordered to comply with discovery notice not later than the 3^rd November, 2017 and Robert Crabtree to file a reply, if so inclined by 9^th November, 2017.

 

[27]                 On 23^rd November, 2017, Mr. M. Shongwe on behalf of 2^nd to 4^th respondents lodged an ex parte application for joinder.  I granted the application and it was returnable on 8^th December, 2017. 

 

[28]                 On 4^th December, 2017, case number 748/2017 was set down by Robert Crabtree’s Counsel, Mr. M. Vilakati.  Mr. M. Magagula appeared on behalf of the applicant.  Mr. Vilakati decried applicant’s counsel’s failure to discover, despite an order by this court on 31^st October, 2017.  I once again impressed on Mr. M. Magagula to comply with the order for discovery.  Mr. M. Magagula applied to supplement applicant’s pleadings under case no. 748/2017.  Mr. M. Vilakati made a similar application following that discovery was yet to be made.  I granted both parties leave to supplement their pleadings. 

 

[29]                 On the return date of the joinder application, namely 8^th December, 2017, Mr. M. Shongwe appeared and prayed that the rule nisi be confirmed.  Having satisfied myself that there was service of the rule nisi upon the parties and that there was no opposition filed, I confirmed the rule on joinder. 

 

[30]                 On the 11^th December, 2017, a date set for the merits to be argued, Mr. M. Magagula submitted that he was objecting to having case number 748/2017 heard first following a directive of the court to that effect.  The court after hearing both Counsel, ruled in favour of Mr. Magagula who applied that all the parties to the case be present.  The matter was adjourned to the afternoon in order to allow the parties to be present.

 

[31]                 In the afternoon of 11^th December, 2017 the composition of the court did not change.  In other words, the parties did not turn up.  Advocate Kuny commenced his submission on the merits under case number 748/2017.  The submission by Senior Counsel proceeded until well after 5:00p.m.  Owing to time, Mr. M. Magagula could not commence his submission.  The court indicated that the matter was adjourned to the following day as it had so indicated while all Counsel were in chambers after having pointed out that case number 748/2017 appeared to be lengthy and due to the shortage of court rooms it was likely that it might not commence on time and therefore a postponement to the next day might be necessary.  Mr. Magagula objected to a postponement to the next day although he had not done so when the question on the postponement to the following day was first mooted by the court in chambers that morning.  He pointed out that he had scheduled a meeting with another client.  On the well-established rule of procedure that courts take precedence and that the court had informed Counsel that the matter is likely to be postponed in advance without any objection by Counsel in chambers, the court ruled against Mr. Magagula’s application.  The matter was adjourned to the following day, 12^th December, 2017.

 

[32]                 On the 12^th December, 2017, Mr. Magagula moved a recusal application. The application as per procedure commenced in chambers and moved to the open court for setting of filling dates.

                       

 

The lady who ran a pre-school

 

[33]                 The first point raised by the applicant appears to border on actual bias.  Applicant stated that following that I knew “quite well some of the Crabtree’s, in particular the lady who was operating a pre-school and her children.”[13]

 

[34]                 I must repeat what I said when the matter was mentioned for my attention on the Friday contested roll.  I said that I knew one of the Crabtrees who was a lady who used to run a pre-school.  I mentioned this in an open Court in the presence of both Counsel, viz., Mr. M. Simelane who was on the floor and Mr. M Magagula.  None of the parties registered an objection. The date was the 6^th October, 2017 and this was under case number 299/2017.  I must also point out that from the onset, when Mr. Simelane was advancing his client’s case under case number 299/2017, he kept on referring to facts alleged in another case which was not enrolled before me.  On the 6^th October, 2017 the case was adjourned for Mr. M. Simelane who was representing the applicant therein to complete his submissions to the 16^th October, 2017.  As pointed out above, on this date, Mr. Simelane on his submission repeatedly pointed at depositions which were made in other case numbers.  It is then that I suggested that the cases should be consolidated.  Mr. Magagula stood up to support the court’s view on consolidation. 

 

[35]                 Bearing in mind that: (1) the consolidation was intimated by the presiding judge and supported by the applicant on 16^th October, 2017; (2) that by this date (16^th October, 2017) case number 748/2017 was already registered and an answering affidavit by applicant already filed from the office of Mr. Magagula.  In other words, Mr. Magagula had full instructions under case number 748/2017. (3) Mr. Magagula, presumably his client was fully aware that I knew one of the Crabtrees who was a lady who used to run a pre-school; (4) On 18^th October, 2017 when all the parties were present and the consolidated application debated, applicant supported the consolidation as he had done on the 16^th of October, 2017; (5) Case number 748/2017 appeared several times before the hearing date of 11^th December, 2017 on preliminary procedural issues; (6) Mr. Simelane under case number 299/2017 submitted at length both on 6^th October, 2017 and 16^th October, 2017 (7)  Case number 748/2017 was called on 11^th December, 2017 for hearing on the merits first in the morning where applicant raised an objection different from this ground on recusal and in the afternoon where respondents’ counsel submitted on the merits to the end. (8) The matter had to be postponed to the following day following that time did not allow applicant’s attorney to commence his submission; one wonders why this ground on the knowledge of the lady who ran a pre-school was left to the day upon which applicant was to submit on the merits.

 

[36]                 A reasonable litigant would have been expected that if indeed the information conveyed by the court on the very first day of the estate’s case (6^th October, 2017) to the effect that the presiding judge knew one of the Crabtrees raised reasonable prospect of bias, would have stood up at that point to submit that the court ought to recuse itself on the basis that case number 748/2017 involved Robert Crabtree.  At any rate all the three cases viz., number 2006/2016; 299/2017 and 748/2017 involves the Crabtrees, albeit some having assumed their marital surnames.  Instead, the opposite was demonstrated by the applicant.  It supported the court’s view that the three cases ought to be consolidated in the light of the information conveyed by the court. In fact, when the court intimated that the matters should be consolidated, applicant’s attorney submitted that he had from the onset pointed this out to Mr. Simelane who however, objected to this procedure.  Why allow counsel under case number 299/2017 to proceed with its submission for almost two days without noting the recusal? Why again allow senior counsel to proceed with submissions to the end under case number 748/2017?   Why wait until it is the applicant’s turn to submit on the merits then a recusal is moved based on allegations which were known from the onset on the matters?  Maybe the answer is found in respondents’ assertion that the recusal application is nothing else but an application for a postponement through the back door.

 

[37]                 Applicant addressed the above questions by pointing out that at the time the court revealed that it knew the lady who used to run a pre-school, there was no question of consolidation and that at that time, “Case No. 299/2017 did not involve Robert Crabtree or his children.  It involved the Crabtree estate.”[14]

 

[38]                 What the applicant fails to divulge is that the consolidation was intimated by the court on the second day of hearing of the Case No. 299/2017.  It was further supported throughout the proceedings by the applicant.  Worse still, Case No. 299/2017 is a challenge to the liquidation and distribution account filed by applicant.  It therefore concerns the interest of beneficiaries some of which are the Crabtrees.  At any rate to say it involves the “Crabtree estate” makes absolutely no difference when one is enquiring why the recusal was not made during the consolidation of the matters.  In fact to assert that it involves the “Crabtree estate”, is a good reason to apply for a recusal if at all the information that the presiding officer knew one of the Crabtrees raised a reasonable apprehension for bias.  

 

[39]                 From the above turn of events, it is my considered view that the information that the presiding officer knew the lady who used to run a pre-school could not have reasonably raised a reasonable apprehension of bias for the reason that the knowledge of the lady who ran a pre-school was correctly understood by the parties to the effect that it was a general knowledge, attracting know special relationship.  This position of general knowledge is demonstrated by the applicant as he deposed:

 

“Sometime after this hearing (not clear which is this hearing), Mr. Magagula enquired as to who operated the pre-school among the Crabtrees and who were her children.  He told me that Her Ladyship had stated that she knows very well the lady that operated the pre-school and her children.  I informed him that the lady referred to by Her Ladyship was Gilly Marwood who was Robert Crabtree’s partner and the mother of his children, and the children she was referring to were Robert’s children, Kristopher, Emily and Katie who are parties under Case No. 748/2017.”

 

[40]                 Surely, if the assertion that I knew “very well”  the lady who used to run the pre-school and her children is anything to go by, there would have been no need for Mr. Magagula to enquire from the applicant who exactly these people were.  I would simply have mentioned her by name.  What is puzzling in this matter is that applicant was able to transcribe the record but failed to provide a transcript of the 6^th October, 2017 where these allegation of knowing the lady and her children “very well” was made by the court.  Although he refers to the record, he failed to attach it.  The reason for this failure is not far except that it would reveal exactly what was said on that day and that it was understood by the applicant in a way that did not warrant a recusal application as he so demonstrated by allowing the matters to proceed without any such application except when he was called to submit on the merits.  His understanding then was in accordance with a reasonable litigant following that there was no reasonable apprehension of bias.

 

[41]                 I might add further that this lady who used to run the pre-school is not a litigant in any of the three consolidated cases herein.  She is further not a beneficiary in the estate under issue in the consolidated cases.  Her remoteness therefore does not only pertain to the knowledge by the presiding judge but also in terms of the litigation of the consolidated matters.  These are the factors which rightly influenced the applicant herein not to apply for a recusal at the relevant time.

 

[42]                 It is apposite to end by reference to Hlophe J[15]: “[T]he mere fact that a decision-maker is a member of the SPCA does not disqualify him from adjudicating upon a matter involving alleged cruelty to animals.” I might add that so is the mere knowledge of a litigant.  If therefore, the mere knowledge of a litigant cannot disqualify a presiding judge from adjudicating upon a matter and especially so when considering the size of our jurisdiction, how much more where the person is not a litigant.  I have already pointed out that in the case at hand, the lady who ran a pre-school is neither a litigant to the consolidated matters nor a beneficiary to the estate.  Chaskalson P. et al[16] expressed:

 

“An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for such an application.  The apprehension of a reasonable person must be assessed in light of the true facts as they emerged at the hearing of the application.  It follows that incorrect facts which were taken into account by an applicant must be ignored in applying the test,”

 

                       

Consolidation and hearing on 11^th December, 2017

 

[43]                 Rule 11 of the High Court Rules provides:

 

“Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon –

 

1. The said actions shall proceed as one action:
2. The provisions of rule 10 shall mutatis mutandis apply with regard to the action so consolidated; and
3. The court may make any order which to it seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.”

 

[44]                 Adjudicating on the South African Rule on consolidation which is pari materia to our Rule 11 above, Wright J[17] observed:

 

“Rule 11 of the Uniform Rules of Court does not make provision for consolidation of issues, but only for consolidation of actions.”

 

[45]                 Although the rule refers to consolidation of actions, it also applies with equal force to application matters.  The rationale behind consolidation of matters is for convenience.  Circumstances that may support convenience are usually reduction of costs and expeditious litigation.  This position of the law was clarified on the 18^th October, 2017, the date of consolidation.  The transcribed record reads:

 

Mr. Nkomonde:       I think it is a reasonable speculation in the circumstances.  My suggestion would be for expediency her Ladyship in spite of the fact that 2006 has been allocated to Judge Maseko.  May we have a hearing of one case at a time and have a judgment in respect of one case at a time.  That would obviate the cumbersome process of filing an appeal in a judgment that involves diverse interests and you may find that My Lady would issue a judgment that would have diverse consequences to the parties.  So in the circumstances I would say that would be the most prudent thing to do if Her Ladyship is interested to hear all the matters.

 

Judge   :                     So if I am inclined to hear all the matters then what should I do; each case should have its own judgment?

 

Mr. Nkomonde:         Yes

 

Judge :                       What is the difference? Is it that it is a separate paper?

 

Mr. Nkomonde:         It is the legal interest.

 

Judge :                       But wouldn’t I have to deal with one case at a time?

 

                        Mr. Nkomonde:         It would be able to go on appeal on different occasion.

 

Judge:                        This is the piece meal that Mr. Magagula and Ms. Nsimbini is talking about costing the estate because in matters of estate it is the estate that pays.  This is a very wealthy estate and I think the Court must make sure that the interest of the estate are protected.

 

[46]                 It is common cause that all three cases viz., case no. 299/2017; 2006/2016 and 748/2017 pertained to the estate of the late Solveig Crabtree.  Case No. 299/2017 challenged the second liquidation and distribution account filed by the applicant.  Case No. 2006/2017 was to interdict a sale of shares and transfers of immovable properties belonging to the estate.  Case no. 748/2017 was for the removal of applicant as the executor testamentary.

 

[47]                 Now from the principle of our law that consolidation of matters does not mean consolidation of issues, it became imperative that a sequence of hearing the matters be decided by the court in terms of Rule 11(c).  This point was clear on the 18^th October, 2017 when the consolidation was argued by the parties as I have so cited from the record, viz., “But wouldn’t I have to deal with one case at a time?”  On the 8^th December, 2017, I directed the assistant registrar to advise the parties that on the 12^th December, 2017 a date due for hearing of the matters so consolidated, only Case No. 748/2017 shall proceed.  It is clear that the registrar duly carried out the directive.  On the 12^th December, 2017 Mr. Magagula who appears on behalf of the executor appeared in court and objected to the procedure by the court.  The respondents’ counsel opposed the objection.  The court, having considered the matter decided to grant applicant’s application which was that all the parties must be present in court. I must point out that when I granted Mr. Magagula the application, I did so out of abundance of caution following that the court had issued the directive without the input of the parties concerned.  I must point out further that on the 18^th October, 2017, the date of consolidation, Counsel on behalf of the parties in the respective applications stood up to submit that they were instructed in terms of the respective cases.  None of the parties joined issue when the matters were consolidated.  It is no wonder therefore that after the adjournment to allow the parties to appear in court, the composition of the court was still the same except for Mr. Mdladla who appeared to object to the procedure without advancing any prejudice and complained on why he was served with case number 748/2017.  At any rate Mr. Mdladla’s client had not joined any issue in terms of Rule 10 which provides for parties to join issues.  Case No. 748/2017 therefore proceeded on its merits.

 

[48]                 In the present recusal application, applicant takes issue that the court having ordered consolidation then separated the matters by directing that 748/2017 be heard alone on the 11^th December, 2017.  This is evidence of bias.  I have already referred to authority to the effect that consolidation of matters does not mean consolidation of issues.  If I may, for purposes of emphasis, refer to Erasmus[18] on the rule on consolidation, “The rule makes provision for the consolidation of actions, not for the consolidation of issues.” The issues under the consolidated cases remained therefore to be dealt separately.

 

[49]                 What is disturbing however, in applicant’s averments supporting bias with regard to hearing case number 748/2017 is that he failed to depose to the events of the morning of 11^th December, 2017.  He did not reveal that in the morning he applied that the parties to the two other matters be present and the court granted him that prayer.  He however chose to depose;

 

“All attempts to persuade Her Ladyship to hear the matter as originally planned or to have the proceedings postponed to allow me to supplement my case to meet the new situation brought about by the variation of the order, were dismissed by Her Ladyship.”

 

[50]                 I must clarify that in the morning of 11^th December, 2017 the bone of contention by the applicant was that the other parties were not before court for the consolidated matters to be heard simultaneously and that that the matter should therefore be stood down for their attendance. This application which was strenuously resisted by the respondents, was granted as the matter was stood down to the afternoon for the other parties to be in attendance.  It is therefore completely incorrect that applicant’s application was dismissed.

 

[51]                 Further, for applicant to say that he applied for a postponement in order to supplement his papers defeats all logic.  I have already indicated that on 4^th December, 2017 when respondents’ attorney set down the matter to complain that applicant was failing to comply with the court order of 31^st October, 2017 for discovery, applicant applied to supplement his pleadings and he was granted that order.  In other words, by the 11^th December, 2017, applicant had in his favour an order to supplement his pleadings.  Why then raise a prayer which was granted prior?  I must point out that by the 12^th December, 2017, however, applicant had not filed any supplementary pleadings.  He chose not to exercise his rights given on a silver platter.  He now contends that the court must recuse itself for his own slackness.   This is contrary to the dictates of justice.

 

[52]                 There is another point to this ground for recusal as submitted by respondents.  It is that applicant asserts that having received the communication that only case no. 748/2017 shall proceed on the 12^th December, 2017 he was denied his right to fair hearing because he was preparing for all three cases.  Surely, common sense suggests that this is a contradiction in terms.  I would understand if applicant was complaining that the court had all along directed that only case number 748/2017 would proceed on the 12^th December, 2017 but on the 8^th December, 2017 changed its directive to say all three cases would proceed.  This of course would greatly prejudice the applicant.  But where a litigant is prepared to argue three cases and is directed to concentrate on one of the three, it is totally untenable to argue that this was a violation of its right to a fair hearing as it could not prepare for one case but could prepare for three cases to be argued simultaneously.  This argument flies at the very face of the applicant as it is completely flawed and absurd. 

 

[53]                 One wonders how applicant had hoped to argue three cases each with distinct issues simultaneously as he so submitted on the morning of 11^th December, 2017.  Courts of law do not grant orders which are practically impossible to effect and simple logic dictates so as well.

 

[54]                 The next point raised by applicant is that the presiding judge made communications to the applicant’s attorney on the case without his presence.  The respondent’s attorney was privy to information which he was not as the court communicated to him alone.  I have highlighted applicant’s repeated allegation in this regard under paragraph 7 of this judgment.  This allegation which is without any evidence to back it up is a paradox considering that applicant described himself as a respected member of society.  It ought to have been obvious to applicant that this court could not be privy to communication between his attorney and the respondents’ counsel.  Why throw it at the door step of the presiding judge without any evidence in support?  It is not clear.  It obviously smack of derogation against the office of the presiding officer.  I do not wish to stoop low. My integrity is vital and the oath of office I took to discharge justice without fear or favour shall forever be fresh in my mind.  I shall for purposes of this application consider such allegation as incorrect and thereby take leaf from his Lordships Chaskalson P et al wise guidance as outlined in paragraph 42 herein above that, “It follows that incorrect facts which were taken into account by an applicant must be ignored in applying the test,”

 

[55]                 It remains for me to point out that at his para 24, applicant attested:

 

“Only Robert Crabtree’s attorneys were aware that the hearing of 11 December 2017 was in respect of Case No. 748/17 and that Case Numbers 2006/2016 and 299/2017 were postponed to be dealt with in the next session.”

 

[56]                 From the above, applicant creates the impression that the communication on the hearing of case number 748/2017 was only communicated to the respondents attorney and he only received the same from respondents’ attorney. However, immediately having stated so, he deposed:

 

“At around 5:00pm on the same day I received a call from my Attorney, Mr. Magagula who informed me that he has just been told by Her Ladyship’s Clerk that the hearing scheduled for Monday the 11^th December 2017 will only be in respect of the proceedings under Case No. 748/2017 and that the proceedings under Case Numbers 2006/2016 and 299/2017 were postponed to the next session.”

 

[57]                 From the above, it is clear that the applicant was advised by the court on the procedure to be followed on the 11^th December, 2017 as procedurally the court communicates with litigants and their attorneys through the registrar whose subordinates are the clerks of court.  This contradiction on applicant’s own founding affidavit is evidence, with due respect, that applicant is merely raising a storm in a teacup.

                        Joinder

[58]                 It is alleged that I granted a joinder application that was not served upon the applicant.  I have already highlighted above that on 23^rd November, 2017, 1^st respondent’s attorney moved an ex parte application for joinder of 2^nd to 4^th respondents.  This application was granted with a rule nisi returnable on the 8^th December, 2017.  Obvious a rule nisi is an order directing that the respondents be served in order for them to exercise their right to a hearing.  Applicant was a respondent.  An entry on the file bears testimony to this.  Why this court is accused of not granting the applicant a right to be heard in the joinder application on the face of a rule nisi granted by this very court pursuant to an ex parte application?   It is not clear again except that the allegation is contrary to the facts on the ground and therefore remain to be thrown out of the window root and branch. 

 

[59]                 On the return date of 8^th December, 2017 there was no opposition filed to the joinder and therefore upon application by 2^nd to 4^th respondents’ attorney that the rule be confirmed, the court granted the same.   There was no issue on this as (a) the applicant on the 11^th December, 2017 did not raise it with the court that it was not served with joinder application. In fact, the transcribed record reflects more than once submissions by the respondents’ counsel that all parties were served with the pleadings under case no. 748/2017 which was serving before court on the 11^th December, 2017 after the court mero motu enquired from the respondents’ attorney if all the parties were served.   This was meant to point out to the applicant who was contending that the other parties were not before court because the court had directed so.  I must clarify again that the court did not order that parties should not attend court.  All it did was to instruct the registrar to advise all the parties that the court would deal with case number 748/2017 on the 11^th December, 2017.  If they were not present, it was because they were not interested in case number 748/2017.  After all, they had not joined issue as I have already pointed out.  (b) It is raised for the first time in the written application for recusal (c)  As soon as the matter was called by the assistant registrar, counsel for the respondent Advocate Kuny, stood up to state that he was representing 1^st to 4^th respondents.  So, if the allegation to the joinder was genuine that applicant was never served with the application for joinder, applicant’s attorney would have stood up then to enquire on who were 2^nd to 4^th respondents.  He did not.  In fact he allowed Mr. Kuny to argue the merits of the application on removal of the executor to the end on behalf of the 1^st to 4^th respondents, including 3^rd respondent therein who had joined issue.  I have pointed out above that having satisfied myself that the applicant was served with the joinder application and there being no opposition, I granted 2^nd to 4^th respondents’ prayer for the rule nisi to be confirmed.  With due respect, on the basis of the above, applicant is clutching at straws.

 

                        Comments on 3^rd respondent’s affidavit

 

[60]                 In advancing this ground for recusal, applicant deposed:

 

“Far more that (sic) your ow Founding Affidavit and I need an attorney for her because she states damning allegations more that (sic) your main applicants (sic).  We need clarity on this one.  She can’t just bring an affidavit and decide to take an arm chair and play a backseat.  She has to come and advance her case and make submissions so that we can see that this is serious otherwise how does the Court then make a determination on averments where the party is not before court or should I not consider her.”

 

[61]                 It is very unfortunate that applicant did not transcribe the record where the above extract was taken.  This court is left to rely on the citation by the applicant which cannot be verified because of lack of transcription despite that applicant deposed that the cited extract is from the transcription which he further averred to have attached.  It remains for me to put the point on the 3^rd respondent’s (in the main application) affidavit into perspective.

 

[62]                 When the matter resumed in the afternoon of 11^th December, 2017, both Counsel stood up to register their representation.  There was no representation on behalf of 3^rd respondent in the main application who had by then filed an application joining issue with the respondents herein.  The court enquired as to whether there was any representation.  No one stood up.  The court then pointed out that it would not consider the 3^rd respondent’s application and more particularly the affidavit filed because it would not allow a litigant to file papers in court and fail to come and argue its matter.  Any party who wished to have a determination on a matter ought to appear to defend that matter.  In brief, the court was conveying to the parties before court, more particularly to the applicant’s attorney that in addressing the court it should consider that the affidavit filed by the 3^rd respondent is not admitted and therefore is as good as not being there.  I pointed out that the court would not allow a litigant that makes damning allegations against another to take an armchair position and then hope that the court would consider its case.  Any party that wished to have its matter adjudicated upon should appear in court and advance its case more particularly when it has advanced more damning allegations against the applicant.  I made it clear that I would not consider the 3^rd respondent to be a party to the proceedings.  This was well understood by applicant as demonstrated by him in his founding affidavit herein as he averred:

 

“She insisted that someone had to be here representative for her to take cognizance of her affidavit.”[19]

 

[63]                 Applicant did not object to this view by the court.  He raised an objection for the first time under the present application.  Why? The answer is very clear.  It is because the position taken by the court to reject 3^rd respondent’s affidavit favoured him.  Again a court mero motu rejects an affidavit which contains damning averments against the applicant, but at the end, the very applicant calls for a recusal and cites the court as biased against him for not allowing applicant’s opponent to litigate across the fence as it were.  This certainly cannot be a ground for recusal at the instance of the applicant.

 

 

                        Sitting on contempt of court proceedings

 

[64]                 On the 11^th December, 2017, just before the matter was adjourned, Mr. Kuny on behalf of the respondents applied that the applicant be held in contempt following that there was evidence to the effect that applicant was in violation of a court order granted in June 2017.  Mr. Kuny submitted that the respondents have been informed that applicant has made out withdrawals from the estate’s account to pay for its litigation costs to his present attorney contrary to the order of June 2017.  I quickly pointed out that I would not entertain such prayers without a written application serving before this court.

 

[65]                 On the 19^th December, 2017 an application at the instance of the 1^st to the 4^th respondents served before me for the following prayers, among others:

 

“3.       Directing that a rule nisi do hereby issued calling upon Respondents to show cause on a date to be determined by this Court why the rule as follows should not be made final:

 

3.1       That the first and the Tenth Respondents be held to be in contempt of the Honourable Court Order dated 6^th June, 2017;

 

3.2       That the First and Tenth respondents be committed to goal for contempt of court for 30 days or until such time the contempt is purges fully.”

 

[66]                 When the matter resumed before me, applicant herein was represented by Mr. S.K. Dlamini from the office of Magagula & Hlophe Attorneys.  Mr. S.K. Dlamini submitted that this court was facing a recusal application and therefore ought to recuse itself from the application serving before it.  I declined to grant applicant’s prayer in that regard.  I pointed out that in as much as case number 748/2017 was adjourned for a recusal application, there was on the 19^th December, 2017 no recusal application filed as yet by the applicant.  Further, it would be folly to recuse myself from a different application without any determination and finding made for the would be recusal application under case no. 748.2017.  I pointed out that to recuse myself in the present matter would be tantamount to acceding to the would be recusal application before any adjudication on it is made. 

 

[67]                 On that note, Mr. S.K. Dlamini then submitted on the merits of the case:

 

“I shall advise my client that there is a court order in respect of account number 020000561518 and therefore no transaction should take place.”

 

[68]                 On the above undertaking on behalf of applicant the court then entered the following orders:

 

“The 1^st respondent (applicant herein) is ordered once more according to its undertaking today and the court order herein.  And there being no representation for 10^th respondent, the 10^th respondent is once again ordered to comply with the court order dated 6^th July, 2017 and 10^th Respondent is ordered to pay much attention to the effect of freezing account number 020000561518 i.e. all monies belonging to the Estate Late Solveig Crabtree inclusive of monies in terms of the Master’s directive as per correspondence dated 7^th July 2016 i.e. proceeds of sale yielding E28m be deposited into account 020000561518.

Applicants’ application is hereby removed to be re-set upon date by either party.”

 

[69]                 On the basis of the above order, applicant deposed:

 

“Another instance in which Her Ladyship denied me my right to be heard exhibited bias against me and plainly demonstrated that she already harbours adverse views about me is when she granted an order with far reaching implications for the estate without hearing me and without an application in support of those orders.”[20]

 

[70]                 From the above orders, it is clear that the court did not do anything except to order that applicant was bound by his own undertaking of the date of hearing, to comply with the order of June, 2017.  The court did not even grant the rule nisi prayed for by the applicant. Instead, it removed the application for a rule nisi on contempt and committal to goal of the applicant.  It pointed out that any party wishing to have the matter deliberated upon may do so by setting it down.  So if applicant wished to say anything on the application by the respondents, applicant was granted the liberty to set the matter down and ventilate the issues.  No adverse order was made at all by the court against the applicant who chose to depose that, “Her Ladyship harbours adverse views about me.” [21] Again a clear evidence of applicant clutching at straws.

 

Costs

[71]                 The general position of the law is that in estate matters, litigation costs are ordered against the estate.  However, there is an exception to every general position of the law.              Innes CJ[22] citing Portgieter’s case [1908] TS stated:

 

“[A] general rule was formulated to the effect that in order to justify a personal order for costs against a litigant occupying a fiduciary capacity his conduct in connection with the litigation in question must have been mala fide, negligent or unreasonable.”

 

 

[72]                 The court as per Innes CJ referred to the case of Standard Bank v Jacobsohn’s Trustee (16 SC 352) on the question of unreasonableness to ascertain whether the trustee’s case was “hopeless”.

 

[73]                 In advancing for cost de bonis propriis, Mr. Kuny on behalf of the respondents pointed out that the applicant’s case lacked any merits.  I agree.  I have demonstrated above how applicant took every swipe against the presiding officers even on orders that favoured him.  He opted not to divulge certain facts which transpired in his favour in some instances.  He drew incorrect conclusions on simple orders of this court.  At the end, his application was without any basis both in law and fact.  Respondents’ attorney pointed out that prior to coming to court on the 11^th December, 2017, applicant had indicated that he would seek a postponement.  He then submitted that the recusal application was nothing else but a concealed postponement by the applicant.  The determination in this judgment seems to find support for this view by Mr. Kuny.  I see no reason why I should deviate from the ratio decidendi by Innes CJ[23] which has been applied in many cases.[24]  No contrary submission was advanced at the instance of applicant except that applicant was not praying for a cost order.

 

 

[74]                 In the result, I enter the following orders:

 

1. Applicant’s application is hereby dismissed;

 

 

1. Applicant is ordered to pay costs de bonis propriis including costs of Senior Counsel in terms of Rule 68 of this court’s Rules;

 

1. The main matter is postponed to 29^th June, 2018 for setting of a hearing date.

 

 

 

 

 

 

•  

M. DLAMINI J

 

 

 

 

For the applicant      :           Mr. M. Magagula of Magagula & Hlophe Attorneys

For respondents        :            Advocate S. Kuny instructed by Makhosi C. Vilakati Attorneys in Association with RJS Perry Attorneys and assisted by M.C. Vilakati.