Dups Holdings (Pty) Ltd and Others v Walter Bennett and Others (748/2017) [2018] SZHC 130 (15 June 2018);

Search Summary: 

The applicants by means of a certificate of urgency seek for a declaratory order over an order by this court for consolidation of three cases as a breach of their rights to a fair hearing and that the consolidated matters commence de novo as separate.  The applicants’ application is tenaciously opposed on the ground that it is without any merits.

 

IN THE HIGH COURT OF SWAZILAND

 

 

JUDGMENT

 

In the matter between:                                                                     Case No.2006/2016

 

 

DUPS HOLDINGS (PTY) LTD                                                    1st Applicant

T1 PROPERTY (PTY) LTD                                                          2nd Applicant

T2 PROPERTY (PTY) LTD                                                          3rd Applicant

 

And

 

WALTER BENNETT                                                                     1st Respondent

ALAN ALEXANDER McGREGOR                                            2nd Respondent

SWAZILAND COMPETITION COMMISSION                     3rd Respondent

REGISTRAR OF COMPANIES                                      4th Respondent

THE MASTER OF THE HIGH COURT                                    5th Respondent

THE REGISTRAR OF DEEDS                                                    6th Respondent

THE ATTORNEY GENERAL                                                     7th Respondent

THE SWAZILAND DEVELOPMENT AND SAVINGS

BANK                                                                                                8th Respondent

SONIA McGREGOR                                                                     9th Respondent

PUBLIC SERVICE PENSION FUND                                         10th Respondent

THE LAND MANAGEMENT BOARD                          11th Respondent

CHRISTOPHER CRABTREE                                                     12th Respondent

KATIE CRABTREE                                                                       13th Respondent

EMILY CRABTREE                                                                      14th Respondent

 

In re:

 

WALTER BENNETT                                                                     Applicant

 

And

 

ALAN ALEXANDER McGREGOR                                            1st Respondent

DUPS HOLDINGS (PTY) LTD                                                    2nd Respondent

SWAZILAND COMPETITION COMMISSION                     3rd Respondent

REGISTRAR OF COMPANIES                                      4th Respondent

THE MASTER OF THE HIGH COURT                                    5th Respondent

THE REGISTRAR OF DEEDS                                                    6th Respondent

THE ATTORNEY GENERAL                                                     7th Respondent

T1 PROPERTY (PTY) LTD                                                          8th Respondent

T2 PROPERTY (PTY) LTD                                                          9th Respondent

THE SWAZILAND DEVELOPMENT AND SAVINGS

BANK                                                                                                10th Respondent

SONIA McGREGOR                                                                     11th Respondent

PUBLIC SERVICE PENSION FUND                                         12th Respondent

THE LAND MANAGEMENT BOARD                          13th Respondent

 

 

Neutral citation:     Dups Holdings (Pty) Ltd and Others v Walter Bennett and Others (748/2017) [2018] SZHC 130 (15th June, 2018)

 

 

 

Coram           :           M. Dlamini J

 

Heard            :           29th May, 2018

 

Delivered      :           15th June, 2018

 

 

 

Civil procedure           - The whole machinery of justice cannot grind to a halt just because attorneys decide to double book themselves and later turn around to demand that the presiding judge recuses herself from the matter by asserting that it was a “coincidence” that they had booked themselves with doctors on the same hearing date.

 

Consolidation           - there is nothing amiss about consolidation of applications as well

 

  • Actions = consolidation (Rule 11)

                                           Issues = joinder of parties (Rule 10)

 

 

 

Summary       :           The applicants by means of a certificate of urgency seek for a declaratory order over an order by this court for consolidation of three cases as a breach of their rights to a fair hearing and that the consolidated matters commence de novo as separate.  The applicants’ application is tenaciously opposed on the ground that it is without any merits.

 

                        The Parties

 

[1]                    It suffices to describe the applicants as companies duly registered in terms of the company laws of the Kingdom.  The 1st applicant is the purchaser of 2nd and 3rd applicants from the estate late Solveig Crabtree where 2nd respondent is the executor.  This sale transaction is a subject of litigation in the main application lodged by Mr. Walter Bennett herein under case no. 299/2017.

 

[2]                   12th to 14th respondents who are opposed to the present application are the beneficiaries of the estate late Solveig Crabtree.  They are represented by the deponent to the opposing affidavit following a power of attorney.

 

                        Applicants’ prayers

 

[3]                   The applicants’ main prayers read:

 

                          “3)                 Declaring that the conduct of the proceedings by the Honourable Judge of the High Court, Justice M. Dlamini, presiding over High Court Civil Case Numbers 2006/2016; 299/2017 and 748/2017 (as consolidated) amounts to breach of the Applicants’ rights to a fair hearing;

                        4)                    Directing that the legal proceedings under High Court Civil Case Numbers 2006/2016; 299/2017 and 748/2017 (as consolidated) be determined de novo, separately, each case on its own, without consolidation, and each before another Judge;

                        5)                    Alternatively to 4 above, directing, in conformity with the Directive of the Chief Justice dated 6th June, 2017 that the legal proceedings under High Court Civil Case Numbers 2006/2016; 299/2017 and 748/2017 be assigned to the respective Justices before whom they were initially allocated for determination, each matter to commence hearing de novo;”

                       

                        Parties’ contentions

[4]                 The main gripe by the applicants as can be gleaned from the founding affidavit is that their case proceeded on the 11th December, 2017 without their representation.  Their attorney had to honour a doctor’s appointment which coincided with the date of hearing of their matter.  In as much as their attorney had cancelled the appointment with his doctor, he revived it after the clerk to the presiding judge informed him that: “Her Ladyship M. Dlamini had instructed that Mr. Nkomondze (Applicants’ Attorneys) should not bother to attend Court on Monday the 11th December 2017 as she was only going to deal with case Number 748/2017 and therefore would not need the attendance of our Attorneys in Court.”[1]

 

[5]                 Respondents contend that the application is nothing but a recusal application through the back door.  They maintain that there was no prejudice suffered by the applicant on the 11th December, 2017.

                       Adjudication

                       Consolidation of matters on 18th October, 2017

[6]                 On the 6th October, 2017, this court had to deal with the contested roll.  Among the cases that was enrolled was case no. 299/2017 where the 1st respondent was challenging the second liquidation and distribution account lodge in the office of the Master of the High Court by the 2nd respondent who is an executor.  1st respondent was represented by Mr. M. Simelane.  Addressing the court on the merits of the 1st respondent’s application, Mr. M. Simelane repeatedly made references to averments which were said to be in another case not enrolled before court.  Mr. M. Simelane did not complete his address on the 6th October, 2017. The matter was then adjourned for the 16th October, 2017.  Again, on that day, Mr. M. Simelane continued with his line of address where allegations said to appear under a different case number were cited.  The court then raised the question on why the matters were not consolidated following that it would be difficult to make a determination based on evidence said to be in other matters.  Learned counsel, who represented the 2nd respondent herein, Mr. M. Magagula stood up and submitted that he had suggested a consolidation to Mr. M. Simelane who declined to accept it.  On that note, the court ordered that the matter be postponed in order to invite all parties concerned for purposes of representation on the question of consolidation.  The case was postponed to the 18th October, 2017 for consideration of a consolidation.

 

[7]                 On the 18th October, all the parties were present, more particularly Mr. Nkomondze.  Mr. Nkomondze submitted that he does not feature under cases nos. 299/17 and 748/2017.  He only featured under case no. 2006/2016.  He submitted that he was opposed to the consolidation of the matters.  While on the floor, motivating his submission, well before the court could make any ruling to his opposition, he stated:

                                   “My Lady if I can make a suggestion.  It would really be cumbersome with due respect to have one judgment on this matter because there are a lot of legal issues.

                                   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 filling 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.”[2] (My emphasis)

 

[8]                   The court enquired:

                          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

[9]                     At the end the matters were consolidated and a hearing date set for the 11th December, 2017.  On the 8th December, 2017, in line with Mr. Nkomondze’s submission on the 18th October, 2017, the court requested the assistant registrar to send a communique to the parties to the effect that on the 11th December, 2017, the court would hear only case no. 748/2017.            Under case no. 748/2017 the office of the executor is challenged.  Mr. Nkomondze had submitted that his client did not feature under case no. 748/2017.  Indeed on the 11th December, 2017 that was the matter that served before court and none other.

 

[10]                 On the above factual background the applicants prayed for a declaratory order on the basis that their right to a fair hearing was violated by the consolidation. How?  It is not clear because the court on the 11th December, 2017 did exactly what was put forth by the applicants, namely, to hear, in the words of the applicants, “each case at a time and to have a judgment in respect of one case at a time.”[3] 

 

[11]                 I note that there are no averments by the applicants in their founding affidavit which supports their main prayer on declaratory order against their right to a fair hearing except that I should have granted a rescission application which served before me on the 6th October, 2017.   I must point out that the applicants have misconstrued their facts.  Firstly, applicants should know that they were invited for consolidation following an order by this court of 16th October, 2017.  Secondly, the consolidation question was postponed to the 18th October, 2017 for all the parties to appear.  Applicants did appear as they were duly represented by Mr. M. Nkomondze.  It totally beats logic to depose that a rescission application which was set down for the 6th October, 2017 against consolidation granted by my sister Langwenya J served at the same time on the date of the consolidation before me but despite that it was not opposed I continued to grant a consolidation.[4]  Applicants’ facts are totally confused in this regard.

 

[12]                 I must point out that on the 18th October, 2017 none of the parties that appeared before me submitted that the matters had already been consolidated by my sister Langwenya J.  It would have been folly of me to call parties to submit on consolidation well knowing that such a process had been undertaken.  Further, none of the parties advised the court that there was a rescission application against my sister’s order for consolidation.  The record of proceedings transcribed under case no. 748/2017 bears testimony in this regard as applicants failed to transcribed the proceedings of the 18th October, 2017 despite that they seek a declaratory order emanating from the consolidation which transpired on this date.

 

[13]                 Having demonstrated above that on the 11th December, 2017, the court proceeded to hear case no. 748/2017 where applicants had not joined issue, and thereby complied with a suggestion given by applicants on the 18th October, 2017 during the mooting of consolidation, there is therefore not an iota of evidence of prejudice against the applicants.  Their application stands to fall.

 

[14]                 Applicants have asserted:

                        “The net result was that Applicants herein were compelled to partake in legal proceedings in which they had no legal interest.  Applicants were unjustifiably burdened with legal fees from their Attorneys who had to consider the voluminous pleadings under Civil Cases Number 299/2017 and 748/2017, in preparation for the hearing of the consolidated matters which was scheduled by Her Ladyship M. Dlamini to be on the 11th December, 2017.”

 

[15]                  One wonders what it is that the applicants prepared for following that (a) on the 18th October, 2017, Mr. M. Nkomonde on behalf of the applicants applied as follows:

                        “Maybe My Lady let me just make an application from the bar that we are granted provisional leave to join if so inclined.”[5]

 

[16]                 I must point out that the court did not just grant applicants provisional leave but leave to join under case 299/2017.  However, on the date of hearing, 11th December, 2017, there was no joinder by the applicants of any of the matters.  In other words, the applicants were not parties to case no. 299/2017 let alone case no. 748/2017 which was deliberated upon on the 11th December, 2017.  Worse still cases nos. 299/2017 and 2006/2016 are still pending hearing dates before this court.  Despite that applicants did not join issue under case no. 748/2017 which was partly heard on 11th December, 2017, applicants contends:

                                                    “24.I am advised by Applicants’ Attorneys, in particular Mr.Mangaliso Nkomondze, that on the 8th December, 2017, he received a telephone call from the Registrar’s office, from one M.s Tivamisile Vilakati, who is Her Lordship M. Dlamini’s Clerk, advising that Her Ladyship M. Dlamini had instructed that Mr. Nkomondze (Applicants’ Attorneys) should not bother to attend Court on Monday the 11th December, 2017 as she was only going to deal with case Number 748/2017 and therefore would not need the attendance of our Attorneys in Court.

                                       28.                I am advised that at the hearing on the 11th December, 2017, Her Ladyship decided to proceed with the hearing in the absence of our Attorneys inspite of having been informed that our Attorney was not in Court, not out of his own doing but because of the communication that came from the Registrar’s office on the Judges instruction on Friday the 8th December, 2017.

                                    29.                   The continuation of the matter, in the absence of our Attorney, when the matters were consolidated, and in the circumstance where out Attorney was not in Court, not of his own doing but as a result of a Judge’s Directive that he must not attend Court, amounts to a deprivation of a fair hearing.  The Honourable Judge deemed it appropriate, albeit without any grounds to consolidate them.  It follows therefore that, owing to the said consolidation of the matter, she ought to have proceeded with the hearing when all the parties legal representatives were in attendance.

                                    30.                   What compounds the issue further is that, it was on the Honourable Judge’s instruction that our Attorney did not attend Court.”

 

[17]                 From the above deposition, the applicants assert that their paramount rights were violated following that they were not represented on the basis of the presiding judge’s directive that their attorney should not attend court.  One however, is left to wonder as to why the applicants’ attorney failed to attend court if the rights of the applicants to be heard on the 11th December, 2017 was as crucial as they depose in these proceedings?  One would have expected that an astute attorney, who had the interest of his clients at heart, would ignore the directive by attending court to assert the rights of his clients.  This did not happen.  The reason is not far to fathom.  It is because the applicants, as submitted by their attorney on the 18th October, 2017 did not feature under case no. 748/2017 as they did not have an interest.  In the legal parlance, they had no locus standi and they so remained on 11th December, 2017 by reason that they had not joined issue in the proceedings of 11th December, 2017.

 

[18]                 Another point which renders the applicants’ assertions to be utterly flawed is that they attest that, “on the 8th December, 2017, he received a telephone call from the Registrar’s office, from one M.s Tivamisile Vilakati, who is Her Lordship M. Dlamini’s Clerk, advising that Her Ladyship M. Dlamini had instructed that Mr. Nkomondze (Applicants’ Attorneys) should not bother to attend Court on Monday the 11th December, 2017 as she was only going to deal with case Number 748/2017” .   From this attestation, it is clear that they were advised that case no. 748/2017 would proceed but nevertheless choice to absent themselves from the hearing of that case.  They now hold the presiding judge responsible for violating their constitutionally entrenched rights in terms of section 35 of the Constitution.  It would have been understandable if the communique was to the effect that the matters were no longer proceeding but later learnt that case no. 2006/2016 from which they had interest proceeded nevertheless.  This was not the case on the 11th December, 2017.  To hold that they had a right to be heard under case no. 748/2017 but did not exercise their right because of the judge’s directive is, with due respect, a childish argument which cannot be entertained by a  court of law.

 

[19]                 It is noted that Mr. Nkomonde in an endevour to demonstrate the importance of his presence on the 11th December, 2017, referred to the transcript and pointed out that the presiding judge repeatedly asked as to where he was and why he was not present.  This according to Mr. Nkomonde was evidence that he ought to have been present but for the directive.  Unfortunately this averment does not take applicants case any further.  In fact, it demonstrate that despite the court standing the matter down to grant time for the parties to attend court following Mr. Magagula’s application that the parties be in attendance, applicants’ attorney failed to appear before court.  For Mr. Nkomonde to say that he could not because he had to attend a doctor’s appointment which coincided with the hearing of the matter is neither here nor there as if he was serious about attending court, he would have done so.  He chose to double book himself and he contends that the presiding judge must bear the blunt for that.  At any rate the cardinal point is that the applicants were not a party to the proceedings under case no. 748/2017.

 

[20]                 I must allay the misconception on consolidation evidenced under this application.  Rule 11 provides for consolidation of actions.  Rome AJ[6] held on the Rule which is pari materia to our rule:

 

                        “The consolidation of actions (and applications) is provided for under Rule 11.”

 

[21]                 In other words there is nothing amiss about consolidation of applications as well and this was never an issue on the 18th October, 2017.  Erasmus[7] explicitly hit the nail on the head when he stated with reference to consolidation:

 

                        “The rule makes provision for the consolidation of actions, not for the consolidation of issues.”

 

[22]                 Satchwell J[8] expressed on this Rule:

 

                        “The test for consolidation in terms of Rule 11 is that of ‘convenience” to the parties, witnesses and to the court.  The approach of our courts to ‘convenience’ appears to be similar in questions of joinder of parties or actions, separation of issues or consolidation.”

 

[23]                 Had Satchwell J been faced with the question when is joinder and when is consolidation?  I have no doubt that the honourable Justice would have paired, the procedure as follows:

                                                Actions = consolidation (Rule 11)

                                                Issues = joinder of parties (Rule 10)

 

[24]                 To put it directly, the learned Justice would have simple added “respectively” so that his last sentence would read, “The approach of our court to ‘convenience’ appears to be similar in questions of joinder of parties or actions, separation of issues or consolidation ‘respectively’.

 

[25]                 When therefore the court granted the prayer for consolidation at the instance of the executor’s counsel, it was by no means consolidating issues.  It is for this reason that when Mr. Nkomondze appeared on behalf of the applicants herein, the court took its time to go through each case explaining to Mr. Nkomondze averments which concerned his clients[9].   At the end, Mr. Nkomonde applied that he be granted “provisional leave” to join issue under case no. 299/2017 where 1st respondent herein is challenging the sale to Mr. Nkomondze’s clients of the immovable properties held by two companies where the deceased was a shareholder as well.  The court however, pointed out that it shall not grant “provisional leave” but would grant him leave to join issue in terms of Rule 10.  Despite that order given to them on a silver platter, the applicants dismally failed to exercise their rights to join issue.  Instead they depose:

 

                        “The entire conduct of the proceedings before Her Ladyship M. Dlamini, fortifies our fear that we will not be afforded a fair hearing in this matter going forward.  It is unclear why the Honourable Judge M. Dlamini directed that all matters be brought before her much against Practice Directive ….” At the time the matters were brought before Her Ladyship M. Dlamini, the matters were pending before Her Ladyship Langwenya on the issue of the Application for Rescission of the Order for Consolidation.”[10]

 

[26]                  For a deponent to attests that a presiding judge in adjudicating upon a matter went against a “Practice Directive …” (1) without mentioning the number of that directive; (2) leave out a space where he is to insert the number (3) fails to attach a copy of the said directive (4) swear before a commissioner of oaths for a conduct in court against a presiding officer without the necessary supporting evidence; (5) launch same in a court of law and urges the court to rely on incomplete averments; does not only reflect on the degree of inaptitude and dereliction of duty on the part of the applicants’ attorney but shows total disregard for the court’s repute and decorum by the applicants.  I have already stated that the applicants choice not to transcribe the proceedings of 18th October, 2017 even though their first prayer emanates for such proceedings.

 

[27]                 Fortunately this court has the transcription of the 18th October, 2017.  I may repeat for the applicants’ benefit that none of the parties pointed out to this court that the matters were pending before my sister Langwenya J and this finds support from the transcript.  It is a worrisome therefore as to how this court stands accused for allegations which were not before it at the relevant date.  This is more particular because this matter was enrolled by the applicants before the honourable Principal Judge when she was on duty.  When she referred the matter to me, Mr. Nkomondze put up a serious protest, calling for my recusal.  In fact the matter had to be postponed for Mr. Nkomondze to have time to prepare for the recusal application.  On the return date, there was no recusal.  The honourable Principal Judge was therefore given incorrect evidence for a determination.

 

[28]                 Further, the Notice of Motion by applicants read:

 

                        “FURTHER, TAKE NOTICE THAT the Affidavit of PHILLIP De SOUZA, MANGALISO KNOMONDZE and SDUMO V. MDLADLA shall be used in support hereof.”

 

[29]                 Mr. Sdumo V. Mdladla did not file any supporting affidavit to the founding affidavit by Mr. Phillip de Souza.  However, on reply which was filed when the presiding judge was on her way to court, namely, the date of hearing of this matter, Mr. Sdumo Valentine Mdladla who set next to Mr. Mangaliso Nkomondze during the hearing of this application had deposed:

 

  “6. At the onset, I would like to state that given the manner in which the matter developed and the unfair and unfortunate circumstances in which myself (sic) and Mr. Mangaliso Nkomondze found themselves (sic) in, I am not surprised that an application of this nature has been brought before this court.  As an officer of the Honourable Court, I am of the humble view that her ladyship has because of some developments, disqualified herself from hearing this matter.  Ordinarily, this would be the case in other jurisdiction.

  7.  As an officer of the Honourable Court, as I state the contents of this affidavit, I do so very much alive and sensitive to the fact that judges are not simply empires in a court of law. Judges are entitled to conduct proceedings in their court to ensure and (sic) expeditions (sic) dispensation of justice.  However, my humble averment is that what I heard and witnessed in court on the 11th and 12th December was sui generis.  It goes beyond what would be the natural ambit of bias of a court.”

 

[30]                 Mr. Sdumo Valentine Mdladla ends by averring:

“26. I therefore categorically deny that I had no interest in the matter or had no desire to be in court.  I was the first attorney to be in court and I clearly indicated my desire to be in court.  I had left a message with HER LADYSHIP’s clerk that I should be advised when the matter was to start.  This is mainly because there was no clearly defined time and court which had been stated to me when I was in court.  I therefore take strong exception to the baseless averments made by the 1st Applicant.  There is no truth in paragraph 13 of the said affidavit.  I was never called by the clerk.  I received a short message from Mr. Mbuso Simelane.  In actual fact, these averments and allegations are embarrassing.  As an officer of the Honourable Court, I have an obligation to respect the court and submit myself to the authority of the court.  I do not think that such an application should be made at a drop of a hat.  My view is that in the present circumstances, I do not see a fair and transparent treatment of the parties.”

 

[31]                   From the above assertion by Mr. Mdladla, his deposition appears to be confused.  He is according to the Notice of Motion expected to support the application by the applicants.  For him to depose that he takes “strong exception to the baseless averment made by the 1st Applicant” clearly creates confusion in the present application.  This is more particularly because the parties have been so cited by the applicants’ attorney in these proceedings.  However, there is one truth in his averment and it is that the applicants’ averments are “baseless”.  I find no reason to depart from this view by the very own supporter of the application.  It follows therefore that there is no bases for the assertion that; “My view is that in the present circumstances, I do not see a fair and transparent treatment of the parties”.  In brief, his view stands to be rejected as baseless too as it is based on “baseless averments” by the 1st applicant as pointed out by Mr. Mdladla.

 

[32]                 It is clear from both Mr. Mdladla and the deponent to the founding affidavit herein including applicants’ attorney that they confused consolidation of the applications with joinder of issues.   I must before I conclude however, clarify that on the 18th October, 2017, when the matters were consolidated, Mr. S Dlamini stood in for Mr. Sdumo Valentine Mdladla.  He pointed out that he was neither supporting nor opposing the application for consolidation.  He stated that his duty was to observe the proceedings and this is borne by the record of proceedings of the 18th October, 2017.

 

[33]                 A reading of Mr. Mdladla’s affidavit herein reflects that both on the 11th and 12th December, 2017 when case no. 748/2017 was heard, he was present in court.  Indeed, he was present in the afternoon following Mr. Magagula’s successful application that all parties be present. Only the applicants made their submissions under case no. 748/2017 and the matter had to be postponed following a recusal application at the instance of the 1st respondent therein.  In other words, nothing is lost as respondents have not yet begun to submit.  The matter adjourned after counsel for applicants had made submissions.  In essence any party wishing to submit still has the opportunity to do so provided locus standi is established of course. The cause of complaint is therefore not clear except that it is a reflection of egos of which this court will not stoop low to entertain.

[34]                 Respondents’ counsel, Advocate Kuny submitted that the present application is nothing but a recusal application through the back door.  I find no reason to hold otherwise as this view finds support from applicants’ assertions as follows:

                        “It is  doubtful that, after the developments outlined above as having taken place in the hearing of these matters, Her Ladyship M. Dlamini will still be suited to conduct the hearing of these matters and bring to bear an impartial determination of the issues.  This apprehension is fortified by her ladyship’s departure from the basis and cardinal principle of audi alterim partem which underpins our legal disputes adjudication system.  It becomes even more doubtful, if Herr Ladyship will afford us a fair hearing going forward, especially in circumstances where the office of the Register (sic) on directive by Her Ladyship, advised our Attorneys not to attend Court on the particular day of hearing, yet on that day Her Ladyship proceeded with the hearing as if our Attorneys were absent of their own volition.  It is upon this ground that we seek for this Court’s intervention to direct the matter to proceed before another Judge.[11]

 

[35]                  The applicants have further contended that the application under 2006/2016 where applicants are cited as parties, was “allocated by the Registrar of the High Court to be 13th July, 2013 before His Lordship S.A. Nkosi.”[12]  On this date, the matter did not proceed as the learned Justice had a congested roll.  Applicants further deposed: “an arrangement was then reached amongst the Attorneys representing the parties that the matter be referred back to the Registrar to allocate a new date of hearing in the next session before the same judge, in line with the Chief Justice’s Practice DirectiveHowever, what later transpired was that dates for hearing of the matter before His Lordship J.S. Magagula were allocated instead, being the 9th and 10th August 2017, without consultation with Applicants Attorneys.  What this Honourable Court ought to note in this regard is that the allocation of the matter to His Lordship Magagula from His Lordship Nkosi was contrary to the Chief Justice’s Practice Directive which provides….”

 

[36]                 From the above averments at the instance of the applicants, would the following words of Mason J[13] not be apposite?

 

                        “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their cases tried by someone thought to be more likely to decide the case in their favour.”(My emphasis)

 

[37]                 Applicant state that the matter never proceeded on the said dates before my brother, Magagula J.  They awaited for the Registrar to refer the matter back to my brother Nkosi J. Unfortunately they later learnt that the cases were consolidated by my sister Langwenya J under a rule nisi returnable on 6th October, 2017.  However, on the return date they learnt that the matter were before me for consolidation.  I have clarified that the matters were before me for consolidation on the 18th October, 2017 and Mr. Nkomondze appeared on behalf of the applicants.  The facts herein are confused and stands to be rejected on that ground alone.

 

[38]                 The founding affidavit bears further evidence of confusion.  It reflects: “The net result was that Applicants’ (sic) herein were compelled to partake in a legal proceedings in which they had no legal interest.”[14]  The applicants then depose thereafter:, “The continuation of the matter in the absence of our Attorney, when the matters were consolidated, and in the circumstance where our Attorney was not in Court, not of his own doing but as a result of a Judge’s Directive that he must not attend Court, amounts to a deprivation of a fair hearing.”  This is tantamount to approbating and reprobating at the same time following that applicants on their own asserted that they had no interest in the matter, and yet they insisted to be heard on a matter which they say themselves in the same affidavit that they had no interest.  What was it that they were to be heard on?  Nothing as correctly asserted by Mr. Nkomondze on the 18th October, 2017 that they did not feature under case 748/2017 which was before court on the 11th December, 2017.  Worse still the court decided to allow them time to appear in court but they failed.  The whole machinery of justice cannot grind to a halt just because attorneys decide to double book themselves and later turn around to demand that the presiding judge recuses herself from the matter by asserting that it was a “coincidence” that they had booked themselves with doctors on the same hearing date.  Mr. Mdladla who filed a supporting affidavit asserted that he came to court despite the directive not to come as he wanted to assert his client’s rights.  Why did the applicants’ attorney fail to follow suit.  It is because on the 11th December, 2017 the position that applicants did not “feature[15] or did not have “legal interest[16] under case no. 748/2017 maintained.

 

[39]                 It is further important that I refer to Corbett AJ[17]:

In such an application for consolidation the Court, it would seem, has a discretion whether or not to order consolidation, but in exercising that discretion the Court will not order a consolidation of trials unless satisfied that such a course is favoured by the balance of convenience ad that there is no possibility of prejudice being suffered by any party.  By prejudice in this context it seems to me is meant substantial prejudice sufficient to cause the Court to refuse a consolidation of actions, even though the balance of convenience would favour it. “(My emphasis)

 

[40]                 It has been deposed on behalf of the applicants:

The Attorneys of Record for DUPS HOLDINGS, T1, T2 PROPERTY AND PENSION FUND were S.V. Mdladla and Associates.  Owing to the voluminous pleadings and the magnitude of work involved in the matter, DUPS HOLDING, T1 AND T2 PROPERTY resolved to substitute S.V. Mdladla & Associates with their current Attorneys, Nkomondze Attorneys.”[18]

[41]                 The above deposition is noted.  The court was not privy to it and it is now.

 

[42]                  In the final analysis, the application for the orders sought herein in the words of Mr. Sdumo Valentine Mdladla who has filed a supporting affidavit albeit in reply, baseless.  I therefore enter the following orders:

                       

  1. The applicants’ application is hereby dismissed;

 

  1. 1st, 2nd and 3rd applicants are, jointly, each and severally one paying the other to be absolved, ordered to pay 12th, 13th and 14th respondents costs of suit.

 

 

 

 

  •  

                              M. DLAMINI J

 

 

For the applicants   :            M. Nkomondze of Nkomondze Attorneys

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

 

[1] See page 27 of book of pleadings para 24

[2] See pages 22-23 of transcribed record.

[3] ibid

[4] See paras 21-22 of page 26 (applicants founding affidavit)

[5] See page 40 of transcription

[6] Mabotwane Security Services CC v Pikitup SOC (Pty) Limited and Others Case No. 89232/2015 (GP) at para 14

[7] Superior Court Practice (Revision Service No. 12) at B1-99

[8] Placecol Cosmetics (Pty) Ltd v Absa Bank Ltd and Another, Absa Bank Ltd v UTi South Africa (Pty) Ltd (Mounties Division) (08/34502, 10/04104) [2012] ZAGP JHC 193 (4 October 2012) at paras 7-10

[9] See pages 15-24 of transcribed record

[10] See para 33 page 29 of book of pleadings

[11] Para 41, page 50 of book of pleadings

[12] Para 13 page 23

[13] Re JRL: Ex parte CFL (1986) 161 CLR 342 (HCA) at 352

[14] Para 23 at page 27

[15] As per the transcription at page 13

[16] As per applicants’ founding affidavit para 23

[17] New Zealand Insurance Co. Ltd v Stone and Others 1963 (3) SA 63 (c) at 69

[18] Para 14 at page 23