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IN THE HIGH COURT OF SOUTH AFRICA,

KWAZULU-NATAL LOCAL DIVISION, DURBAN

 

 

CASE NO: 7311/2012

 

In the matter between:

 

MANGANGENI EMMAUS WESTMEAD

RETUNERS' COMMUNITY TRUST                             1^ST APPLICANT

 

MUNTOZWAYO SOLOMON PHEWA                          2^ND APPLICANT NO

BOBO ATHANASIUS MGOBHOZI                               3^RD APPLICANT NO

THEMBA ANNACLETTAH MBILI                               4^TH APPLICANT NO

HENRY SANDILE HLENGWA                                      5^TH APPLICANT NO

SIZAKELE PAILINA MOLEFE                                     6^TH APPLICANT NO

AND

MBONGENI THAMSANQA MADLALA                       1^ST RESPONDENT

NTOMBIFIKILE MIRRIAM SIBIYA                             2^ND RESPONDENT

RAYMOND MPUMELELO MSOMI                              3^RD RESPONDENT

REGINALD MFEKA                                                         4^TH RESPONDENT

NOZIPHO BEATRICE ZWANE                                      5^TH RESPONDENT

ANGELINE NTOMBIZODWA MZINYANE                 6^TH RESPONDENT

 

JUDGEMENT: APPLICATION FOR LEAVE TO APPEAL

 

MNGADI AJ

[1]        The applicants who were the joined respondents in the main application apply for leave to appeal and for condonation for the late lodging of the application for leave to appeal. There was a delay in lodging the application for leave to appeal by twelve days due to the attorney mistakenly believing that the days between 16 December 2016 and 6 January 2017 were dies non. The application for condonation is not opposed and it is accordingly granted. The first and second respondents in the main application have not taken part in this application. The application for leave to appeal is opposed by the respondents who were the 1st to 5th applicants in the main application.

[2]        The application for leave to appeal states that the 3^rd to 8^th respondents in the main application wish to appeal, apart from the issue of costs, against that portion of the judgement and order on the issues relating to whether the becoming moot of the interdict sought had rendered it unnecessary to take a decision on the issue of who are the real trustees; whether the applicants' application for amendment is bad in law. In addition, the applicants list parts of the judgement and orders to which the applicants appeal relates to, as well as the respects in which the applicants seek the variation of the judgement and orders. Clearly the listing of parts of the judgement and orders to which the applicants appeal relates does not constitute grounds of the application for leave, similarly with an indication of the respects in which the applicants seek variation of the judgement and orders.

[3]       It is trite that the application for leave to appeal must be clear, succinct and to the point. The application should indicate in what way and why it is contended that the court a quo erred, either in its findings of fact or its conclusions of law or its application of the law to the facts. The application for leave to appeal is served to all the interested parties and on the basis thereof they take decisions relating to their further participation in the litigation. The applicants are not entitled to argue the application for leave to appeal differently from the grounds raised in the application for leave to appeal. See National Union of Metalworkers of South Africa v Jumbo Products CC 1996 (4) SA 735 (A) at 739A-H

[4]       Mr Gajoo SC for the applicants in his heads of argument and in oral argument addressed the court in some detail arguing that if the issue of who are the lawful trustees was dealt with it would have been decided in favor of the applicants. Therefore, there are good prospects that on appeal the appeal court will decide the matter in favor of the applicants. The difficult with this argument is that I did not determine the issue of who are the lawful trustees of the trust. It is not known what would have been the outcome. The judgement sets out the reasons why I was of the view that it was not necessary to determine the issue.

[5]        Mr Gajoo SC argued that the issue of who are the lawful trustees was raised by the applicants in a counter application dated 26 March 2016. It was raised as an independent issue for determination separately from the issues raised in the main application. Therefore, it is contended the court erred in not determining the issue. I note that the notice of motion dated 26 March 2016 was at the instance of the trust and the five applicants on the one hand and the six respondents on the other hand. It sought an order interdicting the respondents from acting as trustees of the trust; sought an order joining third, 4^th ,5^th , and 6^th ,respondents as the 7^th to 10^th applicants in the main application; and it is sought to have the respondents declared not trustees of the trust whilst the applicants are declared the lawful trustees of the trust.

[6]       The notice of motion dated 26 March 2016 was not titled 'counter application' . It was brought as an urgent application under the same case number. It was dated 26 March 2016 and it was set down for 29 March 2016. It was in the form of a rule nisi. The applicants had earlier been joined in the main application as respondents. It dealt with the issues that had been raised in the main application, particularly, the issue of who were the lawful trustees who could lawful represent the trust. It referred to averments in the main application.

[7]        In the application for leave to appeal there is no ground relating to a failure to rule on the counter application. In my view, the application dated 26 March 2016 was an interlocutory application relating to the pending litigation between the parties. It left out the 1^st and 2^nd respondents in the main application whereas they had an interest in the issue of who were the lawful trustees for purposes of locus standi in the main application. It rearranged the parties and rephrased certain paragraphs to suit the relief sought. It introduced as averments in a founding affidavit matters that could have been contained in a supplementary affidavit. It belatedly takes a form of an independent application because the issues in the main application have turned moot resulting in the dismissal of the application. If the so-called counter application was determined before the main application, the main application would have fallen away. In my view, the issue of who are/were the lawful trustees was part of the issues in the main application. Once the issue of an interdict in the main application became moot, the issue of who were/are the lawful trustees of the trust could only be determined to determine liability for costs in the main application which I found for the reasons given in the judgement not necessary to do.

It has not been argued that there are exceptional circumstances that existed which necessitated that, despite the issue of an interdict having become moot, the issue of who were the lawful trustees be determined.

[8]        In the application for leave to appeal, the issue is raised whether the court was wrong in refusing the application to amend. There was no argument addressed to me in this regard in the hearing of the application for leave to appeal. I refer to the judgement regarding the reasons for the refusal of the application to amend.

[9]        The building of the school to completion rendered the determination of the main application, particularly whether the applicants in the main application had locus standi or not, unnecessary. However, the issue of who were the lawful trustees remained unresolved.

[10]     The respondents' counsel argued that it is necessary to have the Master of the High Court cited in any proceedings to determine who are the lawful trustees of the trust. She argued that allegations are made against the Master which have not been brought to the attention of the Master and it will not be proper to take such averments into consideration whereas the Master has not been given an opportunity to deal with such averments. It is correct that serious allegations are made against the Master. In addition, the Master plays an important role in the appointment of trustees. It is common cause that the Master has an interest not only to defend its honor but also to be bound by any court order that might be made.

[11]     It is undesirable that an issue not dealt with by the court of first instance be dealt with for the first time by the appellate court. The issues relating to who are the lawful trustees of the trust at any time might necessitate the leading of oral evidence. It may also result in further appeals. It could not properly be determined for only the purposes of determining liability for costs in the main application. Leave to appeal will be granted only when, inter alia, there is a reasonable prospect of success; the matter is of substantial importance to the parties concerned and that a practical effect or result can be achieved by the appeal. When leave is sought to appeal on a matter of costs only leave to appeal should be refused unless the Appeal Court may reasonable find that exceptional circumstances exist. See Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5^th ed Vol 2 pages 1212 &1214(f)

[12]     I have not been persuaded that there are reasonable prospects that the appeal court would find that I erred in not determining the question of who were the lawful trustees of the trust. I am not able to express the view of what would have been the outcome had the issue been determined.

[13]       I make the following order:

The application for leave to appeal is dismissed with costs. The applicants to pay costs of the application jointly and severally.

 

 

MNGADI AJ

 

HEARD ON 1 JUNE 2017

DELIVERED ON JUNE 2017

 

APPEARANCES:

 

For the 3^rd To 8^th respondents in the main application: Adv. Gajoo SC

Instructed by ME Mbhele & Company     Tel: (031) 7010271

Ref MEM/LNEH/W012        FAX: 086 734 5804

 

For the first to sixth applicants in the main application: Adv. Gates

Instructed by Ngwanase-Tembe Inc. Tel: 031 305 3047

Ref BNMEC 002 11 11 FAX: (031) 301 9362

 

THE STATE ATTORNEY (KWAZULU-NATAL)-

No appearances in the application for leave to appeal.

For the 1^st and 2^nd respondents in the main application

Ref: 35/1015/12/M/PS MRS P MOODLEY

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