Bambeni v Msimeki and Another (38322/2019) [2019] ZAGPJHC 516 (11 November 2019)

Bambeni v Msimeki and Another (38322/2019) [2019] ZAGPJHC 516 (11 November 2019)

The court found that the applicant failed to establish urgency as required by Rule 6(12) of the Uniform Rules of Court. The allegations of collusion and undue influence were unsubstantiated and did not justify the matter being heard as urgent. The applicant improperly afforded the respondents only three days to file...

Source-derived case information.

Citation
[2019] ZAGPJHC 516
Parties
Applicant: Thina Bambeni; Respondent: Amokelani Msimeki; Respondent: Mervyn Hyman Cirota
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 November 2019
Case Number
38322/2019
Procedural Posture
Urgent Application / Dismissal of Urgent Application
Outcome
Application dismissed with costs.
Judges
K E Matojane
Legal Topics
Recusal of Judicial Officer, Urgent Interdict, Non Joinder, Review of Magistrate Decision
Civil Procedure Constitutional Law Recusal of Judicial Officer Urgent Interdict Non Joinder Review of Magistrate Decision

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Summary, issues, holding and outcome

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Parties

Thina Bambeni

Applicant

Amokelani Msimeki

Respondent

Mervyn Hyman Cirota

Respondent

Procedural Posture

Urgent Application / Dismissal of Urgent Application

Legal Issues

  1. 1 Whether the application was urgent and justified a departure from the normal rules of court.
  2. 2 Whether the applicant's failure to join interested parties constituted a material non-joinder.
  3. 3 Whether the relief sought against the first respondent was competent in law.

Ratio Decidendi

The court found that the applicant failed to establish urgency as required by Rule 6(12) of the Uniform Rules of Court. The allegations of collusion and undue influence were unsubstantiated and did not justify the matter being heard as urgent. The applicant improperly afforded the respondents only three days to file answering affidavits and set the matter down without proper enrolment. Furthermore, the failure to join the Chief Magistrate and the Minister of Justice, both of whom have a direct interest in the relief sought, amounted to material non-joinder, rendering the application defective. The relief sought to review and set aside the refusal of the recusal application was...

Court Disposition

Application dismissed with costs.

Orders

  • The urgent application is dismissed.
  • The applicant is ordered to pay the costs of the application.