Bobotyana and Others v Dyantyi and Others (Reasons) (1198/2020) [2020] ZAECGHC 89; 2021 (1) SA 386 (ECG) (21 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case number: 1198/2020

In the matter between:

NOLINDELO PRIMROSE BOBOTYANA

First Applicant

THOKOZANI ZAZAZA obo

Second Applicant

LIYAKHANYA INGOMSO ZAZAZA

THEMBISA NTANJANA obo

Third Applicant

LIYABONA NTANJANA

and

ZUKISA OWEN DYANTYI

First Respondent

ZUKISA OWEN DYANTYI

Second Respondent

In his capacity as Executor of the

Estate of LATI JOHNSON BOBOTYANA

Estate no. 000021/2020

LISOLIYABONA CONTRACTOR CC

Third Respondent

Registration No. 2010/111260/23

THULISWA ZIMBINI obo

Fourth Respondent

LIZO ZIMBINI

ITUMELENG SEFALA obo

Fifth Respondent

THATO BOBOTYANA

THE MASTER OF THE HIGH COURT,

Sixth Respondent

MAKHANDA

REASONS FOR JUDGMENT

MBENENGE, JP:

[1] The applicants approached this Court by way of urgency, seeking, in the main, an order staying the administration of the estate of the late Lati Johnson Bobotyana[1], pending the determination of the validity of the deceased’s Will purportedly signed on 22 December 2019.[2]

[2] The application was issued out of this Court on 18 June 2020. According to the notice of motion, the respondents were notified, inter alia, that if they intended opposing the application, they should notify the applicants of such intention by 3 July 2020 and, in pursuit of their opposition, to deliver their answering affidavits by 17 July 2020. The Registrar was notified to enrol the matter for hearing on 30 July 2020 (six weeks from the date of issue).

[3] The first to fifth respondents (the respondents) delivered their notice to oppose on 25 June 2020. This was followed by a notice in terms of rule 7 of the Uniform Rules of Court[3] delivered on 15 July, in terms whereof the respondents placed in dispute the authority of “the first applicant and/or her attorneys” to act on behalf of the second and third applicants.

[4] When the matter was brought to my attention by the Registrar and served before me in chambers on 28 July 2020, I issued a directive inviting the parties to a virtual hearing that was to be held at 09h30 on the date for which the matter had purportedly been set down (30 July 2020). I furthermore apprised the parties that at the hearing, I would call upon them to address me on, inter alia-

(a) the authority of the applicants’ attorneys and the first applicant to act on behalf of the second and third applicants; and

(b) the propriety of setting the matter down for hearing on a Thursday without a directive to that effect having been issued.

[5] The answering affidavit was served on the applicants’ attorneys of record on 24 July, seven days later than the expiry of the dies induciae stipulated by the applicants in their notice of motion. The replying affidavit was served on the respondents’ attorneys of record five days thereafter, on 29 July. The applicants’ heads of argument addressing, inter alia, the issues I had mero motu raised in the directive and the requisites for the grant of an interim interdict were filed shortly before the hearing, on 30 July.

[6] In the interim, the applicants had delivered the requisite power of attorney setting at nought the contentions raised in the respondents’ rule 7 notice. I was accordingly addressed on the remaining issue which I had raised, being the propriety or otherwise of the setting down of the application for hearing on a Thursday without a

directive to that effect having been issued. I thereupon issued an order, inter alia, postponing the matter to a date to be arranged by the parties with the Registrar. I did not see my way clear to entertaining the application for the grant of the interim relief the applicants were seeking, having been of the view that the manner in which the application had been set down had not been appropriate. I also pronounced that the reasons for the order would follow in due course. These are the reasons.

[7] Ms Stretch, counsel for the applicants, informed me from the Bar, that she had been advised that, prior to the issuing of the application, her instructing attorney, Mr Mili, had approached the Judge doing duty during the week when the application was launched, seeking a directive in relation to the conduct of the proceedings, including the setting down thereof, and was informed that a directive was not required to be issued as the matter was to be heard on a Thursday, which is a motion court day. She furthermore advised that the enquiry had been made because of the alleged uncertainty that prevailed in this Division, with some Judges insisting that a directive be issued, whilst others adopted quite the opposite approach.

[8] For her part, Ms Stretch submitted that a directive by a Judge permitting a litigant to set down an urgent application on a Thursday was, upon a proper

interpretation of rule 12(d) of the Eastern Cape Practice Directions[4], not a requirement. The relevant portion of the rule reads:

“(d) In all urgent applications in which it is sought to enrol the matter other than on a day normally reserved for the hearing of motion court matters:

(i) The practitioner who appears for the applicant must sign the certificate of urgency which is to be filed of record before the application

papers are placed before the judge and in which the reasons for urgency are fully set out. In this regard, sufficient particularity

is to be set out in the certificate for the question of urgency to be determined solely therefrom and without perusing the application

papers.

(ii) The certificate of urgency will be placed before the judge who will make a determination solely from that certificate as to whether or not the matter is sufficiently urgent to be heard at any time other than the normal motion court hours.”[5]

[9] Reliance for the submission was further placed on Madlongolwana v Walter Sisulu University[6], where it was stated:

“[3] The applicants approached the duty judge in chambers on 12 February 2016, presenting a

certificate of urgency in which were set out reasons why the matter should be permitted to proceed as an urgent application and seeking a directive in terms of rule 12 of the Joint Rules of Practice for the High Courts of the Eastern Cape Province regarding the hearing and further conduct of the matter. A directive was issued to the fact that the matter may be set down for hearing on 18 February 2016 at 09h30 and requiring service of the application papers on or before 15 February 2016.

[4] The first observation which must be made is that it was not necessary for the applicants to approach the duty judge for a directive regarding the hearing and further conduct of

the matter. The reason is that the targeted date, 18 February 2016 [a Thursday], was a motion court date. A careful reading of rule 12(d) of the Joint Rules of Practice . . . reveals that the purpose of that rule is to provide a mechanism whereby an applicant can approach a judge in

chambers for a directive in circumstances in which the applicant wishes to move the court for relief on a day which is not ordinarily a day on which a motion court sits. Given that the applicants wished to move for relief on a motion court day, they were at liberty to do

so by an issue of a notice of motion accompanied by a certificate of urgency and supported by a founding affidavit in accordance with the provisions of rule 6(12) of the Uniform Rules of

Court. It was not necessary for the applicants to obtain a directive before issuing and serving

their application” (Own emphasis).

[10] It is self-evident from a reading of the above-quoted excerpt that the remark by the Court is obiter as it related to an issue that had not pertinently arisen for determination; a certificate had already been placed before a Judge in chambers and a directive issued by the Judge for the hearing of the application on a Thursday- a fact which, in and by itself, suggests that, even at the relevant point in time, there was lack of uniformity in the approach by Judges in this Division to the interpretation of the sub-rule.

[11] I am, in the first place, of the view that the answer to the question at hand lies not in the enquiry whether Thursday is ordinarily a day on which a motion court sits, but more in the difference in the procedure followed when motions that are opposed and those that are not are being set down. The differentiation between the two categories is not without significance.

[12] In terms of rule 15A(aA) of the Practice Directions the set down of opposed motions shall, notwithstanding rule 3(6) of the Rules Regulating the Conduct of the Proceedings of the Eastern Cape Division[7], be effected in terms of rule 6(5)(f) of the Uniform Rules. Rule 3 of the Eastern Cape Rules relating to the setting down of defended cases applies, mutatis mutandis, to the setting down of “all opposed motion proceedings.”

[13] Rule 6(5)(f)(i) of the Uniform Rules empowers the Registrar to allocate dates for the hearing of opposed motions. Unopposed motions, on the other hand, are set down by the applicant by “[placing] the matter on the roll for hearing”, which is done “by giving the Registrar notice of set down before noon on the court day but one preceding the day upon which the same is to be heard”. The Registrar does not allocate dates for the hearing of unopposed motions and other matters that ordinarily serve in the unopposed motion court which, in this Division, is held on Tuesday.

[14] In addition, “uncontested opposed matters”[8] are set down by the Registrar on the unopposed roll on the application of the applicant. Rule 15 (k)(i) of the Practice Directions provides:

“In all matters where a notice of opposition has been delivered but no answering affidavit or notice in terms of rule 6(5)(d)(iii) of the Uniform Rules has been delivered within the period prescribed in terms of the Uniform Rules, the applicant must apply for the matter to be set down on the unopposed roll, and the registrar must set the matter on the unopposed roll under the caption ‘UNCONTESTED OPPOSED MATTERS’” (Own emphasis).

[15] Therefore, in so far as the respondents failed to deliver their answering affidavit on the stipulated date, the applicants ought to have applied to the Registrar to set the matter down as an uncontested opposed application on the Tuesday roll, which they did not do.

[16] This application was launched and pursued heedless of the formalities set out above. In so doing, the applicants arrogated to themselves the entitlement to appoint a date for the hearing of an application on a day set aside for opposed motions, which was for the Registrar to do.

[17] There is a further dimension to the shortcomings in the manner in which the application was launched and pursued. Whilst, in the past, an applicant could, for reasons of urgency, deviate from the usual form for launching applications by, for example, using shortened time periods, advance nomination of a date of hearing, omitting notice to the Registrar and adaptation of the wording,[9] the advent of Judicial Caseflow Management has now put in place another dispensation relevant to the setting down of cases.

[18] Paragraph 5.2.4 of the Norms and Standards for Judicial Officers[10] makes it incumbent on Judicial Officers to take active and primary responsibility for the progress of cases from initiation to

conclusion so as to ensure that cases are concluded without unnecessary delay[11]. The Norms and Standards further provide that the Head of each Court shall ensure that Judicial Officers conduct pre-trial

conferences as early and as regularly as may be required to achieve expeditious finalisation of cases[12]. No matter may be enrolled for hearing unless a Judicial Officer has certified it to be ready for trial or hearing[13].

[19] Judicial Caseflow Management received statutory fortification with the insertion of rule 37A in the Uniform Rules[14]. Rule 37A(1)(b) provides that a judicial case management system shall apply, at any stage after a notice of intention to defend is filed, to any proceedings in which such management is determined by the Judge President, of own accord, or upon the request of a party, to be appropriate. Rule 37A(2)(a) provides that case management through judicial intervention shall be used in the interest of justice to alleviate congested trial rolls and to address the various problems which cause delays in the finalisation of cases.

[20] By virtue of the content of paragraph 5.2.4 of the Norms and Standards, read with rule 37A(1)(b) and 37A(2)(a) of the Rules, there is no reason in law and in logic why caseflow management should not, mutatis mutandis, apply to motion proceedings. Indeed, in this Division a form for caseflow management has been made applicable to other proceedings, as well. Case files are routinely allocated to Judges for perusal before the hearing date to ensure that shortcomings that sometimes beset the progress of cases are brought to the attention of the parties and remedied timeously, long before the hearing date.

[21] The following pro forma embodying a checklist is applied to the setting down of opposed motions on the provisional term roll, heard on Thursdays:

“CHECKLIST FOR FINAL ENROLMENT OF THURSDAY OPPOSED MOTIONS (REVISED)

Case No. : ________________

Date : ___________________

Parties :

_________________________________________________________

Nature of application: Interlocutory /Main application

A Registrar: (Name of officer completing checklist:

____________________) ­ ­

 Heads of argument for the applicant – file 15 court days before hearing ie. on the 3rd Thursday before the hearing.

 Heads of argument for the respondent – file 10 court days before hearing ie. on the 2nd Thursday before the hearing.

 Rule 15A Practice Note – Both parties must file 8 court days before the hearing ie. on the 2nd Monday before the hearing. The notices ought to be current and must state:

Applicant:

 Whether the application papers have been paginated and indexed

 Names of parties, case number and number on the provisional roll (if already prepared)

 Names and telephone numbers of legal representatives

 Nature of dispute

 Crisp issues

 Relief sought

 Main authorities to be relied on

 Estimated duration of argument

Respondent:

 Registrar to tick the boxes on the above checklist 7 Court days before the hearing ie. on the 2nd Tuesday before the hearing and present them to the Head of Court, or in his/her absence, the senior judge where the motions will be heard. If any of the above has NOT been complied with the Registrar must place a red “X” instead of a “ ” in the appropriate box.

 The following steps have not been complied with and the parties are recommended to address the shortcoming(s)

and, if necessary, to seek condonation. (Appropriate directives will be issued by the Head of Court/Senior Judge if necessary.):

Applicant : 1. _______________________________________________________

2. _______________________________________________________

3. _______________________________________________________

Respondent : 1. _______________________________________________________

B RESULT BY HOC / SENIOR JUDGE CONDUCTING CASE FLOW MANAGEMENT (and, where appropriate, directives on the future conduct of the case):

 Matter to be enrolled

Additional directives:

 Matter not to be enrolled

 After completion of the B-Part, the registrar is to compile a final roll of matters to be enrolled and to deliver same to the judge hearing the motions 4 court days before the hearing i.e. before noon on the Friday before.”

[22] In the Grahamstown High Court, caseflow management which involves the utilisation of the checklist set out in the preceding paragraph, was made applicable to opposed motions during the second term, and became effective during the third term of 2019. The summary of the relevant statistics set out hereunder makes it demonstrably plain how caseflow management brought about an improvement in the finalization rate of opposed motions:

· 3rd term 2018 – 35%

· 4th term 2018 – 50%

· 1st term 2019 – 45%

· 2nd term 2019 – 40%

· 3rd term 2019 – 80%

· 4th term 2019 – 75 %

[23] Prior to the implementation of caseflow management, the finalisation rate of opposed motions was unsatisfactory and subject to non-compliance with the Rules by one or both parties, resulting in the matters being removed and finality delayed accordingly. Sometimes, despite the Judge having read the papers and heads of argument (often lengthy), a postponement or removal of the matter would ensue, purely because of the technical reason that no rule 15A practice note had been delivered. This meant that on occasions by no means all of the opposed matters would then have to be set down again.[15]

[24] At the risk of unduly belabouring the point, I venture to say that caseflow management, conducted appropriately, will contribute to most matters being finalised on their first date of set down. In an adversarial system litigants can, for tactical reasons, be dilatory for any number of reasons and engage in delaying tactics to avoid reaching finality. If this is the case, in any matter, it will be exposed during caseflow management, properly implemented, and will avoid the delay of matters for no good reason. All in all, caseflow management can do much to ensure the efficient conduct and disposal of applications. In the words of McQueen and Baldwin:

“As long as judges and court administrators who are trained in and committed to caseflow management practices are involved, the practices, for the most part, achieve the desired outcome.”[16]

[25] It is as well for us to remind ourselves of the following apposite remarks by Chief Justice Mogoeng:

“At present, our system first provides the opportunity for the judicial officer to look at the case when it has reached the adjudication

stage. This sad circumstance means that there is little room for judicial intervention while the case goes through the numerous

hoops provided by our rules. The judge does not drive the matter to finality. The judge relies on the actions of the

litigants themselves, or . . . the actions of their legal representatives. This is a source of constant frustration.

It is for this reason that modern legal systems are moving away from litigant driven case management to judicial management of case flow. The judicial officer should take over the responsibility to drive the case to resolution. In this position, the judicial officer is able to set and enforce time limits specific to the case to ensure that there are no unnecessary delays. The judge’s familiarity with the development of the case gives him or her unique insight into the needs of the case and the issues in dispute. This allows the judge to promote the effective resolution of the matter which is impossible through the kitchen-sink mill system that operates at present.

Many a time, a judge realises when the matter is finally allocated to him or her for hearing that the matter could have resolved a long time before had a judge been involved in time. The flurry of settlement negotiations at the door of the courts bears testimony to the fact that not enough effort is being put in to resolve matters. . . .”[17]

[26] In the notice of motion in the present matter, the applicants allocated a date for the hearing of their application. Under the guise that the matter was urgent, they nominated a date that was both six weeks ahead and fell on a day ordinarily set aside for the hearing of opposed motions. It is indeed so that, in terms of rule 15(b) of the Practice Directions, urgent opposed motions may be added to the number of opposed motions ordinarily allocated for hearing on any given Thursday[18]. However, Madlongolwana[19] is not, upon its proper reading, intended to be authority for setting up by an applicant of a fully opposed application on a Thursday in six or more weeks’ time, thereby circumventing the various rules and procedures applicable to the allocation of a date for the hearing of opposed applications to which I have already referred and then important roles played therein by the Registrar and the Court. The resultant unfairness to other litigants is both obvious and not in the interest of justice. Moreover, the deliberate construction of such a time-frame runs against the very concept of urgency. Were the Court to turn a blind eye to this procedure, which is deplorable, the Thursday opposed motion court may well turn into a “holding date” court.

[27] For all these reasons, I was and am of the view that the application had not been properly set down for hearing on 30 July, hence I granted the order which I did. Much as Thursday is a day normally reserved for the hearing of opposed motion court matters, additional matters brought by way of urgency ought to find their way to being heard or set down on a Thursday when duly allocated thereto by the Registrar, pursuant to a directive issued by a Judge in terms of rule 12(d) of the Practice Directions. The directive should, where possible, factor in the aspects covered by the checklist referred to above, albeit with truncated time frames.

[28] In view of the uncertainty that has hitherto beset this Division, I was of the view that the applicants should not be mulcted with costs. Counsel shared the view.

[29] I accordingly made the following order:

(a) The application is postponed to a date to be arranged by the parties with the Registrar for hearing in the opposed motion court.

(b) The respondent shall deliver heads of arguments five days before that date.

(c) There shall be no order of costs.

(d) Reasons for this order will follow in due course.

_______________________________

S M MBENENGE

JUDGE PRESIDENT OF THE HIGH COURT

Counsel for the applicants : S Stretch

Instructed by

: Poniane Attorneys

Bloemfontein

C/o Mili Attorneys

Grahamstown

Counsel for the 1st to 5th respondents : S Nzuzo

Instructed by

: Phillip & Mabona Attorneys Inc.

East London

C/o Mgangatho Attorneys

Date application heard

: 30 July 2020

Date order granted

: 30 July 2020

Date reasons for the order delivered : 21 August 2020

[by electronic mail in terms of paragraph 68 of the Eastern Cape National State of Disaster Management Directions]

[1] Part A.

[2] Part B.

[3] The Uniform Rules.

[4] The Joint Rules of Practice for the High Courts of the Eastern Cape Division of the High Court (the Practice Directions).

[5] The requirement relating to the placing of a certificate of urgency before a Judge was introduced by Court Notice 1 of 2014, which came into operation on 9 June 2014.

[5] The requirement relating to the placing of a certificate of urgency before a Judge was introduced by Court

Notice 1 of 2014, which came into operation on 9 June 2014.

[6] Madlongolwana and another v Walter Sisulu University and others [2016] ZAECMHC 5; 2016 JDR 0565 (ECM) (10 March 2016).

[7] Published in GN R3289 of 12 September 1969 (the Eastern Cape Rules).

[8] Where a notice of opposition has been delivered, but no answering affidavit has been delivered after the prescribed period has expired.

[8] Where a notice of opposition has been delivered, but no answering affidavit has been delivered after the

prescribed period has expired.

[9] Cf Gallegar v Norman’s Transport Lines Pty Ltd 1992 (3) SA 500 (W) at 502 I – 503 C.

[10] Norms and Standards for the Performance of Judicial Functions issued by the Chief Justice of the Republic of South Africa in terms of section 8 of the Superior Courts Act 10 of 2013 read with section 165(6) of the Constitution.

[11] Id at para 5.2.4 (v).

[12] Id at para 5.2.4 (vi).

[13] Id at para 5.2.4 (vii).

[14] Inserted by item 6 of the Schedule to the Rules issued under section 6 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985) published in Government Gazette No. 42497 under GN R 842 dated 31 May 2019, which came into operation on 1 July 2019.

[14] Inserted by item 6 of the Schedule to the Rules issued under section 6 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985) published in Government Gazette No. 42497 under GN R 842 dated 31 May

2019, which came into operation on 1 July 2019.

[15] Thus, for example, out of the four matters allocated a hearing date before a single Judge only one would proceed or, where two judges were allocated opposed motions, three out of eight would proceed.

[16] M. McQueen and R. Baldwin “Caseflow Management – The New Era,” attachment in electronic mail message (December 12, 2012) to Hon. William F. Dressel, President, The National Judicial College (NJC). The project supported by a grant to NJC by the Bureau of Justice Assistance (BJA).

[17] Speech by the Chief Justice of the Republic of South Africa, Chief Justice Mogoeng Mogoeng at the opening of the Provincial Case Flow Management workshop in Port Alfred on 19 July 2012; also see Take & Save Trading CC and others v The Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA 1 (SCA); [2004] 1 All SA 597 (SCA) at para 3, where it was held: “ Fairness of court proceeding requires of trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted. . . .One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement.”

[17] Speech by the Chief Justice of the Republic of South Africa, Chief Justice Mogoeng Mogoeng at the opening of the Provincial Case Flow Management workshop in Port Alfred on 19 July 2012; also see Take & Save Trading CC and others v The Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA 1 (SCA); [2004] 1 All SA 597 (SCA) at para 3, where it was held:

“ Fairness of court proceeding requires of trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted. . . .One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement.”

[18] The rule also provides that the fixing of a maximum of 8 opposed motions (in practice 4 in an instance where one judge has been allocated duty), “shall in no way restrict an opposed matter being heard as a matter of urgency.”

[18] The rule also provides that the fixing of a maximum of 8 opposed motions (in practice 4 in an instance where

one judge has been allocated duty), “shall in no way restrict an opposed matter being heard as a matter of urgency.”

[19] Madlongolwana above n 6.