Khosa and Another (2996/2019), Ex parte [2019] ZAFSHC 140 (29 August 2019)
- Citation
- [2019] ZAFSHC 140
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- P.E. Molitsoane
- Case number
- 2996/2019
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- P.E. Molitsoane
- Case number
- 2996/2019
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the application was fatally defective due to the failure to cite and notify the Departments of Treasury and Social Development, who have a substantial interest in the relief sought. The applicant's justification for not giving notice, based on alleged threats to her life, was unsupported by any factual basis. The repeated filing of ex parte urgent applications on the same issue, despite previous dismissals for lack of notice and urgency, demonstrated disregard for procedural requirements. The court concluded that justice required affected parties to be given notice and an opportunity to be heard before any relief could be granted. Accordingly, the application was struck off the roll, and the applicant was barred from bringing further proceedings on the same relief without proper service on interested parties.
Court disposition
Application struck off the roll. Applicant barred from bringing further proceedings for similar relief without proper notice.
Orders
- The application is struck off the roll.
- The applicant may not bring any proceedings in this Court or any other Court or tribunal within the Republic of South Africa for the relief presently sought or any relief sought unless and until the papers have been served upon those who ought to receive notice of the application.
02
Material facts
Parties
Masaingita Abigail Khosa
Applicant Counsel: In PersonHlanganani Sandile Nxumalo
ApplicantAmounts and remedies
- Claimed Costs: ZAR 1,508,161,199.57
03
Procedural history
Posture
Urgent Application / Ex Parte Application for Urgent Relief
04
Questions and positions
Legal issues
- 01
Whether the application may be heard on an ex parte basis without notice to affected parties.
- 02
Whether the Departments of Treasury and Social Development should have been joined as respondents.
- 03
Whether the application is urgent and justifies deviation from standard notice requirements.
- 04
Whether repeated ex parte applications on the same issue are permissible.
Party arguments
- Applicant
- The applicant argued that notice was not given to the Departments of Treasury and Social Development due to apprehension of threats to her life. She sought urgent relief and immediate execution of costs against the Department of Treasury, claiming urgency justified the ex parte approach.
- Respondent
- No respondents were cited or notified. The court considered the interests of the Departments of Treasury and Social Development, noting their substantial interest and the absence of notice or joinder.
05
Court’s reasoning
Legal principles
- 01
Uniform Rule 6(2)
Relief claimed against any person, or where it is necessary or proper to give notice, requires the notice of motion to be addressed to both the registrar and such person.
- 02
Common law; see also Tuchten J, Gauteng Division, Pretoria (Case number 6530/2019)
Failure to join parties with a substantial interest in the proceedings is fatal to the application.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the application was fatally defective due to the failure to cite and notify the Departments of Treasury and Social Development, who have a substantial interest in the relief sought. The applicant's justification for not giving notice, based on alleged threats to her life, was unsupported by any factual basis. The repeated filing of ex parte urgent applications on the same issue, despite previous dismissals for lack of notice and urgency, demonstrated disregard for procedural requirements. The court concluded that justice required affected parties to be given notice and an opportunity to be heard before any relief could be granted. Accordingly, the application was struck off the roll, and the applicant was barred from bringing further proceedings on the same relief without proper service on interested parties.
Obiter and limits
- The court noted the applicant's pattern of repeatedly filing ex parte urgent applications on the same issue, disregarding previous orders and procedural requirements.
- Granting final relief on an ex parte basis would unjustly deny affected departments the opportunity to be heard.
Court disposition
Application struck off the roll. Applicant barred from bringing further proceedings for similar relief without proper notice.
- The application is struck off the roll.
- The applicant may not bring any proceedings in this Court or any other Court or tribunal within the Republic of South Africa for the relief presently sought or any relief sought unless and until the papers have been served upon those who ought to receive notice of the application.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Order
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case number: 2996/2019
In the matter between:
MASAINGITA A KHOSA 1st
APPLICANT
HLANGANANI SANDILE NXUMALO 2nd
APPLICANT
and
EX
PARTE
HEARD ON: 8 AUGUST 2019
REASONS: MOLITSOANE, J
DELIVERED ON: 29 AUGUST 2019
[1] This is an application in terms of which the applicant seeks certain orders, inter alia, that the interim application as well as the main application be heard on an urgent basis. The Applicant further claims ‘as per Court Order costs in respect of this application in the amount of R1 508,161,199.57 as 35% on costs… to be immediately executable by Sheriff …from the banking account of the Department of Treasury Free State.’ A similar application was brought before me a few days before this current application and I dismissed the said application on the basis that no notice was given to the respondents and also that the application was not urgent.
[2] This application was also brought on an ex parte basis without giving notice to any party who may be affected by the order(s) this court may give. Uniform Rule 6(2) provides as follows:
“When relief is claimed against any person, or where it is necessary or proper to give any person notice of such application, the notice of motion must be addressed to both the registrar and such person, otherwise it must be addressed to the registrar only.”
[3] In this case the purported respondents have not been cited as can be seen from the heading above. The impression created is that this application is between the “Applicant and Ex Parte.” Neither the Departments of Treasury nor Social Development against whom relief is sought has been cited as parties. The said departments have a substantial interest in these proceedings and ought to have been joined. Failure to join the said departments is fatal to the Applicant’s case.
[4] The said departments were also not notified of this intended application although the relief sought indicate that it would be
necessary and proper to give them notice. During argument the Applicant attributed her reason for not giving notice to what she
said were apprehension of threats to her life. It is difficult to fathom how giving notice to the departments would put her life in danger. No factual basis was laid for this alleged fear on her life. This application is further couched in the form of a final order. Granting such an order would clearly shut the door in the departments’ faces and would thus deny them justice. Failure to give notice is also fatal to this application
[5] This application may be characterised as a sequel to the many applications on the same issue which this court has become aware of, brought by the applicant on an ex basis. A cursory count of the urgent applications on the same issues by the Applicant will reveal that no less than eight applications
were instituted in a space of two months. In spite of the orders of this Court dismissing the applications on the basis that no notice was given or that the applications were not urgent, Applicant continues to bring these applications on an ex parte basis. I have also noted an order of my Brother Tuchten,J in the High Court Gauteng Division, Pretoria( Case number 6530/2019) in which that Court struck the matter of the Applicant from the roll for failure to give notice to the respondents . In view of the continuous conduct by the Applicant of failing to give notice to the people who may be affected by the orders she seeks, I propose to make a similar order. I accordingly make the following orders:
ORDER
1. The Application is struck off the roll.
2. The Applicant( Masingita Abigail Khoza) may not bring any proceedings in this Court or any other Court or tribunal within the Republic of South Africa for the relief presently sought or any relief sought unless and until the papers have been served upon those who ought to receive notice of the application.
_______
P.E. MOLITSOANE, J
On behalf of applicant: In Person
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