Mandela and Others v Dalibhunga (Mandela) and Others (1552/13) [2013] ZAECMHC 7 (3 July 2013)

Mandela and Others v Dalibhunga (Mandela) and Others (1552/13) [2013] ZAECMHC 7 (3 July 2013)

The court found that paragraphs 3-23 of the first respondent's answering affidavit were irrelevant, scandalous, and vexatious, as they did not address the core issue of spoliation and were directed at matters already disposed of. The variation application was granted to correct a patent typographical error in the date of execution, as the intention of the parties and the court was clear. The rescission application was dismissed because the order was final, the court was functus officio, and the first respondent failed to show good cause or raise any defence relevant to spoliation. The applicants achieved substantial success and were awarded costs.

Citation
[2013] ZAECMHC 7
Parties
Applicant: Makaziwe Pumla Mandela; Applicant: Ndileka Mandela; Applicant: Nandi Mandela; Applicant: Tukwininobuhlali Mandela; Applicant: Ndaba Mandela; Applicant: Dorothy Adjoa Amuah; Applicant: Kweku Gladiel Mandela; Applicant: Mbuso Mandela; Applicant: Andile Mandela; Applicant: Thembela Mandela; Applicant: Hlanganani Mandela; Applicant: Pumla Deborah Mandela; Applicant: Graca Simbine Machel-Mandela; Applicant: Zenani Dlamini-Mandela; Applicant: Zindziswa Mandela; Respondent: Zwelivelile Mandle Sizwe Dalibhunga (also known as Mandla Mandela); Respondent: The Member of the Executive Council: Eastern Cape Department of Health; Respondent: The Premier, Eastern Cape
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
3 July 2013
Case Number
1552/13
Procedural Posture
Urgent Application / Judgment on Variation, Striking Out, and Rescission Applications
Outcome
The striking out and variation applications succeed; the rescission application is dismissed with costs.
Judges
LP Pakade
Legal Topics
Mandament Van Spolie, Variation of Court Order, Striking Out Scandalous Matter, Rescission of Judgment
Civil Procedure Land and Property Mandament Van Spolie Variation of Court Order Striking Out Scandalous Matter Rescission of Judgment

Case Brief

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Parties

Makaziwe Pumla Mandela

Applicant

Ndileka Mandela

Applicant

Nandi Mandela

Applicant

Tukwininobuhlali Mandela

Applicant

Ndaba Mandela

Applicant

Dorothy Adjoa Amuah

Applicant

Kweku Gladiel Mandela

Applicant

Mbuso Mandela

Applicant

Andile Mandela

Applicant

Thembela Mandela

Applicant

Hlanganani Mandela

Applicant

Pumla Deborah Mandela

Applicant

Graca Simbine Machel-Mandela

Applicant

Zenani Dlamini-Mandela

Applicant

Zindziswa Mandela

Applicant

Zwelivelile Mandle Sizwe Dalibhunga (also known as Mandla Mandela)

Respondent

The Member of the Executive Council: Eastern Cape Department of Health

Respondent

The Premier, Eastern Cape

Respondent

Procedural Posture

Urgent Application / Judgment on Variation, Striking Out, and Rescission Applications

Legal Issues

  1. 1 Whether paragraphs 3-23 of the first respondent's answering affidavit should be struck out as irrelevant, scandalous, and vexatious.
  2. 2 Whether the court order dated 28 June 2013 should be varied to correct a patent error regarding the date.
  3. 3 Whether the first respondent's application for rescission of the order should succeed on the basis of lack of notice and service.

Ratio Decidendi

The court found that paragraphs 3-23 of the first respondent's answering affidavit were irrelevant, scandalous, and vexatious, as they did not address the core issue of spoliation and were directed at matters already disposed of. The variation application was granted to correct a patent typographical error in the date of execution, as the intention of the parties and the court was clear. The rescission application was dismissed because the order was final, the court was functus officio, and the first respondent failed to show good cause or raise any defence relevant to spoliation. The applicants achieved substantial success and were awarded costs.

Court Disposition

The striking out and variation applications succeed; the rescission application is dismissed with costs.

Orders

  • Paragraphs 3-23 of the first respondent's answering affidavit are struck out as irrelevant, scandalous, and vexatious.
  • The order issued on 28 June 2013 is varied to amend 'Saturday 29 July 2013' to 'Saturday, 29 June 2013'.