Mandela v Toti and Others (3508/20) [2021] ZAECMHC 3 (26 January 2021)

Mandela v Toti and Others (3508/20) [2021] ZAECMHC 3 (26 January 2021)

The court found that the applicant, as lawful custodian of Mvezo Great Place, was justified in seeking the interdict to prevent unauthorized burial. The respondents' resistance was unreasonable, and the abandonment of ancillary relief was necessitated by the burial having occurred elsewhere. The ancillary relief was closely linked to the main relief, and its abandonment did not justify depriving the applicant of costs. No credible version was presented by the respondents to warrant a departure from the general rule that costs follow the result. The court exercised its discretion in favour of the applicant, awarding costs against the respondents jointly and severally.

Citation
[2021] ZAECMHC 3
Parties
Applicant: Chief Zwelivelile Mandela; Respondent: Bhito Toti; Respondent: Mxolisi Nikani; Respondent: Lucky Nkundleni; Respondent: Mqayi Mqhakayi; Respondent: Bambatha Tyhalakhulu; Respondent: Branch Commander, Bityi Police Station; Respondent: Any Unknown Persons
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
26 January 2021
Case Number
3508/20
Procedural Posture
Civil Application / Costs Determination Following Confirmation of Interim Interdict
Outcome
Costs awarded to the applicant; respondents to pay costs of the application, including appearance costs of 13 October 2020, jointly and severally.
Judges
Z. M. Nhlangulela
Legal Topics
Interdict, Costs Award, Burial Rights, Traditional Land Custodianship
Civil Procedure Land and Property Interdict Costs Award Burial Rights Traditional Land Custodianship

Case Brief

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Parties

Chief Zwelivelile Mandela

Applicant

Bhito Toti

Respondent

Mxolisi Nikani

Respondent

Lucky Nkundleni

Respondent

Mqayi Mqhakayi

Respondent

Bambatha Tyhalakhulu

Respondent

Branch Commander, Bityi Police Station

Respondent

Any Unknown Persons

Respondent

Procedural Posture

Civil Application / Costs Determination Following Confirmation of Interim Interdict

Legal Issues

  1. 1 Whether the respondents should be ordered to pay the costs of the application, including appearance costs of 13 October 2020.
  2. 2 Whether the abandonment of ancillary relief affects the costs order.

Ratio Decidendi

The court found that the applicant, as lawful custodian of Mvezo Great Place, was justified in seeking the interdict to prevent unauthorized burial. The respondents' resistance was unreasonable, and the abandonment of ancillary relief was necessitated by the burial having occurred elsewhere. The ancillary relief was closely linked to the main relief, and its abandonment did not justify depriving the applicant of costs. No credible version was presented by the respondents to warrant a departure from the general rule that costs follow the result. The court exercised its discretion in favour of the applicant, awarding costs against the respondents jointly and severally.

Court Disposition

Costs awarded to the applicant; respondents to pay costs of the application, including appearance costs of 13 October 2020, jointly and severally.

Orders

  • The respondents are ordered to pay the costs of the application, including appearance costs of 13 October 2020, jointly and severally; the one paying and the others to be absolved from liability.