Menziwa v Ndokwana and Others - Leave to Appeal (20872/2021) [2023] ZAWCHC 294 (22 November 2023)

Menziwa v Ndokwana and Others - Leave to Appeal (20872/2021) [2023] ZAWCHC 294 (22 November 2023)

The court found that the applicant failed to provide a full and reasonable explanation for the delay in filing the application for leave to appeal. Her account was incomplete, unsupported by evidence, and did not cover the entire period of delay. The applicant and her attorneys were aware of the time limits but did...

Source-derived case information.

Citation
[2023] ZAWCHC 294
Parties
Applicant: Noeliot Nosiwaphi Menziwa; Respondent: Nonkululeko Priscilla Ndokwana; Respondent: Jikeleza James Menziwa; Respondent: The Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 November 2023
Case Number
20872/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Condonation for Late Filing
Outcome
Application for condonation for late filing and leave to appeal dismissed with costs.
Judges
LekhULENI
Legal Topics
Condonation, Leave to Appeal, Joinder of Executor, Matrimonial Property Act, Bona Fide Purchaser, Deeds Registry Act
Civil Procedure Land and Property Condonation Leave to Appeal Joinder of Executor Matrimonial Property Act Bona Fide Purchaser Deeds Registry Act

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Summary, issues, holding and outcome

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Parties

Noeliot Nosiwaphi Menziwa

Applicant

Nonkululeko Priscilla Ndokwana

Respondent

Jikeleza James Menziwa

Respondent

The Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Condonation for Late Filing

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the applicant provided a sufficient and reasonable explanation for the delay.
  3. 3 Whether the non-joinder of the Executor or Master of the High Court was fatal to the main application.

Ratio Decidendi

The court found that the applicant failed to provide a full and reasonable explanation for the delay in filing the application for leave to appeal. Her account was incomplete, unsupported by evidence, and did not cover the entire period of delay. The applicant and her attorneys were aware of the time limits but did not act with urgency. The court further held that the non-joinder of the Executor or Master of the High Court was fatal to the main application, as the second respondent was deceased when the application was instituted. The order sought by the applicant was legally incompetent. On the merits, the court found that the first respondent was protected as a bona fide purchaser under...

Court Disposition

Application for condonation for late filing and leave to appeal dismissed with costs.

Orders

  • The applicant’s application for condonation for the late filing of the application for leave to appeal is refused.
  • The application for leave to appeal is dismissed.