Ntombela and Another v Murray N.O and Others (3807/2020) [2021] ZAFSHC 317 (7 December 2021)

Ntombela and Another v Murray N.O and Others (3807/2020) [2021] ZAFSHC 317 (7 December 2021)

The court held that the applicants are entitled to the record of proceedings under Rule 53, even if the record consists of correspondence and other communications rather than a conventional dossier. The Rule 6(5)(d)(iii) notice filed by the respondents was premature, as the applicants had not yet had the opportunity to complete their founding papers by supplementing their affidavit after receipt of the record. The court condoned the applicants' non-compliance with time periods under Rule 30/30A in the interest of justice and to avoid further delay. The respondents are ordered to produce the record within fifteen days, after which the applicants may supplement their papers and the...

Citation
[2021] ZAFSHC 317
Parties
Applicant: Madala Louis David Ntombela; Applicant: Sefora Hixonia Ntombela; Respondent: Cloete Murray N.O.; Respondent: Gert Lourens Steyn de Wet N.O.; Respondent: Magda Wilma Kets N.O.; Respondent: Hugo & Terblanche Auctioneers; Respondent: Phehla Umsebenzi Trading 48 CC; Respondent: Panganathan Marimuthu; Respondent: Neermala Moodley; Respondent: Werner Cawood N.O.; Respondent: Johan Christiaan Beer N.O.; Respondent: Vishal Junkeerparsad & Company Attorneys; Respondent: Meryl Moonsamy Attorneys; Respondent: The Master of the High Court Pretoria
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 December 2021
Case Number
3807/2020
Procedural Posture
Interlocutory Application / Application to Set Aside Rule 6(5)(d)(iii) Notice and Compel Production of Record Under Rule 53
Outcome
Application granted in part; Rule 6(5)(d)(iii) notice provisionally set aside; respondents ordered to produce the record; costs to be borne by each party.
Judges
Opperman
Legal Topics
Uniform Rules of Court, Review Proceedings, Liquidation, Specific Performance, Record of Proceedings, Condonation
Civil Procedure Land and Property Uniform Rules of Court Review Proceedings Liquidation Specific Performance Record of Proceedings Condonation

Case Brief

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Parties

Madala Louis David Ntombela

Applicant

Sefora Hixonia Ntombela

Applicant

Cloete Murray N.O.

Respondent

Gert Lourens Steyn de Wet N.O.

Respondent

Magda Wilma Kets N.O.

Respondent

Hugo & Terblanche Auctioneers

Respondent

Phehla Umsebenzi Trading 48 CC

Respondent

Panganathan Marimuthu

Respondent

Neermala Moodley

Respondent

Werner Cawood N.O.

Respondent

Johan Christiaan Beer N.O.

Respondent

Vishal Junkeerparsad & Company Attorneys

Respondent

Meryl Moonsamy Attorneys

Respondent

The Master of the High Court Pretoria

Respondent

Procedural Posture

Interlocutory Application / Application to Set Aside Rule 6(5)(d)(iii) Notice and Compel Production of Record Under Rule 53

Legal Issues

  1. 1 Whether the interlocutory application under Rule 30/30A is competent in the circumstances.
  2. 2 Whether the applicants are entitled to an order compelling production of the record under Rule 53(1)(b).
  3. 3 Whether the Rule 6(5)(d)(iii) notice filed by the respondents is premature and should be set aside.

Ratio Decidendi

The court held that the applicants are entitled to the record of proceedings under Rule 53, even if the record consists of correspondence and other communications rather than a conventional dossier. The Rule 6(5)(d)(iii) notice filed by the respondents was premature, as the applicants had not yet had the opportunity to complete their founding papers by supplementing their affidavit after receipt of the record. The court condoned the applicants' non-compliance with time periods under Rule 30/30A in the interest of justice and to avoid further delay. The respondents are ordered to produce the record within fifteen days, after which the applicants may supplement their papers and the...

Court Disposition

Application granted in part; Rule 6(5)(d)(iii) notice provisionally set aside; respondents ordered to produce the record; costs to be borne by each party.

Orders

  • The filing of the Notice in terms of Rule 6(5)(d)(iii) by the first to third and fifth respondents is provisionally set aside pending finalisation of the Rule 53 process.
  • First to third and fifth respondents are ordered to make available to the applicants the record of the proceedings sought to be corrected and set aside in terms of Rule 53(1)(b) within fifteen days of the date of this order.