CIVIL PROCEDURE B (LEC 421E)

GROUP ASSIGNMENT

NAME AND SURNAME STUDENT NUMBER

MAXWELL DLAMINI (GROUP

LEADER) 201818514

LITHA MDE 201809067

UNATHI ADONIS 201805709

CHUMANI GXOTHO 201808540

NONCEBA MAHOLA 201804771

APIWE MVANDABA 201811761

YONGA MGQUBA 201413237

BONKE MBANYANE 201303639

BANDILE MAKAMBI 201801065

SISA HITA 201600694

XOLA DODOSANA 201700792

QUESTION 1

MEMORANDUM

TO: Mr Elvis Makuwa

FROM: Advocate Percy Tau

DATE: 28 September 2021

SUBJECT: A memorandum explaining the nature of the relief set out in the Notice of Motion
as well as the legal process until the judgement stage.

I. BACKGROUND

This memorandum seeks to give clarity on the nature of the application, and consequently the
form of relief that is sought in the application as set out in the notice of motion. Firstly, the
relief sought as set in the notice of motion brings about two types of applications. These
comprise of a main application which is in the form of an application to review the judicial
decision of the High Court, and of an interlocutory application which seeks an order for an
interdict.

II. FACTS

The review and the setting aside of a decision of a judicial officer in the High Court is
empowered by rule 53 of the Uniform Rules of Court, read together with the Promotion of
Administrative Justice Act 3 of 2000. Section 6 of the Act grants individuals the right to
institute proceedings for the judicial review of an administrative action and further establishes
the grounds upon which such an action can be reviewed. Section 1(b) of the Act defines
administrative action as any decision or failure to take a decision by a natural or juristic
person when exercising a public power or performing a public function in terms of an
empowering provision.

Part A of the notice of motion involves an interlocutory application which precedes the main
application, in the sense that it is filed for an immediate relief while pending the final
determination of the main application. The primary objective of this type of application is to
prevent/ prohibit future unlawful conduct. The application in this case seeks a twofold
interdictory relief; firstly, a prohibited order (to stop or prevent a person from acting or taking
action), and secondly, an order to compel a person to act or take action in a certain way
(mandatory order). Part A on the notice of motion is brought to the court as a matter of
urgency as supplemented by rule 6 (12) of the Uniform Court Rules. This rule suggests to the
Court to dispense from the normal prescribed time limits and the forms of service provided
for under the Uniform Court Rules.

III. LEGAL ISSUE(S)

Part A in the notice seeks to interdict and restrain the second respondent from executing the
duties as the executor of the estate. The relief sought out here is based on an application in
terms of section 18 of the Superior Court Act, wherein, pending the review process set out in
Part B of the notice, the appointment of the new executor shall be suspended.

Part B in the notice seeks to review and set aside the decision to remove the Jane Stewart as
the executor of the estate. The removal in this sense is empowered by section 54(1)(a)(v) of
the Administration of Estates Act of 1996. However, the relief sought out in this regard
suggests that the decision to remove the executor has not been arrived at with the proper
procedure and rules as provided for in the Act.

IV. LEGISLATION

There are actually two legislations applicable on this present matter as we have been briefed
by Mr Klaas on behalf of the client Mr Makuwa. The first is the Administration of Estates
Act, specifically section 54(1), which allows the court and the Master of the High Court to
remove an executor from office. The grounds for the Master of High Court to remove an
executor from office are spelled out in Section 54(1)(b)(i) through (vi). This frequently
occurs after an application, such as our client Mr Makuwa's, has been filed with the
competent court. Second, is the Superior Courts Act, here Mr Makuwa’s application is more
concerned about s 18 of this Act, which specifically deals with the requirements that should
be met and complied with upon filling an application to remove an executor of an estate from
office. Those requirements include having the applicant (Mr Makuwa) to prove the existence
of exceptional circumstance. Also whether applicant will suffer irreparable harm and the
respondent would not.

V. DISCUSSION

The method and conditions that apply when applications are filed in the High Court are
outlined in Rule 6 of the Uniform Rules of Court. In the usual run of business, an applicant
must give a respondent five days to indicate whether or not they intend to oppose. When a
matter is contested, a responder has 15 days to provide a replying affidavit together with any
relevant documents. Within 10 days following the respondent's responding affidavit, the
applicant may file a replying affidavit. After the applicant has provided its response, it has 5
days to apply to the registrar for a date for the matter's hearing. This implies that, in the usual
course, and assuming no needless delays or interlocutory proceedings break the timeline for
filing affidavits, an applicant must wait 35 court (business) days before applying for a hearing
date.

The Uniform Rules of Court, Rule 6(12), allows for situations that cannot wait to be
addressed with in the normal course of business. The Rule allows applicants to request that
the court “dispense with the forms and service provided for in these rules,” which essentially
means that the court will overlook an applicant's failure to follow the normal rules of
procedure set out in Rule 6 when the matter is urgent and cannot wait for the normal
procedures to be followed1. In urgent petitions, the court or a judge may waive the Uniform
Rules' forms and service requirements and dispose of the issue at any time and place, in any
manner, and in accordance with any procedure, which shall, as far as practical, be in
compliance with the rules. Such an application must be accompanied by an affidavit detailing
the circumstances that the applicant believes make the case urgent, as well as the reasons why
the applicant claims he or she will not be able to get significant remedy at a hearing in a
timely manner.

In Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 2, the
court explained how, when submitting an application under Rule 6(12), an applicant basically
sets his own method and schedule. “When an applicant appears before a judge in such a
procedural manner, he must ask the judge to disregard the rules applicable to ordinary
adjudication. He is not obliged to go to the judge first to ask permission to act by means of
extraordinary adjudication because Rule 6(12) expressly provides that the judge may deal
with such a matter when and where he deems fit.”

The applicant requests that the court enjoin the second respondent from performing the
responsibilities of the executor pending the ultimate decision of the remedy requested in Part
B of the Motion. This is significant because it demonstrates that once an application of this
kind or an appeal of a judgment is filed, the order must remain in effect until the court's
decision. Section 18 of the Superior Court Acts, on the other hand, governs the court's ability
to stay the execution of a judgment pending an appeal. The decision must not be related to a

1
Rule 6(12) of the Uniform rules of the Court
2
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 1 SA 773 (A)
final order in order to be suspended. The applicant addresses the question of costs in number
3 of part A, stating that they must be paid in the majority by the first respondent, but that if
the second and third respondent unite to oppose, they would all be responsible for costs
jointly. Furthermore, if one party pays, the others will be absorbed, meaning they will be
covered by the payment of one party.

The applicant requests that the court reconsider and set aside the first respondent's decision to
remove Jane Stewart as the executor of the late Carol Jackson's estate in Part B of the
application. The First Respondent's decision to appoint the second respondent as the estate's
executor must likewise be reviewed and set aside by the court. The First Respondent must be
ordered to restore Magwaca as the estate's executor by the court. If the first respondent
decides to oppose the case, the expenses will be paid by the second and third respondents
jointly with the first respondent. Although, in the recent case of Mlunguza and Another v
Master of the High Court and Another,3 the Court found that the Administration of Estate Act
does not empower the Master to refuse letters of executorship on the basis that the executor is
undesirable, however, the Court or the Master are well authorised by the Act to remove the
executor on the basis that he or she is undesirably.

VI. CONCLUSION

It is evident in this memorandum that, where an application to remove the executor have been
filed by an heir which in the present matter is our client Mr Makuwa, the Master does not
have the prerogative to investigate the validity of the complaint and decide on the application.
Our courts with a strict reliance on s 18 of the Superior Courts Acts and s 54 of the
Administration of Estates Act are tasked with this function to investigate and make findings
on whether a particular person is a fit and proper person to hold the office of the executor and
thereafter issue an order whether to dismiss or uphold the application.

3
Mlunguza v Master of the High Court [2020] ZAWCHC 6
QUESTION 2

IN THE HIGH COURT OF SOUTH AFRICA

BISHO LOCAL DIVISION, EASTERN CAPE

CASE NO: 10/2/21O

In the ex parte application of

MR JACOB ZILLE Applicant

And

PAYRITE BANK OF SA 1st respondent

MASTER OF THE HIGH COURT 2nd respondent

DEEDS REGISTRY OFFICE 3rd respondent

MS NTOMBIFUTHI MDLALOSE 4th respondent

MR ZANOXOLO MBIYOZO 5th respondent

NOTICE OF MOTION

PART A: INTERDICTORY RELIEF

BE PLEASED TO TAKE NOTICE that application will be made to the above Honourable
Court a thereafter as Counsel may be heard for an order in the following terms:

1. Dispensing with the prescribed time limits, forms and services provided for in the Uniform
Rules of this Honourable Court and allowing the matter to be heard as one of urgency under
rule 6 (12).

2. That the sale in execution of the property (Erf No 47 Beacon Bay, East London) that is
scheduled for 28 September2021 be stayed, pending the final determination of this
application.
3. That the sale in execution by way of auction, premised by a writ of execution in pursuance
of a judgement granted by this Court, be set aside.

4. That the first and second respondent be interdicted from registering the transfer of
property.

5. Further and/or alternative relief

KINDLY SET THE MATTER DOWN FOR HEARING ACCORDINGLY.

PART B: REVIEW APPLICATION

6. Rescind/vary the judgement that was granted erroneously, and in the absence of the
applicant as provided for in terms of Uniform Rule 42 (1)(a),(b), to the effect that:
6.1 The service of summons as required in High Court Rule 4 has not been effected in a
proper manner

7. That the applicant is granted leave to supplement its papers, if necessary

8. The second respondent to pay the costs of the application, if unnecessarily opposed.

9. That the relief granted herein be served on the respondents in accordance with the rules of
Court

10. That prayer 2 above shall serve and operate as an interim interdict against the respondents
pending final determination of this application.

11. Further and/or alternative relief

KINDLY TAKE FURTHER NOTICE that the affidavit of MR JACOB ZILLE together
with all confirmatory affidavits and annexes thereto will be used in support of this
application.

TAKE NOTICE FURTHER that if any respondent intend on opposing the relief sought in
this application, they are requested to notify the applicants attorneys in writing and to file
their answering affidavits, if any, by 16 H00 on 30 September 2021.10.
TAKE NOTICE FURTHER that the applicant has appointed the offices of DMX Attorneys
at no 20, 3rd floor, 12 Oxford Road, East London as the address at which he will accept
notices and services of all documents in these proceedings.

KINDLY SET THE MATTER DOWN FOR HEARING ACCORDINGLY.

DATED AT EAST LONDON ON THE 29 DAY OF SEPTEMBER 2021.

DMX ATTORNEYS

______________________________________

(Attorneys for Applicant)

NO 20, 3rd Floor

12 Oxford Road

EAST LONDON

Tel: (021) 364 4204

Fax: (021) 361 6190

Email: DmxAttorneys@outlook.co.za

TO: THE REGISTRAR

Bisho High Court

Eastern Cape

AND TO: RESPONDENTS

QUESTION 3

Privileged and confidential

CLIENT: JOHN MGWACA

IN RE: PROSPECTS OF SUCCESS IN OPPOSING THE APPLICATION IN TERMS

OF SECTION 18 OF THE SUPERIOR COURTS’ ACT 10 OF 2013

OPINION

Furnished to: MOUTON MAGWACA INCORPORATED ATTORNEYS

8TH Floor, Mountain Building

Sea view Road

Cape Town

WESTERN CAPE

Date: 25 May 2021

A. INTRODUCTION
1. The Consultant is John Magwaca (‘the consultant').
2. My opinion and comments have been sought with regard to the consultant’s
prospect of success in in opposing the application in terms of section 18 of the
Superior Courts's Act filed by Mr Jackson seeking to put the order of the
Western Cape High pending the outcome of the appeal process.
B. ISSUES/QUESTIONS PRESENTED

3. My opinion and comments have been sought in the following specified issues, namely:

3.1 What are Mr Magwaca's chances of succeeding in opposing the application in

terms of Section 18 of the Superior Courts’ Act filed by Mr Jackson to put the order
of the Western Cape High pending the outcome of the appeal process?
 3.2 Does Mr Jackson have reasonable grounds for his application in terms of Section
18 of the Superior Court’s Act to put the order of the Western Cape High pending the
outcome of the appeal process?
3.3 Is it possible by law to put an order of the court’s judgement in action even though
there is an appeal pending on that case?

C. THE FACTS

4. The following facts are relevant to the issues:

4.1 Mr Magwaca is a very prestigious and successful attorney practising as such as one of the
eight directors of Mouton Magwaca Incorporated Attorneys. He is the firms head in the
department of administration of Deceased's Estates, Insolvencies and Business Rescue.
4.2 Apart from being appointed as an executor, Mr Magwaca has been appointed as a
business rescue practitioner of state owned entities by the Master if the High Court.
4.3 The appointed person is required to provide a bond of security which comprise of cover
from the insurance company. It is the requirement for the applicant to be desirable and
eligible to act as the executor for the bond of security to be approved by the underwriters.
4.4 Mr Magwaca has been removed as executor in th3 estate if late Carol Jackson in terms of
Section 54(1)(a)(v) of the Administration of Estates Act of 1966 which givers powers to
the court to remove an executor from his office at any time if the for any other reason the
court is satisfied that it is undesirable that he should act as executor of the estate
concerned.
4.5 The application for removal was filed by the deceased’s brother (Martin Jackson) and Mr
Magwaca was cited as the first respondent.
4.6 In Mr Magwaca’s view, the discharge of the executor in terms of section 54(1)( a) ( v) of
the Act must be preceded by misconduct or impropriety on the part of the executor and in
this case he was declared undesirable despite the fact that there was no misconduct or any
impropriety found on his part. Should the court order stand, then the insurance companies
will withdraw their bond.
4.7 Mr Magwaca leave of appeal to the Supreme Court of Appeal was refused
notwithstanding the many grounds apparent in this case to overturn the judgment.
4.8 Mr Martin Jackson has filed an application in terms of section 18 of the Superior Courts’
Act, Seeking to put into operation the order of the Western Cape High Court pending the
outcome of the appeal process,
 D. THE APPLICABLE LEGAL PRINCIPLES

5. Prior to coming into operation of Section 18 of the Superior Courts Act 10 of 2013,
there was Rule 49(11) of the Uniform Rules of Court. Rule 49(11) 4 provides that when an
appeal has been noted or an application for leave to appeal against or rescind, correct or
vary an order of a court has been made, the operation and execution of the order in
question shall be suspended, pending the decision of such an appeal or application, unless
the court which gave such order, on the application of a party, otherwise directs.

6. Now Section 18 of the Superior Court’s Act 10 of 2013 brings a whole new dimension
in contrast to that brought by Rule 49(11). Section 18(1) provides that “ subject to
subsections 2 and 3, and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the subject of an application
for leave to appeal or of an appeal, is suspended pending the decision of the application or
appeal5.”

7. Section 18(2) provides that “subject to subsection 3, unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision that is an
interlocutory order not having the effect of a final judgment, which is the subject of an
application for leave or of an appeal, is not suspended pending the decision of the
application or appeal.”

8. Finally, the most important subsection of section 18 in my opinion is section 18(3)

which provides that “A court may only order otherwise as contemplated in subsection 1
and 2, if the party who applied to the court to order otherwise, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the court does not so
order and that the other party will not suffer irreparable harm if the court so orders"

9. It is argued that Section 18(3) introduces a fresh test for leave to put into operation and
execute an order pending the appeal process and such test is discussed in the Incubeta
case6. Sutherland J holds that the test is two-fold and the requirements are (a) whether or
not ‘exceptional circumstances’ exist and (b) proof on a balance of probabilities by the
applicant of the presence of irreparable harm to the applicant, who wants to out into

4
Rule 49(11) of the Uniform Rules of the Court
5
Section 18 of the Superior Courts Act 10 of 2013
6
Incubeta Holdings v Ellis 2013 3 SA 189 (GJ)
 operation and execute the order and the absence of irreparable harm to the respondent
who seeks leave to appeal.

10. The phrasing “Exceptional circumstances" had been interpreted differently by the
courts. In MV Ais Mamas7 the court holds that what is meant by the words ‘exceptional
circumstances’ is that it is something out of the ordinary and of a unusual nature. It is
something which is accepted in the sense that the general rule does not apply to it. The
court further notes that it is something uncommon, or different. It depends on a particular
case and is a matter of fact which the court must decide accordingly.

11. The Court in Incubeta further provides that the conclusion of whether exceptional
circumstances exist in a given case is not a product if discretion, but a finding of fact.

12. With regards to the second leg of the test, the court in the Incubeta case provides that
the proper meaning of section 18(3) is that if the respondent, who seeks leave to appeal,
will suffer irreparable harm the order must remain stayed, even if the stay will cause the
applicant irreparable harm too. Also, if the respondent will not suffer irreparable harm,
the applicant must nevertheless show irreparable harm to its self.

E. APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS

13. Applying the first part of the leg test in this case, looking at the facts of the case, there are
no exceptionally circumstances that may warrant Mr Jackson the Applicant to be in need of
such an order of execution of the judgment pending Mr Magwaca’s appeal. Mr Magwaca's
removal as an executor in Carol Jackson’ estate is not even preceded by misconduct or
impropriety on his part. In fact, he was declared undesirable and in turn removal was ordered
by the court even in the absence of finding impropriety or misconduct on his part. There is
nothing out of the ordinary or exceptional in this case in my opinion that would justify such
an order to be granted by the court.

14. In addition to paragraph 13, Mr Magwaca appointed on recommendation by the father of

the deceased’s minor child, who is the sole heir and beneficiary to the intestate estate. This
merely proves that Mr Magwaca was trusted by the father of the deceased’s minor child to
execute his job thoroughly and without any misconduct or impropriety and in deed there is no
presence of such conduct. He is a stellar attorney and rates by almost all reputable
international rating firms as one of the top ranked attorneys in his areas of practise which
signifies that he does his job well and it is not reasonable in the circumstances to think that
7
MV Ais Mamas 2002 6 SA 150 (C)
his conduct or behaviour when executing his duties may warrant ‘exceptional circumstances’
in this case.

15. With regards to the second leg of the test, there is no proof of irreparable harm to the
Applicant if the order of the judgement is stayed in consideration of Mr Magwaca’s pending
appeal. If anything, Mr Magwaca is the one who will suffer irreparable harm should the court
grant the Applicant’s order. This is because Mr Magwaca has been appointed as a business
rescue practitioner of state owned entities and the appointed person is required to provide a
bind of security which comprise of a cover from the insurance company as mentioned in
paragraph 4 of this ‘Opinion’. Now the big issue here is that it is the requirement for the
applicant, Mr Magwaca to be desirable and eligible to act as the executor for the bond of
security. If the court order stands and he is in actual fact declared undesirable in terms of
Section 54(1)(a)(v) of the Act8, the companies will withdraw their bond. In that way he will
suffer great irreparable harm especially considering that there are valid grounds for his
appeal.

F. CONCLUSION

16. Rule 49 made it possible that, on application of a party, a decision of a court that is
pending an appeal could be sustained or remain in effect/force automatically. Whereas the
provisions of section 18 makes it clear that the decision of a court pending an application to
appeal could take effect even if there is a pending appeal provided that the applicant can
prove that there are exceptional circumstances warranting the court to grant such an order and
that the applicant will suffer irreparable harm if the order of the judgment is not executed
whilst an appeal is pending or the respondent will suffer irreparable harm if the order of the
judgment is executed while his appeal is pending.

17. So in essence, with the new Section 18 of the SCA, Martin Jackson's application to the
court to have the order of the judgment against Mr. Magwaca executed even when his appeal
is likely to fail considering the fact that he can't or satisfy any of the two fold test in section
18(3) as discussed in point D and E of this Opinion. Thus, Mr Magwaca's prospects of
success in opposing Mr Jackson's application to the court looks positive and he is likely to
succeed.

8
S 54(1) of the Administration of Estate Act 66 0f 1965