South Africa: North Gauteng High Court, Pretoria

In the High Court of : South Africa

Gauteng Division, Pretoria                   Case No.465/2020

In the matter between:-

Blantina Mnisi                                                                                      Applicant

And

Lamiel Makhubela                                                                   1^st Respondent

The Master of the High Court                                              2^nd Raspondent

Judgment

As an

LI Vorster AJ:

1.This is an opposed application which started as a n urgent application during September 2020. It was struck from the roll due to lack of urgency. Thereafter  it was enrolled again as an opposed motion for 30 November 2020. It was struck from the roll again for want of compliance with the practise manual. The applicant was ordered to pay the wasted costs. To this day the Applicant has not complied with the practise manual The result is that as of today the Applicant has not served pr per heads of argument listing authorities. What is before me is the Respondent with a proper practise note and heads ot argument.

2.The applicant claims a series of interdicts against the First Respondent  which are based on alleged unlawful actions of the First Respondent in connection with the deceased estate of her late husband. The first Respondent denies each and every such allegation.

3.The Applicant did not as it should have done, ask for referral to oral evidence of the various factual disputes so that the matter could be properly tried and decided. The result is that no progress at all has been made to finalise this allegedly urgent application since September 2020.

4.It is trite that opposed application procedure was designed to provide more expeditious ways to decide disputes. Application procedure is much more expeditious than action procedure. It follows inevitably that opposed application procedure is only, feasible where all relevant facts are common cause between the parties. Because application procedure is faster litigants have erroneously embarked upon application procedure where relevant facts are in dispute. That gave rise to the well known Plascon Evans decision and many others to follow. The simple truth has not changed: the courts cannot make decisions unless the factual basis of the decision is not in dispute.

5. ln the instant case the applicant cannot succeed with any of the prayers in the notice of motion simply, because the relevant facts on which the cause of action rests is in dispute.

6.Consequently the application cannot succeed. As far as costs is concerned, the 1stRespondent asks for a punitive costs order. In my view that request has merit. The Applicant since the first appearance of September2020 never followed the correct procedure as I have indicated, thereby causing unnecessary trouble to 1^st Respondent and committing an abuse of process

7 In the result I make the following order:

The application is dismissed with costs on the scale of attorney and client, such costs to include costs which were previously reserved between the parties in this application

LI Vorster AJ             14 /4 21

Counsel: 1^st Respondent AJ Schoeman.