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WINNIE MUIR (BORN HOWARD) WIDOW v SIBONISO CLEMENT DLAMINI N.O. AND OTHERS [1999] SZHC 15 (29 June 1999)

Non-joinder of heirs
Urgency, essential allegations
Requirements interim interdict
CIV. CASE NO. 368/99


IN THE MATTER BETWEEN:

WINNIE MUIR (BORN HOWARD) WIDOW APPLICANT
VS

SIBONISO CLEMENT DLAMINI N.O. 1^ST RESPONDENT

THE MASTER OF THE HIGH COURT
OF SWAZILAND 2ND RESPONDENT

TRACAR A DIVISION OF SWAKI INVESTMENT
CORPORATION LTD 3^RD RESPONDENT

CORAM : MASUKU A.J.
FOR APPLICANT : MR P.M. SHILUBANE
FOR 3^RD RESPONDENT : IN PERSON

JUDGEMENT
29/6/99

This is an application brought under a Certificate of Urgency for the following relief:

1. Dispensing with the forms of service and the time limits prescribed by the
Rules of Court and hearing the matter urgently;

proceeding with the sale of a C220 1996 Model Mercedes Benz motor car registration SD 787 CG belonging to the estate of the late Martin Robert


Muir pending the final determination of the relief sought by Applicant in paragraph 3.2 hereof.

above Honourable (sic)Court why!

3.1 The Applicant should not be allowed to use the motor vehicle referred to
in paragraph 2 hereof pending the winding up of the estate of the late
Martin Robert Muir (the deceased).

Applicant de bonis propiis in the event he opposes the same.

It appears from the Founding Affidavit that the Applicant is the surviving spouse of the deceased, having been married to him by civil rites in or about the 28^th October, 1993. After the death of the deceased, the 1^st Respondent was duly appointed as the executor dative of the deceased’s estate by the 2^nd Respondent. After taking charge of the deceased estate, the 1^st Respondent in exercise of his duties decided to sell the motor vehicle referred to in prayer 2, which the Applicant alleged was bought by the deceased for her.

In pursuance of the decision to sell the motor vehicle in question, the 1^st Respondent contacted the 3^rd Respondent which was requested to sell the vehicle, it being a motor vehicle dealer. The Applicant is opposed to the sale of the said vehicle.

The 1^st Respondent, cited nominee officii appeared in person and opposed the grant of the order sought on the following grounds which were raised from the bar:

brought in the manner that it was.

order issued will be rendered nugatory. The fact of the sale was duly communicated to the Applicants Attorneys.

(c) that there has been non-joinder in that the other heirs who have an interest
in the application have neither been cited in the application or served with the papers. In this connection, the Court was referred to the case of FAKROODEEN vs FAKROODEN & OTHERS N.N.O. 1971 (3) SA 395.

cited nor served with the application.

The Applicant, on the other hand contends that the purported sale is unlawful in that the 1^st Respondent has not obtained the consent of the Master of the High Court as required by the provisions of Section 66 of the Administration of Estates Act, 1902. Furthermore, it is urged on the Applicant’s behalf that the sale is also unlawful because the Applicant, as the surviving spouse was not consulted about the sale although the marriage between her and the deceased was in community of property.

In response to Mr Dlamini’s arguments, Mr Shilubane argued that it cannot be said that a sale has taken place as the merx had not been delivered. He further argued that the Fakroodeen case (supra) was distinguishable in that in casu, the Applicant, a surviving spouse is seeking urgent relief. Mr Shilubane further argued that notwithstanding the non-joinder of the other heirs, they would suffer no prejudice as a result of the Court the granting interim relief sought, it being sufficient that the Master of the High Court had been served and was aware of the application.

I shall now proceed to deal with the issues raised by the parties seriatim:

It was contended by Mr Dlamini that the application should not be enrolled because it is not urgent and any urgency alleged is of the Applicant’s own creation. The Court was referred to a letter written by the Applicant to the 1^st Respondent, dated 18^th January, 1999, the relevant portion of which reads as follows: -

“As for the Mercedes, I don’t know why it should be sold. Martin bought that car for me. It is registered under his name. I do wonder though how the other
widows end up with their husband’s cars...”

From the foregoing, it is abundantly clear that the Applicant, as early January 1999, knew that the 1^st Respondent intended selling the motor vehicle in question. The question that arises is why did the Applicant not make an application timeously to interdict the 3^rd Respondent from selling it as the 1^st Respondent never indicated that his resolve to sell the vehicle changed. No reasons are advanced as to why the Applicant did not approach the Court earlier.

This Court has clearly set out the law relating to urgency in HUMPHREY H. HENWOOD v MALOMA COLLIERY (PTY) LTD CASE NO. 1623/24 (unreported). In that case, DUNN J held that the provision of Rule 6 (25) (a) and (b) are peremptory. The Applicant has, in my view, not made the allegations required by the mandatory provisions of Rule 6 (25)(b). Furthermore, she is not entitled, in view of her knowledge of the impending sale of the motor vehicle in mid January, 1999, to now rush to Court and seek interim relief thereby depriving the Respondents the time afforded them by the Rules of Court. In this regard, I find it apposite to cite from the Judgement of FLEMMING DJP in GALLAGHER v NORMAN’S TRANSPORT LINES (PTY) LTD 1992 (3) SA 500 of 502:

“ The mere existence of some urgency cannot therefore justify an applicant not
using form 2 (a) of the first schedule to the Uniform Rules. The Rules do not
tolerate the illogical knee – jerk reaction that, once there is any amount of
urgency, that form of notice of motion may be jettisoned - and often, a rule nisi be sought. The Applicant must, in all respects, responsibly strike a balance between the duty to obey Rule 6(5) and the entitlement to deviate,
remembering that that entitlement is dependent upon and is thus limited
according to the urgency which prevails.”

I may mention that save for the numbering of the Rules referred to in the above case, which differs from the numbering in our Rules, the wording is otherwise in pari materia.

For the above reasons, the relief sought in prayer 1 is refused.

An applicant in order to obtain an interim interdict must establish the following;

see SETLOGELO v SETLOGELO 1914 AD 221 at 227

According to Van Winsen et al, The Practice of the Supreme Court of South Africa, 4^th Edition at page 1065, the Court has discretion to grant a temporary interdict even where a clear right has not been proved.

A perusal of the Applicant’s papers will show that no attempt has been made to address the third requirement, i.e. the absence of similar protection by another remedy. Failure to allege and prove this important requirement is fatal to the Applicant’s case. In fact it would appear, subject to the contents of the following paragraph that the Applicant would not be left bereft and remediless if the motor vehicle is sold as she can sue the 1^st Respondent for any damages suffered as a result of the alleged unlawful sale of the motor vehicle. In this regard see Van Winsen et al supra at page 1075 and the cases therein cited.

At the hearing, the 1^st Respondent informed the Court that the vehicle, which is the subject matter of this application has already been sold and that the purchase price has been deposited in the trust account of S.C. Dlamini & Co. Attorneys. Furthermore, the Court was informed that Mr Shilubane was advised about this development. Mr Shilubane was of the view that no sale had taken place as the vehicle was still with the 3^rd Respondent and had not been delivered. Further, he said that the 1^st Respondent ought to have filed an affidavit in this regard.

Mr Dlamini is an officer of this Court and I have no hesitation in accepting information that he furnishes the Court from the bar, particularly where the application is brought on an urgent basis. It would be presumptuous for the Court to expect him to have filed an affidavit by the time the matter came for argument.

In view of the fact that the sale has taken place, it is inappropriate for this Court to grant prayer 2, as the order made would clearly be brutum fulmen. An Order cannot be issued to stop what has already taken place.

According to Van Winsen (supra) at page 1071 – 1072

“An interdict is appropriate only when future injury is feared. This means that when the wrongful act giving rise to the injury has already occurred either it
must be of a continuing nature or there must be a reasonable apprehension that it will be repeated......If the infringement is one that prima facie appears to have occurred once and for all, and is finished and done with, then the
applicant should allege facts justifying a reasonable apprehension that the
harm is likely to be repeated.”

In my view the harm in question in casu, is one that has “occurred once and for all, and is finished and done with” and an interdict in this case is clearly inappropriate.

The remedy open to the Applicant, if delivery of the vehicle has not taken place as alleged by Mr Shilubane, would be to interdict the Third Respondent from delivering the vehicle to the purchaser, pending proceedings to set aside the sale, which order cannot be granted on these papers. I am not even certain whether the vehicle is still in the 3^rd Respondent’s possession, and this is obfuscated because it does not appear that the 3^rd Respondent has been served with the application in order to state what the position regarding the motor vehicle is.

Mr Dlamini argued that since the other heirs in the deceased estate had not been cited as parties, the Applicant’s application is bad and ought to be dismissed therefor. Mr Shilubane in a counter – argument submitted that the fact that the application was served on the 2^nd respondent cured the defect occasioned by non-service on the heirs.

From a reading of the FAKROODEEN CASE (supra) with which I agree, Mr Dlamini’s point must be upheld. It is clear from the papers that the other heirs have not been cited and each one of them has a direct and substantial interest in any order that this Court may make and as such, they ought to have been cited and served with the application. The applicant’s failure to do so is not explained. Service of the application on the Master of the High Court does not dispense with and cannot be equated to service on the heirs. The heirs may have objections to the order sought and to which the Master may understandably be oblivious.

The fact that the matter is urgent cannot in my view be sufficient grounds for not serving the other heirs. The other heirs may well have valid reasons as to why even an interim order may not be issued. I therefore do not agree with Mr Shilubane’s argument that the instant case is distinguishable on the grounds he alleged.

(d) Non-service of application on Purchaser

It was argued by Mr Dlamini that the application ought to be dismissed on the grounds of non-service on the purchaser. During the course of argument it became abundantly clear that neither Mr Shilubane nor the Applicant knew who the purchaser of the vehicle was because the 1^st Respondent had not furnished his/her identity. Even the Court was not informed of the identity of the purchaser. For that reason, it scarcely lies in the mouth of the 1^st Respondent to raise this point when he did not reveal the identity of the purchaser to the Applicant’s attorneys during their correspondence prior to the launching of this application. I find no substance in this point and accordingly reject it.

Without deciding the legal effect of the provisions of Section 66 of the Administration of Estates Act, 1902, on the sale of the vehicle, I uphold the first three points in limine
raised by the 1^st Respondent and the interim relief sought is refused. There is no order as to costs.

T.S. MASUKU

ACTING JUDGE