Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2017 (6) SA 90 (SCA)

Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and Others
2017 (6) SA 90 (SCA)

2017 (6) SA p90

Citation	2017 (6) SA 90 (SCA)
Case No	95/2016 and 210/2015; [2017] ZASCA 88
Court	Supreme Court of Appeal
Judge	Ponnan JA, Cachalia JA, Theron JA, Mathopo JA and Mbatha AJA
Heard	June 6, 2017
Judgment	June 6, 2017
Counsel	In SCA case No 95/2016: Mr Mulaudzi in person, as appellant.; A Breitenbach SC (with H Cronje) for the first respondent (Old Mutual).; S Olivier SC for the trustees of Mr Mulaudzi's insolvent estate.; In SCA case No 210/2015: G Budlender SC (with T Mosikili) for the first appellant (the NDPP).; A Breitenbach SC (with H Cronje) for the second appellant (Old Mutual).; Mr Mulaudzi, the first respondent, represented himself, as well as the second to fifth respondents (Mrs Mulaudzi and three close corporations).; S Olivier SCfor the trustees.

Flynote : Sleutelwoorde

Judge — Recusal — When required — Litigant's attorney is judge's attorney.

Headnote : Kopnota

Key C facts in this case were as follows:

•

Mr Mulaudzi invested a sum in an Old Mutual [*] bond policy;

•

He later ceded his rights in the policy to Nedbank Ltd, and Nedbank requested Old Mutual to endorse the policy to this effect. It failed to do so.

•

Years later, on the policy's maturity, Mulaudzi requested to be paid, and Old Mutual duly did so, into a nominated bank account.

•

Shortly D thereafter Nedbank requested payment and Old Mutual realised its error. It then reported the matter to the police and the National Director of Public Prosecutions obtained a provisional restraining order over Mulaudzi's property from the Western Cape Division of the High Court (Weinkove AJ). The order was coupled with a rule nisi, and Mulaudzi anticipated the rule's return date, and obtained the order's discharge E (Hlophe JP). This caused the National Director and Old Mutual to seek and receive leave to appeal to the Supreme Court of Appeal (SCA).

•

Separately, shortly after Hlophe JP discharged the restraining order, Old Mutual obtained an order in the Gauteng Division (De Vos J) that Mulaudzi pay it the policy sum, and pending payment be restrained from dealing with F certain of his investments. Mulaudzi then obtained De Vos J's leave to appeal to the SCA; gave the SCA's registrar his notice of appeal; but failed to lodge the record within three months, causing the appeal to lapse. Eleven months after giving notice he delivered the record, along with an application for condonation and reinstatement of the appeal.

•

Thereafter, Mulaudzi's estate was sequestrated.

The issues were:

•

Whether the trustees of Mulaudzi's estate should be substituted for Mulaudzi in each appeal. Held, that they should be (see [15] – [16] and [19]).

•

Whether Mulaudzi should be permitted to intervene in each appeal. Held, that he should be: he had an interest in the estate's value, and the appeals H might affect this; and where trustees did not act in a matter concerning an estate (here they abided the court's decisions), the insolvent could do so (see [18] – [20]).

•

Whether Mulaudzi's failure to lodge the record in time could be condoned. Held, that it could not be: the delay was unreasonable, its explanation unsatisfactory, and the appeal's prospects of success nil. Condonation I would also prejudice Old Mutual and the administration of justice. (See [24], [33] and [41].)

•

Whether there was a reasonable apprehension that Hlophe JP was biased. Held, that there was. It arose from the following:

2017 (6) SA p91

(i)

Mulaudzi's attorney, Mr Xulu, was Hlophe's longstanding attorney, A and was currently representing Hlophe in disciplinary proceedings (see [49] – [50]);

(ii)

Hlophe was not a duty judge on the return day, yet assigned himself the matter (see [60]);

(iii)

Both the National Director and Old Mutual submitted papers to Hlophe on the return day (the National Director's opposing discharge; B Old Mutual's in support of its intervention), yet without reading them, Hlophe discharged the restraint order, and dismissed the application (see [44] and [60]);

(iv)

Hlophe's later written reasons were only six pages long (see [61]);

(v)

His findings in support of discharge were untenable (see [62] and [64] – [65]); and C

(vi)

He misapplied the relevant principles in denying leave to intervene (see [66] – [67]).

•

The effects of the finding. Held, that the proceedings before Hlophe JP were a nullity, and fell to be set aside retrospectively. This meant the provisional restraining order revived, and that the property subject to the restraint was excluded from the insolvent estate of Mulaudzi (see [68], [70] and [72]). D

Mulaudzi's application for condonation and reinstatement dismissed. The National Director and Old Mutual's appeal upheld; Hlophe JP's order set aside; and the rule nisi extended until confirmed or discharged (see [74]).

Cases cited

Southern Africa

Aboo v FirstRand Bank Ltd [2005] ZASCA 25: dictum in para [12] applied

Bernert v Absa Bank Ltd2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): dictum in para [28] applied

Bester and Another NNO v National Director of Public Prosecutions; National Director of Public Prosecutions v Kleinhans and Others2013 (1) SACR 83 (SCA) ([2012] 2 All SA 453): dictum in para [6] applied F

Blumenthal and Another v Thomson NO and Another1994 (2) SA 118 (A) ([1993] ZASCA 190): referred to

Commissioner for Inland Revenue v Burger1956 (4) SA 446 (A): dictum at 449G applied

Commissioner, South African Revenue Service v Van der Merwe2016 (1) SA 599 (SCA): referred to G

De Beer v Olivier en 'n Ander1966 (1) SA 684 (O): referred to

De Polo and Another v Dreyer and Others1991 (2) SA 164 (W): referred to

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] 2 All SA 251 (SCA) ([2013] ZASCA 5): applied

Ferreira v Ntshingila1990 (4) SA 271 (A) ([1989] ZASCA 149): referred to H

Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and Others1985 (4) SA 773 (A) ([1985] ZASCA 71): referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae)2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24): dictum in para [74] applied

General Accident Versekeringsmaatskappy Suid-Afrika Bpk v Bailey NO I 1988 (4) SA 353 (A): referred to

Hassim (also known as Essack) v Incorporated Law Society of Natal1977 (2) SA 757 (A): dictum at 764E – 765G applied

Judicial Service Commission and Another v Cape Bar Council and Another2013 (1) SA 170 (SCA) (2012 (11) BCLR 1239; [2012] ZASCA 115): dictum in para [12] applied

2017 (6) SA p92

Manong A & Associates (Pty) Ltd v Minister of Public Works and Another2010 (2) SA 167 (SCA): referred to

Mbutuma v Xhosa Development Corporation Ltd1978 (1) SA 681 (A): referred to

Mears v Rissik, Mackenzie NO and Mears' Trustee 1905 TS 303: dictum at 305 applied

Moraliswani B v Mamili1989 (4) SA 1 (A) ([1989] ZASCA 54): referred to

MV Snow Delta: Discount Tonnage Ltd v Serva Ship Ltd1998 (3) SA 636 (C): referred to

MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd2000 (4) SA 746 (SCA): referred to

National Director of Public Prosecutions v Ramlutchman2017 (1) SACR 343 (SCA): C not followed

National Director of Public Prosecutions v Rautenbach and Others2005 (4) SA 603 (SCA): dictum in para [27] applied

National Director of Public Prosecutions v Rebuzzi2002 (2) SA 1 (SCA) (2002 (1) SACR 128): referred to

Nieuwoudt v The Master and Others NNO1988 (4) SA 513 (A): referred to

Nissan D South Africa (Pty) Ltd v Marnitz NO and Others (Stand 186 Aeroport (Pty) Ltd Intervening)2005 (1) SA 441 (SCA) ([2006] 4 All SA 120): dictum at 448G applied

Nkabinde and Another v Judicial Service Commission and Others2016 (4) SA 1 (SCA) ([2016] ZASCA 12): referred to

Old E Mutual Life Assurance Company v Mulaudzi and Others [2014] ZAGPPHC 1034: confirmed on appeal

P E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd1980 (4) SA 794 (A): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others1999 (4) SA 147 (CC) (1999 (7) BCLR 725; [1999] ZACC 9): F dicta in paras [36] – [39] applied

Prophet v National Director of Public Prosecutions2007 (6) SA 169 (CC) (2006 (2) SACR 525; 2007 (2) BCLR 140; [2006] ZACC 17): dictum in para [42] applied

Rennie v Kamby Farms (Pty) Ltd1989 (2) SA 124 (A): dictum at 131E applied

S G v Basson2007 (3) SA 582 (CC) (2007 (1) SACR 566; 2005 (12) BCLR 1192; [2005] ZACC 10): referred to

S v Dube and Others2009 (2) SACR 99 (SCA): referred to

S v Le Grange and Others2009 (2) SA 434 (SCA) (2009 (1) SACR 125): referred to

S H v Tyebela1989 (2) SA 22 (A): referred to

Sassoon Confirming and Acceptance Co (Pty) Ltd v Barclays National Bank Ltd1974 (1) SA 641 (A): referred to

Stainbank v SA Apartheid Museum at Freedom Park 2011 (10) BCLR 1058 (CC) ([2011] ZACC 20): referred to

Take I and Save Trading CC and Others v Standard Bank of SA Ltd2004 (4) SA 1 (SCA) ([2004] 1 All SA 597): dictum in para [5] applied

Uitenhage Transitional Local Council v South African Revenue Service2004 (1) SA 292 (SCA) ([2003] 4 All SA 37; [2003] ZASCA 76): dictum in para [6] applied.

Canada

Liszkay J v Robinson [2003] BCCA 506: referred to.

2017 (6) SA p93

England A

Hollington v F Hewthorn & Co Ltd[1943] KB 587 (CA) ([1943] 2 All ER 35): referred to

R v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No 2)[1999] 1 All ER 577 (HL): referred to

Taylor v Lawrence[2002] UKPC 30 ([2003] QB 528; [2002] 2 All ER 353; [2002] All ER (D) 28; [2003] 1 WLR 18): distinguished. B

United States

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