IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Civil Case No.337/2013
In the matter between:
SIPHO CYPRIAN NXUMALO & 4 OTHERS Applicant
vs
MASTER OF THE HIGH COURT & 6 OTHERS Respondents
Neutral citation: Sipho Cyprian Nxumalo & 4 Others vs Master of the High Court & 6 Others (337/2013) [2014] SZHC 32 (7th March 2013)
Coram: MAPHALALA PJ
Heard: 21st June 2013
Delivered: 7th March 2014
For Applicant: Mr. S.C. Dlamini
For Respondent: Mr. V. Manana
Summary: (i) Ruling on costs where the Applicant has sought that the Master of the High Court also pays costs as the other Respondents in the Application.
(ii) The 1st Respondent contends that no order for costs against her should be granted due to the fact that 1st Respondent exercised quasi judicial functions conferred to her by the Administration of Estate Act.
(iii) This Court agrees in toto with the submissions of the 1st Respondent and decline to issue costs as sought by the Applicant. That the 1st Respondent was exercising quasi judicial duties under the Act.
Decided cases referred to in the judgment:
1. Elias Kheli Dlamini and Another vs The Master of the High Court and 2 Others, High Court Case No.2362/11.
2. The Commissioner of Correctional Services vs Tsetselelo Hlatjwako, Supreme Court Case No.62/2009.
3. The Commissioner of Police and Another vs Aaron Mkhondvo Maseko, Supreme Court Case No.3/2011.
4. Maclean vs Haasbroek NO and Others 1957(1) SA 462.
RULING
(on costs)
[1] Serving before court is an Application where Applicant seeks that the 1st Respondent be joined to pay costs of this Application. The said Application is by Notice of Setdown with the Registrar’s stamp of the 12th September, 2013.
A brief history of the matter
[2] This matter appeared before this court where Respondents were represented by Miss da Silva of. The Application was in the long form where Applicant sought the removal of 2nd Respondent from the office of Executrix in the estate of late Esther Themba Nxumalo and other prayers thereof. The 2nd Respondent filed an Opposing Affidavit and was to file a supplementary affidavit thereafter. On the date of hearing of arguments of the attorneys Mr. S.C. Dlamini appeared for the Applicant and there was no appearance for the Respondent. The court allowed Mr. S.C. Dlamini to proceed to argue the matter in the absence of the other side in view of the fact that the matter had been postponed on a number of occasions to allow the Respondents to put their house in order.
The order as to costs
[3] The court then granted an order in terms of prayer 1, 2, and 3 of the Notice of Motion on 12th July, 2013.
[4] The judgment of the court in respect of the above orders stated at paragraph [12] as follows:
“In the result, for the aforegoing reasons an Application is granted in terms of prayers a), b) and c) together with costs. A further order is granted that Stanbic divulge the balances of the account of the estate at the date of death. Furthermore, the wasted costs of 21st June, 2013 to be borne by the 2nd Respondent.”
[5] The issue presently therefore is that the parties seek clarity of the court as to costs. It is contended for the Applicant that Respondents ought to pay costs jointly and severally. However, it is contended for the 1st Respondent that she cannot be ordered to pay costs since she exercised quasi judicial powers conferred to her by the Administration of Estate Act.
[6] Having considered all the arguments of the parties on this issue I am inclined to agree with the arguments advanced for the 1st Respondent. I say so, firstly because the Applicant did not seek an order for costs against the 1st Respondent in its initial Application. Secondly, I agree with the 1st Respondent’s contentions that the Master of High Court exercised quasi judicial functions in an official capacity thus no costs order can be sought against her. Thirdly, I also agree with the 1st Respondent’s arguments that there has been no mala fide on the part of the Master in the court’s finding to require the 1st Respondent to pay costs.
[7] In coming to the above conclusion I sought refuge on a number of decided cases including the High Court case of Elias Kheli Dlamini and Another vs The Master of the High Court & 2 Others, High Court Case No.2362/11. The case of The Commissioner of Correctional Services vs Ntsetselelo Hlatjwako, Supreme Court Case No.62/209; The Commissioner of Police and Another vs Aaron Mkhondvo Maseko, Supreme Court Case NO 3/2011 and that of Maclean vs Haasbroek NO & Others 1957(1) SA 464. I find that these cases support the position I have taken in this regard.
[8] In the result, for the aforegoing reasons I decline to issue costs against the 1st Respondent that costs be ordered “jointly and severally” in respect of the other Respondents in the Application. So it is ordered.
STANLEY B. MAPHALALA
PRINCIPAL JUDGE
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