The
applicant seeks an order in the following terms -
“It
is ordered that:
1.
The respondent's application in case number 1873/07 be and is hereby dismissed
with costs for want of prosecution, and the provisional order be and is hereby
discharged.
2.
The applicant shall pay the costs of this application.
3.
The applicant be and is hereby given leave to execute the Bulawayo Magistrate's
Court judgment given under case number 9901/04.”
The
application was opposed by the respondent on 17 March 2008. The respondent
filed an opposing affidavit dated 17 March 2008. On 24 July 2008, the applicant
filed his answering affidavit. Thereafter, before the matter was set down for
hearing, the parties tried to settle. These efforts were futile.
Unfortunately,
before this hearing, the respondent passed on.
This
has prompted counsel for the respondent to seek the removal of the matter from
the roll pending the substitution of the late litigant. Counsel for the
respondent also advised that the respondent's estate has since been registered.
Counsel
for the applicant opposes this suggested route.
His
stance is that the death of the respondent does not terminate these
proceedings. He submits that, at the time of the demise of the respondent, what
was left was for the respondent's legal practitioner to file heads of argument.
Reliance was placed on Order 13 Rule 85A of the High Court Rules 1971 for the
applicant's stance.
The
respondent's death certificate was not produced, although there was an
undertaking that it would be produced at this hearing.
In
common law, if a party to proceedings dies, then, assuming that action, or
application, is one which can be brought by, or instituted against, his estate,
the proceedings, though not brought to an end, are stayed automatically until
the appointment of an executor to the deceased party's estate, for no
proceedings can continue when a party has ceased to exist – Standard Financial
Nominees (Pty) Ltd v Lurie & Ors 1978 (3) SA 338 (W)...,.
This
position has been altered in our jurisdiction by the enactment of Rule 85A of
the High Court Rules 1971, which provides -
“No
proceedings shall terminate solely as a result of the death, marriage, or other
change of status of any person, unless the cause of proceedings is thereby
extinguished.
(2)
If, as a result of an event referred to in sub-rule (1), it is necessary or
desirable to join, or substitute, a person as a party to any proceedings, any
party to the proceedings may, by notice served on that person and all other parties,
and filed with the registrar, join or substitute that person as a party to the
proceedings, and thereupon, subject to sub-rule (4), the proceedings shall
continue with the person so joined, or substituted, as the case may be, as if
he had been a party from their commencement:
Provided
that -
(i)
Except with leave of the court, no such notice shall be given after the
commencement of the opposed matter;
(ii)
The copy of the notice filed on the person to be joined, or substituted, shall
be accompanied by copies of all documents previously filed, or served, in the
proceedings.
(3)
Where a party to any proceedings dies, or ceases to be capable of acting as
such, his executor, curator, trustee, or other legal representation, may, by
notice filed with the registrar, and
served on all other parties to the proceedings, state that he wishes to
be substituted for that party, and thereupon, subject to sub-rule (4), he shall
be deemed to have been so substituted in his capacity as curator, trustee, or
legal representative, as the case may be.
(4)
A judge may, on chamber application being made to him within fifteen days after
the service of a notice in terms of sub-rule (2) and (3), set aside or vary any
joinder, or substitution, of a party affected in terms of sub-rule (2) and (3),
as the case may be.”
Counsel
for the respondent should have applied for substitution in terms of Rule 85A(3)
of the High Court Rules 1971.
This
was not done.
Counsel
for the respondent also submitted the respondent's head of argument on the
merits.
It
is common cause that the cause of the application has not been extinguished by
the death of the respondent. At the time of this hearing, there was no notice
filed by the executor in terms of sub-rule (3), so there is no need to stay the
proceedings.
As both parties have submitted heads of argument
on the merits, I find that there is no prejudice if this application is
finalized.
