Ex-diplomat’s estate case: Judge Mumcy removed
MBABANE – The Supreme Court has interdicted further hearing of all pending matters touching on the estate of former diplomat Christian Masuku until it finalises pending appeals touching on the estate.
This was after Judge Mumcy Dlamini was accused of continuing to deal with a matter despite the filing of appeals touching on it. The Supreme Court, on Tuesday, ordered that further hearing of matters touching on Christian’s estate shall be heard by the High Court constituted differently. This means that the removal of Judge Dlamini from matters involving the estate.
In its judgment, the Supreme Court said: “Owing to the apparent and toxic relationship borne out of the record and as having developed in court during the various hearings of all the matters involving the parties and touching upon the estate of the late Christian Gunka Masuku, any further hearing of such matters, including those that may rise, shall be heard by the High Court constituted differently than before.”
The court also ordered that until the pending appeals had been heard and their results pronounced by the Supreme Court, sitting in its appellant jurisdiction, the operation of all orders issued by the High Court in disregard of the noted appeal be suspended. The Supreme Court also interdicted the continued winding up of the estate until the court had pronounced itself on the propriety of the continued winding up of the estate by the former agent, notwithstanding the passing on of her principal.
The court ordered that each party should pay its own costs in view of the close biological relationship between the main protagonists and the need to find a more amicable solution to their problems. The matter was heard by Judge Stanley Maphalala, Judge Nkululeko Hlophe and Judge Sabelo Matsebula. The estate has not been wound up in almost 20 years.
Christian’s daughter, Lobusuku and her brother, Douglas, are fighting over property of the estate of their late father. Lobusuku represented her mother, Lizzie Masuku, who is now deceased, as the mandated executrix of the estate of their father. Douglas is currently appealing a decision issued by Judge Zonke Magagula, referring the spoliation matter to Judge Dlamini. Spoliation is used to restore lost possession of property, specifically where possession has been unlawfully deprived.
Ordered
In the Supreme Court, Advocate Lucas Maziya said when Judge Dlamini issued the order to evict Douglas, Judge Magagula had ordered that the spoliation matter be referred to Judge Dlamini. However, according to Advocate Maziya, after Judge Magagula had referred the matter to Judge Dlamini, Douglas immediately filed an appeal against Judge Magagula’s order.
The advocate said after the appeal had been filed, Judge Dlamini issued an order that Douglas be evicted from their family home, which is owned by Mlondo Housing (Pty) Ltd – the joint applicant with Lobusuku.
In her judgment stating her reasons for her decision, which was required by the Supreme Court before proceeding with the matter, Judge Dlamini said Advocate Maziya, who represents Douglas, demanded, on August 17, 2022, that the High Court should not deal with the matter as a series of appeals had been filed in the Supreme Court.
Judge Dlamini, who was cited as the seventh respondent, told the court that Advocate Maziya had not handed to court any document as evidence of an appeal that had been filed.
According to Judge Dlamini, Maziya stood up and left the courtroom, while it was in session and did not allow Lobusuku’s attorney to respond. The judge said the court proceeded to sit and hear arguments in the matter that had been referred to her by Judge Magagula.
The Supreme Court set aside the eviction of Douglas from his parents’ property at Moneni, Manzini. It also ordered that Douglas and those holding title under him, be reinstated to the premises, from Farm 9, Pebbles Block at Moneni, until the matter shall have been finalised or unless a lawful eviction, carried out in terms of the law, was effected.
The court further ordered that before Douglas assumed occupation of the premises as per the order of the court, a neutral deputy sheriff, other than the one who oversaw his eviction, shall forthwith and under the auspices of the control of the registrar of the Supreme Court, prepare and file a report with the registrar on the state of the premises, together with an inventory of the items found thereon.
In the Supreme Court, Douglas was seeking an order interdicting Judge Dlamini from hearing any matter involving the parties pending appeals filed in respect of the matter. He also wanted the court to interdict Judge Dlamini from making cost orders or issuing orders pertaining to the estate of Christian pending appeals.
He further wanted the court to vacate the orders issued by Judge Dlamini after the he had filed notices of appeal and that Judge Zonke Magagula be directed to proceed with the urgent application, filed by Douglas on July 13, 2022, to finality. Douglas also prayed that Judge Dlamini be ordered to issue a written judgment comprising reasons for all orders issued for the estate of the late Christian.
Controversial
Judge Hlophe said it was strange and controversial that a sitting judge of the High Court had been cited and served with papers instituting the proceedings on the basis of a matter she dealt with in her capacity as a judge.
Judge Hlophe also noted that the applicant (Douglas) went on to seek specific interdicts against the said judge – to prevent her from discharging what would be her normal judicial functions.
Following the death of Christian, the family got mired in disputes and some members, including Douglas, got evicted from their Moneni home.
Others came back before they were evicted again during the hearing of this application.
Last year, the court noted that several disputes ensued between Douglas and Lobusuku, and most of them ended up before Judge Dlamini, ‘who appears, at least from some scant reasoning, given a brief explanation of the orders she made, to have taken the view that the applicant was frustrating the winding up of the estate’.
Judge Hlophe said if that conclusion was based solely on Douglas’s challenging of Lobusuku in the performance of her duties, having a legitimate ground to do so in law, including challenging the decisions made through the law, it may not necessarily mean that he was frustrating the winding up of the estate than that he was exercising a right.
“I have no hesitation that the law has sufficient safeguards to ensure it was not being abused by any of the parties and those safeguards do not entail acting outside it in the name of avoiding its abuse. What is certain is that in its pure form, the law will always be able to detect an abuse and respond to it lawfully,” said Judge Hlophe.
The judge said although most of the applications that came before Judge Dlamini were successful, most of the decisions, if not all of them, were appealed against by Douglas and none of them had yet been heard, except that some of them had been allocated October 31, 2022 for hearing.
Douglas’s eviction from the premises emanated from an order issued by Judge Dlamini on June 28, 2022. Douglas then filed an appeal against that decision.
Thandeka Hlabangane instructed Advocate Maziya to represent Douglas. South African Advocate Shakoane represented Lobusuku and Mlondi Housing (Pty) Ltd, and he was instructed by Knox Nxumalo.