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Mandela and Others v Dalibhunga (Mandela) and Others (1552/13) [2013] ZAECMHC 7

15th July 2013

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BACKGROUND

[1] The sequel to this hearing is the final Order that was issued by this Court on Friday, 2S June 2013 in the absence of the respondents.

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[2] Subsequent thereto, three applications served before me yesterday. The first and second applications (herein after referred to as the Variation and the Striking off applications) were brought by the applicants on Monday the 1st July 2013 and the third application ( herein after referred to as the rescission application) was brought by the first respondent orally from the bar yesterday.

[3] The variation application was brought in terms of Rule 42(1) of the Uniform Rules of the High Court to correct ” Saturday, 29th July 2013, to read Saturday , 29th June 2013” in paragraph 4 of the Order issued on the 28 June 2013 .

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[4] In the Striking out application, the nature of the relief sought by the applicants is an order striking out averments contained in certain paragraphs of the answering affidavit to the variation application on the ground that they are irrelevant, vexatious and scandalous. The striking out application is brought in terms of Rule 6(15) of the Uniform Rules.

[5] The rescission application is brought in terms of Rule 42 (1) (a) of the Uniform Rules on the ground that the Order of the 28 June 2013 was erroneously sought and erroneously granted in the absence of the first respondent.

[6] Before the commencement of the hearing of the three applications referred to above, Mr Smith, Counsel for the applicants, moved an application from the bar for the amendment of the Notice of Motion to be in accord with the variation order sought. After brief submission from Mr Zilwa, Counsel for the first respondent I granted the amendment to the Notice of Motion in the following terms;

“4A: That in the event of the First Respondent failing to immediately return the remains, but no later than Wednesday 3 rd July 2013 at 15:00, the Sheriff of this Court, or his Deputy, (or nominee) performs, subject to the fulfillment of the medical protocols by a medical practitioner, the exhumation of the remains on the First Respondent’s property, for reburial at the applicants' family homestead (farm) situated at Qunu, Mthatha, Eastern Cape

[7] In view of the fact that all the three applications are interlinked and factually overlapping, I granted leave for them to be heard simultaneously so that I give one judgment encompassing all of them. I will now herein after deal with the applications in turn, starting with the striking out application.

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