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[2011] ZAGPJHC 199
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Radebe v Gama and Another (2010/28436) [2011] ZAGPJHC 199 (8 December 2011)
NOT
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
2010/28436
DATE:08/12/2011
In the matter between:
FLORA
RADEBE
.................................................................................
Applicant
and
PHUMZILE
EMILY GAMA
......................................................
First
Respondent
AIRPORTS
COMPANY OF SOUTH AFRICA LTD
...........
Second
Respondent
(“
ACSA”)
REASONS FOR
JUDGMENT
On 23 November 2011, I ordered that this application be dismissed
with costs.
On 24 November 2011, being the
very next day, I received a request for reasons for my ruling. This
was followed by a further
request for such reasons on 2 December
2011. The second request was made on the basis that the Applicant
urgently required the
reasons to enable her
“to
proceed further in this matter
.”
On 8 December 2011, a third request was received.
Background
In order to explain the Order
that was made in this matter, it is necessary to briefly set out the
background pertaining to this
matter. The reasons for the order
will appear therefrom.
On 22 July 2010, the Applicant launched an application against the
Respondents in which she claimed the following relief:
4.1 “
that
the 1
st
respondent immediately and/or by order of this Honourable Court
vacate the Kiosk I have rented from the 2
nd
respondent, and wherein the 1
st
respondent is operating her business unlawfully, and using my
equipment or business material without my authority and or my
concerned;
4.2 that by order of this
Honourable Court, 1
st
respondent
must cease from using my brand, ‘Flos Stirerazy catering’
unlawfully without my agreement.”
Annexed to the aforementioned
notice of motion, was a founding affidavit/condonation in which the
Applicant stated
inter
alia
the following:
5.1 She is an unemployed female adult, trading as a hawker;
5.2 She had to “
take
this case and individual applicant due to difficulties
”
she had encountered with attorney Chris Manzini;
5.3 She had obtained a hawker’s tender from the Second
Respondent to run or operate a kiosk located within its premises
and/or in property belonging to it;
5.4 She was subjected to the
requirements as stated in the confirmatory letter of the Second
Respondent dated 13 July 1999, a copy
of which was annexed;
5.5 In January 2007, she became ill and underwent medical treatment
so her son operated the business in her kiosk;
5.6 She was later introduced to a
certain Mr Mphumla Lesley Mamaila and the First Respondent, who were
interested in running her
kiosk in terms of an agreement for the
amount of R4 500.00 per month. A copy of the agreement was annexed;
5.7 When the agreement expired,
Mr M L Mamaila honoured the terms of the agreement and left the
kiosk, but the First Respondent
refused to do so;
5.8 She told the First Respondent
that she was in breach of the agreement, but the First Respondent
informed her that she had the
Second Respondent’s support and
nothing would stop her;
5.9 She thereafter reported the
matter on several occasions to the Second Respondent without success
or visible action to avoid
further unlawfulness and prejudice to
herself;
5.10 She thereafter appointed Manzini Attorneys to represent her in
order to get her kiosk back and eject the First Respondent;
5.11 At one stage, she removed the First Respondent’s equipment
from the kiosk, but found it had been put back and was operating
the
next day;
5.12 Thereafter, she had a dispute with attorney Chris Manzini
concerning the manner in which he had handled the matter;
5.13 Thereafter, she attempted to
obtain legal assistance from the Wits Law Clinic, Pro Bona and Legal
Resource Centre but all of
her applications were declined.
5.14 She regretted the late
filing of her application and submitted that it was in the interests
of justice and fairness that she
be pardoned and therefore that her
application be heard.
Following on this notice of
motion and founding affidavit, which ended at paragraph 21, there is
a document entitled
“Particulars
of Claim”
which
then runs from paragraphs 22 to 29 and thereafter a document
entitled
“ACSA’s
obligation and enforcement of the rule of law
”,
which runs from paragraphs 30 to 39 whereafter, she sets out the
relief that she seeks as follows:
“
RELIEF SOUGHT
That First and Second
Respondents pay all the damages I suffered in the amount of R350
000,00 (Three hundred and fifty thousand
Rand only) jointly with one
paying the other absolved;
That First Respondent
immediately and/or per court order, stop her operation of business
and vacate the said kiosk;
That First Respondent hand me
over the fridge, three plates gas stove, two hard plastic tables and
six hard plastic chairs in
good condition as observed by my son and
daughter-in-law, Ms C Khumalo just after the agreement expired;
Interest in the rate of 18%
from the date of court order;
Further and/or alternative
relief; and
Cost of suit.”
Annexed to the Applicant’s papers as annexure “G”
is a letter from the Second Respondent to the Applicant’s
attorney dated 16 October 2007, in which it is recorded that the
Second Respondent had not terminated the tender that it had
awarded
to the Applicant as per a letter dated 13 July 1999. Thereafter the
following facts are recorded:
“
1 That your client has
leased the premises without our permission, consent and tender
requirements. She did not even notify our
offices of her decision.
2 Your client utilized a
standard Residential Lease Agreement document to enforce a Commercial
Lease
3 Furthermore, your client is
still charging the illegal sub-lessee R4 500 per month while she is
currently paying ACSA R150,00
per month for rental of the premises
.”
The Second Respondent opposed the relief sought and filed an
answering affidavit.
In summary, the Second
Respondent’s defence to the relief sought is that the
Applicant was not entitled to sublet the premises
without the
express consent of the Second Respondent. In subletting the
premises without the Second Respondent’s consent,
the
Applicant had breached the agreement and the Second Respondent
denied that it is liable to the Applicant for any damages
as alleged
or at all. The Applicant was the author of her own misfortune. The
Second Respondent requested that the application
be dismissed with
costs.
In response thereto, the
Applicant filed a document entitled
“Applicant’s
answer to the Second Respondent’s opposing affidavit”.
Essentially, this document, which was filed on 8 June 2011,
indicates that the Applicant stands by what she previously stated
in
her previous documentation. It is not an affidavit signed under
oath as required by the Rules of this Court.
There are numerous other documents filed in the Court file which are
not relevant to the decision reached.
A perusal of the Court file
indicates that the following previous orders have been made in this
matter:
On 26 April 2011, Nichols J
postponed this matter
sine
die
and reserved
costs;
On 31 May 2011, Kathree-Setiloane J postponed this matter to the
opposed roll of 14 June 2011 and reserved costs;
On 15 June 2011, Rautenbach AJ
postponed this matter
sine
die
and ordered the
Applicant to pay the wasted costs occasioned by the appearances in
the Motion Court for week 14-17 June 2011;
On 23 August 2011, Coppin J
postponed this matter
sine
die
and reserved
costs;
On 4 October 2011, Boruchowitz
J postponed this matter
sine
die
and ordered the
Applicant, Flora Radebe, to pay the costs occasioned by the
postponement.
There are two further
applications in the Court file entitled
“First
and Second Rescission Applications”
set
down for 22 November 2011.
The first such application was
made on notice of application dated 12 July 2011 and requests the
Court to reconsider the order
dated 10 June 2011 by Rautenbach AJ in
terms of Rule 42(1)(A)(B). Annexed to this notice is a founding
affidavit by the Applicant
in which she states
inter
alia
the following:
14.1 On two occasions, before
Masipa J and Nicholls J, she had utilized an unqualified assistant or
representative by the name of
Anthony Kgasi, who in response to
questions from the aforementioned Judges acknowledged that he was not
a qualified lawyer and
that he would be representing her in terms of
testimony or cross-examination.
14.2 On 31 May 2011, the Second
Respondent’s Counsel had told Mr Kgasi in the passage outside
the court room that he is not
entitled to represent the Applicant.
Kathree-Setiloane J had thereafter informed Mr Kgasi that he was not
entitled to represent
the Applicant and postponed the matter to 14
June 2011.
14.3 On 15 June 2011, Rautenbach
AJ was also not prepared to listen to Mr Kgasi and told the Applicant
to obtain the services of
an advocate.
14.4 On 12 June 2011, the
Applicant attended Court without an advocate and Rautenbach AJ then
postponed the matter and ordered the
Applicant to pay the costs
occasioned by the appearances during that week.
14.5 Costs orders had been
erroneously sought and there were omissions in regard to it so it
would be in the interests of justice
and fairness that the order be
rescinded and replaced by an order of costs in favour of the
Applicant
“whom
with limited or lack of knowledge of the procedures and Rules of the
Court, tried by all means to follow and respect
the Rules of this
Honourable Court in this case.”
In
response to this application for rescission, the Second Respondent
filed an affidavit in which it took the point
in
limine
that it was
incompetent for lack of compliance with the provisions of Rules
42(1)(a) and (b) of this Court’s Rules. The
Applicant had been
present in Court throughout the proceedings, the judgment had not
been erroneously sought or granted and there
was no ambiguity, patent
error or omission in the order.
Annexed to this affidavit
amongst other annexures is a transcript of the proceedings of 14
June 2011 before Rautenbach AJ. It
is apparent therefrom that the
provisions of Rule 42(1) (a) and (b) were not applicable in that the
Applicant was present in
Court throughout the proceedings, the
judgment was not erroneously sought or granted and there is no
ambiguity or patent error
or omission therein.
The second rescission
application comprises of a founding affidavit in which the Applicant
applies for the rescission of the costs
order granted by Boruchowitz
J and makes no reference to the provisions of Rule 42(1)(a) or (b).
Instead, on this occasion,
the Applicant states that Boruchowitz J
gave her the choice of two options. Either he would dismiss the
application or he would
postpone it, so as to enable the Applicant
to put the file in order. The Applicant chose the second option.
The Applicant thereafter states
that Bouchowitz J made that order without realizing that the Second
Respondent had
“sneaked
in or just placed in the court’s file without following the
rules and procedures of the court”
certain papers.
The Second Respondent once again
raised as a point
in
limine
that this
application did not comply with the provisions of Rule 42(1)(a) or
(b) or (c) of this Court’s Rules. A transcript
of the
proceedings before Boruchowitz J was also annexed to the answering
affidavit. As appears therefrom, the Second Respondent’s
contentions in this regard are well founded.
Against this background, the
Applicant appeared in person before me on 23 November 2011. Once
again, she was unrepresented and
requested permission to make use of
the services of the very same Mr Kgasi. This was refused, but she
handed up a document entitled
“Founding
Affidavit
” in
which she yet again sought the rescission of the costs orders by
Rautenbach AJ and Boruchowitz J but this time both
in terms of Rule
42(b) and (c).
It was explained to her that an
interpreter will be provided to her. Once the interpreter was
available, it was further explained
to her that she had been given
numerous opportunities to make use of the services of advocates. In
fact, she conceded that two
advocates and the Legal Aid Board had
spoken to her, offered their assistance but told her that they were
disinclined to argue
her matter.
It was further explained to her that she had not made out a case for
the relief that she had sought.
No case having been made out on
the papers, and to date, at least six Judges having been required to
read the papers, without
being able to deal with the merits of the
matter due to the Applicant’s inability to procure legal
representation or utilize
the legal representation that had been
provided to her in the form of Advocates Fine and Moorcroft, it
would serve no purpose
to further postpone this matter.
Furthermore, it is quite clear that the application constitutes an
abuse of this Court’s process. The Applicant and Mr
Kgasi
have purported to utilize the provisions of Rule 42, without taking
into account that there is no basis in law or fact
for the Applicant
to do so.
The Second Respondent is
entitled to finality. Each time that the Applicant enrols this
application, it is compelled to secure
legal representations and
incur costs. No basis has ever been made out for any of the relief
claimed including the rescission
of either of the costs orders.
In effect, the Applicant has
attempted to appeal these cost orders, having in effect consented to
them and never having requested
leave to appeal to do so.
In conclusion, no basis has been
made out for any of the relief sought in any of the applications in
this file. The Applicant
cannot be allowed to continue to abuse
this Court’s process by postponing this matter
ad
infinatum
and never
intending to pay any of the costs occasioned by such postponements.
In any event, all of these
applications are flawed from inception and are doomed to predictable
failure.
It was against this background that I finally ordered that this
application was dismissed with costs.
_____________________________________
L M HODES S.C
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
8December 2011