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[2014] ZAGPJHC 21
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Maistry and Another v Khemese and Others (2013/17484) [2014] ZAGPJHC 21 (14 February 2014)
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SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER : 2013/17484
In
the matter between
MAISTRY,
EDGAR
NOEL First
Applicant
MAISTRY,
CELESTE Second
Applicant
and
KHEMESE,
NINIWE
First Respondent
MABASA,
ARTHUR
PETRUS Second
Respondent
BBM
ATTORNEYS Third
Respondent
JOHANNESBURG
METROPOLITAN LOCAL COUNCIL Fourth
Respondent
JUDGMENT
André
Gautschi AJ :
[1]
This is an application by a [……],
who purchased a sectional title unit (“the unit”) at a
sale in execution,
to recover possession thereof from the erstwhile
owner (the second respondent) and his tenant (the first respondent).
The
other two respondents may be ignored for purposes of this
judgment.
[2]
The relief sought by the applicants is that
the lease agreement between the first and second respondents be
declared cancelled,
to evict the first respondent and all persons
holding occupation through or under him from the unit, and costs on a
punitive scale.
The applicants also sought payment of rental,
levies and municipal rates and taxes from the first and/or second
respondents but
I was advised that that claim will be pursued by way
of a claim for damages at a later stage.
[3]
Although
the application for eviction was brought under the PIE Act
[1]
,
I was advised at the outset of the argument that the only defence to
the eviction was in the form of a counter-application for
a stay
thereof pending an appeal against a refusal by a magistrate to
rescind the default judgment which gave rise to the sale
of
execution.
[4]
On 26 November 2007, Amari Heights Body
Corporate obtained a default judgment against the second respondent.
Pursuant thereto,
the second respondent’s unit, being section
44 in the building known as Amari Heights in Winchester Hills,
Johannesburg,
was attached and sold to the applicants at a sale in
execution on 21 February 2012. Registration of transfer took
place on
14 December 2012. Thereafter the applicants requested
the first and second respondents to vacate the unit but they
refused.
The application was launched in May 2013.
[5]
In the answering affidavit, the second
respondent made it clear that his defence was based entirely on his
attempt to rescind the
default judgment and undertook, if that
failed, to vacate the premises. At the same time, he brought a
counter-application
for a stay of the application.
[6]
The second respondent launched an
application for rescission in the Johannesburg Magistrate’s
Court in early March 2012, and
alleged that he only became aware of
the default judgment on 9 February 2012. On that basis, his
application for rescission
was brought timeously. However, in
his answering affidavit in this application, the second respondent
referred to emails
between himself and the managing agent of the
Amari Heights Body Corporate in order to demonstrate that the body
corporate was
aware of his whereabouts (which he thought was relevant
to another point he was making). These emails show that he was
aware
of the default judgment by 19 October 2009. When this was
raised in the rescission application, he stated, in his replying
affidavit, that this letter followed “my discovery of an unseen
and unknown judgment from an ITC summary”, and that
“(t)he
ITC summary does not contain any
information that on its own,
would have enabled me to take any steps pursuant to launching a
rescission
application”. He maintained
under oath that he only became aware of the judgment on 9 February
2012. He said that
he sought
information from the
managing agent but they failed and/or refused to provide him with
it. Nevertheless, he brought an
application
for condonation in the Magistrate’s Court for the late delivery
of the application for rescission.
[7]
The second respondent’s pretence that he did not know details
of the judgment is untruthful. His email to the managing
agent
dated
19 October 2009 reads as follows :
“
Hi
Bruce
Following
our telephonic conversation, below is the required
information.
According
to the ITC records, a judgement was obtain on the 26 November 2007,
the case number is 163764/07.
As indicated to you, I do
not understand how could this happen without me receiving summons and
after your attorneys have my attorneys
on the same matter on record.
We went to court and these was withdrawn the matter at settled out of
court. It is a
surprise to me how can your attorneys then go
and obtain the judgement that which is as a result of the same
action.
It
is with this background that I request that I am furnished with all
the court documents, the sheriffs Return of Service,
Application
for Judgement, the court room and the name of Magistrate they
appeared before. Since these documents are in their
office, I
will appreciate to receive them by Wednesday 14
th
October 2009. I can get my driver to collect them at their
offices.” (
sic
)
[8]
To this there was a response (also one of
the documents attached by the second respondent) by email
dated
30 October 2009 from a paralegal at the body
corporate’s attorneys, stating :
“
Good
Day
You may proceed to
collect the documents at our reception :
[…..]
At present there is an
amount of R72 486-14 outstanding on your levy account.
We are in the process of
attaching your unit.”
[9]
From the aforegoing, it is clear that
by 19 October 2009 the second respondent knew that
a judgment had been obtained against him, by the body corporate,
under a particular
case number and that it would have been at the
same court as other proceedings had taken place between them (the
Johannesburg Magistrate’s
Court). He was offered to
collect the documents he asked for, and he was told that the judgment
creditor was in the process
of attaching his unit. He had all
the
information he needed to obtain a copy of the court order
and to launch a rescission
application. He
did not do so until after the sale in execution took place.
[10
]
The magistrate refused the application for
condonation and as a result dismissed the application for
rescission. I am informed that there is an appeal
pending to this court against that decision. Given the
aforegoing
facts, it seems to me that the prospects of success on
appeal are slender. In the meantime, the second respondent is
presumably
collecting rent from his tenant, and the registered owners
of the unit are paying levies to the body corporate and rates and
taxes
to the municipality, without receiving any rental.
[11]
Under those circumstances, I am not inclined to entertain a
stay of the eviction
application.
[12]
Mr Mkhabela for the first and second
respondents submitted that the appeal suspended the operation of the
order in terms of rule
49(11). However, rule 49(11) provides
that it is the order appealed against that is suspended. That
order is an order
refusing a
rescission, and the suspension of
that order is of no use to the respondents. Even if the default
judgment could be said to
be suspended, that would also not avail the
respondents, since the steps taken thereafter (the sale in execution)
would remain
unaffected until set aside, and would not be affected by
any suspension of the default judgment. It was in any event
common
cause that, if the rescission was successful, a second
application would have to be brought in order to
set aside the sale in execution.
[13]
Any
attack on the sale in execution would also in my view be stillborn,
even if the default judgment were rescinded. It is
clear from
the papers before me that the applicants were unaware of the
application for
rescission
prior to registration of transfer of the unit into their names.
The fact that the judgment creditor and its attorneys,
who were also
the conveyancers, knew of the
application
for
rescission
between the date of the
sale
in execution and the date of
registration
of transfer, does not impute that knowledge to the applicants.
They say that they did not know, and there is
nothing to gainsay
that. They are accordingly in the position of
bona
fide
purchasers
without knowledge of defective title, and thus in an unassailable
position even if the default judgment were rescinded
(save if it were
held to be a nullity, which is not alleged)
[2]
.
[14]
Accordingly, even if I had the power to order a stay of the
application, it would serve no purpose because the
steps envisaged by the second respondent henceforth will not achieve
the purpose
which he seeks.
[15]
The first and second respondents allege
that there is a lease concluded between them. They are coy
about the details, and
both have refused to recognise the title of
the applicants to the unit. The result is that the tenant, the
first respondent,
has failed to recognise that she owes any
obligations under the lease to the new owners of the unit and has
failed to make any
payments to them. This is a repudiation of
the lease agreement, if one existed, which the applicants have
accepted and elected
to cancel the agreement of lease.
[16]
Mr van der Merwe for the applicants urged
upon me to order costs on a punitive scale against the first and
second respondents.
Whilst they have been unsuccessful, and
their approach misguided, I do not think that a punitive costs order
is warranted.
[17]
In the circumstances the applicants are
entitled to the relief sought, and I make the following order :
1.
The cancellation of any lease agreement
concluded between the first and second respondents pertaining to the
property situated at
44 Amari Heights, in the building known as Amari
Heights, Kouga Street, Winchester Hills Extension 1, Johannesburg,
being sectional
title unit number 44 in the sectional scheme
registered as SS Amari Heights, Winchester Hills, Johannesburg,
Gauteng Province (“the
property”), is confirmed.
2.
The first and second respondents
and
all persons holding occupation through and under them of the property
are to vacate the property as contemplated by section
4(1) of Act 19
of 1998, within 30 days from the date of service of this order.
3.
In the event of the first and second
respondents
and/or those holding occupation
through or under them failing to vacate the property as required in
terms of
paragraph 2 above, the Sheriff or
his deputy is authorised and
instructed to give effect to this
order, and is furthermore
authorised and
instructed to elicit the assistance of the South African
Police Services and/or a locksmith in order to give effect to this
order
if such assistance is required.
4.
The first and second respondents are ordered to pay the costs
of the
application jointly and severally.
5.
The second respondent’s
counter-application is dismissed with costs.
”
ANDRÉ
GAUTSCHI
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing : 28
January 2014
Date
of judgment : 14
February 2014
Counsel
for the applicants : C
van der Merwe
Instructed
by : Marius
Swart Attorneys
Counsel
for the first and : R
B Mkhabela
second
respondents
Instructed : by
Werksmans Attorneys
c:\users\morag\documents\arg\acting\2014\maistry
v khemese.docx
[1]
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19
of 1998
[2]
Knox
N.O. v Mofokeng and Others
2013 (4) SA 46 (GSJ);
Section 70
of the
Magistrates’ Courts
Act No 32 of 1944