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[2014] ZAGPJHC 300
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Yeni and Another v De Kock and Others (36091/2014) [2014] ZAGPJHC 300 (20 October 2014)
SAFLII
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Certain
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IN THE HIGH
COURT, OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER: 36091/2014
DATE:
20 OCTOBER 2014
In the matter
between:
YENI, MICHEAL
MBUYISELO
.....................................................................
FIRST
APPLICANT
YENI, NOMQIBELO
PRICELLA
.............................................................
SECOND
APPLICANT
And
DE KOCK, VINCENT
FLEETWOOD N.O
................................................
FIRST
RESPONDENT
EKURHULENI
METROPOLITAN MUNICIPALITY
...........................
SECOND
RESPONDENT
SHERIFF,
BRAKPAN
..............................................................................
THIRD
RESPONDENT
Date heard: 3
October 2014
Date order
granted: 3 October 2014
Date reasons
furnished: 20 October 2014
REASONS
FOR JUDGMENT
MODIBA AJ:
[1] This is an
urgent application to restore to the applicants occupation of
immovable property at 1…… H….
Street D……….,
B……… (The property). The applicants were evicted
from the property on 30
September 2014 pursuant to an eviction order
granted in the Brakpan Magistrates’ Court on 19 August 2014.
[2] The application
came before me in urgent court on 3 October 2014. After reading the
papers and hearing counsel, I granted the
order that appears at the
end of this judgment on the same day and deferred the reasons. The
reasons are set out below.
THE PARTIES
[3] The applicants
were joint owners of the property by virtue of their marriage in
community of property. The first respondent
is the new owner of the
property. The second respondent is cited due to its constitutional
duty to provide access to housing in
the Ekurhuleni Municipality
area. The third respondent is the Sheriff of the Magistrates’
Court for the area where the property
is situated.
COMMON CAUSE FACTS
[4] On 6 May 2011,
the applicants were sequestrated after they voluntarily surrendered
their joint estate. The property was an
asset in the surrendered
estate. A trust of which the first respondent is a trustee purchased
the property in good faith after
the applicants voluntarily
surrendered their estate. The property was transferred to the first
respondent on 14 November 2013.
The applicants remained in the
property after it was transferred to the first respondent.
Subsequently, the first respondent applied
for an eviction order
against the applicants. The eviction order was granted on 19 August
2014. The applicants appeared in court
in person when the eviction
order was granted. Therefore the eviction order was not granted in
default. In terms of the eviction
order, the applicants were ordered
to vacate the property on 29 September 2014, failing which the
Sheriff would execute the order
on 30 September 2014. They have not
appealed against the eviction order.
[5] On 29 September
2014, the applicants did not vacate the property. Instead, they
filed an application for rescission of the
eviction order. The basis
for the rescission is fraud allegedly committed during the
sequestration proceedings.
[6] On 30 September
2014, fully aware that a rescission application had been launched,
the second respondent executed the eviction
order.
THE ISSUE TO BE
DECIDED
[7] There are two
issues to be decided in this application. Firstly, whether launching
the rescission application automatically
suspends the execution of
the eviction order in terms of
section 78
of the
Magistrates’
Courts Act 32 of 1944
. If not, whether the second respondent has the
duty to apply for leave to execute the eviction order pending the
outcome of the
rescission application.
ANALYSIS
[8]
Section 78
of
the
Magistrates’ Courts Act makes
provision for the suspension
of the execution of an order pending an appeal or rescission. It is
clear from the wording of
section 78
that the suspension is not
automatic. It is granted on application. However, it is not clear
from the wording of
section 78
who should bring the application for
the suspension of the order.
[9] It is common
cause that when the Sheriff executed the order on 30 September 2014,
the order had not been suspended. Counsel
for the applicants argued
that the Sheriff had the duty to apply to the Magistrates’
Court to execute the eviction order.
He relied in this submission on
an unreported judgment by my brother Lamont J in Mnguni V Louw [2013]
ZAGPJHC 253 (10 October 2013)
that the duty to bring such an
application lies with the person seeking execution.
[10] In my view,
Lamont J's reasoning in the Mnguni does not apply to this case
because the facts are distinguishable. In the Mnguni
case, the
applicants’ property had been sold in execution pursuant to a
default judgment granted to secure a debt owed by
the applicant. The
applicants applied for the rescission of that order. Subsequent to
the rescission order being heard but before
it was finalised, the
Magistrate granted an order for the eviction of the applicants for
the property. They then applied for a
review of the eviction order.
In this case, the applicants have not applied for the rescission of
the order that led to their property
being sold. They have applied
for the rescission of an eviction order, granted to a bona fide third
purchaser.
[11] Lamont J,
restored possession of the property to the applicants on the basis
that although the purchaser had taken transfer
of the property when
the eviction order was granted, he was in possession of a disputed
right which could in due course have resulted
in the order declaring
the property especially executable being rescinded.
[12] In this case,
when the eviction order was granted, no rescission proceedings were
pending for the order that led to the applicant’s
property
being sold. The applicants have not set out facts to support the
allegation that fraud perpetrated during sequestration
proceedings
would render an eviction order granted to a bona fide third party
purchaser rescindable.
[13] If the
legislature intended to burden the person in whose favour an order
was granted with the duty to seek leave to execute
the order pending
an appeal or a rescission application, it would have made provision
for the order to be automatically suspended
when an application for
leave to appeal or a rescission application is filed. However, it
refrained from doing so. In my view,
the legislature recognised that
automatically suspending an order may not always be in the interests
of justice and would render
section 78
open to abuse especially in
cases where the appeal or rescission application lacks merit and is
brought purely to delay the execution
of an order. The applicants
have not set out grounds upon which they dispute the purchaser’s
title over the property.
[14] In May 2014,
prior to granting the eviction order, the Magistrate gave the
applicants a period of three months to find alternative
accommodation. They have given no account of what progress they have
made in that regard. The eviction order granted the applicants
a
further month to find alternative accommodation. After the eviction
order was granted, the applicants also did not find alternative
accommodation. They knew very well that if they do not vacate the
property on 29 September 2014, the Sheriff would evict them the
following day.
[15] They waited
until the day they had to vacate the property before bringing the
rescission application. They knew that the Sheriff
was authorised by
a court order to evict them the day after they launched the
rescission application. I do not see why in the circumstances
of this
case the Sheriff should be burdened with the duty to seek leave to
evict the applicants when he is already authorised by
an order of
Court to evict them. Given that the launching of a rescission
application does not automatically suspend the authority
granted to
the Sheriff to evict the applicants, the duty to seek an order to
stay the execution of the eviction order should lie
with the person
seeking to avoid the consequences of the order. Such a person seeks
an indulgence from the court and should take
steps to secure it.
[16] The applicants
seek a spoliation order but have not met the requirements of such an
order. The first respondent is a bona
fide purchaser. His rights are
protected by
section 70
of the Magistrates’ Courts Act. He
evicted the applicants pursuant to an eviction order. The order had
not been suspended
when the applicants were evicted. Therefore the
spoliation was not unlawful.
[17] In the
premises, the application stands to be dismissed with costs.
ORDER
1. The application
is dismissed.
2. The applicants
shall pay the costs of this application.
MODIBA AJ
ACTING JUDGE OF
THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel for the
Applicant: Advocate H Motsemme
Instructed by: ED
van Schalkwyk Attorneys
Counsel for the
Respondent: Advocate AP Bruwer
Instructed
by: Sibel, Fourie & Nel Incorporated