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[2015] ZAGPJHC 19
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Occupiers of 23 High Street, Berea v Fife High Properties (Pty) Ltd and Another (2013/18345) [2015] ZAGPJHC 19 (6 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION: JOHANNESBURG
CASE
NUMBER: 2013/18345
DATE:
06 FEBRUARY 2015
In
the matter between
THE
OCCUPIERS OF 23 HIGH STREET,
BEREA
....................................................
APPLICANT
And
FIFE
HIGH PROPERTIES (PTY)
LTD
........................................................
FIRST
RESPONDENT
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
.........................................................................................
SECOND
RESPONDENT
JUDGMENT
ZULU
AJ:
INTRODUCTION
1.
This is an application to rescind and set
aside an eviction order granted against the Applicant on 19 September
2013. The Applicant
also seek an order that the property should be
restored to the condition that it was in prior to the eviction being
carried out
on 21 of November 2013.
2.
The Applicant has further sought an
indulgence to be granted condonation for the late filing of this
application. I deal with this
application herein below.
3.
The Applicant is a group of individuals
who, until their eviction, used to occupy immovable property situated
at Erf 980 and Erf
981 Berea Township, Gauteng. The street address of
the property is 70 and 72 Fife Avenue, Berea, Johannesburg and is
situated at
the corner of High Street and Fife Avenue, Berea,
Johannesburg (“the property”). I will at all times refer
to these
individuals as the “occupiers” of the property.
THE
FACTS
4.
The registered owner of the property is the
First Respondent. The property was purchased by the First Respondent
from one Dario
Ernano Dernatteis on 11 May 2012. The property was
purchased with a view to demolishing and reconstructing it to provide
low cost
rental accommodation.
5.
To achieve its objective, the First
Respondent sought to evict the occupiers of the property, as it would
be impossible to commence
with the construction work whilst the
property was still being occupied.
6.
In March 2013, the First Respondent
initiated the process of evicting the occupiers of the property by
sending notices to them.
It is necessary to refer to what is stated
by the First Respondent in paragraph 16 of its answering affidavit.
It states as follows:
“
Rashad
advised me that when he delivered the notices, he was refused access
to the buildings at the property by the occupiers who
refused to
identify themselves or engage him regarding their occupation of the
property. A copy of the confirmatory affidavit
by Rashad which
was attached to the eviction application is attached hereto as
“
AA10
”.
The Applicants have been obstructive from the outset, yet now claim
to be victims, whilst the whole process could have
been conducted in
a co operative fashion, the Applicants therefore being the
architects of their own predicament.
”
7.
In terms of the notices sent to the
occupiers, the First Respondent terminated their right to occupy the
property. The occupiers
were requested to vacate the property on or
before 30 April 2013. As mentioned above, the First Respondent states
that it received
no co-operation from the occupiers and attempts to
get them to move out of the property were obstructed.
8.
On 28 May 2013, the First Respondent
initiated the eviction proceedings. On 4 June 2013, the First
Respondent obtained an order
for substituted service of the
application for the eviction of the occupiers. In terms of the Court
Order, the service of the application
were to be effected as follows:
“
1.
The Applicant is authorised and directed to serve the Notice of
Motion and Founding Affidavit herein as well as this Order and
the
section 4 (2) notice and any further order that may be made in terms
of part B hereunder on the First Respondents occupying
the premises
situate at 70/72 Fife Avenue Johannesburg (“the premises”)
on the property situated at Erf 980 and Erf
981 Berea Township in the
following manner:
1.1.
The Sheriff of the Court or his
lawful deputy must:
1.1.1.
assign numbers to each identifiable
living unit within the dwelling house and outbuildings on the
property that appears to be occupied;
and
1.1.2.
establish the name or names of the
principal occupier of each living unit (as identified in 1.1.1 above)
who are prepared to identify
themselves.
2.
The Sheriff of the Court or his
lawful deputy must serve the documents:
2.1.
by affixing a copy thereof to
the front door of the premises on the property; and
2.2.
by serving copies thereof on each
principal occupier who has been identified as described in1.1.2
above, in the manner set forth
in rule 4(1) of the Uniform Rules of
the Court; or
2.3.
in instances where the sheriff or
his lawful deputy is unable to establish the name of the principal
occupier of a living unit,
or where there is nobody present at that
living unit at the time of service, by affixing copies thereof to the
principal door of
such living unit, alternatively by sliding copies
thereof under the door of such living unit.
3.
The Sheriff of the Court or his
lawful deputy must in his return of service, set forth in respect of
each living unit that appears
to be occupied:
3.1.
the number assigned to that living
unit;
3.2.
the name of the principal occupier
of that living unit, if established in terms of 1.1.2 above; and
3.3.
the manner of service of the
documents in respect of that living unit.
4.
…
5.
…”
.
9.
The occupiers deny that they were ever
served with the notice in terms whereof their right to occupy the
property was cancelled.
The occupiers further deny that they were
served with any court process. The First Respondent states that it
served the application
on the occupiers in terms of the Court Order
on 20 June 2013. According to the Sheriff’s return, the
application was served
as follows:
“
1.
Return of service in respect of Notice of Motion, Founding Affidavit
and Annexures thereto as well as Court Order dated 4 June
2013 in
accordance with substituted service Order dated 4 June 2013.
2.
On this 20
th
day of June 2013 at 18:37 I served the Notice of Motion, Founding
Affidavit and Annexures thereto as well as Court Order dated
4 June
2013 as follows:
2.1
I identified 7 living units at the premises and assigned the numbers
1 to 7 to the units.
2.2
The occupiers found at the premises at the time of service refused to
identify themselves.
2.3 I affixed a
copy of the Notice of Motion, Founding Affidavit and Annexures
thereto as well as Court Order dated 4 June 2013
to the front door of
the premises.
2.4
Since the occupiers refused to identify themselves I affixed copies
of the Notice of Motion, Founding Affidavit and Annexures
thereto as
well as Court Order dated 4 June 2013 to the door of units 1 to 7.
”
10.
The application for the approval of the
section 4 (2) notices was set down for hearing on 12 July 2013. The
occupiers did not oppose
this application. It was accordingly granted
by the court.
11.
The main eviction application was then
enrolled for hearing on 13 August 2013.This application was
postponed
sine die
as the presiding Judge was not satisfied that there had been proper
and full compliance with the Court Order for substituted service
which was granted on 4 June 2013.
12.
The eviction application was again served
on the occupiers on 2 September 2013. The hearing was scheduled to
take place on 30 September
2013. An order directing the occupiers to
vacate the property within 30 days was granted by the court on the
day of the hearing
of the application. There was no appearance on
behalf of the occupiers.
13.
In terms of the Sheriff’s return of
service marked “
AA 18
”
attached to the First Respondent’s answering affidavit, the
order for the eviction of the occupiers was served on
them in the
following manner:
“
RETURN
OF SERVICE – FILING SHEET AND ORDER OF COURT
On this 18
th
day of October 2013 at 17:25 I served this FILING SHEET AND ORDER OF
COURT upon, as follows:
1.
By affixing a copy thereof to the
front door of occupiers 70 and 72 Fife Avenue, Berea, Johannesburg.
2.
The occupiers refused to identify
themselves and accordingly I was unable to establish the names of the
principal occupiers 70 and
72 Fife Avenue, Berea, Johannesburg.
3.
By handing copies of the Filing
Sheet and Order of Court to those occupiers who refused to identify
themselves.
Note:
The original return together with the original abovementioned process
is despatched to the mandatory.
”
14.
The occupiers of the property were evicted
on 21 November 2013. The process of demolishing the outbuilding
commenced shortly thereafter.
After the outbuildings were demolished,
the First Respondent took steps to demolish the main house. As
matters stand, the main
house is almost completely demolished and is
not in a habitable state.
15.
On 14 February 2014, the occupiers were
granted an interim order, pending the outcome of this application in
terms whereof the First
Respondent was interdicted and restrained
from demolishing the property. This order was granted by agreement
between the occupiers
and the First Respondent.
CONDONATION
16.
The
factors that a court needs to consider when determining an
application for condonation are trite and involve the weighing
together
of
inter
alia;
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case.
[1]
17.
These factors are interrelated and not
individually decisive and in the main the court maintains its
inherent discretion to grant
condonation as the interests of justice
and the facts of each particular case may permit.
18.
An
Applicant who seeks condonation, seeks an indulgence and is required
to give a full and satisfactory explanation for whatever
delays that
may have occurred.
[2]
19.
In this matter, the occupiers’ case
for condonation is predicated on the allegation that an ANC ward
counsellor had promised
to assist them to deal with their eviction.
This counsellor did not live up to his promise and the occupiers
later obtained assistance
through the intervention of a radio
station, Radio 702. The Applicants counsel submitted that condonation
should be granted as
the occupiers were illiterate and relied on the
promise made to them by the ANC ward counsellor.
20.
I am not entirely satisfied about the
conduct of the occupiers and the explanation that they have provided
with regards to their
failure to bring this application within the
time periods provided for in the Uniform Rules of Court.
However, because of
the view I take with regards the importance of
the matter, it is not necessary to deal with the other relevant
factors for deciding
an application of this nature. This is obviously
an important matter for the occupiers as they are seeking to protect
their right
to housing as provided for and protected by the
Constitution. The right to housing is one of the most basic and
important rights
provided for by the Constitution. It is in the
interests of justice that condonation should be granted.
21.
Accordingly, the Applicants application for
condonation for the late filing of this application is granted. I
also hold that the
late filing of the First Respondent’s
answering affidavit is condoned.
22.
I now turn to deal with the merits of the
application.
MERITS
23.
As mentioned above, the occupiers seek an
order rescinding and setting aside the eviction order granted in
favour of the First Respondent
on 19 September 2013.
24.
An application for rescission of judgment
in the High Court is regulated by the Uniform Rules of Court as well
as the common law.
25.
The requirements for an application for
rescission under Rule 31(2)(b) have been stated as follows:
“
(a)
He (i.e. the applicant) must give a reasonable explanation of his
default. If it appears that his default was wilful or that
it was due
to gross negligence, the court should not come to his assistance.
(b) His
application must be bona fide and not made with the intention of
merely delaying the plaintiff’s claim.
(c)
He must show that he has a bona fide defence to plaintiff’s
claim. It is sufficient if he makes out a prima facie defence
in the
sense of setting out averments which, if established at the trial,
would entitle him to the relief asked for. He need not
deal fully
with the merits of the case and produce evidence that probabilities
are actually in his favour.
[3]
26.
The
wilful or negligent nature of the Defendant’s default is one of
the considerations which the court takes into account
in the exercise
of its discretion to determine whether or not good cause is shown.
While the court may well decline to grant relief
where the default
has been wilful or due to gross negligence, the absence of gross
negligence is not an absolute criterion, nor
an absolute
prerequisite, for the granting of relief – it is a factor to be
considered in the overall determination whether
or not good cause has
been shown.
[4]
27.
In
Silber
vs Ozen Wholesalers (Pty) Ltd
[5]
it was held that explanation for default must be sufficiently full to
enable the Court to understand how it really came about,
and to
assess the applicant’s conduct and motives. An application
which fails to set out these reasons is not proper, but
where the
reasons appear clearly, the fact that they are not set out in so many
words will not disentitle the applicant to the
relief sought.
[6]
28.
Before a person can be said to be in wilful
default, the following elements must be shown:
(a)
Knowledge that the action is being brought
against him or her;
(b)
A deliberate refraining from entering
appearance, though free to do so; and
(c)
Certain
mental attitude towards the consequences of the default.
[7]
29.
The
phrase “good cause” in Rule 31(2)(b) includes, but is not
limited to, the existence of a substantial defence.
[8]
The requirements that the applicant for rescission must show the
existence of a substantial defence does, however, not mean that
he or
she must show a probability of success; it suffices if he or she
shows a prima facie case, or the existence of an issue which
is fit
for trial.
[9]
The Applicant need
not deal fully with the merits of the case, but the grounds of
defence must be set forth with sufficient detail
to enable the Court
to conclude that there is a bona fide defence and that the
application is not made merely for the purpose of
harassing the
respondent.
[10]
30.
Where
the applicant has provided a poor explanation for default, a good
defence may compensate.
[11]
31.
A
court has a wide discretion in evaluating “good cause” in
order to ensure that justice is done.
[12]
For this reason the courts have refrained from attempting to frame an
exhaustive definition of what would constitute sufficient
cause to
justify the grant an indulgence for any attempt to do so would hamper
the exercise of the discretion
.
[13]
32.
The occupiers’ case for the
rescission of the default judgment is based on the allegation that
they never received any notices
terminating their right to occupy the
property as well as the eviction application. They are alleging that
had they been aware
of the application for their eviction, they would
probably have opposed same.
33.
I am not persuaded that the occupiers have
provided a reasonable explanation for their default. They attempted
to create the impression
that the address at which the Sheriff
effected service of the notices and the various applications relating
to their eviction was
not the same as the address of the property
they occupied. In argument before court, their counsel conceded that
the address at
which the Sheriff effected service of the court
processes was the same place and/or property which is the subject of
these proceedings.
This ground, as a basis for setting aside the
order granted by the court automatically falls away.
34.
I am therefore satisfied that there was
proper service of all the processes on the occupiers and their
failure to oppose the application
in court was wilful. I am further
satisfied that the denial by all the occupiers that they received the
court processes is a fabrication
and a lie. It is highly improbable,
that the occupiers did not receive any of the processes, including
the notices which were served
on them during March 2013.
35.
In terms of the returns of service which
were filed by the Sheriff; it is clear that the occupiers of the
property were obstructive
and uncooperative. There was no suggestion
that I should not accept what is stated by the Sheriff in the various
returns of service.
36.
An examination of the grounds provided by
the occupiers for the rescission of the judgment also reveal that
this application is
not
bona fide
.
The occupiers have also failed to raise a
prima
facie
defence to the First Respondent’s
claim. The occupiers allege that they entered into an oral agreement
of lease with one Michel
Hubedien (“Hubedien”). They
state that the leases were for various periods and that they were
required to pay two hundred
and fifty rand per month. They suspected
that their rental payments were not reaching Hubedien and they
decided to stop making
further payments. These are bald and
unsubstantiated allegations by the occupiers and are unlikely to
sustain a defence to the
First Respondent’s claim.
37.
I
am not persuaded that the Applicant had demonstrated the existence of
a
bona
fide
defence
on the substantive merits of the First Respondent’s claim. In
Chetty
v Law Society, Transvaal
[14]
E Miller said the following about the two elementary requirements of
common law, the test of sufficient cause:
“
It
is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on
the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default. And ordered judicial process would be negated if, on
the other hand, a party who could offer no
explanation of his default
other than his disdain of the Rules was nevertheless permitted to
have a judgment against him rescinded
on the ground that he had
reasonable prospects of success on the merits
”
38.
The occupiers have also failed to provide
proof of the allegation made that they at some stage, decided to make
direct payments
to the Second Respondent, the Johannesburg
Municipality. There is no explanation as to why this was not done as
these records would
have been readily available and obtainable from
the Second Respondent. This further demonstrates that the occupiers
are not genuine
and
bona fide
with this application. This application is merely an attempt to delay
the First Respondent’s claim and obstruct the commencement
and
construction of the First Respondents building project.
39.
If the occupiers case for rescission is not
successful, it is not necessary for me to deal with the second
relief, namely that the
property should be restored to the condition
it was in before the eviction was carried out. Nothing further needs
to be said on
this point.
40.
I am satisfied that the application for
rescission of the order granted on 19 September 2013 should fail.
41.
Accordingly, I make the following order:
1.
The Applicant’s application is
dismissed.
2.
The Applicant is ordered to pay costs,
which shall include the costs of the application of 11 February 2014.
ZULU
(M) AJ
Date
of Hearing: 20 October 2014
Date
of Judgment: 06 February 2015
Appearances
For
the Applicant : Adv. Mohamed Cajee
Instructed
by : Shaheed Dollie Incorporated
Auckland
Park, Johannesburg
For
the Respondents: Adv. C van der Merwe
Instructed
: Hooker Attorneys
Illovo,
Johannesburg
[1]
Melane
vs Santam Insurance Co Ltd 1962 (4) SA at 532.
[2]
Ferreira
vs Nthingila 1990 (4) SA 271 (A).
[3]
See
Grant vs Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 – 7;
See also Vosal Investments (Pty) Ltd vs City of Johannesburg
2010
(1) SA 595
(GSC) at 599 – A – B; and Coetzee vs Nedbank
Ltd
2011 (2) SA 372
(KZD) at 373 G – I.
[4]
See
Vincolette vs Calvert
1974 (4) SA 275
(E) at 376 H; See also Zealand
vs Malborough
1991 (4) SA 836
(SE) at 838 A – C and De Witts
Auto Body Repairs (Pty) Ltd vs Fedgn Insurance Co. Ltd
1994 (4) SA
705
(E) at 709 A – E.
[5]
1954
(2) SA 345
(A) at 353 A.
[6]
See
Behncke vs Winter 1925 SWA 59 and the various authorities set out in
Erasmus, Supreme Court Practice, Vol. 1 at page B1 –
202.
[7]
Erasmus,
Supreme Court Practice at page B1 202 and various authorities
cited therein.
[8]
See
Silber vs Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352.
[9]
See
PLJ van Rensburg en Vennote vs Den Dulk
1971 (1) SA 112
(W); See
also Sunderson Technitool (Pty) Ltd vs Intermenua (Pty) Ltd 1980 (4)
SA 573 (W).
[10]
See
Brown vs Chapman
1928 TPD 320
; See also Greenberg vs Meds Veterinary
Laboratories (Pty) Ltd
1977 (2) SA 77
(T) at 279 and Cavasis South
African Bank of Athens Ltd
1980 (3) SA 394
D at 395; Grant vs
Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 and Standard Bank of
SA ltd vs EL – Naddaf
1999 (4) SA 779
(W) at 785 I – 768
B.
[11]
See
Carolus vs Saambou Bank Ltd; Smith vs Saambou Bank Ltd
2002 (6) SA
346
(SE) at 249B – C and Creative Car Sound vs Automobile
Radio Dealers Association 1989 (Pty) Ltd
2007 (4) SA 546
D at 555 C
– D.
[12]
See
Wahl vs Prinswil Beleggings (Edms) Bpk 1984 (1) SA (T).
[13]
See
Cairns’ Executors vs Gaarn
1912 AD 181
and Abraham vs City of
Cape Town
1995 (2) SA 319
(C) at 321 I
–
J.
[14]
1985
(2) SA 756
(A).