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[2015] ZAGPJHC 197
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Sebogoli and Another v Mdiya and Others (14237/2015) [2015] ZAGPJHC 197 (8 September 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 14237/2015
DATE: 08 SEPTEMBER 2015
In the matter between:
MAHLOMOLA KOOS
SEBOGOLI
.............................................................................
First
Applicant
(First Respondent in
the main proceedings)
MMAMOSA FAITH
SEBOGOLI
..............................................................................
Second
Applicant
(Second Respondent in the
main proceedings)
And
DOMINICA NOMFANO
MDIYA
..............................................................................
First
Respondent
(Applicant in the main
proceedings)
DUDUZILE JERMINA
MOTHA
...........................................................................
Second
Respondent
(Eleventh Respondent in main
proceedings)
EKURHULENI METROPLITAN
MUNICIPALITY
.............................................
Third
Respondent
REGISTRAR OF DEEDS,
JOHANNESBURG
.....................................................
Fourth
Respondent
CORNELIA MARIA CLOETE
N.O
..........................................................................
Fifth
Respondent
HARRY KAPLAN
N.O
...............................................................................................
Sixth
Respondent
ANNA PAULA DE OLIVIERA
N.O
......................................................................
Seventh
Respondent
SOPHIE MMAPULA
N.O
........................................................................................
Eighth
Respondent
SHERIFF FOR THE DISTRICT OF
BOKSBURG
................................................
Ninth
Respondent
ABSA BANK
LIMITED
.............................................................................................
Tenth
Respondent
STANDARD BANK OF SOUTH AFRICA
LIMITED
.......................................
Eleventh
Respondent
(Twelfth Respondent in
the main proceedings)
RONNIE THABO
MBELE
…................................................................................
Twelfth
Respondent
J U D G M E N T
MAKUME, J:
[1] In this application which was
brought by way of urgency in terms of Rule 6(12) the First and Second
Applicants seek in the main
two orders against the Second and the
Twelfth Respondents they are:
(a) That Mr Ronnie Thabo Mbele be
joined as the Twelfth Respondent;
(b) That the Applicants be restored to
occupation of certain house situate at [1…….] [T……]
Crescent,
[V……] Extension 23 (the property).
[2] I shall refer to the First and
Second Applicants as the Applicants and to the Second and Twelfth
Respondents as the Respondents.
[3] It is common knowledge that the
Applicants are presently contesting the loss of their title to the
property through a Scheme
known as the Brusson Scheme. They rely in
the main on a number of decisions in the High Court which have
pronounced on the validity
of that Scheme. I will say no more about
that Scheme as this is not what is before me.
[4] It is common cause that the
Respondents purchased the property from the First Respondent Mdiya.
The property at that time was
advertised on the website of Property
24 a well-known internet property sales forum.
[5] During or about June 2015 and
shortly after transfer had taken place in favour of the Respondents a
meeting was held by both
parties at which meeting the Applicants
undertook to vacate the property by a certain date namely the 10th
July 2015. The document
that confirms such meeting is attached to the
papers and bears the stamp of the South African Police Vosloorus.
The Applicants
claim that they signed the document under duress.
[6] This application has its origin on
the events of the weekend of the 1st and 2nd August 2015. The
Applicants seek an order restoring
them to occupation of the property
and the eviction of the Respondents on the basis that they were
wrongfully and unlawfully spoliated.
This matter is not about
determining who the rightful owner of the property is.
[7] The issue before me is accordingly
whether the Applicants were spoliated or not during the weekend of
the 1st and 2nd August
2015.
[8] It is common cause that the
Applicants brought an urgent application in this Court which
application was set down for hearing
on the 6th August 2015 and then
was postponed to the 12th August 2015. On the said day the parties
appeared before Mudau AJ in
the Urgent Court and the application was
struck off the roll due to lack of urgency.
[9] The Second and Twelfth Respondents
in answering affidavit say that firstly the application is not urgent
as it had been dismissed
due to lack of urgency on the 12th August
2015; secondly that the Applicants were never evicted as they
voluntarily left the property
on the 2nd August 2015 after they had
asked for one more night stay on Saturday the 1st August 2015.
URGENCY
[10] It is trite law that an applicant
must set forth explicitly the circumstances which evidence the
application urgent. See the
matter of East Rock Trading 7 (Pty) Ltd
v Eagle Valley Granite (Pty) Ltd and Others
[2012] JOL 28244
(GSJ)
at paras [5] and [6]. The Applicants’ application was struck
off the roll for lack of urgency on the 12th August
2015. The
Applicants I am told has simply reinstated the application without
saying in this present application why is it now
urgent and why it
should now be dealt with as an urgent application.
[11] A ruling by a court that an
application lacks urgency and falls to be struck off is not
appealable all it means is that the
Applicant must proceed to set the
matter down on the normal roll. The Applicant has not set out the
facts and circumstances upon
which he relies to render the
application urgent. The fact that he and his family are living in
less favourable conditions whilst
regrettable does not make this
application urgent as a court has already ruled in that regard. This
Court cannot sit as a court
of appeal on a ruling on urgency it is
simply unprocedural.
[12] This application lacks urgency and
should have been struck off from the roll however in order to bring
finality to the recurring
urgent applications I allowed the parties
to argue the merits of the case.
[13] At the centre of the dispute in
this matter is a document that the Applicant signed on the 10th July
2015 at the police station
in Vosloorus in which document he the
Applicant agreed to vacate the property on the 10th July 2015. This
agreement was concluded
on the 28th June 2015 and was duly witnesses.
The Applicant now seeks to renege from that agreement by alleging
that he signed
the document under duress.
[14] In paragraph 11 of his answering
affidavit the Respondent says that a few days after the 10th July
2015 he had a meeting with
the Applicant and after they had been to
the police station again and had consultations there the Applicant
told him that he was
fed up and would advise his lawyers to stop all
legal proceedings as he had come to realise that he was wasting
everyone’s
time. He the Applicant conceded that the property
now belongs to the Respondent.
[15] On the 1st August 2015 the parties
agreed that the Applicants could occupy the house for that night only
and then vacate the
following morning being the 2nd August 2015.
[16] The crucial averment in the
Respondent’s answering affidavit is paragraph 16 which reads as
follows:
“16. On the 02nd August 2015 and
at approximately 18h30, we drove to the subject property which had by
then been left unlocked
and vacated with the Applicants having
removed all their belongings. We went to arrange for our truck load
of furniture and occupied
the subject property.”
[17] The Applicant does not deal with
this statement at all in his reply instead he decided to refer to the
Brusson Scheme and how
he was defrauded. He did not in his reply
deal with the central issue of spoliation.
[18] The evidence before me which is
uncontested demonstrates that on the 2nd August 2015 the Applicants
vacated the property in
accordance with the oral agreement concluded
on the 1st August 2015. When the Respondents took occupation the
Applicants had already
relinquished possession and therefore they
could not have been spoliated.
[19] If the Applicants had no intention
to vacate on the basis that they had been made to sign a document
under duress in which
they had agreed to vacate then the question is
why did he not report this irregularity to the police; secondly why
did his attorneys
not take steps to prevent the Respondent from
relying on that document.
[20] It is trite law as it was said by
Cameron JA in the matter of Street Pole Ads Durban (Pty) Ltd v
Ethekweni Municipality
2008 (5) SA 200
(SCA) that the claim for
spoliatory relief arises solely from an unprocedural deprivation of
possession. A person spoliated need
show no more than mere possession
and possible dispossession.
[21] This is not what happened in the
present matter. When the Respondent arrived on the property at 18h30
on the 2nd August 2015
the property was empty and he took occupation.
[22] At para [15] of the Street Pole
matter (supra) Cameron JA says the following:
“[15] An offending respondent in
a spoliation application is generally not allowed to contest the
spoliated applicant’s
title to the property. That is because
good title is irrelevant. There is a qualification however if the
applicant goes further
and claims a substantive right to possession
whether based on title of ownership or on contract. In that case the
respondent may
answer such additional claims of right and may
demonstrate if he can that applicant does not have the right to
possess which it
claims. This is because such an applicant in effect
forces an investigation of the issues relevant to the further relief
he claims.
Once he does this the respondent’s defence in regard
thereto has to be considered.”
[23] In the founding affidavit from
paras 7 to 9 the Applicant sets out how he was defrauded through the
Brusson Scheme and at paragraph
9 he concludes with the following
words:
“I therefore submit that we have
a valid claim to the property which we are seeking to enforce.”
[24] The Applicant’s claim is not
only based on possession but he also claims ownership hence the
Respondents have demonstrated
that they are now the owners of the
property having acquired same at a sale in execution. The sale in
execution still stands and
has not been nullified or set aside.
[25] In conclusion it is my view that
the parties concluded an agreement regulating when the Applicant
would vacate the property.
The Applicant has failed to taint that
agreement with any form of irregularity or fraud so as to negate
consensus. In the matter
of SAR&H v National Bank of South
Africa Ltd
1924 AD 704
the question was whether a party who had
accepted a letter as a correct record of an oral contract could after
a considerable lapse
of time challenge the correctness of the letter.
At page 715 Wessels JA held that in the circumstances it was too
late to challenge
the correctness of the letter and continued as
follows:
“The law does not concern itself
with the working of the minds of parties to a contract but with the
external manifestation
of their minds. Even therefore it from a
philosophical standpoint the minds of the parties do not meet yet if
they their acts
their minds seem to have met the law will where fraud
is not alleged look to their acts and assume that their minds did
meet and
that they contracted in accordance with what the parties
purport to accept as a record of their agreements. This is the only
practical
way in which courts of law can determine the terms of a
contract.”
[26] The Applicant has failed to prove
possession of the property at the relevant time and reliance on the
Brusson Scheme decisions
cannot be of assistance in the face of a
valid agreement. I accordingly order as follows:
(i) The application is dismissed.
(ii) The Applicants are ordered to pay
the costs of the Respondents on a party and party scale.
DATED at JOHANNESBURG this 8th day
of SEPTEMBER 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
APPLICANTS’ COUNSEL ADV O’BEN
ZEEV
INSTRUCTED BY LEGAL RESOURCE CENTRE
Braam Fischer Towers
20 Albert Street
Marshalltown
Johannesburg
Tel: (011) 839 9831
Ref: 1058510J/Sebogodi
SECOND AND TWELFTH
RESPONDENTS’ COUNSEL ATTORNEY
MATHIBELA
INSTRUCTED BY MASHAZI MATHIBELA INC
1st Floor Bennett
358 Trichardt Street
Boksburg
Tel: (011) 917 4775/6
Ref: Mr Mashazi/dm
DATE OF HEARING 27th AUGUST 2015
DATE OF JUDGMENT 8th SEPTEMBER 2015