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[2015] ZAGPJHC 221
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Dlamini v Moloisane (10/30611) [2015] ZAGPJHC 221 (23 September 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 10/30611
DATE: 23 SEPTEMBER 2015
In the matter between:
NOMSA
DLAMINI
..........................................................................................................
First
Applicant
And
BRIAN MOLEFE
MOLOISANE
........................................................................................
Respondent
J U D G M E N T
KEIGHTLEY, AJ
:
INTRODUCTION
[1] In this matter the applicant, Ms Dlamini, applies for rescission
of a judgment and order of her Ladyship Madam Justice Victor
that was
granted on 9 December 2010. In terms of the judgment, the court
ordered the eviction of Ms Dlamini, and all persons
claiming any
right or interest to the occupation under Ms Dlamini, from premises
situated at [Erf 1……], Zone 1, [D…..]
[S…..]
([“Erf 1………]”, or “the
property”).
[2] The present respondent, Mr Moloisane, was the applicant in the
eviction proceedings giving rise to the judgment. At that
time,
he was the registered owner of [Erf 1……], having
purchased the property from the previous titleholder, Ms Molebatsi.
[3] Ms Molebatsi was awarded ownership of [Erf 1…..] by virtue
of a decision dated 11 April 2007 under the procedure laid
down in
section 2 of the Conversion of Certain Rights into Leasehold or
Ownership Act.
[1]
The City of Johannesburg previously owned the property, and Ms
Dlamini’s father was the permit holder entitled to occupation.
Both he and his last wife, Ms Molebatsi’s mother, had
subsequently passed away. This led to competing claims for the
property. Ms Dlamini was one of the competing claimants, but at
that stage, Ms Molebatsi’s claim prevailed, and she
became the
registered owner consequent on the April 2007 award.
[4] Notwithstanding the award of the property to Ms Molebatsi, and
its subsequent transfer to Mr Moloisane, Ms Dlamini and her
family
members remained in occupation of the property. This situation
persists to the present.
[5] Before considering Ms Dlamini’s application for rescission
of the judgment, it is necessary for me to set out a time
line of
relevant events preceding its institution:
[5.1] Ms Molebatsi became the registered titleholder of [Erf 1……]
in 2007.
[5.2] On 3 February 2010 Mr Moloiane became the registered owner of
the property under Deed number [T………..].
[5.3] The judgment and order of Victor J were granted on 9 December
2010, following eviction proceedings instituted by Mr Moloisane.
[5.4] Ms Dlamini applied for leave to appeal against the judgment.
This was dismissed on 10 May 2012.
[5.5] Thereafter, Ms Dlamini filed a special application for leave to
appeal to the Supreme Court of Appeal. This, too, was
dismissed
on 15 August 2012.
[5.6] Ms Dlamini took no further steps to appeal the judgment.
[5.7] In the interim, Mr Moloisane sold [Erf 1……] to a
third party, Ms Sauhatse (“the current registered owner”).
The transfer was effected on 30 August 2012.
[5.8] In September 2012, Ms Dlamini instituted review proceedings in
the North Gauteng High Court. She sought a review and
setting
aside of the decision of April 2007 in terms of which the property
had been awarded to Ms Molebatsi.
[5.9] The review application was served on the attorneys who had
represented Mr Moloisane in the eviction proceedings. However,
Mr Moloisane was not served with a copy of the application for
review. He took no part in the proceedings.
[5.10] The current registered owner was neither cited, nor served in
the review proceedings. She played no part in those
proceedings
either.
[5.11] I was advised from the Bar that the Department of Co-Operative
Governance and Human Settlements of the Gauteng Province
initially
opposed the review application, but this opposition was not
sustained.
[5.12] On 27 March 2013, a draft order was made an order of court in
the review proceedings (“the review order”).
It was
granted on an opposed basis. The terms of the order were as
follows:
“
1. The transfer of the property situated at [
Erf
8….], [D……] Zone 1
, Soweto (“the
property”) to the Second Respondent (Ms Molobatse) on 20 July
2007 is declared void and of no force and
effect;
2. The Fifth Respondent (the Registrar of Deeds) is directed to
cancel the Deeds of transfer of the Second and Third Respondent (Mr
Moloisane) and to reflect that the Fourth Respondent (the City of
Johannesburg) is the owner of the property;
3. The Fourth Respondent (the City of Johannesburg) is directed to
deal with the property in accordance with the
adjudication award
that had been made on 3 May 2002
in accordance with Section 2 of
the Conversion of Certain rights into Leasehold or Ownership Act, No
81 of 1998;
4. The First Respondent is ordered to pay the costs of this
application.
” (emphasis added)
[5.13] I will deal with the underlined aspects of the review order in
due course.
[5.14] As I will explain shortly, the review order forms the
cornerstone of Ms Dlamini’s application for rescission of
Victor
J’s order and judgment. However, despite obtaining
the review order in March 2013, Ms Dlamini did not institute the
rescission proceedings until December 2014. It was only then
that the application for rescission was served on Mr Moloisane.
This was:
5.14.1. four years after the eviction judgment and order were
granted;
5.14.2. more than one-and-a half years after the review order was
granted; and
5.14.3. more than two years after [Erf 1…..] had been
transferred to the current owner.
[6] As far as the underlined portions of the review order are
concerned, it should be noted that the property description in the
order does not accord with the property description in Victor J’s
eviction order. The review order describes the property
as
being [Erf 8…..], whereas the eviction order describes the
property as being [Erf 1…..]. As I will indicate
shortly, this caused some complication in the application before me
and formed the basis of an averment by Ms Dlamini that Mr Moloisane
had attempted fraudulently to mislead the court in the eviction
proceedings.
[7] The second point to note is that in her review application, Ms
Dlamini relied on a previous award by the Department, dated
2002, in
which she was awarded rights in the property. From the record
of the eviction application, Ms Dlamini did not refer
to this award
in opposing the eviction application. Because the review order was
made without the benefit of any judgment, we do
not know what the
facts and circumstances are regarding that award. Nor do we
know what facts and averments Ms Dlamini relied
on in her review
application.
THE CASE FOR RESCISSION
[8] In her founding affidavit, Ms Dlamini based her application for
rescission on the following averments:
[8.1] the review order declared that the transfer of the property to
Ms Molebatsi and any others was void
ab initio
;
[8.2] the 2002 adjudication award indicates that the property is to
be registered in Ms Dlamini’s name and that of her sister;
and
[8.3] thus, the eviction order should be set aside as Ms Dlamini is
the lawful owner of the property.
[9] I pause to point out in this regard that the latter averment is
not strictly speaking accurate. The review order did
no more
that grant Ms Dlamini a right to acquire the property. Until
registration in her name, which I understand has not
occurred, she is
not the registered owner. However, this inaccuracy does not
affect the issues before me in any material
way.
[10] In her replying affidavit, Ms Dlamini added that the purpose of
the rescission application was to revisit the eviction order
in light
of the legal position that was subsequently made clear by the review
order, in terms of which the transfer of the property
was to be
effected to Ms Dlamini and her sister. Ms Dlamini submitted in
this regard that “
the correct legal position was therefore
at all material times that (Mr Moloisane) did not acquire legal
ownership of the property
and therefore enjoyed no locus standi to
evict anyone
” from the property.
[11] In addition, Ms Dlamini sought to expand her grounds for
rescission with reference to the two different property descriptions
contained in the eviction order, on the one hand, and the review
order, on the other.
[12] In this regard, she averred that the property to which she
claimed ownership, and which her family had always occupied, was
“[Erf 8….] [D…] Ext 1”, i.e. the property
described in the review order. She averred further that
the
title deed in terms of which Mr Moloisane had claimed to acquire
ownership referred to a different property altogether, viz.
[“Erf
1……] [D…..] Township”.
[13] On this basis, she contended that Mr Moloisane had perpetrated a
fraud on the court in the eviction proceedings by seeking
to evict Ms
Dlamini from a property that he had never owned, viz. [Erf…..].
I return to this issue shortly.
[14] In neither of her affidavits filed in support of her application
for rescission did Ms Dlamini identify the legal basis for
the
rescission. In the heads of argument filed on her behalf,
the legal bases were identified as Rule 31(2)(b) and
Rule 42 of the
Uniform Rules of Court. Clearly the former has no application
in the present case, as the eviction order was
sought and granted on
a fully opposed basis.
[15] At the hearing before me, counsel for Ms Dlamini, submitted that
his client intended relying on the common law, and on Rule
42(1)(c)
as the bases for application for rescission. He explained
further that his client’s case rested in this regard
on two
alternative legs:
[15.1]First, fraud on the part of Mr Moloisane.
[15.2]Alternatively, common mistake under Rule 42(1)(c), or, in terms
of the common law,
justus error
, or
justa causa
.
[16] As far as Mr Moloisane’s opposition to the application is
concerned, in addition to taking issue with Ms Dlamini on
the merits
of the application, he raised a point in
limine
. Mr
Moloisane submitted that in view of the appeal route having taken its
full course, the judgment and order were final
and it was “legally
incompetent” for Ms Dlamini to seek rescission of them.
[17] This issue was not strongly pressed at the hearing before me.
I do not think there is any merit in the submission.
While it
may be unusual for a party to apply for rescission after the full
appeal process has ended unsuccessfully, she is not
prohibited as a
matter of law from doing so. As I discuss in more detail
shortly, rescission is an exception to the general
rule that
judgments are final, and that a court may not alter or reverse its
own judgments once they are granted. Moreover,
appeal and
rescission serve different purposes. Therefore, even though a
judgment may be “fully finalised” from
an appeal point of
view, this does not preclude a party from pursuing an application for
rescission.
[18] For these reasons, I conclude that the point
in limine
cannot succeed.
[19] I turn to the substance of the application for rescission by
considering each of the two legs relied on by Ms Dlamini in turn.
FRAUD
[20] Ms Dlamini’s reliance on Mr Moloisane’s alleged
fraud in misleading the court in obtaining the eviction order
can be
disposed of without much ado.
[21] As I noted earlier, Ms Dlamini’s claim is that Mr
Moloisane fraudulently misled Victor J by claiming that he was the
owner of [Erf ……], [D…..] Ext 1, when he was not
the owner of that property. She claims that this is
the
property that she and her family occupied. Thus, so the
argument goes, Mr Moloisane sought to evict her and her family
from a
property that he did not even own.
[22] In my view, Ms Dlamini’s contentions are misguided.
It is common cause that Mr Moloisane’s title deed described
the
property of which he was the registered owner, and in respect of
which he sought the eviction order as [“Erf 1…….]”,
not “[Erf …..]”. The confusion seems to have
crept in due to the fact that the property has previously
been
described at various times and in various documents through its
history as being “stand 897” or “previously
[Erf
8….]”. However, there can be no confusion that the
property was held by Mr Moloisane under a deed of title
which
described the property as being “[Erf 1……]”.
[23] It is on the basis of this description and title that Mr
Moloisane asserted his right of ownership and sought the eviction
of
Ms Dlamini and her family members. From the judgment of Victor
J, it is clear that Ms Dlamini did not raise as a defence
that she
and her family were not in occupation of Mr Moloisane’s
property. Moreover, the eviction order describes the
property
in question as being “[Erf 1…..]”.
[24] Thus, it is quite clear that all of the parties and the court
were of the same mind when it came to the identity of the property
that was the subject matter of the eviction order. Mr Moloisane did
not mislead the court in this regard. Nor did he deliberately
try to perpetrate a fraud on the court by misrepresenting that he
owned the property when, as Ms Dlamini now claims, he actually
owned
an entirely different property.
[25] If there is any remaining confusion in this regard, then the
responsibility for this would seem to rest with Ms Dlamini.
It
was she who described the property as being “[Erf 8…..]”
in her subsequent review application, and who obtained
an order
relating to the property so described. Consequently, it can
never be inferred from the confusion that has resulted
that it was
deliberately caused by Mr Moloisane as part of a fraudulent plot to
mislead the court in the eviction proceedings.
[26] Therefore, I conclude that there is no merit in Ms Dlamini’s
assertion that she is entitled to a rescission of the eviction
order
on the basis that it was tainted by fraud on the part of Mr
Moloisane.
THE
ALTERNATIVE BASIS: ERROR OR
JUSTA CAUSA
[27] As far as the question of whether Ms Dlamini is entitled to
rescission on her alternative basis, I begin by setting out the
relevant principles.
[28] The well-established rule is that once a court has ruled finally
on a matter, it is
functus officio
, and may not revisit its
decision. The rule favours certainty and finality in orders
granted by courts.
[2]
It is in the interests of justice that there should be relative
certainty and finality as soon as possible concerning the
scope and
effect of orders.
[3]
[29] Whether at common law, or under Rule 42(1), the court’s
power to rescind a final order is limited, and the circumstances
within which the power may be exercised fall within a relatively
narrow ambit.
[4]
This is because rescission may only be granted in circumstances where
the common law or the Rules of court specifically permit
it.
[5]
[30] As far as the common law is concerned, rescission is permissible
only on the basis of fraud,
justus error
(in exceptional
cases), where new documents are discovered (again, in exceptional
cases), where judgment was granted by default,
and on the basis of
justa causa
, in circumstances where there is an absence of a
valid agreement between the parties to support the judgment.
[6]
[31] As far as Rule 42(1) is concerned, in the frequently cited
decision of the Supreme Court of Appeal in
Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills (Cape)
,
[7]
the court emphasised that:
“
Rule 42 is
confined
by its wording
and context to the rescission or variation of an ambiguous order or
an order containing a patent error or omission
(Rule 42(1)(b)); or an
order resulting from a mistake common to the parties (Rule 42(1)(c));
or 'an order erroneously sought or
erroneously granted in the absence
of a party affected thereby' (Rule 42(1)(a)). … The trend of
the Courts over the years
is
not to give a more extended
application to the Rule to include all kinds of mistakes or
irregularities
.
” (emphasis added)
[32] It is important to bear in mind that the purpose of Rule
42(1) is “
to correct expeditiously an obviously wrong
judgment or order
”,
[8]
and that the power to grant rescission under Rule 42(1) is
discretionary.
[9]
[33] As far as Rule 42(1)(c) is concerned, a “mistake common to
the parties” bears the same meaning as is accorded
to the
concept of common mistake in the law of contract. This occurs where
both parties are of one mind and share the same mistake.
[10]
There must be a causative link between the mistake and the granting
of the order or judgment. In other words, the mistake
must be
relevant to the questions that were required to be determined by the
court.
[11]
[34] A unilateral error by one party would not provide a basis for
rescission under this rule.
[35] In terms of the common law, (and outside the scope of common
mistake) where the court has given judgment on mistaken facts,
it is
only where this was caused by a fraudulent misrepresentation on the
part of one of the parties that rescission would be permissible
on
the basis of
justus error
. Where the mistake was as a
result of innocent misrepresentation, generally rescission would not
be permissible unless exceptional
circumstances exist.
[12]
Rule 42(1)(c) does not change this position.
[13]
[36] Whatever the cause of action supporting the application for
rescission is, it must have existed at the time the judgment sought
to be rescinded was granted. This principle was laid down by
the Appellate Division in the case of
Swadif (Pty) Ltd v Dyke
N.O.
[14]
[37] That case involved an application by a liquidator of a company
placed in liquidation to have a judgment granted against it
rescinded
on the grounds of
justa causa
under the common law. The
judgment was based on a mortgage bond passed by the company over its
property more than two years
prior to the winding up of the company.
The liquidator averred that the passing of the mortgage bond amounted
to a disposition
without value under
section 26
of the
Insolvency Act
24 of 1936
. Further, that because of this he was entitled to a
rescission of the judgment under the common law on the broad ground
of
justa causa
.
[38] It is important to note that the judgment in question had been
granted before the company was placed in liquidation.
While
section 26
of the
Insolvency Act permits
a court to set aside a
disposition without value, it does not give a court the power to set
aside a judgment that has been granted
to enforce a creditor’s
rights under such a disposition. It was for this reason that
the liquidator sought to rely
on the common law as a means of
achieving, through rescission, what could not be achieved under
section 26.
[39] In dismissing the application, the court said the following:
“…
it is abundantly clear that
at common
law any cause of action, which is relied on as a ground for setting
aside a final judgment, must have existed at the date
of the final
judgment
. There must be some causal connection
between the circumstances which give rise to the claim for rescission
and the judgment
and, according to the allegations in the particulars
of claim, that is not the position in the present instance. If
a judgment
is obtained in respect of a disposition not for value, no
ground exists for setting aside such judgment merely because the
disposition
was not made for value and it is proved that, immediately
after such disposition, the judgment debtor’s liabilities
exceeded
his assets.
It is only if insolvency or
liquidation supervenes that such a disposition acquires legal
significance by reason of the provisions
of sec. 26 of the Act.
But it does not follow that a judgment in respect of such a
disposition can on that account be set
aside under common law, for,
when the judgment was granted, no grounds existed for setting it
aside. The Court was fully
entitled to grant the judgment on
all the facts, and the causa, which existed at the date of the
judgment
.
”
[15]
(emphasis added)
[40] In terms of the principle laid down in
Swadif
, rescission
cannot be granted if the ground of rescission relied upon only came
into existence subsequent to the judgment.
The question is
whether the court was entitled to grant the judgment on the basis of
the circumstances that existed at that time,
albeit that the court or
the parties did not then know of their existence. If the court
was so entitled, then the underlying
principle of finality of
judgments must be upheld, and rescission is not permissible.
[41] Although the principle in
Swadif
was stated with specific
reference to the common law, it must apply also in the context of
Rule 42(1).
[42] Ms Dlamini’s case is that there was a common mistake on
the part of both parties that was fundamental to the decision
by
Victor J to grant the eviction order. She says that both
parties assumed at that time that Mr Moloisane was the lawful
owner
of [Erf 1……]. However, although he was the
registered owner at the time of the judgment, the subsequent
review
order granted by the Pretoria court changed this. It declared
that the original transfer to Ms Molebatsi was “
void and of
no force or effect
”. Accordingly, so her argument
goes:
[42.1]the declaration rendered the original transfer of the property
void
ab initio
, with retrospective effect;
[42.2]consequently, the transfer of the property to Mr Moloisane,
which was dependent on Ms Molebatsi’s rights in the property,
was also rendered void
ab initio
, with retrospective effect;
[42.3]therefore, although Mr Molebatsi was recorded as the registered
owner of the property at the time of the eviction order and
judgment,
he was not the lawful owner;
[42.4]at the time of the judgment the parties’ operated on the
common, but mistaken assumption that Mr Molebatsi was the
lawful
owner, and was thus entitled to apply for an eviction order;
[42.5]in the circumstances, the court was not entitled to grant the
order as, unbeknown to everyone, Mr Molebatsi did not have
any rights
of ownership capable of being vindicated by an eviction order; and
[42.6]on this basis, Ms Dlamini submits that she is entitled to a
rescission of the judgment.
[43] A critical feature of the case is that the review order, upon
which Ms Dlamini relies as the foundation for her argument,
was
granted some two years after the judgment and order of Victor J.
This, then, is not a case where the common mistake of
the parties
related to circumstances that actually existed at the time. At
the time of the judgment, their common assumption,
viz. that Mr
Moloisane was the owner of [Erf 1…..], was in accordance with
the circumstances that then existed. Does
this mean that on the
principle set out in
Swadif
rescission is not permissible for
the reason that the
causa
for the rescission (i.e. the
re-alignment of the legal position regarding ownership by virtue of
the review order) did not exist
at the time of the judgment?
[44] Ms Dlamini’s case is that the answer to this question is
no. She relies in this regard on the retrospective nature
and
effect of the review order. She submits that for this reason,
the question of rescission must be dealt with as if, at
the time of
Victor J’s judgment, Mr Moloisane was not the owner.
[45] I was referred to the case of
Menqa and Another v Markom and
Others
[16]
,
dealing with the effect on ownership of property acquired following a
sale in execution where the warrant of execution subsequently
was
declared void. The cause of the invalidity of the warrant was
that it had been issued by the Clerk of the Magistrates’
Court
without judicial oversight, contrary to the ruling in
Jafta v
Schoeman and Others; Van Rooyen v Stoltz and Others
.
[17]
The Supreme Court of Appeal held in
Menqa
that the effect of
this was to invalidate the transfer of the property not only to the
purchaser who had obtained it at the sale
in execution, but also to
the subsequent
bona fide
purchasers of that property.
[46] It was submitted on behalf of Ms Dlamini that the same situation
prevails in the present case. The review order set
aside the
decision by the MEC to award [Erf 1…..] to Ms Moloisane.
It was on this basis that the court issued the
declarator to the
effect that the transfer of the property to her was void. It
was submitted that the
Menqa
judgment demonstrates the
retrospective effect of orders of this nature.
[47]
Menqa
clearly lays down that the setting aside of
administrative action that results in the sale and transfer of
property to a third
party unravels the chain of transfer of
ownership, and that it does so with retrospective effect.
Overlooking for the moment
the fact that the review order does
not describe the property as “[Erf 1……]”, I
accept that that order
retrospectively relieved Mr Moloisane of his
ownership of the property. Consequently, in the context of the
law of property,
the registration of the transfer of the property to
him did not have legal effect.
[48] However, it does not follow that this also had the legal effect
of establishing, retrospectively, a
causa
for Ms Dlamini’s
rescission.
[49] As I indicated earlier, for purposes of rescission, the question
to be determined is whether Victor J was entitled to give
the
judgment and order that she did at the time she did so. If so,
then rescission must be refused.
[50] At the time of judgment, the MEC’s award of the property
to Ms Molebatse had not been set aside. Even though it
was
subsequently found to be unlawful, the established principle in our
law is that unlawful administrative action is effective
until it is
set aside.
[18]
Mr Moloisane was the registered owner of Erf13449 at the
time of judgment. It is so that this position was reversed
subsequently, with retrospective effect on his property rights.
However, the critical point in my view is that, in the circumstances
that existed at the time that Victor J gave judgment, he
was
the lawful, registered owner.
[51] It was only subsequently that this was held to be otherwise.
Even though the review order had retrospective effect for
purposes of
unraveling the chain of transfer of ownership, it could not change
retrospectively the circumstances that actually
existed at the time
of, and that formed the basis for, Victor J’s judgment.
[52] At the relevant time the parties were not mistaken. Their
assumption that Mr Moloisane was entitled to seek to enforce
his
rights of ownership by applying for an eviction order were correct.
There was no mistake, and hence no
causa
for rescission at the
time of the judgment.
[53] It follows that Victor J was entitled to grant judgment in those
circumstances. Regardless of whether the case is considered
on
the basis of
justus error
or
justa causa
under the
common law, or under Rule 42(1)(c), the result is the same. Ms
Dlamini’s cause of action for rescission did
not exist at the
time of the judgment, and for this reason the rescission must be
refused.
[54] This does not leave Ms Dlamini without a remedy to protect her
rights. It is simply that, in my view, rescission is not the
proper
remedy on the facts before me.
[55] In the absence of rescission of the order, Ms Dlamini would be
entitled to apply for an interdict to prevent the execution
of the
warrant of eviction on the basis that a subsequent court order has
found that Mr Moloisane is not the owner, and accordingly
has no
standing to enforce the warrant.
[56] However, on the facts in the present case, it seems to me that
there is no more than a theoretical possibility that Ms Dlamini
would
have to go to these lengths. Mr Moloisane is no longer even the
registered owner of the property. Ms Sauhatse
is the current
registered owner. Therefore, quite apart from the review order,
Mr Moloisane would, for this reason alone
not be entitled to execute
the warrant. There is nothing on the papers to indicate that he
has any interest anymore in the
property, or in seeking the eviction
of Ms Dlamini.
[57] As far as Ms Sauhatse is concerned, I agree with the submissions
made by counsel for Ms Dlamini. In the absence of a
cession of
Mr Moloisane’s rights under the eviction order, Ms Sauhatse
would have no standing to enforce it. The eviction
order gave
Mr Moloisane a personal right to enforce the eviction of Ms Dlamini
and her family members. It was common cause
before me that
there had been no cession of this right between Mr Moloisane and Ms
Sauhatse.
[58] Our law recognises that a new owner of property may
automatically step into the shoes of the previous owner in the sphere
of personal rights. This is the effect of the
huur gaat voor
koop
rule. In terms of this rule a new owner steps
into the shoes, and assumes the personal rights and obligations of
the
previous owner flowing from an existing lease agreement.
However, this rule is restricted to the lessor-lessee context.
The
huur gaat voor koop
rule is
sui generis
. It
was introduced under Roman Dutch law as a specific departure from the
existing law, with a view to safeguarding the position
of
lessees.
[19]
It does not establish a general basis for a new owner automatically
to step into the shoes of the previous owner in respect
of other
personal rights held by the latter.
[59] In the circumstances, Ms Sauhatse would have to apply for a new
eviction order, and obtain a warrant in her own right, if
she wanted
to evict Ms Dlamini and her family members. Obviously, the
review order would be relevant to that application.
[60] It seems to me, therefore, that on the facts of this case, the
eviction order has become something of a dead letter.
This is
not a basis on which to grant rescission. My power to do so is
circumscribed, and for the reasons I have already
advanced, a basis
for rescission has not been established in this case.
[61] Even if I am wrong in my rejection of Ms Dlamini’s
submission to the effect that the retrospectivity of the review order
establishes a ground for rescission, I retain a discretion to refuse
her application.
[62] It is clear to me for the reasons I have stated that the
eviction order has been overtaken by subsequent events, only one
of
which is the granting of the review order. Even in the absence
of the review order, the judgment and order granted by
Victor J is no
longer of any practical effect at this stage of [Erf 1…….]’s
history.
[63] In addition, the review order is central to Ms Dlamini’s
case for rescission. However, there are patent difficulties
with that order. As I have already noted, the property
description in the review order identifies a different property
altogether,
not [Erf 1…..]. Moreover, the review
application was not properly served on Mr Moloisane. Nor did Ms
Dlamini
know when she instituted the review application that Mr
Moloisane had transferred the property to Ms Sauhetse.
Consequently,
although the latter was by then the registered owner of
[Erf 1…….], she was not joined as a party in the review
proceedings.
She was also not joined in the rescission
proceedings, and it is unclear if she has any idea of the current
legal state of affairs
regarding the property. For all of these
reasons, there is a question mark over whether the review order will
be enforceable
and sustainable in its present form.
[64] Finally, Ms Dlamini inexplicably delayed instituting her
application for rescission for more than 18 months after the review
order was granted.
[65] In my view, taken together these factors mitigate against me
exercising my discretion in favour of Ms Dlamini. The need
for
certainty and finality in court orders in this case outweighs the
limited practical benefit (if any) that might flow from a
rescission
of Victor J’s judgment and order.
[66] In summary therefore, I conclude that Ms Dlamini has failed to
establish a valid ground for rescinding the judgment and order
of
Victor J under either the common law or Rule 42(1)(c). However,
even if I am wrong in this regard, in the exercise of
my discretion I
conclude that Ms Dlamini’s application should be refused.
[67] I grant the following order:
1. The application is dismissed with costs.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 18 August
2015
Date of Judgment: 23
September 2015
Counsel for the
Applicants: Adv M W Verster
Instructed by: Marius Verster
Attorneys
Counsel for Respondent: Adv C Van
der Merwe
Instructed by: Mathopo Attorneys
[1]
Act 81 of 1998
[2]
West Rand Estates Ltd v New Zealand Insurance Co Ltd
1926
AD 173
;
Colyn v Tiger Food Industries Ltd t/a Meadow
Feed Mills (Cape)
2003
(6) SA 1 (SCA)
at 5I–G;
De Villiers and Another
NNO v BOE Bank Ltd
2004
(3) SA 459
(SCA)
at 462H–463F;
Zondi v MEC,
Traditional and Local Government Affairs
2006
(3) SA 1
(CC)
at 12F–G;
Minister of Social
Development, Ex parte
[2006] ZACC 3
;
2006
(4) SA 309
(CC)
at 318F
[3]
First National Bank of Southern Africa Ltd v Van Rooyen N.O. &
Others; In re First National Bank of Southern Africa Ltd v Jurgens
&
Others
1994 (1) SA 677
(T) at 681E-G
[4]
Childerley Estate Stores v Standard Bank of SA Ltd
124 OPD
163
at 166, referring to the common-law position
[5]
South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd
1977
(3) SA 534
(A)
at 550H
[6]
See the authorities cited in
Erasmus Superior Court Practice
RS39, B-307
[7]
2003 (6) SA 1
(SCA) at paras 6-7
[8]
Bakoven Ltd v G J Howes (Pty) Ltd
1992
(2) SA 466
(E)
at 471E–F;
Promedia Drukkers &
Uitgewers (Edms) Bpk v Kaimowitz
1996
(4) SA 411
(C)
at 417B–I
[9]
Tshivhase Royal Council and Another v Tshivhase and Another;
Tshivhase and another v Tshivhase and Another
[1992] ZASCA 185
;
1992 (4) SA
852
(A) at 862G;
First National Bank of Southern Africa Ltd
,
above, at 681G
[10]
Tshivhase Royal Council
, above, at 863A
[11]
Tshivhase Royal Council
, above, at 863C-D
[12]
Childerley Estate Stores
, above, at 166
[13]
Dear v Deary
1971 (1) SA 227
(C) at 230
[14]
1978 (1) SA 928
(A)
[15]
At 939
[16]
2008 (2) SA 120
(SCA)
[17]
2005 (2) SA 140 (CC)
[18]
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) 222 (SCA)
[19]
Mignoel Properties (Pty) Ltd v Kneebone
1989 (4) SA 1042
(A)
at 1047J-1047C