About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 289
|
|
Mdlalose v Kamba and Others (2015/05289) [2015] ZAGPJHC 289 (18 December 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/05289
DATE: 08 DECEMBER 2015
In the matter between:
GLADYS
MDLALOSE
............................................................................................................
Applicant
And
MAGISTRATE NOMVUYO
KAMBA
......................................................................
First
Respondent
SHADES OF SUMMER INVESTMENTS 27
CC
.................................................
Second
Respondent
SHERIFF OR HIS
DEPUTY
.....................................................................................
Third
Respondent
J U D G M E N T
MASHILE, J:
[1] This review application is
purportedly brought in terms of Section 24 of the Superior Courts Act
No. 59 of 1959 that followed
upon the First Respondent’s
dismissal of a postponement application on 10 December 2014.
[2] The factual background is that the
Second Respondent is the owner of immovable property situate at 8
[T………]
Street, [M……] [E……],
[G……] (hereinafter “the property”) having
purchased
it at a sale in execution. Joaquim Carlos Teixeira Marques,
the deponent to the answering affidavit, is the sole member of the
Second Respondent.
[3] The property is occupied and the
Second Respondent, having acquired it, instituted eviction
proceedings against the unlawful
occupiers. On 10 September 2014,
the Second Respondent sought and subsequently obtained a directive in
terms of Section 4(2) of
the Prevention of Illegal Eviction Act No.
19 of 1998 (“PIE”).
[4] On 15 September 2014, the
Applicant acted in accordance with the directive as granted by this
court. The Eviction Application
was to be heard on 1 October 2014
but on 30 September 2014 the Applicant contested it by filing her
notice to oppose.
[5] On 1 October 2014 the hearing of
the application was postponed to 15 October 2014 at the instance of
the Applicant and her attorney.
The main objective of the
postponement was to allow the Applicant to consult with her attorney
to prepare and deliver an answering
affidavit.
[6] On 15 October 2014, the Applicant
showed up in court and again entreated that the matter be postponed
as she had lost her son
and could as such not consult with her
attorney for purposes of preparing the answering affidavit.
[7] The court regarded her application
and postponed the hearing to 12 November 2014. The Applicant was
therefore granted a further
one month indulgence to file her opposing
affidavit. In the interim the Second Respondent attended to the
service of a further
Section 4(2) Notices in terms of PIE on 24
October 2014 to ensure that all occupants took note of their rights.
[8] On 12 November 2014, the Applicant
appeared in court without filing an opposing affidavit. On that day,
the other unlawful occupiers
indicated that they would attend at
Legal Aid. The application was postponed to 26 November 2014, making
it the third postponement.
This postponement was granted as the
court wanted to give the other occupants an opportunity to apply for
Legal Aid’s assistance
and also to allow the Applicant to file
her opposing affidavit.
[9] On 26 November 2014 the Applicant
attended at court without any legal representation. However, her
attorney’s secretary
handed over on his behalf, a letter
addressed to the court in which a medical report was enclosed. The
letter recorded that the
matter was postponed on the previous
occasion at the instance of the Applicant to enable her to deliver
her answering affidavit.
[10] In the second place, her attorney
advised the court that he had not been in good health and could
therefore not consult, prepare
and deliver the answering affidavit as
agreed on the last appearance. For those reasons, he asked the court
that the matter be
postponed sine die ostensibly to give him time to
either draft it or arrange alternative means that his client be
represented.
[11] The medical report was
confirmation that the Applicant’s attorney was diabetic. The
report further stated that he had
vitreous hemorrhage in his eyes.
The condition was unending and was progressively deteriorating with
time. The Applicant’s
attorney could nonetheless still see.
[12] The other occupants informed the
court that Legal Aid declined their applications for representation
on the ground that their
defence lacked merit. They indicated to the
court that they did not oppose the relief but nonetheless wanted to
present their
personal state of affairs to the court in terms of
Section 4(7) of PIE. The court considered such circumstances,
recorded them
and excused them from attending the next hearing
scheduled for 10 December 2014.
[13] Granting a postponement to 10
December 2015, which was for the fourth time, the court advised the
Applicant that this would
be the final postponement for her to
deliver her answering affidavit. The court further cautioned that if
her Attorney could not
assist then she would be expected to instruct
a different attorney alternatively, approach Legal Aid for
assistance.
[14] The court further stressed and
explained to the Applicant that the matter would proceed on the next
date of hearing. The hearing
would proceed regardless of whether she
would have delivered her answering affidavit or whether she would be
legally represented
or not.
[15] The court’s warning to the
Applicant on 26 November 2014 notwithstanding, the Applicant’s
Attorney attended at
court to advise that he could not prepare the
answering affidavit as he was sick. He again requested that the
matter be postponed
sine die pending finalisation of his client’s
answering affidavit and his health improving.
[16] The Applicant’s attorney
presented the court with various doctors’ notes all of which
seemed to be prescription
of medicine. The application to postpone
the matter was vehemently opposed by the attorney of the Second
Respondent on the basis
that:
16.1 The Application was not bona fide
as the Applicant had been legally represented since September 2014
and effectively had 4
months within which to consult, prepare and
deliver the answering affidavit;
16.2 The Application was not made
timeously and that the purported doctor’s reports and notes did
not in any manner suggest
that the Applicant’s Attorney is
incapacitated to such an extent that he could not reasonably attend
to his duties;
16.3 The aim of the application was to
delay the matter unnecessarily. Meanwhile, the Second Respondent
was the only party suffering
prejudice as it had not been receiving
any rentals whatsoever. Furthermore, it had not been placed in
possession of the property
despite being responsible for the
municipal accounts. In consequence the Second Respondent continued
to suffer damages daily which
were and are escalating out of control;
16.4 the unavailability of a legal
representative is not a ground for a postponement.
[17] The court considered the matter
and gave an order dismissing the application for postponement. In
reaching that conclusion
it held that the application for
postponement was not bona fide and in any event the Applicant
furnished no satisfactory reasons
for it. The court held further
that the attorney for the Applicant failed to provide proof that he
was medically unfit to represent
the Applicant. The application for
the Applicant’s eviction proceeded.
[18] The court indicated to the
Applicant’s attorney that he could still assist the Applicant
by leading viva voce evidence
in support of her defence. The
attorney for the Applicant elected to withdraw from the case thus
leaving the Applicant to represent
herself. The court then took it
upon itself to lead the Applicant so that she could elaborate on her
defence against the eviction
application.
[19] From the viva voce evidence that
the court elicited from the Applicant, it established that the
Applicant had not been paying
any rental since 2012. The Applicant
failed to demonstrate that her entitlement to remain on the property
stemmed from a lease
agreement that she concluded with an estate
agent. Her persistence that the Second Respondent was not the owner
of the property
was irrational especially after the production of
convincing evidence by the Applicant to the contrary.
[20] As enjoined by the PIE, the court
duly enquired about the personal circumstances of the Applicant and
the latter duly obliged.
The court thereafter gave an order granting
the Applicant and the other unlawful occupiers three months from the
date of the order
within which to vacate the property.
[21] The Applicant now wants the
decision of the First Respondent to be reviewed as she refused to
postpone the matter. In doing
so, the First Respondent deprived her
of legal representation as her attorney withdrew as a result of
ill-health, leaving her to
battle it alone. That was grossly
irregular as the Constitution prescribes that everyone is entitled to
legal representation.
She, being a lay person could not represent
herself satisfactorily as an attorney would have done.
[22] The First Respondent did not
oppose the application and was not in court during the hearing of
this matter. The Second Respondent
opposed the application and
argued firstly, that a review is not open to a party who has been
refused a postponement. It is an
appeal that lies against a decision
for the dismissal of a postponement. Secondly, the Applicant failed
to establish the threshold
criteria for a review application.
[23] Accordingly, there are two issues
to be determined by this court and they are:
23.1 Whether this court should
entertain an application to review the First Respondent’s
decision to refuse postponement;
and
23.2 Whether it was grossly irregular
for the First Respondent to allow the matter to proceed without legal
representation for the
Applicant.
[24] Grounds for review are set out in
Section 24 of the Superior Court’s Act, 59 of 1959 and they
are:
24.1 Absence of jurisdiction on the
part of the Court;
24.2 Interest in the course, bias,
malice or the commission of an offence;
24.3 Gross irregularity in the
proceedings;
24.4 The admission of inadmissible
incompetent evidence or the rejection of admissible or competent
evidence.
[25] In the cases of Agasim-Perreira of
Fulwood v Wertheim Becker Inc
[2006] 4 All SA 43
(E) and Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NMS), the
court dealt with matters concerning refusal to postpone. It should
suffice to state that in Myburgh, the decision of
the court below was
reversed while in Agasim-Perreira, the decision of the court below
was upheld. Of significance with these two
matters is that they both
concerned themselves with postponement and the decision of the court
of the first instance was appealed
and not reviewed.
[26] This confirms that unless a
decision to refuse postponement falls within the grounds for review
as outlined above, the normal
manner of dealing with it is through
appeal and not review. Thus, to the extent that the Applicant seeks
to review the magistrate’s
decision to refuse postponement,
this application is completely flawed. I do not believe that this
court should devote time discussing
this issue.
[27] I turn to consider the Applicant’s
claim that it was grossly irregular for the First Respondent to have
allowed the matter
to proceed without legal representation for the
Applicant. It is objectively clear that the decision to finally
refuse postponement
on the fifth occasion was not taken blithely.
The court considered the number of previous postponements that were
permitted, as
well as the court’s reasons.
[28] Under different set of
circumstances, allowing a matter to proceed without legal
representation for a party would be grossly
irregular as it would
constitute a violation of the Constitution. In the instant case, the
First Respondent’s refusal to
postpone the matter must be
weighed against the prejudice that the Second Respondent would have
suffered had the postponement been
granted.
[29] The Second Applicant is the legal
owner of the property having acquired ownership a while back. It has
since the acquisition
of the property not enjoyed its ownership
instead it has been burdened with payment of assessment rates, taxes,
water, electricity
and mortgage bond. While it is the only party
paying for all these, the Applicant enjoys living on the property for
free. This,
the court should not countenance.
[30] Other than the aforegoing, the
Applicant was given sufficient time to deliver her answering
affidavit even though the reasons
proffered in support for the court
to grant postponement, in my opinion, hovered around frivolity. This
conclusion is inescapable
as the Applicant knew that her attorney was
diabetic. Why she did not instruct a different attorney to handle her
case remains
enigmatic. I do not think that the Second Respondent
should be denied the enjoyment of the property as a result of the
inadequacies
of the Applicant.
[31] The above is the background
against which the First Respondent’s decision to dismiss the
application for postponement
must be measured. It cannot be said
that the decision of the First Respondent to refuse postponement was
of so gross a nature
that it was calculated to prejudice the
Applicant. If anything, the converse is true particularly in view of
the First Respondent’s
invitation to the Applicant’s
attorney that he could still assist her by leading viva voce
evidence.
[32] Furthermore, when the Applicant’s
attorney withdrew, the First Respondent stepped-in to assist the
Applicant. It was
during this process that it became plain that the
Applicant did not have a defence to the eviction application. For
that reason,
the First Respondent ordered her eviction giving her
three months from the date of the order to vacate the property.
[33] I am unable to find any act on the
part of the First Respondent that could be interpreted as gross
irregularity in the context
of Section 24 of the Superior Courts Act
No. 59 of 1959. In the circumstances, the application for the review
of the First Respondent’s
decision to refuse postponement must
fail and I make the following order:
1. The application is dismissed with
costs.
B MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Applicant: Adv. K.D
Makakaba
Instructed by: Mngomezulu Attorneys
Counsel for the Respondent: Adv. J.C
Viljoen
Instructed by: Stupel & Berman
Inc.
Date of hearing: 23 November 2015
Date of delivery of Judgment: 08
DECEMBER 2015