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[2016] ZAGPJHC 84
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Illegal Occupiers of Unit [1..] in the Sectional Title Scheme known as [A...] [P....] [D...] v Frederick N.O and Others (2012/36167) [2016] ZAGPJHC 84 (4 May 2016)
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Certain
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2012/36167
DATE: 04 MAY 2016
In the matter between:
THE ILLEGAL OCCUPIERS OF UNIT [1…..]
IN THE SECTIONAL TITLE
SCHEME KNOWN [A……] [P……]
[D…..]
.........................................................................
Applicant
And
DE WET, CHRISTIAAN FREDERICK
N.O
............................................................
First
Respondent
KEEVY, KAREN
N.O
..............................................................................................
Second
Respondent
NDEBELE, TIMOTHY ROZI
N.O
...........................................................................
Third
Respondent
JUDGMENT
ADAMS AJ:
[1].
This
is an application to rescind and set aside an eviction order granted
against the applicant by this court (Beasly AJ) on the
28
th
February 2013. The order for the eviction of the applicant, who is in
fact Ms Goodness Khonziwe Mchunu, was granted by default
after
compliance by the respondents of the provisions and procedural
requirements of the Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act 19 of 1998
(‘the
PIE Act’).
[2].
In
terms of the Order dated the 28
th
February 2013 the applicant was ordered to vacate the property, being
Section Number [1…..] in the Scheme known as [S…..]
[P…..] [D….], situated at [2….] [U….]
Street, [P….] [G…..], [S….]
(‘the
property’).
Notwithstanding the
Court Order, the applicant remains in occupation of the property some
3 years later.
[3].
The
application for rescission was launched during March 2015, and was
set down for hearing by the respondents.
[4].
The
respondents are joint liquidators of Infogold Investments 10 (Pty)
Limited (In Liquidation)
(‘Infogold’),
the registered owner of the property.
[5].
In
her Founding Affidavit, the applicant bases her application for
rescission primarily on the fact that she is unsure as to who
the
true owner of the property is. She expressed a wish to purchase the
property and would like to make an offer to buy same. She
has however
not been able to ascertain who the correct party is whom she should
address. She emphasises the fact that she has no
other place to go
and she has spent most of her life living at the property. The
property has been her place of residence since
2006
[6].
At
the hearing of the application for rescission before me on the 29
th
April 2016, the applicant was unrepresented. She applied for a
postponement to enable her to obtain legal representation. Due to
the
lapse of time since the judgment was given by Beasly AJ, I was of the
view that this matter had to be concluded and I refused
the
application for a postponement. I nevertheless gave the applicant the
assurance that she would be afforded ample opportunity
to place in
full any and / or all information before the court which she thought
relevant to my adjudication of her application
for rescission. In the
end, her submissions were made with the assistance of an official
Court Interpreter.
the application for rescission
[7].
The
application for rescission is presumably brought in terms of the
provisions of Rule 42(1) of the Uniform Rules of Court and
/ or in
terms of the Common Law.
[8].
It
is trite that in terms of the common law, an applicant, in order to
be successful in an application for rescission, is required
to show
good cause.
[9].
Generally,
an applicant will establish good cause by giving a reasonable
explanation for her default and by showing that she has
a
bona
fide
defence to the claim of the
respondents which
prima facie
has some prospect of success. In terms of Rule 42(1)(a), the Court
may rescind or vary an order or judgment erroneously sought
or
erroneously granted in the absence of any party affected thereby.
[10].
I
am of the view that in her Founding Affidavit the applicant did not
satisfactorily explain her default nor did she demonstrate
that she
has a
bona fide
defence
to the judgment granted by Beasly AJ. This is so despite the fact
that the applicant was allowed to make submissions which
were not
supported by the averments in her Founding Affidavit. She was allowed
extra leverage in order to ensure that she was not
prejudiced by
reason of the fact that she was not legally represented at the
hearing of the application.
[11].
In
the end, the fact remained that the respondents are the owners of the
property, which is presently occupied unlawfully by the
applicant and
her 2 (two) children, the one being 22 years old and the other being
14 years old. The applicant also confirmed that
she is presently
employed at the Chris Hani Provincial Hospital at a salary of
approximately R6,000.00 per month. She also reiterated
that she is
desirous to purchase the property to enable her and her family to
continue inhabiting it. She confirmed that since
2006 she and her
family have been living at the property free of charge. She paid for
water and electricity consumption on a monthly
basis as there are
prepaid meters installed at the premises.
[12].
Having
regard to all the circumstances in this matter, including the
personal circumstances of the applicant and in particular the
prospect that their eviction could lead to homelessness, I am not
persuaded that the applicant has established a
bona
fide
defence that carries some prospect
of success.
[13].
I
am not persuaded that the applicant has demonstrated the existence of
a
bona fide
defence
on the substantive merits of the respondents’ claim. In
Chetty
v Law Society, Transvaal
[1]
,
Miller J 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. Any 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’
[14].
I
am satisfied that the application for rescission of the order granted
on 28
th
February 2013 should fail.
[15].
Accordingly,
I intend dismissing the application to set aside and rescind the said
order.
[16].
The
only question remaining is whether the ‘
PIE
Act Considerations’
affords the
applicant a basis on which the order should be rescinded. In this
matter I think not, and I say so for the simple reason
that the
applicant
, who is in full time employment
and lives at the property with her two sons, one of whom has the
capacity to earn an income, clearly
does not fall into the category
of persons who can be described as the poorest of the poor. On her
own version she has the means
to be able to source accommodation
elsewhere, either on a rental basis or by purchasing her own
property. After all, she submitted
during argument that she would
dearly like to buy the property for her and her family.
Order
Accordingly, I make the following order:
1.
The
application for rescission is dismissed with costs.
L ADAMS
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON: 29th
April 2016
JUDGMENT DATE: 4th May
2016
FOR THE APPLICANT:
In Person
INSTRUCTED BY: In
Person
FOR THE RESPONDENTS: Adv
Swanepoel
INSTRUCTED BY: Mostert
Incorporated
[1]
1985 (2) SA 756
(A).