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[2018] ZAGPJHC 88
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Shabalala v Udumo Trading 77 CC and Others (18249/2008) [2018] ZAGPJHC 88 (16 February 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number: 18249/2008
Not
reportable
Not
of interest to other judges
Revised
16/2/2018
In
the matter between:
SHABALALA,
ELIZABETH
BUSISIWE
Applicant
AND
UDUMO
TRADING 77
CC
First
Respondent
THAGE,
JOHANNES
SELLO
Second
Respondent
THAGE,
PRISCILLA
BUKELWA
Third
Respondent
FIRSTRAND
BANK
LIMITED
Fourth
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
During April 2015 the applicant instituted proceedings to rescind the
default judgment which had been granted against her on
29 July 2008,
in favour of the first respondent. In the application the applicant
sought the following order:
"1.1 Rescission of the default
judgment which was granted by this Honorable Court, on 29 July 2008,
in favour of the first
respondent;
1.2 Setting aside of the sale and
execution of the "property arising from the Judgment";
1.3 Cancellation of the "Deed of
transfer and with number T.11535/2015 registered in favour of the
second and the third respondents"
and;
1.4 Reinstatement of the "Deed of
transfer T.19632/1998"
in the name of the applicant.”
[2]
The fourth respondent, the Firstrand Bank, successfully applied to
intervene as a respondent. The leave to intervene was granted
on 8
September 2015. The applicant in her rescission application failed to
join the following parties; the Registrar of Deeds and
the Sheriff of
Brakpan Anton Rademeyer and Lucus Musondo Mahlangu.
Background
Facts
[3]
As stated earlier in this judgment a default judgment was granted
against the applicant in favour of the first respondent.
[4]
The applicant alleged in her founding affidavit that she was in
1996/7 allocated a government-subsidised house number […]
Tsakane Extension 11 (the property).
[5]
She further stated that she was never given a title deed but received
the document attached to the founding affidavit titled
“APPLICATION
DETAILS: APPLICATION INFORMATION". The document contains her
particulars of the applicant and the recording
that her application
for the subsidy was approved in the sum of R17 250.00.
[6]
The prayers to have the sale in execution and the deed of transfer
cancelled are based on the allegation that the default judgment
was
fraudulently obtained.
[7]
After receipt of the document she later received an application
seeking to evict her from the property.
[8]
She disputed ever taking a mortgage bond as reflected in the Title
Deed, which she seemed to have subsequently received
after a
search at the Deeds office. She stated that there was no need for her
to take a loan because the value of the property
was R12 000.00 and
the subsidy she received from the government was more than that,
being R17 250.00.
[9]
The second and third respondents’ version is that the property
was purchased by one Anton Radermeyer in the sale for execution
from
the first respondent for R 31,000.00. Radermeyer then sold the
property in the sum of R117 00.00 to Lucas Masondo Masinga
who took
out a loan with the fourth respondent to finance the purchase during
2009 and the mortgage bond was secured in favour
of the fourth
respondent in the sum of R120 000.00
[10]
Masondo subsequently fell in arrears and the fourth respondent
accordingly instituted proceedings against him, claiming payment
in
the sum of R136 782.00.
[11]
On 26 July 2012, the court granted judgment in favour of the fourth
respondent for the payment of the said amount. The execution
of the
property was effected after attempts at executing the immovable
property yielded no results. The execution of the property
was issued
on 23 October 2012.
[12]
The property was sold at an auction for a simple R1000,00 in terms of
rule 46 (12) of the Uniform Rules of the High Courts.
[13]
In opposition to the rescission application, the second and third
respondents raised a point
in limine
concerning the
non-joinder of Rademeyer and Mahlangu as previous owners of the
property. The non-joinder point was also based on
the failure by the
applicant to join the Sheriff; Brakpan.
[14]
The preliminary point was upheld by Kathree-Setiloane J on 3 November
2016. The order made by the Court in that regard reads
as follows:
"The application is postponed
sine die;
The applicant is precluded from
enrolling the application until notice of joinder was served on the
following:
Register of Deeds,
the Sheriff,
Anton Rodemeyer and
Lucas Masondo
The joinder shall be served on or
before 31 January 2017,
Failing compliance with either 2 or 3
above, the second and third respondents are entitled to enrol the
application for hearing
with costs reserved.”
[15]
The applicant having failed to comply with the above order in that
she did not join the parties mentioned therein, the fourth
respondent
enrolled the matter for a hearing on 14, August 2017.
[16]
The matter came before the court on 8 August 2017 and on that day the
applicant applied for a postponement which was opposed
by the
respondents. The postponement was, however, granted by Francis AJ who
attached very stringent conditions on what the applicant
was supposed
to do to progress the matter further. The order made by the learned
judge reads as follows:
“
1. The application is postponed
sine die
2. This is the final postponement
which shall be awarded to the applicant;
3. The applicant is to effect her
joinder application, joining the Registrar of Deeds and the Sheriff
Brakpan by no later than 6
September 2017;
4. The applicant is to enrol her
application for substituted service in respect of service of the
joinder application of Anton Rademeyer
and Lucas Masando Mahlangu by
no later than 6 September 2O17;
5. The applicant is to effect service
of the joinder application in respect of Anton Rademeyer and Lucas
Masando Mahlangu by no
later than 2 October 2017;
6. The applicant is precluded from
enrolling the application until she has complied with 3 and 4 above
and any directions that the
Court hearing the application for
substituted service may direct;
7. Failure by the applicant to act in
accordance with 3, 4 or 5 above shall entitle the second, third and
fourth respondents to
set the application down for hearing.
8. The applicant to pay the second,
third and fourth respondent's wasted costs occasioned by the
postponement on an attorney-client
scale.”
[17]
The matter was again set down and came before this court on 11
November 2017. The applicant has again failed to comply with
the
above order.
[18]
Mr. Beyana, for the applicant, contended initially that the matter
was not ripe for hearing and that the applicant should be
given the
opportunity to comply with Francis AJ's order. He, however, conceded
that there had been non-compliance with the above
court order and
that the applicant did nothing to comply. He then made the
application for non- compliance with the order from
the bar.
[19]
During the debate, it was raised with Counsel as to why no
condonation for non-compliance with the court order was made earlier.
He could not provide any reason in that regard.
[20]
In my view, the approach adopted by the applicant is based on an
attitude of total disregard of the interest of the respondents
and
the prejudice they suffer as a result thereof.
[21]
This painful and expensive process that the respondent had to endure
could have been avoided had the applicant acted promptly
in
exercising her right. She states in her founding affidavit that she
became aware of the sale in execution two days before the
sale took
place. She could have interdicted the sale but waited for almost
seven years to institute the proceedings and after that
delayed the
finalization thereof by a total disregard of the court orders that
had directed her to join the other interested parties.
[22]
In my view, granting condonation for noncompliance with Francis AJ’s
order would be to ignore the manner in which the
applicant has dealt
with the matter and the prejudice that would be suffered by the
respondent. It is in the interest of justice
that the application for
condonation should be refused.
[23]
It is trite that in an application for condonation one of the factors
to consider is prospects of success. Although Counsel
did not address
this issue in his application from the bar, the applicant has in her
founding affidavit alleged that the sale and
the transfer of the
property was a consequent of fraud. She does not, however, make an
allegation in her papers that the respondents
knew about her
allegation.
[24]
As stated earlier, the property was purchased by Radermeyer in
November 2008 and thereafter it was sold and transferred to
Mahlangu
who lost ownership when the second respondent purchased it at the
sale in execution during March 2015. It is thus clear
from the above
analysis that the parties who previously acquired the property did so
as
bona
fide
purchasers and were not aware of the allegations made by the
applicant. There is no case made that there are prospects of success
in the claim that there was lack of consensus regarding the passing
of the ownership of the property.
[1]
In light of the above, the applicant’s application stands to
fail.
Order
[25]
The applicant's application is dismissed with costs.
E
Molahlehi
Judge
of the High Court;
Johannesburg
Representations:
Counsel
For the Applicant: Mr. LM Biyana
Instructed
by: Benoni Justice Centre
Counsel
For the Respondent: Adv. J Lourens
Instructed
by: AG Smuts & Partners
Heard
on: 22 November 2017
Delivered
on: 16 February 2018
[1]
See Meintjies v
Coetzee N.O 2010, [5] SA186 (SCA).