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[2019] ZAGPJHC 239
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Perreira v Chetty and Others (2017/0039645) [2019] ZAGPJHC 239 (11 June 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.: 2017/0039645
In
the matter between:
GLORIA
NTOMBIYOXOLO
PERREIRA
Applicant
And
LAVESHAN
CHETTY
First
Respondent
STAND
[…] HURLINGHAM EXTENSION 5
CC
Second
Respondent
THE COMPANIES AND INTELLECTUAL
PROPERTY
COMMISSION
Third
Respondent
JUDGMENT
BOKABA AJ
1.
In these proceedings the Applicant seeks
the following relief; that
“
1.1
Pending the determination of this application;
1.1.1 that the first and second
respondents be interdicted and restrained from taking any steps to
alienate or encumber the property
situate at Stand […]
Hurlingham, corresponding to […], Hurlingham Extension 5,
registration division I.R., Gauteng
Province, under Deed of Transfer
No. 11276/90 (“the property”);
1.1.2 the first and second
respondents be interdicted and restrained from pursuing the eviction
of any occupiers of the property;
1.1.3 that the proceedings in this
Court under case no. 2016/14158 be stayed;
1.2 A declarator that the applicant
is the owner of a 100% members’ interest in the second
respondent;
1.3 An order directing the first
respondent to do all things necessary and sign all documentation to
effect the re-registration
at the CIPC of the 100% members’
interest in the second respondent to the applicant.”
2.
The applicant seeks the above relief based
on claims that she is the owner of the 100% members’ interest
in the second respondent,
Stand […] Hurlingham Extension 5 CC,
the close corporation. The CIPC records show that the 100%
interest in the close
corporation was registered in the name of the
first respondent, Mr Chetty, with effect from 19 April 2002
and that the
applicant was deregistered as a member on that date.
The applicant further alleges that there was no basis in fact or in
law for the registration of her 100% members’ interest into the
name of the first respondent. It is common cause that
the close
corporation is the owner of stand [...], Hurlingham, Johannesburg.
3.
It is also common cause that the first
respondent purchased the members’ interest in stand [...] at
the sale in execution
that was held on 25 February 2002
following a judgement that was granted against Carlos Perreira, whom
the applicant says
was married to her in community of property at
some point. The applicant claims that the Sheriff of the High
Court for the
district of Soweto East, who had attached the right,
title and interest in the close corporation had no right or
entitlement to
attach the applicant’s interest in stand [...],
the close corporation. She asserts further that at the sale in
execution,
the Sheriff appears to have sold Carlos Perreira’s
members’ interest in the close corporation when in fact
Mr Perreira
did not have such an interest.
4.
It is undisputed that on or about 26 April
2016 the first respondent, Mr Chetty, on behalf of the second
respondent, brought
an eviction application against Mr Perreira
before the High Court under case number 14158/2016. In that
application the close
corporation sought to evict Mr Carlos
Perreira and those occupying the property, being stand […]
Hurlingham, on the
basis that the first respondent had purchased the
members’ interest at the sale in execution conducted by the
Sheriff of
Johannesburg West during the course of 2001 or 2002 and
that he was the sole member of the close corporation. It is
also
common cause that on 13 June 2017 the Honourable van der
Linde J handed down judgement in terms of which he ordered the
applicant
and Mr Carlos Perreira and those occupying the property on
their behalf to be evicted.
5.
The applicant and Mr Carlos Perreira filed
an application for leave to appeal against the judgement and order of
van der Linde J
on 28 July 2017. That application for
leave to appeal is still pending.
DEFENCES RAISED BY THE FIRST
RESPONDENT
6.
The current application is opposed by the
first and second respondents. The first respondent and second
respondents have raised
four defences against the relief sought by
the applicant in these proceedings.
7.
First, the plea of res judicata. The
first respondent asserts that the current application is based on the
same set of facts
as those already decided by van der Linde J
and involves the same parties as those in the eviction application.
8.
Second, the first respondent has raised a
plea of non-joinder asserting that the applicant has alleged in her
founding affidavit
that the Sheriff of Johannesburg West had no right
or entitlement to attach the applicant’s members’
interest in the
close corporation and could not have sold the
applicant’s members’ interest at the sale in execution
and that the Sheriff
had erroneously completed the CK2 documents in
terms of which the members’ interest in the close corporation
was transferred
to the first respondent. The first respondent
contends in this regard that the Sheriff has a material interest in
the outcome
of this application as the Sheriff has been accused of
irregularly transferring the members’ interest in the close
corporation.
The first respondent states that failure by the
applicant to join the Sheriff in these proceedings is a material
non-joinder.
9.
The third defence raised by the first
respondent is that the applicant does not allege or produce any
document to prove that the
participants at the sale in execution,
being the Sheriff and the first respondent, had any prior knowledge
of any members’
interest transfer to the applicant nor that
either the Sheriff or the first respondent had acted mala fide at the
time of sale
in execution. According to the first respondent
there is no allegation in the applicant’s papers that he was
not a
bona fide purchaser of the members’ interest in the close
corporation.
10.
Lastly, the first respondent asserts that
the applicant has already provided the facts in terms of which the
eviction order of the
2016 application was decided and now seeks to
circumvent the 2016 eviction application which is pending in the
application for
leave to appeal. The first respondent contends
in this regard that the current court is not sitting as a court of
appeal
and therefore the relief sought by the applicant in these
proceedings is incompetent.
11.
The first respondent has annexed to his
answering papers, some of the papers in the eviction application
together with the transcript
of the hearing in the eviction
application.
THE PREVIOUS LITIGATION
INVOLVING EVICTION
12.
It is common cause that during April 2016
the first respondent brought an application for eviction against Mr
Carlos Perreira, the
applicant and all of those who occupied the
property. The first respondent’s application for eviction
was premised
on assertions that the first respondent was the sole
member of the close corporation and that the close corporation was
the owner
of the property and Mr Carlos Perreira and the applicant
were in unlawful occupation of the property. In the application
for eviction the first respondent stated that he had purchased the
members’ interest at the sale in execution conducted by
the
Sheriff of Johannesburg West during the course of 2001 and following
on that he was appointed as a sole member of the close
corporation on
19 April 2002.
13.
Mr Carlos Perreira deposed to an affidavit
in defence of the eviction application. That affidavit was
supported and confirmed
by the applicant, Ms Gloria Perreira.
14.
In the answering affidavit in the eviction
application, which forms part of the pleadings of the current
proceedings, Mr Carlos
Perreira stated that his wife, the applicant,
has never resigned from the close corporation and was in fact the
sole member of
the close corporation since 2002. Furthermore,
Mr Carlos Perreira stated that he and the applicant were the only
occupiers
who resided on the property and that the applicant was the
sole member and owner of the close corporation.
15.
The Court per van der Linde J made an
order that Mr Carlos Perreira together with the applicant and any
person holding occupation
through or under them, be evicted from the
property, being No. […], Hurlingham Extension 5 held
under Deed Title Number
T11276/1990 and that Mr Carlos Perreira and
the applicant and any person holding occupation under or through them
are to vacate
the property on or before the 31 July 2017.
This order is dated 13 June 2017.
16.
During the course of oral submissions
before this Court, I was handed a copy of the judgement delivered by
van der Linde J
on 13 June 2017. The judgement makes
it clear that in the eviction application, there was no dispute that
it was the
close corporation that owned the residential property
concerned. What was in dispute was whether Mr Chetty, the first
respondent
in this matter, or the applicant owned the members’
interest in the close corporation. The judgement also reflects
that Mr Carlos Perreira and the applicant denied that Mr Chetty
became the sole member of the close corporation on 19 April
2002. It is also noted in the judgement that Mr Carlos Perreira
contended that his wife, the applicant, had never resigned
from the
close corporation and was still in fact the sole member and had been
such a sole member of the close corporation since
2002.
17.
It is clear from the judgement that the
primary issue before Court revolved around the membership of the
close corporation.
In particular, whether the applicant in
these proceedings or the first respondent held the 100% members’
interest in the
close corporation.
18.
Van der Linde J ultimately found that
the close corporation had put up documents which prima facie emanate
from CIPC and which
prima facie show that a sale in execution had
resulted in the transfer of members’ interest to Mr Chetty,
the first
respondent in these proceedings. The Court, per van
der Linde J, made an order as reflected in paragraph 15
above.
19.
On or about 28 July 2017 Mr Carlos
Perreira filed notice of application for leave to appeal against the
judgement and order
of van der Linde J. Some of the
grounds for leave to appeal were as follows, that:
19.1.
Mr Carlos Perreira had raised a material
dispute of fact pertaining to Mr Chetty’s membership of
the close corporation
and in that regard Mr Carlos Perreira had
stated that his ex wife, Gloria Ntombiyoxolo Perreira, had never
resigned as a member
of the close corporation and that she was in
fact the sole member of the close corporation since 2002;
19.2.
Mr Carlos Perreira had no knowledge of the
legal proceedings that had led to the sale in execution at which
Mr Chetty bought
the interest in the close corporation.
The defence of exceptio re
judicata
20.
The res judicata doctrine prohibits the
reconsideration of a case already finally determined by a Court.
As stated by the
Constitutional Court:
“
The rule
of law and legal certainty will be compromised if the finality of a
court order is in doubt and can be revisited in a substantive
way.
The administration of justice will also be adversely affected if
parties are free to continuously approach courts on
multiple
occasions in the same matter.”
[1]
21.
The defence of res judicata raised by the
first respondent in these proceedings accordingly calls for an
examination of the issues
that were before Court in the eviction
proceedings together with the issues that arise in the current
litigation proceedings.
22.
In the current proceedings, the applicant
claims that she is the owner of the 100% members’ interest in
the close corporation.
Based on that the applicant seeks an
order that the first and second respondents be interdicted and
restrained from pursuing eviction
of any occupiers of the property
and from taking any steps to alienate or encumber the property.
In addition, the applicant
seeks that the proceedings in the previous
litigation involving eviction be stayed.
23.
As highlighted by the Supreme Court of
Appeal, res judicata deals with a situation where the same parties
are in dispute over the
same cause of action and the same relief.
In that regard, the SCA has summarised the current state of the law
in respect
of res judicata as follows –
“
Following
the decision in Boshoff v Union Government
1932 TPD 345
the ambit of
the exceptio res judicata has over the years been extended by the
relaxation in appropriate cases of the common-law
requirements that
the relief claimed and the cause of action be the same (eadem res and
eadem petendi causa) in both the case in
question and the earlier
judgement. Where the circumstances justify the relaxation of
these requirements those that remain
are that the parties must be the
same (idem actor) and that the same issue (eadem quastio) must arise.
Broadly stated, the
latter involves an enquiry whether an issue
of fact or law was an essential element of the judgement on which
reliance is placed.
Where the plea of res judicata is raised in
the absence of a commonality of cause of action and relief claimed it
has become
commonplace to adopt the terminology of English law and to
speak of issue estoppel. But, as was stressed by Botha JA
in Kommissaris van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA
653
(A) at 669D, 670J-671B, this is not to be construed as implying
an abandonment of the principles of the common law in favour of
those
of English law; the defence remains one of res judicata. The
recognition of the defence in such cases will however
require careful
scrutiny. Each case will depend on its own facts and any
extension of the defence will be on a case-by-case
basis …
Relevant considerations will include questions of equity and
fairness not only to the parties themselves but
also to others. As
pointed out by De Villiers CJ as long ago as 1893 in Bertram v Wood
(1893) 10 SC 177
at 180, ‘unless carefully circumscribed, [the
defence of res judicata] is capable of producing great hardship and
even positive
injustice to individuals’
.”
[2]
24.
The crux of the issue in the current
proceedings is around the ownership or membership of the close
corporation, which in turn is
the owner of the property. The
applicant claims that she is the owner of the 100% members’
interest in the close corporation
and has been such a member since
2002. She claims further that there was no basis in fact or in
law for the registration
of her 100% members’ interest into the
name of the first respondent on 19 April 2002.
25.
In the previous litigation proceedings
involving eviction the Court identified the primary dispute as being
whether the first respondent,
Mr Chetty, or Mrs Perreira, the
applicant, owns the members’ interest in the close
corporation. The Court in the
previous proceedings, in its
judgement, was satisfied that the first respondent, Mr Chetty,
is the sole member of the close
corporation and based on that fact,
granted an order evicting the Perreiras from the property.
26.
During the hearing before this Court
counsel for the applicant contended that the current proceedings are
dissimilar to the previous
proceedings. The contention was that
the relief sought before this Court is one of re-transfer or
re-registration of the
100% members’ interest in the close
corporation into the name of the applicant. For that reason, so
the contention
went, the res judicata doctrine is of no application.
27.
Counsel for the applicant however conceded
that the claim for re-transfer or re-registration of the members’
interest could
have been raised, but was for unknown reasons, not
raised in the earlier eviction proceedings. The concession was,
in my
view, well-made as it was open to the applicant to bring a
counter-application for such a relief in the eviction proceedings.
That, the applicant and Mr Perreira failed to do.
28.
In my view, to grant the relief sought by
the applicant in these proceedings will be entirely inconsistent with
the findings made
by the Court in the previous proceedings involving
eviction.
29.
I conclude that the claim and the relief
sought by the applicant in these proceedings will involve the
reconsideration of the very
issues that were determined by the Court
in the previous litigation involving eviction.
30.
The
current proceedings involve the same parties, the same cause of
action, i.e. membership or ownership of the close corporation
and in
my view, the same relief. Even if the relief sought by the
applicant in these proceedings is somehow different from
the relief
that was sought in the previous proceedings, I am satisfied that the
elements of res judicata in the form of issue estoppel
are
present.
[3]
Lis pendens
31.
There is one other obstacle to the relief
sought by the applicant. It is based on the doctrine of
lis
pendens
. The issue of the
membership of the close corporation also remains a live dispute in
the application for leave to appeal,
which is pending. In the
application for leave to appeal, the applicant has asserted that Mr
Chetty’s membership of
the close corporation is a material
dispute of fact that must be resolved by way of evidence.
32.
In
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
,
[4]
Wallis J expelled the doctrine of
lis
pendens
as follows:
“
[2] As
its name indicates, a plea of lis alibi pendens is based on
the proposition that the dispute (lis) between the
parties is being
litigated elsewhere and therefore it is inappropriate for it to be
litigated in the court in which the plea is
raised. The policy
underpinning it is that there should be a limit to the extent to
which the same issue is litigated between
the same parties and that
it is desirable that there be finality in litigation. The
courts are also concerned to avoid a
situation where different courts
pronounce on the same issue with the risk that they may reach
differing conclusions. It
is a plea that has been recognised by
our courts for over 100 years
.
[3] The plea bears an affinity to
the plea of res judicata, which is directed at achieving the same
policy goals. Their close
relationship is evident from the
following passage from Voet 44.2.7:
‘
Exception
of lis pendens also requires same persons, thing and cause. - The
exception that a suit is already pending is quite akin
to the
exception of res judicata, inasmuch as, when a suit is pending before
another judge, this exception is granted just so often
as, and in all
those cases in which after a suit has been ended there is room for
the exception of res judicata in terms of what
has already been said.
Thus the suit must already have started to be mooted before
another judge between the same persons,
about the same matter and on
the same cause, since the place where a judicial proceeding has once
been taken up is also the place
where it ought to be given its
ending.’”
[5]
33.
In broad terms the requirements for the
application of the doctrine of
lis
pendens
are the following:
33.1.
pending litigation;
33.2.
between the same party;
33.3.
based on the same cause of action; and
33.4.
in respect of the same subject-matter.
34.
The
lis
pendens
doctrine bears the same
elements as the res judicata doctrine. The principal issues
that the applicant seeks to have determined
in these proceedings are
similar to those that are pending before Court in the application for
leave to appeal.
35.
It is for the court hearing the application
for leave to appeal to determine whether the applicant’s
grounds of appeal, including
the dispute relating to the membership
of the close corporation, carry a reasonable prospect of success such
that another court
would come to a different conclusion. The
effect of this Court determining this issue would be to incorrectly
pre-empt the
finding of that court. This Court is also not
sitting as a court of appeal. It is impermissible, in my view,
for the
applicant to pursue claims and relief in a separate
application before this Court when an application for leave to appeal
is pending
before another court on the same issues.
36.
Given the conclusion I have reached, it is
not necessary to determine the remaining defences to the application.
The application
must be dismissed with costs.
37.
I accordingly make the following order:
37.1
The application is dismissed with costs.
_________________________
TJB BOKABA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES:
For Applicant: L Hollander
Instructed
By: Le Roux Vivier Attorneys
For First and Second Respondents: C
van der Merwe
Instructed
By: KG Tserkezis Incorporated
[1]
Thwala
v S
2019 (1) BCLR 156
(CC), at paras 10 and 16.
See also –
S v
Molaudzi
2015 (8) BCLR 904
(CC).
[2]
Aon
South Africa (Pty) Ltd v Van den Heever NO and Others
2018
(6) SA 38
(SCA), at paras 22 and 23.
[3]
AON
South Africa (Pty) Ltd v van den Heever NO and Others
(supra).
[4]
2013
(6) SA 499
(SCA), at paras [2] and [3].
[5]
Socratous v
Grindstone Investments
2011
(6) SA 325
(SCA)
para 13. Its origins are to be found in the Digest 44.2 sv De
Exceptione Rei Iudicatae.