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[2019] ZAGPJHC 507
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Du Toit v Tsubane (43953/2019) [2019] ZAGPJHC 507 (20 December 2019)
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:
43953/2019
DU
TOIT,
GERHARD
Applicant
and
TSUBANE,
MPHO
Respondent
JUDGMENT
MAKUME
J
:
[1] The Applicant seeks an order against the
Respondent in the following terms:
i)
That
he be restored to possession of the house situated at […] G.
Street, Brackendowns Alberton (the Property).
ii)
That
the Respondent be interdicted and restrained from entering the
property pending finalisation of a PIE application launched
by the
Respondent out of the Magistrate Court Palm ridge under case number
9094/19.
iii)
That
the Respondent be interdicted from interfering with the Applicant’s
possession of the property.
iv)
That
the Respondent be ordered to restore the Applicant’s peaceful
and undisturbed possession of the property.
v)
That
the Respondent replace all steel gates, garage gates and palisade
fencing leading to the home on the property.
[2] There is a very convoluted history about this
matter as will appear from the chronology of events hereunder.
At the commencement
of the hearing I enquired from both legal
representatives who between the Applicant and the Respondent was
presently in occupation
of the property. Applicant’s
counsel said that his cliet is in occupation so did the Respondent’s
counsel.
Applicant maintains that Respondent in person is not
on the property except that he has erected a shack on the property
wherein
he has allowed a group of what he terms “cronies”
and vagrants to occupy. The Respondent maintains that the
Respondent
packed his belongings on Friday the 13
th
December 2019 and is no longer in occupation.
[3] The explanation by the parties as to the current state of affairs
sharply brought to the fore the issue of credibility.
This
matter is about broken agreements and undertakings. The
Respondent finds himself at the centre of a dispute between
the
Applicant and his ex-wife.
FACTUAL
BACKGROUND
[4] The following facts are common cause or are not seriously
disputed
i) The Applicant and his wife Marlize Du Toit to
whom he was
married out of community of
property divorced on the 11
th
March
2016.
ii) On the 24
th
May 2018 the Sheriff of the Magistrate Court, Palm ridge was
appointed as a receiver and liquidator of the joint assets of the
Applicant and his ex-wife.
iii) The property was amongst others an asset in
the estate and in
terms of their divorce
settlement had to be sold.
iv) The Sheriff of Palm ridge was appointed to
sign transfer documents of the property after its sale because the
Applicant had
refused or failed to sign same.
v)
On
the 16
th
April 2019 the Sheriff of the Magistrate Court, Palm ridge in his
presentative capacity together with the Applicant’s ex-wife
sold the property to the Respondent Mpho Tsubane for an amount of
R900 000. 00 (Nine Hundred Thousand Rands).
vi)
The
property was transferred into the name of Mpho Tsubane the Respondent
on the 2
nd
October 2019. The Deed of Transfer No T000035236/2019 is
attached to the Respondent’s Answering Affidavit.
vii)
On
the 14
th
October 2019 at Brackendowns Police Station the Applicant deposed to
an affidavit before Captain BE Nqukwelo in which he undertook
to
vacate the property on the 8
th
November 2019. Significantly his elderly father who seemingly
lived with him on the property also deposed to an affidavit
agreeing
to vacate the property on the 8
th
November 2019 and give the Respondent occupation. I was told
that the affidavits are in the handwriting of the deponents.
viii)
On
the 8
th
November 2019 the Applicant arrived at the premises with a truck full
of his belongings with the intention to take occupation as
per the
agreement and the undertaking dated the 14
th
October 2019.
ix)
On
his arrival the Applicant refused to vacate instead he approached
this court on an urgent basis seeking an order to prevent the
Respondent from taking occupation. That application was struck
off the roll for lack of urgency.
x)
The
Respondent as he had nowhere to go erected a shack on the property
and put all his belongings in there. He is presently
living in
that shack with his family members as the house is locked.
xi)
On
the 13
th
December 2019 the Applicant packed his belongings except a few and
left the property. Attached to the answering affidavit
are
pictures indicating the Applicant and another white male on the
trailer outside the premises. The trailer is loaded with
various items of furniture. On one of the pictures the
Applicant can be seen carrying a box also on picture C8 is a picture
of one of the empty rooms on the property.
xii)
On
the 12
th
December 2019 prior to vacating the property the Applicant launched
this application seeking the order as I have set out above.
[5] It is against this background that I am now
called up to decide firstly if the Applicant has made out any case on
urgency and
secondly on the merits. Frankly speaking I could
have struck this matter from the roll for lack of urgency however,
and in
view of the history of broken undertakings by the Applicant I
allowed the parties to address me on the merits.
[6] The real question to be answered is whether
the Applicant has been spoliated of the property by the action of the
Respondent.
The first task is accordingly to identify the facts
of the alleged spoliation on the basis of which the legal disputes
are to be
decided.
[7] Our courts have said that an applicant who
seeks final relief on motion must in the event of conflict, accept
the version set
up by his opponent unless the latter’s
allegations are in the opinion of the court not such as to raise a
real, genuine or
bona fide
dispute of fact or are so far-fetched or clearly untenable that the
court is justified in rejecting them merely on the papers (
Plascon
Evans Paints vs Van Riebeek Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
A
).
[8] It is trite law that an applicant cannot make
out his or her case in reply. It is surprising that the
Applicant in his
Founding Affidavit says nothing about the visit to
the Brackendowns Police Station on the 14
th
October 2019 shortly after the property had been transferred.
It is only after the Respondent’s alluded to that visit
to the
Police Station that suddenly the Applicant remember that the visit to
the Police Station was prompted by the Respondent
and Lerato arriving
on the property with taxis filled with people threatening and
intimidating them. For the first time in
the reply and also
through his counsel’s submission does he say that he signed the
affidavit at the police station to vacate
under duress.
[9] A party relying on duress to resile from an
agreement must prove the causal connection between the duress and the
making of
the contract (
BOE Bank Bpk vs
Van Zyl
2002 (5) SA 165
C) 180-1
.
The evidence before this court does not prove that. What this
court knows is that the Applicant and his father drove
themselves to
the police station. They do not say that the taxi filled with
threatening people followed them to the police
station.
Secondly how come that when they arrive at the police station and
having experienced the threats and intimidation
they chose to say
nothing to the police. If the applicant had told the police
about the crowd of intimidation the police
would have acted.
[10] I do not for a moment believe that there was
any duress exerted on the Applicant to waive his right of occupation
to the property
on the 14
th
October 2019.
[11] The 14
th
October 2019 is a day shortly after date of transfer. The
Respondent says as he had done in the past he visited the Applicant
to make arrangements about taking occupation. I see no reason
why he now would have taken a group of people with him.
[12] I am not persuaded that the Applicant has
raised a real and genuine dispute of facts regarding the agreement to
vacate.
The Applicant has dismally failed to address the facts
said to be disputed. I have come to the conclusion that on the
14
th
October 2019 he in the presence of the police at Brackendowns
voluntary agreed to vacate the property and place the Respondent
in
occupation.
[13] What is of further significance is that
despite the Respondent attaching pictures indicating empty rooms and
a trailer full
of the Applicant’s belongings, Applicant
still maintain that he still lives on the property. I am
mindful of
the fact that he says this only in reply he never filed a
Supplementary Affidavit before the Respondent’s answering
affidavit
explaining the events of 13
th
December 2019.
[14] This application must also fail on merits and
I make the following order:
a)
The
application is dismissed with costs.
DATED at JOHANNESBURG on this the 20
th
day of November
2019.
________________________________________
M A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF
HEARING
:
18
DECEMBER 2019
DATE OF
JUDGMENT
:
20
DECEMBER 2019
FOR
APPLICANT
:
ATT IAN
THEO ALLIS
INSTRUCTED
BY
:
Allis
Attorney, Orange Grove
FOR
RESPONDENT
:
ATT
RAKHUBA
INSTRUCTED
BY
:
Kagiso
Rakhuba Attorneys