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[2020] ZAGPJHC 367
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Mpela and Another v Mkhize (13750/2020) [2020] ZAGPJHC 367 (9 July 2020)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
Date:
9
th
July 2020
CASE
NO
:
13750/2020
DATE
:
9
th
july 2020
In
the matter between:
MPELA
,
RAMOKONE DORIS
First Applicant
MPELA
,
MANGALISO
ISAAC
Second Applicant
and
MKHIZE
,
ADV SENZO
WISEMAN
Respondent
Coram:
Adams
J
Heard
:
23 and 25 June 2020
Delivered:
9 July 2020 – This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be 15h30 on 9
July 2020.
Summary:
Urgent application – interdictory relief
–
factual dispute – respondent’s version
rejected as far-fetched – application granted –
ORDER
(1)
The matter is urgent.
(2)
The respondent is interdicted and
restrained forthwith from committing, continuing and/or persisting
with the following conduct:
a)
disturbing and/or interfering with the
applicants' ownership and possession of their property, being Section
1, as shown and more
fully described on Sectional Plan Number SS
17/2016 in the Scheme known as Courtney Court in respect of the land
and building or
buildings situated at Alberton Township, Local
Authority: City of Ekurhuleni Metropolitan Municipality, of which
Section the floor
area according to the said Sectional Plan is 77
(seventy seven) square metres in extent; and their undivided share in
and to the
common property in the Scheme apportioned to the said
Section in accordance with the participation quota as endorsed on the
said
Sectional Plan, held by Deed of Transfer ST50026/2016
(hereinafter ‘the property’), which property is situated
at apartment/door
no 2, Section 1, Courtney Court, 6 Piet Retief
Street, Alberton North, Johannesburg, Gauteng Province;
b)
damaging and/or vandalising the property
and/or any assets of the applicants inside the property with
inter
alia
graffiti, paint and/or similar
inscriptions or markings;
c)
damaging and/or breaking any locks on the
property in an attempt to gain entry thereto;
d)
installing new locks on the property in an
attempt to prevent the applicants' access to and exit from the
property;
e)
intimidating, threatening and/or harassing
the applicants in relation to their use, enjoyment and/or possession
of the property;
and
f)
being near, approaching and/or presenting
himself within a radius of 500 metres from the property.
(3)
The respondent is interdicted and
restrained forthwith from calling for or convening meetings at or
near the Sectional Title Scheme
known as Courtney Court situated at
No 6 Piet Retief Street, Alberton North, Johannesburg, Gauteng
Province, and/or encouraging
or in any way instigating or persuading
tenants at the Sectional Title Scheme against honouring their
contractual obligations in
terms of the lease agreements concluded
with the applicants and other Sectional Title owners, particularly
the contractual obligation
to pay rent in accordance with the said
lease agreements.
(4)
The service of this Order is to be affected
on the respondent by electronic mail using email address:
MkhizeSenzo6@gmail.com
.
(5)
The respondent shall pay the applicants’
costs of this urgent application.
JUDGMENT
Adams J:
[1].
This is an
opposed urgent application by the first and second applicants for
interdictory relief against the respondent, an Advocate
of the High
Court, whom the applicants accuse of serious misconduct and unlawful
actions. The respondent opposes the urgent application
and denies
that he behaved in the manner alleged by the applicants. All he did,
so the respondent avers, was to protect his right
to occupy immovable
property, which he presently lawfully occupies and in respect of
which the applicants unlawfully attempted,
by self-help, to have him
evicted.
[2].
At the outset
it is necessary for me to make the comment that the conduct
complained of by the applicants as being conduct on the
part of the
respondent is not the type of behaviour that one would expect of any
law-abiding citizen of this country. Such conduct
is a disgrace. It
demonstrates a total disregard for the laws of our country and
evidences a despicable and an appalling attitude
towards the rule of
law and the rights of other persons. As I have indicated, the
behaviour complained of is not to be expected
on any South African,
let alone a person who has been admitted as an Advocate of this
Court.
[3].
The applicants are the owners of a
Sectional Title Unit in Alberton (‘the property’). Their
version is that on the 2
nd
of June 2020, under threat of being lawfully evicted, the respondent
and his partner vacated the property, but locked the doors
and
retained the keys. The applicants thereupon changed the locks and
started making plans to claim damages from the respondent.
On
Wednesday, the 10
th
of June 2020, the respondent returned to the property, broke the
newly fitted locks and indicated to other tenants in the complex
that
he intended installing his own tenant in the property. The applicants
thereupon attempted to lay a charge of trespassing with
the local
police, who were singularly disinterested in assisting. On the 12
th
of June the applicants’ attorneys addressed a communication to
the respondent requesting him to give an undertaking that
he would
desist from his unlawful conduct.
[4].
The respondent
did not provide the requested undertaking. Instead, in the early
hours of Saturday, the 13
th
of June 2020, the respondent returned to the property, broke the
locks (for the second time) and forcefully entered the premises.
In
the process he damaged the door. After gaining entry to the property,
the respondent vandalised the interior by inscribing graffiti
on the
walls and on the doors. Again the applicants attempted to lay charges
with the local police, but to no avail. On Monday,
the 15
th
of June 2020, the respondent returned to the property. The applicants
summoned the police, but on their arrival at the premises
the
respondent was nowhere to be found. At this point the applicants
decided that enough was enough and they thereupon gave instructions
to their legal representatives to launch this urgent application.
[5].
The respondent
denies this version. As indicated above, he refutes any suggestion
that he conducted himself in the manner claimed
by the applicants.
His version is that the applicants unlawfully spoliated him by
locking him out of his rented apartment. He thereupon
forced his way
back into the property. The contradiction in term inherent in this
version is not lost on the court – the
respondent, who
complains of unlawfulness in the form of self-help on the part of the
applicants, himself takes the law into his
own hands.
[6].
It is clear
that the main dispute between the parties is a factual one. The
question is this: Which one of these two versions is
to be accepted.
In deciding that question, it should be borne in mind that this is an
application and factual disputes are to be
decided on the basis of
the principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Limited
,
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[7].
The applicants
submit that the version of the respondent is untenable and that it
can and should be rejected on the papers as far-fetched.
If regard is
had to the evidence before me as a whole, the version of the
applicants has a ring of truth to it. Importantly, their
story is
corroborated in material respects by the evidence of persons who are
for all intents and purposes independent from the
dispute and
detached from the protagonists in the fray. The question is simply
this: why would the other tenant go to the trouble
of perjuring
herself when there appears to be no reason for them to incriminate
the respondent in the manner they did. Therefore,
I agree – the
version of the respondent is far-fetched and stands to be rejected on
the papers.
[8].
The general
rule is that a court will only accept those facts alleged by the
applicant which accord with the respondent's version
of events. The
exceptions to this general rule are that the court may accept the
applicant’s version of the facts where the
respondent's denial
of the applicant's factual allegations does not raise a real,
genuine, or
bona
fide
dispute of fact. Secondly, the court will base its order on the facts
alleged by the applicant when the respondent's version is
so far –
fetched or untenable as to be rejected on the papers.
[9].
In
Room
Hire Co (Pty) Limited v Jeppe Mansions (Pty) Ltd
,
1949 (3) SA 1155
(T0, it was held that:
‘
A
bare denial of applicant's material averments cannot be regarded as
sufficient to defeat applicant's right to secure relief by
motion
proceedings in appropriate cases. Enough must be stated by respondent
to enable the Court to conduct a preliminary investigation
... and to
ascertain whether the denials are not fictitious and intended merely
to delay the hearing.'
[10].
It is
necessary to adopt a robust, common-sense approach to a dispute on
motion. If not, the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
A Court should not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over –
fastidious
approach to a dispute raised in affidavits.
[11].
Applying these
principles, I reject the version of the respondent.
[12].
The respondent
has also raised a few points
in
limine
.
So, for example, the respondent contends that there has been a
misjoinder in that his partner should have been joined as a
respondent.
There is no merit in any of the legal points raised by
the respondent.
[13].
Accordingly,
the relief sought by the applicants should be granted.
Costs
[14].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[15].
I can think of no reason why I should
deviate from this general rule.
[16].
I therefore intend awarding cost against
the first and second applicants in favour of the first and second
respondents.
Order
Accordingly,
I make the following order:-
(1)
The matter is urgent.
(2)
The respondent is interdicted and
restrained forthwith from committing, continuing and/or persisting
with the following conduct:
a)
disturbing and/or interfering with the
applicants' ownership and possession of their property, being Section
1, as shown and more
fully described on Sectional Plan Number SS
17/2016 in the Scheme known as Courtney Court in respect of the land
and building or
buildings situated at Alberton Township, Local
Authority: City of Ekurhuleni Metropolitan Municipality, of which
Section the floor
area according to the said Sectional Plan is 77
(seventy seven) square metres in extent; and their undivided share in
and to the
common property in the Scheme apportioned to the said
Section in accordance with the participation quota as endorsed on the
said
Sectional Plan, held by Deed of Transfer ST50026/2016
(hereinafter ‘the property’), which property is situated
at apartment/door
no 2, Section 1, Courtney Court, 6 Piet Retief
Street, Alberton North, Johannesburg, Gauteng Province;
b)
damaging and/or vandalising the property
and/or any assets of the applicants inside the property with
inter
alia
graffiti, paint and/or similar
inscriptions or markings;
c)
damaging and/or breaking any locks on the
property in an attempt to gain entry thereto;
d)
installing new locks on the property in an
attempt to prevent the applicants' access to and exit from the
property;
e)
intimidating, threatening and/or harassing
the applicants in relation to their use, enjoyment and/or possession
of the property;
and
f)
being near, approaching and/or presenting
himself within a radius of 500 metres from the property.
(3)
The respondent is interdicted and
restrained forthwith from calling for or convening meetings at or
near the Sectional Title Scheme
known as Courtney Court situated at
No 6 Piet Retief Street, Alberton North, Johannesburg, Gauteng
Province, and/or encouraging
or in any way instigating or persuading
tenants at the Sectional Title Scheme against honouring their
contractual obligations in
terms of the lease agreements concluded
with the applicants and other Sectional Title owners, particularly
the contractual obligation
to pay rent in accordance with the said
lease agreements.
(4)
The service of this Order is to be affected
on the respondent by electronic mail using email address:
MkhizeSenzo6@gmail.com
.
(5)
The respondent shall pay the applicants’
costs of this urgent application.
L R ADAMS
Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON:
23
rd
and 25
th
July 2020
JUDGMENT DATE:
9
th
July 2020
FOR THE FIRST AND SECOND APPLICANTS:
Advocate D Z Kela
INSTRUCTED BY:
Ndumiso Voyi Incorporated
FOR THE RESPONDENT:
Adv S W Mkhize
INSTRUCTED BY:
Adv S W Mkhize