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[2020] ZAGPJHC 409
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Tsatsa and Others v Retque 400 CC and Another (26988/2020; 339272/202) [2020] ZAGPJHC 409 (30 November 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 26988/2020
CASE NO: 339272/202
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In the matter
TSATSA
VERONICA
FIRST APPLICANT
KHUMALO KHAYELIHLE
SECOND APPLICANT
ALL THE OCCUPIERS OF RENNITE
THIRD APPLICANT
MANSION 52 PLEIN STREET
And
RETQUE 400 CC
(2010/027890/23)
FIRST RESPONDENT
THE CITY OF JOHANNESBURG
SECOND RESPONDENT
METROPOLITAN
JUDGMENT
MAKUME
J
:
[1]
On the 09
th
September 2020 my brother Molahlehi J granted
an order in favour of the first Respondent authorising the sheriff to
evict the Applicants
from certain premises known as Rennite Mansion
situated at 52 Plein Street, Johannesburg.
[2]
On the 22
nd
September 2020 De Villiers AJ granted
Applicants an order staying the eviction order granted by Molahlehi J
pending adjudication
of the rescission application set down in the
urgent court for Monday, 16 November 2020.
[3]
The Applicant seeks rescission of the order of Molahlehi J in terms
of Uniform Rules
42(1) on the basis that same was erroneously sought
and granted in their absence in that they were not legally
represented.
[4]
When De Villiers AJ granted an order staying the eviction he also
issued an order
directing the Applicant to deliver “an
application to supplement their founding affidavit in the rescission
application.”
[5]
I must hasten to observe that the papers in this matter are rather
confusing because
the stay application was brought under a different
case number as is the rescission application as it is this matter
resorts under
the following case numbers
-
22332/2020 -The Eviction order by Molahlehi J
-
26988/2020 - The Stay Application by De Villliers AJ
-
33972/2020 – The Rescission Application
[6]
It is trite law that the order by Molahlehi J can only be varied
under Rule 42 and
on appeal or on Common Law grounds (See:
Bezuidenhout v Patensie Sitrus Beherrend BPK 2001(2) SA 224 (E)at
229 D-E
). For the applicants to succeed it is required of them to
meet the requirements as set out in Rule 42(1) or the Common Law.
[7]
The order by Molahlehi J was not granted in the absence of the
Applicants they were
present in court and only raised the issue of
the deposit they had paid at the inception of the lease. That is why
when Molahlehi
J issued the eviction order it included the repayment
of the amount of R3 500.0 to each of the Applicants.
[8]
It is accordingly not competent to rely on Rule 42(1) as that order
by Molahlehi J
was not granted in error nor was it is in the absence
of the Applicants. There is also no evidence that the judgment is in
any
manner ambiguous or there is a patent error or omission.
[9]
What then remains is whether the Applicants can be afforded relief in
terms of the
Common Law. At Common Law a judgment can be set aside on
the following grounds:
a)
Fraud
(See
Moraitis
International vs Montic Pairy
2017 (5) SA 508
(SCA) at 514 –
515 B
).
b)
Justus
error.
c)
In
certain circumstances when new documents have been discovered.
d)
Where
judgment had been granted by default (
Chetty
v Law Society Transvaal
1985 (2) SA 756
(A) at 765 B-C
).
e)
In
the absence between the parties of a valid agreement to support the
judgment on the grounds of Justus causa (See:
MEC
for Economic Affairs, Environment and Tourism vs Kruisenga 2008 (6) A
264 (CKHC at 283 B-284B
)
[10] The
Applicants submit that because their attorney was not present in
court this means that they
were not afforded an opportunity to
challenge the order that was sought and because of them being lay
persons they should be treated
in the same manner as was concluded by
the Constitutional Court in
Berea v De Wet N.O. and Another
2017
(5) SA 346
.
[11] The
facts in Berea (supra) differ materially from the facts in the
present matter. In Berea the
180 Applicants against whom an eviction
had been granted on the strength of a consent to judgment at the
instance of a few other
residents approached the Constitutional
Court. In their submission to the Constitutional Court they
maintained that there was no
actual consent between them and their
landlord when the order was granted.
[12] At
page 366 paragraph 69 the court sets the scene as follows:
“
The court
was not aware that there were 180 occupants who were absent when it
granted the eviction order. The court was further
not aware that
those who purported to confirm the agreement on the side of the
Applicants had no mandate to bind the absent 180
Applicants. The
basis for granting the eviction order was that all the parties had
consented thereto. The 180 absent Applicants
had however not
consented thereto and were not bound by anybody present in court. The
eviction order was thus erroneously granted
in the absence of the 180
Applicants.”
[13] It
is also not correct to argue that the Applicants were not made aware
of their rights because
they had no legal representation. That
argument is nullified by the fact that despite numerous notices
including the Section 4(2)
notices the Applicants decided not to
place or disclose their personal circumstances. They in their
supplementary affidavit convey
that they will only disclose their
personal circumstances when the City of Johannesburg assesses the
provision of alternative accommodation.
In my view the conduct of the
Applicants was a ploy to sustain their argument that Molahlehi J did
not have sufficient facts to
enable him to arrive at an appropriate
decision.
[14] The
other difference between the present matter and the facts in Berea is
that this matter did
not involve a person purporting to represent
others whilst lacking the mandate to do so.
[15]
When the Applicants appeared before the Rental Housing Tribunal they
reached a settlement and
agreed to voluntarily vacate the property by
not later than the 1
st
November 2019 subject to the First
Respondent repaying them their deposit. They repeated that settlement
which was made an order
of court by Molahlehi J. It can therefore not
be said that they were not informed of their rights.
[16]
Lastly it is not correct that the Applicants will be rendered
homeless if the eviction is carried
out. They indicated on the 24
th
June 2020 through their representative NICSA that “they
are ready to effect monthly rental payments and await new lease
agreement.
At paragraph 6 of that letter NICSA writes as follows to
the first Respondent attorneys:
“
Therefore
you re respectfully requested to ascertain from your client whether
your client intends to pay our abovementioned members
their
outstanding deposits thereby allowing them to seek alternative
accommodation and or whether your client took a decision not
to
honour and abide by the Gauteng Rental Housing Tribunal ruling.”
[17] The
Applicants have failed to demonstrate that they have a
bona fide
defence to the eviction application. This is borne out by the fact
that they wilfully refused or failed to disclose their personal
circumstances. Further there re contradictions in their founding and
supplementary affidavits regarding the number of people who
live on
the property as well as their income.
[18] In
the settlement agreement reached at the Rental Housing Tribunal it
was agreed that the first
Respondent will write off arear rental of
R12 884.88 provided the Applicants vacate the property on the 1
st
November 2019 and only then will they be paid the R3500.00 after
verification that it was paid. The further condition was in the
event
of the Applicants failing to vacate then the R12 884.88 would become
due.
[19] The
Applicants failed to vacate as agreed and instead engaged NICSA who
clearly gave them wrong
advise. It is clear that the attempt at
negotiation by the NICSA was not genuine and in my view not bona fide
and was an abuse
of the process.
[20] I
am not persuaded that the Applicants have met the requirements of
Rule 42(1) and are not entitled
to the relief they seek.
[21] In
the result I make the following order:
ORDER
1.
The application for
rescission of the order/judgment by Molahlehi J dated the 9
th
September 2020 is hereby dismissed.
2.
The Applicants are ordered
to pay the taxed party and party cots of the application jointly and
severally one paying the other to
be absolved.
DATED at JOHANNESBURG this the 30
th
day of DECEMBER 2020.
M A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE OF HEARING
:
18 NOVEMBER 2020
DATE OF JUDGMENT
:
30 DECEMBER 2020
FOR APPLICANT
:
ADV P MAFU
INSTRUCTED BY
:
Messrs Ntozakhe Attorneys
FIRST RESPONDENT
:
ADV VAN DER MERWE
INSTRUCTED BY
:
Messrs Vermaak & Partners