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[2021] ZAGPJHC 841
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Molefe and Others v Noge and Others (22894/21) [2021] ZAGPJHC 841 (7 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. 22894/21
REPORTABLE:NO/
YES
OF
INTEREST TO OTHER JUDGES: NO/YES
REVISED
DATE:
7 JUNE 2021
In
the matter between:
MOLEFE
JOSEPH NOGE
FIRST APPLICANT
VERONICA
NOGE
SECOND APPLICANT
DIRA
SOLOMON MOGALE
THIRD APPLICANT
and
JACOBETH
NOGE
1
st
RESPONDENT
NTHABISENG
NOGE
2
ND
RESPONDENT
THABANG
MAGASENGE
3
RD
RESPONDENT
OUPA
A MENYUKU
4
TH
RESPONDENT
TSHEP0
MOKWAPE
5
TH
RESPONDENT
Date
of Judgment:
This judgment was handed down electronically
by circulation to the parties’ legal representatives by email,
release to the
library of the Court and uploaded on caselines. The
date and time for handing down judgment is deemed to be 14:h30
7 June
2021.
Summary:
Urgent application for reconsideration of an eviction order.
Application removed from roll for lack of urgency. Contempt of court
arising from the eviction order. The respondents failing to comply
with the order on the ground of the pending reconsideration
application. The principle that court orders are to be obeyed
immediately irrespective of whether they are valid or not.
JUDGEMENT
Molahlehi
J
Introduction
[1]
Before this
court, there are two urgent applications concerning the dispute over
the property ERF [....]/House No. [....] Lehana
Street, Dipkloof,
Zone 4, Soweto, Gauteng Province. The two applications are about the
urgent reconsideration of the default judgment
made against the
respondents on 12 May 2021 and the contempt of the court's order made
on 12 May 2021.
[2]
On 25 May
2021, Meyer J made an order consolidating the two applications.
The
background facts
[3]
The dispute in
this matter essentially concerns a family house that the first
applicant claims to have inherited from his mother.
According to the
applicant, the family convened a meeting after his mother passed away
and agreed that he should inherit the house.
The first respondent, a
relative of the applicant, was also present at the meeting.
[4]
At some point,
the first applicant purchased another property and moved out of the
one in dispute. In the meantime, the first respondent
was evicted
from her mortgaged house after the bank foreclosed it.
[5]
In his
founding affidavit, the first applicant alleges that the family
approached him after the first respondent lost her house
and
persuaded him to allow her to stay in the property, which is the
subject of the dispute.
[6]
It would
appear that after staying in the property for some time, the first
respondent denied the applicant access to the property.
In response,
the first applicant obtained an eviction order against the
respondents. The respondents did not comply with the eviction
order,
and thus, the applicant executed the eviction order resulting in them
being evicted on 3 May 2021.
[7]
After the
eviction, the respondents went back and forcefully gained entry into
the property.
[8]
Following the
above conduct of the respondents, the applicant instituted spoliation
proceedings to regain possession of the property.
The application
served before Dippenaar J on 10 May 2021. The respondent attended the
hearing on the virtual platform which the
Registrar arranged. They
were at that stage not legally represented. The matter stood down for
a short while, for the applicants
to discuss how they wished to
proceed. After that, the court was informed that the respondents had
instructed attorneys to represent
them, and consequently, the matter
was rolled over to the following day, 11 May 2021. However, the same
attorneys withdrew after
their unsuccessful application to have the
matter postponed. The respondents failed to attend the hearing, and
accordingly, the
matter was considered in the papers. The court, on
the basis of the papers before it, made the following order:
"1.
That this application be heard as a matter of
urgency in terms of Uniform Rule 6(12) (a) and dispensing
with the
ordinary forms and service provided for in the Court Rules,
2.
The Respondents and/or any other person acting directly or indirectly
are directed and interdicted
from unlawfully and illegally occupying
the property known as ERf No [....] / Mouse [....] Lehana Street
Diepkloof Zone 4.
3.
The Respondents are directed to vacate and remove all their
properties within 24 hours of
this Court Oder and not to come near
the property at a radius of 1 kilometre and to entice/encourage
members of the community to
intimidate the Applicants or disturb
public peace.
4.
In the event the Respondents and or any other person acting directly
or indirectly fails
to voluntary vacate the property within 24'hours,
the Sheriff"/ Deputy-Sheriff Lenasia, assisted in so far as
necessary by
the: South African Police Services, is directed and
authorised to:
4.1
Remove
the Respondents and any other person. found inside the properly or
obstructing the Sheriff/ Deputy Sheriff from executing
this order,
4.2
To
remove all properties belonging to the Respondents from the property
mentioned in point 1 above and place the applicant in vacant,
undisturbed and peaceful occupation of the property mentioned in
Point 1,
4.3
The
Contempt of Court relief sought is postponed
sine
die
, and
Applicants are granted leave to file additional or supplementary
affidavits in relation to the subsequent Contempt of Court
proceedings and to amend their notice of motion if necessary."
[9]
Following the
above order, the respondents sought an application to have the above
order reconsidered. The applicants, on the other
hand, instituted
contempt of court proceedings on 14 May 2021. The matter was removed
from the roll and re-enrolled for 25 May
2021.
[10]
In the
meantime, the Sheriff executed the Order Dippenaar J. The respondents
acting in defiance of the order, moved back with their
furniture into
the property. They were charged with contempt of the court order and
was released on bail by the Kliptown Regional
Court.
[11]
On 25 May
2021, the matter was postponed at the instance of the respondents as
they were not ready to argue. In granting of the
postponement, Meyer
J made the following order:
"1.
The hearing of reconsideration application and contempt of court
application is consolidated.
2.
Both applications are postponed
sine die
.
3.
The Respondents are to file their founding affidavit in the
reconsideration application and
their answering affidavit in the
contempt of court application on or before 04H00 pm on Wednesday 26
May 2021.
4
The Respondents are to pay wasted costs occasioned by the
postponement of each application
on Attorneys and Client Scale."
[12]
The respondent
failed to comply with paragraph three of the above order in that they
filed their answering affidavit on 27 May 2021.
Reconsideration
application.
[13]
The
respondent's counsel conceded during the argument that the
respondents ought to have filed an application for condonation for
the late filing of their answering affidavit. He further acknowledged
that the respondents did not comply with the requirements
of urgency.
In this regard, it was conceded that the respondents did not comply
with the Practice Directive in that they did not
file a practice note
and their heads of argument.
[14]
It was for the
above reasons that this court made the following order:
"The
application for reconsideration is removed from the roll for lack of
compliance with the requirements of urgency, including
the order of
Meyer J, with costs."
Contempt
of court.
[15]
I now turn to
deal with the contempt application, which is also instituted on an
urgent basis. In my view, it is apparent from the
reading of the
papers that the applicants have made out a case for urgency. I
accordingly proceed to determine the merits of the
application.
[16]
The legal
requirements governing the issue of contempt of court are well
established in our law. The requirements are:
(a)
The existence
of a court order.
(b)
The order must
be served or brought to the respondent's attention.
(c)
There
must have been noncompliance which is wilful and mala fides. In other
words, it must be shown that the respondent acted deliberately
in
defiance of the court order.
[1]
[17]
There
is no dispute in the present matter that the requirements for
contempt of the court order have been satisfied. However, the
respondents contend that the noncompliance with the order was not
wilful or deliberate as they had applied for reconsideration.
This
argument, in my view, is unsustainable because the law is clear as to
the status of the court order pending reconsideration.
The basic rule
is that a court's order is binding until it is set aside. In
Culverwell v Beira,
[2]
the
court held that:
"All
orders of this Court, whether correctly or incorrectly granted, have
to be obeyed until they are properly set aside."
[18]
The
principle was restated in Bezuidenhout v Patensie Sitrus Beherend
Bpk,
[3]
in the following terms:
“
An
order of a Court of law stands until set aside by a Court of
competent jurisdiction. Until that is done the Court order must
be
obeyed even if it may be wrong (Culverwell v Beira
1992 (4) SA 490
(W) at 494 A – C). A person may even be barred from approaching
the Court until he or she has obeyed an order of Court that
has not
been properly set aside.”
[19]
The respondent
in the present matter does not dispute the knowledge of the Order of
Dippenaar J. Their only defence, as stated earlier,
is that they did
not wilfully disobey the order. After all, they believed that they
were entitled not to comply with the order
because they had applied
to reconsider the order. In light of the above authorities, there was
no justification or legal basis
not to comply with the court order of
Dippenaar J, and thus the respondents are guilty of contempt of
court. The facts and circumstances
of this matter support the
applicants' proposition that the respondents deserve custodial
incarceration. I do not, however, agree
that the period of 12 months'
imprisonment is fair and reasonable.
Order
[20]
In the circumstances the following order is
made:
1.
This
application is treated as one of urgency in terms of Uniform Rule
6(12) (a) and noncompliance with the ordinary forms and service
provided for in the Court Rules are condoned.
2.
That the
respondents are declared to be in contempt of order made by Dippenaar
J dated 12 May 202.
3.
Each of the
respondents are sentenced to a period of 90 (ninety) days
imprisonment, and are committed to the Johannesburg Correctional
Services, which sentences are wholly suspended on condition that the
respondents voluntarily vacate the property known as Erf No
[....] /
House [....] Lehana Street Diepkloof Zone 4, within 24 hours of this
order.
4.
That the
Sheriff / Deputy Sheriff Lenasia is authorised and directed to
immediately arrest and detain the respondents if found within
the
property and still violating the order of Dippenaar J dated 12 May
2021 and commit them to Johannesburg Correctional Service,
upon the
issue of their warrant of committal.
5.
The
respondents are ordered to pay costs of this application, jointly
severally the one paying the other to be absolved.
E
Molahlehi
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
Representatives:
For
the Applicant: Mr Khumalo
Instructed
by; Khumalo Attorneys
For
the Respondent: Mr Ayanda Ntanjana
Instructed
by: AL Ntanjana Attorneys
Date
of hearing: 2 June 2021
Delivered:
7 June 2021.
[1]
See
Matlhabeng Local Municipality v Eskom Holdings Limited and Others;
Mkhonto and Others v Compensation Solutions (Pty) Limited
(CCT 21
7/1 5; CCT 99/1
6) (2017) ZA CC 35
;
2017 (11) BCLR 1408
(CC);
2018
(1) SA 1
(CC).
[2]
2010
(2) SA 289
(SCA).
1992 (4) SA 490
(W) at 494A-C. See also Clipsal
Australia (Pty) Ltd and others v GAP Distributors and others,
[3]
2001
(2) SA 224
(E) at 229 B-D.