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[2023] ZAGPJHC 1057
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Khumalo v Tobago Body Corporate (069077/2023) [2023] ZAGPJHC 1057 (16 August 2023)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO
:069077/2023
DATE
:16-08-2023
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
21.09.23
In the matter between
CHRISTINE
FUNDISWA KHUMALO
APPLICANT
And
TOBAGO BODY CORPORATE
RESPONDENT
J U D G M E N T
YACOOB, J
:The
applicant approaches this Court on an urgent basis for relief against
the respondents, who are the body corporate and trustees
of the body
corporate relevant to a unit that she owns.
She seeks
relief interdicting harassment and declaring certain actions
unlawful, in that they have apparently deactivated access
tags
associated with her unit and have prevented her tenants having free
access to the property.
She also
seeks the restoration of non-prepaid water and electricity supply,
and the restoration of access tags.
The applicant
instituted an application for relief with exactly the same relief,
and, in addition, relief relating to an amount
that was debited to
her levies on 14 July this year.That notice of motion was dated 21
June, probably mistakenly.
According to
the applicant, the reason why she instituted this application
urgently, was because on 9 August, which is Wednesday
last week, she
was informed that tags for her new tenant would not be made available
because of outstanding levies.
She then
instituted this application on 11 August, which was the Friday, and
after this court’s urgent roll had closed, and
set the matter
down irregularly for today, which is Wednesday.
The only
reason given for that lateness was that the event that prompted the
application occurred on Wednesday.
The
respondents were asked to notify of their opposition as soon as
possible, and to file their answering affidavit by 2 o' clock
on
Monday afternoon.
The
respondents filed a notice of opposition on 15 August, and have not
yet filed an answering affidavit.They have, instead, filed
a practice
note and heads of argument and have argued their opposition.
Ms
Bevilacqua, who appears for the respondents, says that her clients
would like to file answering affidavits.
I am not
satisfied that the applicant has set out in her affidavit a
sufficient basis for setting the matter down irregularly on
a
Wednesday, or for giving the respondent such a short time to respond.
Although she
states that the email arrived on 9 August, which said that they would
not be given the tags, she does not explain sufficiently
in the
affidavit that it is impossible for the tenant otherwise to enter the
complex and what the prejudice is.
I have to
balance this against the irregular set down and the inconvenience to
the respondents, whose version is not before the
Court.
I am not
satisfied that this is sufficiently catered for, and therefore I find
that the degree of urgency which has been imposed
was not justified.
I make
absolutely no finding regarding any other degree of urgency which may
later be argued for.In my view, it is appropriate that
the
respondents file an answering affidavit and that they do so with some
urgency.
The applicant
can then take whatever steps she needs to do in order, or if
necessary, to do whatever she requires.
I therefore
make the following order;
(1)The matter
is struck from the roll for want of urgency, specifically for want of
the degree of urgency imposed.
(2)The
respondents are to file any answering affidavit by close of business
on Friday.
(3)The
applicant is to pay wasted costs of today.
- - - - - - - - - - - - -
YACOOB, J
JUDGE OF THE HIGH COURT
DATE
:21
September 2023