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2023
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[2023] ZAGPJHC 1061
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N Kodisang Trust v Mohomane and Others (23662/2018) [2023] ZAGPJHC 1061 (16 August 2023)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO
: 23662/2018
DATE
: 16-08-2023
NOT REPORTABLE’
NOT OF INTEREST TO OTHER JUDGES
REVISED
21.09.23
In
the matter between
N KODISANG
TRUST
Plaintiff
And
RICHARD
SOLOMON MOHOMANE & 6 THERS
Defendant
J U D G M E N T
YACOOB, J
:The
applicant seeks reconsideration of an order granted on 21 July 2023
in terms of Ruly 6(12)(c), on the basis that the order
on 21 July was
granted in his absence. However, it is common cause that the
applicant was represented in those proceedings.
There is a
dispute about the reason his counsel was not present at the time when
the order was granted.
The applicant
states in the founding affidavit that neither the attorney nor the
client was present in court and therefore Mr Mkhize,
the applicant’s
counsel, could not execute the instruction. This makes no
sense. Mr Mkhize on the applicant’s
own papers had an
oral instruction and there was no reason why he could not remain in
court.
The respondent’s
version is that Mr Mkhize excused himself. Mr Mkhize in court
from the bar said that he was excused
by Wanless, AJ, who told him
that he could not appear without a written instruction.
That these being
application proceedings I must go on the respondent’s version.
Nevertheless, I give Mr Mkhize the benefit
of the doubt on the reason
why he left the court may be appropriate since the transcript can be
obtained and the respondent can
then take appropriate steps.
This despite the fact that Mr Mkhize’s very appearance in this
court amounted to a misrepresentation,
since he appeared in silk
robes, and on being questioned, claimed, falsely, that he had
obtained silk in 2021. He also told the
court he was paying an amount
in fees to the Legal Practice Council that bears no relation to the
actual fees that are levied by
the Council. Nevertheless, in order
not do an injustice to M Mkhize’s client, I determined that I
should at least consider
the issues raised.
The applicant also
claims in his finding affidavit that he did not file an answering
affidavit as ordered by Judge Wanless because
he could not properly
instruct his attorney because he was not present in Johannesburg.
It is not clear whether “he”
refers to the attorney or
the applicant. This is not a valid reason for failure to
comply, as arrangements could have been
made and condonation sought.
The respondents’
attorneys were in e-mail contact and there is no evidence that the
applicant’s attorney made any attempt
to deal with the issue.
I am not satisfied
that the order was taken by default or in the absence of the
applicant. However, in order to avoid any
patent injustice, I
have considered the merits of the application to ensure that there is
nothing that requires judicial attention.
The applicant
seeks to reconsider an order that was granted which stayed an
eviction order granted in 2020 against a Mr Pooe.
The applicant
claims he is the owner of the property and was wrongly done out of
his property.
The order granted
on 21 July stays the eviction order pending a recission application
which was lodged by the respondents in 2022.
The applicant also
in argument raised Rule 15 saying that the respondents were not
parties to the original application and therefore
they needed to
obtain an order joining them before they could be heard.
I disagree.
They are clearly affected persons and were entitled to approach the
Court. A person cannot be evicted by
an order evicting a
different person.
The question of
ownership is not for this Court to determine. There is a clear
dispute of fact on the say so of the parties,
adn the title deed
shows that the applicant is not at the moment the registered owner.
The fact that the applicant seeks
an investigation into the issue of
how he is no longer the owner confirms that he is not at this time
the registered owner.
The basis on which he seeks the
reconsideration, that he is the owner and is exercising his ownership
rights, is therefore not
established.
The applicant also
submits that because the eviction application was served on the
second respondent before it was granted because
he was already
resident on the property, that somehow changes things. That is
not the case. The eviction application
was not against the
second respondent nor was the eviction order against the second
respondent. The second respondent could
not be expected to
oppose or respond to court proceedings that had nothing to do with
him.
This again
conflicts with the submission that the second respondent or the
respondents are not party to the proceedings and therefore
because
they have not sought to be joined do not have
locus
standi
. One cannot on one hand
argue that one can evict an occupant with this order and on the other
hand that the same occupant
does not have
locus
standi
to stay the order.
The applicant also
states that the order was already executed and that the Court made a
mistake in granting the order staying the
eviction. There is no
evidence of that on the papers and in any event the order that was
granted was a spoliation order.
Even if the correct person was being
evicted, they would have, if they had grounds, been entitled to seek
a spoliation order on
an extremely urgent basis.
The applicant
makes an allegation with no evidence at all presented about the
nature of the trust which is the first respondent.
That
allegation is not supported by any evidence and there is no need to
take any notice of it.
In any event the
second respondent who was the second applicant in the application to
stay the eviction still has
locus standi
as he is a person who was sought to be evicted.
There is
absolutely nothing in the rather convoluted founding affidavit that
changes the factual state of affairs which is that
eviction order was
granted against a Mr Pooe.
The second
respondent is the person against whom the order was sought to be
executed and an eviction application must be brought
against him if
he is to be evicted. The applicant did not bring an application
against him. The applicant brought and
obtained an order
evicting Mr Pooe and that is irrelevant to whether the second
respondent is entitled to remain on the property.
The order did
not allow the eviction of the second respondent.
Therefore, even if
the applicant was not represented or present at the time the order
was granted, he has not made out a case for
reconsideration.
Mr Mkhize submits
that costs should be reserved if I find against his client. I
see no reason for that because this application
does not at all make
out the case for the relief sought.
Ms Delport for the
respondents asks for cost
de bonis
propriis
. That was not sought in
the answering affidavit and the applicants’ legal
representatives have not had an opportunity
to substantively respond
to such a request.
It is true that
the Court has the discretion to grant such an order where misconduct
is patent however in my view there is some
doubt about what exactly
happened, and I do not have access to the recording of what happened
in court on the previous occasion,
so I am not in a position to make
an order
de bonis propriis.
Taking
into account that there was no such request in the answering
affidavit, I will not grant that request.
For these
reasons, the application is dismissed with costs on an attorney and
client scale.
YACOOB, J
JUDGE OF THE HIGH COURT
DATE
:21
September 2023