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[2011] ZAGPPHC 137
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Crown Hill Properties 134 CC v Registrar of Deeds, Pretoria and Others, Government Employees Pension Fund v Kganyago NO and Others (77410/09, 5248/1) [2011] ZAGPPHC 137 (29 July 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE
NUMBER: 77410/09
DATE:29/07/2011
In
the application between:
CROWN
HILL PROPERTIES 134
CC
..........................................................................
Applicant
(REGISTRATION
NO. 2004/078171/230
In
re:
CASE
NUMBER: 77410/09
In
the application between:
CROWN
HILL PROPERTIES 134
CC
..........................................................................
Applicant
(REGISTRATION
NO. 2004/078171/230
and
THE
REGISTRAR OF DEEDS,
PRETORIA
.......................................................
1
st
Respondent
THE
SURVEYOR-GENERAL,
PRETORIA
.......................................................
2
nd
Respondent
GLORIA
KGANYAGO N.O. (as executor of the
Estate
.......................................
3
rd
Respondent
of
the Late IVladimetja Sekhotla Ledwaba)
(formerly
known as Mdibetja Johan Kganyago)
THE
GOVERNMENT EMPLOYEES PENSION
FUND
......................................
4
th
Respondent
THE
MASTER OF THE HIGH COURT,
PRETORIA
..........................................
5
th
Respondent
CASE
NUMBER; 5248/11
In
the matter between:
THE
GOVERNMENT EMPLOYEES PENSION
FUND
.................................................
Applicant
and
GLORIA
KGANYAGO N.O. (In her capacity
as
..................................................
1
st
Respondent
Executrix
in the Estate of the Late Madimetja Sekhotla Ledwaba)
(formerly
known as Mdibetja Johan Kganyago)
CROWN
HILL PROPERTIES 134
CC
...............................................................
2
nd
Respondent
[Registration
No. 2004/078171]
THE
REGISTRAR OF DEEDS FOR THE
PRETORIA
.......................................
3
rd
Respondent
DEEDS
REGISTRY
THE
SURVEYOR-GENERAL,
PRETORIA
........................................................
4
th
Respondent
2
ND
RESPONDENT
THE
GOVERNMENT OF THE REPUBLIC
OF
....................................................
5
th
Respondent
SOUTH
AFRICA
.............
2
ND
RESPONDENT
THE
MEC OF LOCAL GOVERNMENT,
HOUSING,
..........................................
6
th
Respondent
PLANNING
AND DEVELOPMENT, NORTH-WEST
PROVINCE
THE
MASTER OF THE NORTH GAUTENG
DIVISION
......................................
7
th
Respondent
OF
THE HIGH COURT OF SOUTH AFRICA
JUDGMENT
GOODEY AJ:
[1]
INTRODUCTION:
(1.1)
This is an application for consolidation.
(1.2) It is an
application that the applications in case numbers 77410/09 and
5248/11 be consolidated.
(1.3) In essence two
points in limine have been raised by the First / Third Respondent who
opposes this consolidation.
(1.4) For the sake of
convenience reference will be made to the Applicant as "Crown
Hill Properties", to the Applicant
under case number 5248/11 as
"GEPF", and to the First and Third Respondents in the
respective applications as "Gloria
Kganyago".
[2]
BACKGROUND:
(2.1) Crown Hill
Properties bought the immovable property described as Erf 8408 in the
Mabopane Township from GEPF.
(2.2) Under case number
77410/09 Crown Hill Properties brought an application for the setting
aside of the registration of Erf 5219.
Under case number 5248/2011
GEPF brought an application for substantively the same relief.
(2.3) The Respondent says
that the GEPF has undertaken in the 2009 proceedings to abide by the
order of the Court. Despite this
(so the averment goes) GEPF in an
opportunistic move instituted an application under case number
5248/11 seeking an order declaring
the GEPF to be the owner of Erf
8404 Unit M, Mabopane-M Township, Registration Division JR,
North-west Province, measuring 4.0704
hectares held under Deed of
transfer T079761/2008 ("Erf 8404").
(2.4) It is common cause
that it is evident that in both applications
the interests of
Crown Hill Properties and GEPF are substantially the same, and the
interest of Gloria Kganyago in both applications
is identical
[3]
THE GIST OF THE APPLICANT'S CASE:
(3.1)
The Applicant says in paragraph 4 of its heads:
"4. The interests of
Crown Hi!! Properties and GEPF coincide. The interest of Crown Hili
Properties is to have Erf 8408 transferred
to it and GEPF is
desirable of having such transfer passed. The interest of Gloria
Kganyago is to have the decease estate retain
ownership in Erf 5219."
(3.2) In view of the
aforesaid, the Applicant submits that the balance
of convenience
overwhelmingly favours the consolidation of the
two applications.
(3.3) The Applicant also
submits that there is no prejudice in respect
of the merits of the
two applications and that the two points in
limine raised by the
Respondent hold no water.
[4]
THE GIST OF RESPONDENT'S CASE (GLORIA KGANYAGO):
(4.1) The Respondent has
raised nothing or very little on the merits. What has primarily being
raised are dilatory points in limine.
(4.2) The one being that
Crown Hill Properties has no locus standi, and the other that the
application under case number 77410/09
serves as a ground for the
defence of lis alibi pendens in application number 4248/2011.
(4.3) Ad iocus standi
point:
4.3.1 The Respondent says
that the deponent to the founding affidavits of Crown Hill has not
attached to his founding affidavit
any resolution duly authorising
him to institute this application and depose to the founding
affidavit on behalf of Crown Hill.
4.3.2 Therefore, the
Respondent submits, the Applicant has no locus standi.
(4.4)
Ad lis alibi pendens:
4.4.1 In this regard the
Respondent submits as follows in paragraphs 6.1 and 6.2 of her heads:
"6.1 It is clear
from the foregoing and the papers filed that the two cases are
basically the same. Crown Hills also confirms
that:
The
issues in the two applications are substantially the same, if not
identical". The GEPF does not dispute this averment.
6.2 The upshot of the
foregoing is that both Crown Hill and GEPF concede that the defence
of lis pendens raised by Kganyago in case
no 5248/11 is good."
(4.5) Lastly the
Respondent raised an objection as to the fact (so she alleges) that
there is a dispute of fact.
[5] DISCUSSION:
(5.1) It is trite law
that the Court has a very wide discretion to grant or refuse such an
application and convenience is a paramount
consideration.
(5.2) Furthermore, it
was held in
New
Zealand
Insurance
Co
Ltd
v Stone
and
Others
1963 (3) SA 63
(C) it was held that the basic
requirement in an application to consolidate is where the balance of
convenience lies, as opposed
to any prejudice to an affected party.
As to the latter, the following was said:
"By
prejudice in the context it seems to me is meant substantial
prejudice sufficient to cause the Court to refuse a consolidation
of
actions, even though the balance of convenience would favour it",
(See p69A-C).
(5.3) Substantially, the
same approach was adopted in
Nel
v
Silicon
Smelters
(Edms)
Bpk
en
'n
Ander
1981 (4) SA 792
(AD) at pp 801B-E,
and 802B-D.
(5.4) As far as the
objection raised that there is a dispute of facts, it is clearly not
relevant to the question of consolidation.
(5.5) Pertaining to the
first point in limine as to locus standi (no resolution annexed) it
is trite law that it is a well established
principle that it is not
necessary to annex a resolution where the sole member of a CC lodges
and application.
(5.6) As to the second
point in limine, it is clearly two different Applicants in the two
applications and this objection can therefore
not stand. In any way,
the requirements as to lis pendens have not been met and the
Respondent bearing the onus of proof in this
regard has not convinced
me otherwise.
(5.7) Under the
circumstances, the application must succeed and I
therefore make
the following order.
"Prayers 1 to 4 of
the notice of motion are granted."
GOODEY AJ
Date
heard: 28 July 2011
Date
of Judgment: 29 July 2011
On
behalf of the Applicant:
ADV
SJ MARITZ SC ATTORNEY PDS GOOSEN
WILSENACH
VAN WYK ATTORNEYS.. PRETORIA
On behalf of the
Respondent ADV NOTSHE SC
ATTORNEYS
MPOYANA LEDWABA, PRETORIA