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[2012] ZAECPEHC 63
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Philander and Another v First Rand Bank and Others (753/2010) [2012] ZAECPEHC 63 (11 September 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 753/2010
Date
heard: 04 September 2012
Date
delivered: 11 September 2012
In the matter between:
KENNETH PHILANDER
First Applicant
OLIVIA KATHRINA PHILANDER
Second
Applicant
and
FIRST RAND BANK
First
Respondent
MR
TIRY MOHAAD
Second Respondent
BOND PEOPLE
Third
Respondent
WILMA
VAN DER BANK
Fourth Respondent
THE
REGISTRAR OF DEEDS
Fifth
Respondent
JUDGMENT
DAMBUZA, J
:
I have difficulty in understanding
what relief the applicants seek in this application. Paragraph 2
of the Notice of Motion
calls upon the respondents to show cause, on
28 August 2012, why:
“
2.1 In
the promises; we respectfully submit that the application districted
to an order in terms of the notice of motion and the
set aside of
judgement against attached of property for public auction on 16
th
April 2008 at the Uitenhage Magistrates Court and auction never taken
place, and sake in execution set aside and writ of execution.”
The application came before me on 4
September 2012, by which time the return date had already passed. I
may mention that prior
to hearing the matter, having
“read”
the papers, I attempted, in vain, to persuade the applicants,
who were not legally represented, to try and secure services of a
legal representative. The first applicant, being the husband of the
second applicant, insisted that they were determined to
have the
matter heard on that day and were not interested in securing
services of a legal representative.
The first and fourth respondents
oppose the application. As
Ms Zietsman
submitted on their
behalf the application does not comply with the Rules of Practice in
this Court. The application was launched
on 30 July 2012. It does
not set out any period within which the respondents should file
their opposition thereto. The Notice
of Motion is neither in Form 2
or Form 2a of the forms prescribed in the Rules of Practice. The
first paragraph thereof provides
that the application will be heard
on 28 August 2012 and the order to be sought on that day will, as I
have stated, be that the
respondents to show cause, on 28 August
2012, why the final order should not be granted. The application
appears to have been
brought on either an urgent or semi-urgent
basis; however no certificate of urgency was filed. The application
was served on
the respondents by the first applicant personally.
There is no explanation as to why it was not served by the Deputy
Sheriff
as provided for in the Rules. The applicants’ address
does not comply with the provisions of Rule 4. The founding
affidavit
(also termed
“Notice of Motion”
) is
unintelligible and does no better than the Notice of Motion in
setting out the cause of action and relief sought by the applicants.
The application was a
“non-starter”.
Given that the applicants are not
legally represented in these proceedings I invited
Ms Zietsman
to make submissions as to whether the applicants should be ordered
to pay the costs of the application in the event that their
application is dismissed. She submitted that because this is the
third fatally defective application brought by the applicants
against the respondents, the respondents persist in seeking an order
that the applicants pay their wasted costs. The applicants’
submissions (through the first applicant) on both the issue of costs
and on merits were most unhelpful. The first applicant
merely
bemoaned the unfairness with which they have been treated in being
driven out of their home and the impropriety of causing
them to
appear in courts of law when the first applicant is a respected
religious leader in his community. I am persuaded that
it is only
proper, in the circumstances that the applicants pay any legal costs
that the first and fourth respondent may have
incurred.
Consequently the order I grant is the
following, that:
The application is dismissed and the
applicants are ordered, jointly and severally, the one paying, the
other to be absolved,
to pay such legal costs as the first and
fourth respondents may have incurred.
_________________________
N.
DAMBUZA
JUDGE
OF THE HIGH COURT
Appearances
:
For the applicants:
In person
For the first and fourth respondents:
Adv T Zietsman
Instructed by
Lessing, Heyns, Keyter & Van der
Bank Incorporated
of Uitenhage