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[2024] ZAECQBHC 1
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De Villiers v De Villiers and Another (34/2024) [2024] ZAECQBHC 1 (17 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No. 34/2024
In
the matter between:-
ADRIAN
DE VILLIERS
Applicant
and
ELIZABETH
DE VILLIERS
First
Respondent
NELSON
MANDELA METROPOLITAN MUNICIPALITY
Second
Respondent
JUDGMENT
BANDS
J:
[1]
This is an urgent application brought on extremely truncated
time
periods by the applicant, in person. For the purposes of this
judgment, I deem it appropriate to repeat the relief as
set out by
the applicant in the notice of motion, which reads as follows:
1.
That the applicant’s non-compliance with the court’s
uniform rules
and practice directives regarding forms, service and
time periods are condoned and that this matter be heard as urgent per
sec
6(12)(a) of the uniform rules of this court and dispose of the
matter at such time and place and in accordance with such procedure
as the court deems appropriate and allow the applicant to personally
serve the rule nisi one the respondents.
2.
The applicant be allowed to serve the respondents any court orders,
all notices,
and affidavits on the respondents via email or by hand.
3.
Enrol this matter on the urgent roll.
4.
That a rule nisi be issued herewith in terms of which the respondents
are called upon
to show cause on 19 March 2024 why an order in the
following terms should not be made a final order of the above
Honourable Court.
5.
Within 1 court day of being served a copy of the rule nisi order, the
first respondent
give the applicant limited power of attorney or
permission in writing signed by two witnesses, one of which being a
commissioner
of oaths to handle the municipal account of 22 F[…]
C[…] (22FC), Newton Park, Gqeberha, 6001, until the applicant
permanently vacates 22FC or until reviewed bythe second respondent
for being in compliance with the income means test of having
an
income below two state pensions.
6.
Within 1 court day of being served a copy of the applicant’s
power of attorney
or written permission to handle the municipal
account of 22FC, the second respondent be ordered regardless of what
the first respondent’s
income is or state of health, to grant
the municipal account of 22FC the subsidy to the poor per its
official policy for subsidies
for lights and water whilst the
applicant’s income remains below two state pensions, whilst the
applicant is the only person
living on 22FC or the combined income of
all occupants living on 22FC is below two state pensions, and this
can be reviewed by
the municipality once every three years or per the
review period policy of the second respondent or a period determined
by the
court.
7.
The second respondent is ordered to grant the subsidy as set out in
point 6 above
to the backdated to July 2023 and all disconnections
fees be credited off the account of 22FC, so there are no arrears on
22FC’s
municipal account or all arrears be frozen from the date
of this order.
8.
That prayer points number 5 to 7 above shall serve as an interim
interdict against
the respondents until the return date.
9.
Alternatively if already disconnected by the time of this order being
granted,
the second respondent to reconnect 22FC to the electrical
grid.”
[2]
Whilst the applicant had originally sought an immediate
hearing of
the matter, without notice to the respondents, the duty judge in
chambers, on 11 January 2024, having not being satisfied
that the
matter was sufficiently urgent to warrant such a hearing, issued the
following directive:
“
1.
Having considered the certificate of urgency placed before me, I
cannot find that the matter
is sufficiently urgent to warrant a
hearing outside normal motion court days and on an ex parte basis.
2.
The matter can be set down for a hearing on Tuesday, 16 January 2024
at 09h30
or so soon thereafter. The applicant is directed to
serve the papers on the respondents by Friday, 12 January 2024 at
16h00.”
[3]
The matter
was accordingly enrolled for hearing on 16 January 2024 and was
called at the end of my motion court roll. I was
advised by
counsel appearing on behalf of the second respondent that an
agreement had been reached in terms of which the applicant
would
argue, as a preliminary point, his entitlement to the order sought in
terms of prayer 5 of his notice of motion, and by necessary
implication the urgency of the matter. In the event of a
finding in favour of the applicant, the parties had agreed to the
exchange of further papers, during the course of this week, with
argument to proceed on the remaining issues relevant to the second
respondent on Friday, 19 January 2024. I enquired from the
first respondent’s attorney of record, who was present in
court,
[1]
whether the first
respondent intended on opposing the application. I was advised
that the first respondent would abide by
the decision of this court.
[4]
Against the above backdrop and having heard the matter
in the
circumstances set out above, this judgment is being prepared in haste
given the urgency to which the applicant attached
to the matter.
This judgment is accordingly not as thorough as it could be, given
the circumstances under which it is being
prepared and delivered, but
I have attempted to ensure that notwithstanding this, my reasoning
for the decision to which I have
come is clear.
[5]
The
applicant is the biological son of the first respondent and is
currently residing, free of charge, in an immovable property
owned by
her (“
the
premises
”).
The second respondent is the electricity supplier to the premises.
The municipal account, on the applicant’s
version, is presently
five months in arrears and disconnection of the electrical services
to the premises is imminent. The
applicant records that he
received an email from the second respondent on 27 November 2023
advising that services to the premises
would be blocked. On 20
December 2023, the respondent received further communication from the
second respondent, via text
message, again advising that services
would be disconnected. On 8 January 2024, the applicant was
advised by the second respondent
that no subsidy can be granted on
the account given that the owner of the premises does not reside
there. The application
was thereafter issued on 11 January
2024.
[2]
Notwithstanding
the aforesaid, it is apparent that the applicant, as early as 3 July
2023, was already in communication with
the second respondent
regarding the intended disconnection, this being some six months
ago. Accordingly, the history of non-payment
must, of
necessity, pre-date 3 July 2023.
[6]
At the core of this application is a domestic dispute
between the
applicant and the first respondent. It appears that whatever
right the applicant may have had to reside in the
premises has since
been terminated by the first respondent. I say this because,
according to the applicant, the first respondent
has issued eviction
proceedings against him in the Magistrates’ Court, which are
pending. The applicant explains as
follows at paragraph 8 of
his founding affidavit:
“
The first
respondent has filed an eviction application against me at the
magistrates court as I won’t vacate the premises
as I don’t
have any alternatives as far as friends or being able to afford
alternatives. As a means to force me out,
the first respondent
has stopped paying the municipal account in order to get the
municipal account disconnected from electricity,
to force my
surrender and to vacate the premises as she knows I can’t
afford to pay the account myself nor afford off grid
alternatives for
cooking and powering my laptop. Estate agencies don’t
rent to unemployed people and very seldom do
landlords rent to
unemployed people, so I’m stuck here at 22FC until I find full
time employment or become self sufficient
from freelance work, and
I’m not there yet. My mother has offered to pay rental
for two years if I find rental accommodation,
but I have tried and
estate agencies and landlords don’t rent to unemployed people,
and until I get permanent employment
or I’m earning a decent
income from freelancing, 2 years down the line, I’ll just
facing another eviction application,
as I won’t be able to
afford rent 2 years down the line, so that is not a solution.
So I need the
municipal subsidy until I get full time employment or my freelance
work takes off financially. And the first
respondent is
refusing to give me power of attorney to handle the municipal account
to prevent me from getting the municipal subsidy
for 22FC for lights
and water, rates and taxes.
”
[7]
With this history in mind, the applicant goes on to state
at
paragraph 9 of his founding affidavit that:
“
On Thursday 7
Dec 2023 I approached the court for a rule nisi, the court gave a
directive for the matter 4293/2023 to be heard at
the unopposed
motion court on 12 December 2023, and the court ruled that I had
fabricated the urgency and was unsure of being able
to grant power of
attorney so dismissed my application, but I have now attached an
email from the municipality dated 10 January
2023 (sic) that they
arrived here on 10 January 2024 to disconnect 22FC from the
electrical grid, so this urgency is no fabrication
and my mother
instructed the second respondent to not communicate with me any
further and the account will not be given the subsidy
as the owner
does not live at 22FC. So the court can see, this is not
fabricated and very urgent and my bank balances prove
I can’t
wait for disconnection, then try and apply to the court.
The court on 12 Dec
2023 at the unopposed motion court also said that it was unsure as to
whether it can grant power of attorney,
so I have inserted legal
points on it, to show the court, its merely permission that can be
given to anyone suitable to handle
something else on someone else’s
behalf, see below.
”
[8]
The applicant goes on further to quote sections 17, 22
and 27 of the
Constitution as well as the requirements for obtaining a power of
attorney, as quoted by him from
http://safacts.co.za/how-to-get-power-of-attorney-in-south-africa,
which I do not intend on repeating in full. What is apparent
though is that on the authority relied upon by the applicant,
“
[a]nyone over the age of 18
can be granted power
of attorney by the principal
, as long as the agent is
competent and trustworthy to make financial decisions and sign legal
documents on the principal’s
behalf.
” (Own
emphasis.)
[9]
Having been alerted to the prior proceedings under case
number
4292/2023 in the applicant’s papers, but not being clear of the
outcome thereof, I requested the court file to ascertain
whether the
application had been struck from the roll for lack of urgency or
whether the court hearing the matter had dismissed
the application,
following a consideration of the merits.
[10]
From the content of the court file, it is apparent that the
application was
dismissed by Judge Eksteen, who delivered an
ex
tempore
judgment on 12 December 2023. In short, Judge
Eksteen found that: (i) the applicant had known about the growing
liability
(in the form of arrears) for four months and had taken no
legal steps to safeguard his position; (ii) the applicant had
received
notice of the intended disconnection on 22 November 2023;
and (iii) urgency was self-created and did not justify the granting
of
the relief sought on an
ex parte
basis. Given his
view on the merits, he declined to grant the usual order striking the
matter from the roll without making
a determination thereon. In
this respect he found that as a power of attorney encapsulates a
mandate, which may be given
and withdrawn at any time, at the
election of the principal, he did not consider himself to have the
power to grant the relief
sought, regardless of whether the nature of
the relief was interim or final.
[11]
I engaged with the applicant on the prior proceedings, which served
before
this court. He contended that the present application,
since 12 December 2023, raises new facts, being: (i) the
communication
received from the second respondent on 20 December 2023
and 8 January 2024, as referred to above; and (ii) the new
information
provided in the papers regarding the requirements for the
granting of a power of attorney. Whilst I accept that the
communication
was transmitted post 12 December 2023, I am of the
view, for the reasons set out below, that it is of no assistance to
the applicant.
The purported new facts relating to the power of
attorney consist of nothing more than legal argument.
[12]
The principles pertaining to urgency are trite and I do not intend to
give
a full recount thereof in the circumstances under which this
judgment is being prepared.
[13]
I have
previously had occasion to recount these principles in
Ascon
Trading CC Trading as Ascon Civil Engineering v Wilson and
another,
[3]
which must be judged against the background of Rule 6(12) of the
Uniform Rules of Court. Pertinently, the question is whether
an
applicant, in urgent proceedings, has set out objective grounds, why
the matter is urgent and whether he or she has established
that
substantial redress cannot be obtained at a hearing in due course.
The fact that an applicant wishes to have a dispute
adjudicated upon
urgently;
[4]
alternatively, is
subjectively of the view that a matter is urgent, does not render it
as such.
[14]
Moreover,
an applicant cannot content itself to merely sit back and delay the
assertion of his or her rights, and by doing so, create
his or her
own urgency. Such conduct does not amount to urgency justifying
the determination of the matter in accordance
with Rule 6(12).
[5]
[15]
If regard is had to the grounds relied upon by the applicant
underpinning his
contention of urgency, it is clear that the
municipal account has been in arrears for many months, with the
threat of disconnection
already arising in July of last year.
Some five months passed before launching the first urgent application
in this court.
Following the lapse of another five weeks, the
applicant has launched the present application in reaction to the
correspondence
received on 20 December 2023 and 8 January 2024.
The correspondence on 20 December 2023 is no more than a repeat of
the second
respondent’s notification of disconnection, which
was first communicated to the applicant during November 2023.
The
correspondence on 8 January 2024, takes the matter no further.
The applicant has known since 29 November 2023 that in the
absence of
a power of attorney granted in the applicant’s favour by the
first respondent, he would not be eligible for the
subsidy since the
first respondent does not reside at the premises.
[16]
For the reasons stated, I am of the considered view that any urgency
which
may have existed, if any at all, was self-created by the
substantial delay in the launch of these proceedings.
[17]
As
intimated above, it is trite that in the event of a finding that the
matter is not of sufficient urgency to warrant being entertained
in
accordance with Uniform Rule 6(12), the appropriate order is
generally to strike the matter from the roll without the court
making
a determination on the merits.
[6]
I find myself in the same position as Judge Eksteen, who presided
over the first urgent application, in that I too am constrained
to
consider the merits of the present dispute, given my view thereon.
[18]
Fatal to
the applicant’s claim is that he has fundamentally misconstrued
the nature of a power of attorney. The granting
of a power of
attorney falls squarely within the ambit of the law of agency.
The term agency refers to the performance of
a juristic act on behalf
of (or in the name of) one person (the principal) by another (the
agent), who is authorised by the principal
to act, that creates,
alters or discharges legal relations between the principal and a
third party.
[7]
Generally,
no formalities are required for an agent’s authorisation and an
oral authorisation will suffice.
[8]
Where written authorisation is given, it usually takes the form of a
power of attorney, which in turn, sets out the powers
conferred on
the agent by the principal, whether special or general. A
principal may summarily revoke an agent’s authority.
[9]
It is axiomatic that the granting of a power of attorney and the
revocation thereof, falls within the domain of the principal.
I
can find no legal authority which suggests otherwise. I am of
the view that the reason for this is self-evident.
[19]
The applicant’s application is bad in law. He has
accordingly failed
to meet the requirements for the granting of an
interdict, whether interim (as contended for by the applicant) or
final in nature
(as I so find).
[20]
Further and in any event, without making a finding in respect
thereof, I am
of the view that the application is
res judicata
.
Given that the issue was not raised by either of the respondents in
these proceedings, I deem it inappropriate to deal with
this aspect
further.
[21]
Neither the first nor second respondent requested an order as to
costs in the
event of a finding against the applicant. In the
circumstances of the present case, there shall be no order as to
costs.
[22]
In the result, the following order is issued:
1.
The application is dismissed.
I
BANDS
JUDGE
OF THE HIGH COURT
Date
heard:
16
January 2024
Date
of judgment:
17
January 2024
For
the applicant:
Mr
Adrian de Villiers
Instructed
by:
Appearing
in person
For
the 2
nd
respondent:
Adv
Cetwayo
Instructed
by:
Joubert
Galpin Searle Inc.
[1]
Albeit
,
not formally appearing.
[2]
Following
a further notice of disconnection on 10 January 2024 as per para [7]
below.
[3]
[2022]
JOL 57361 (ECP); and
Ascon
Trading CC t/a Ascon Civil Engineering v Wilson and Another
(3387/2022) [2023] ZAECQBHC 2 (17 January 2023), and the authorities
cited therein.
[4]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011) at paragraph [9].
[5]
Lindeque
and Others v Hirsch and Others, In Re: Prepaid24 (Pty) Limited
(2019/8846) [2019] ZAGPJHC 122 (3 May 2019); and
Masipa
and Another v Masipa
(23224/2020) [2020] ZAGPPHC 214 (4 June 2020).
[6]
Commissioner
for South African Revenue Service v Hawker Air Services (Pty) Ltd;
Commissioner for South African Revenue Service
v Hawker Aviation
Services Partnership and Others
[2006] ZASCA 51
;
2006
(4) SA 292
(SCA).
[7]
Du Bois, F.,
et
al.
Willie’s
Principles of South African Law
,
9
th
Edition, 2007, Juta & Co, Ltd. at p 984, read together with the
authorities cited at fn 1.
[8]
In certain instances,
written
authorisation is required by law or by established practice.
[9]
Du Bois, F.,
et
al.
Willie’s
Principles of South African Law
,
9
th
Edition, 2007, Juta & Co, Ltd. at p 1002.