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[2021] ZAGPPHC 129
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Sitshoni v ASA Capital (Pty) Ltd and Others (10726/18) [2021] ZAGPPHC 129 (12 March 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 10726/18
DATE:
12 March 2021
(1) REPORTABLE:
YES/NO
(2) OF INTEREST TO
OTHER JUDGES: YES/NO
(3) REVISED
DATE:
2021.03.12
THEMBA
SITSHONI
Applicant
V
ASA CAPITAL (PTY) LTD
First
Respondent
TYGERBERG HEIGHTS BODY
CORPORATE
Second Respondent
THE SHERIFF OF
JOHANNESBURG
Third Respondent
JUDGMENT
MABUSE
J
[1]
This is an application in which the Applicant seeks the following
order:
“
(a)
rescinding and setting aside the order of this Court by Basson J,
dated 4 November 2019;
(b)
setting aside the Writ of Execution authorised by the Registrar of
this Honourable Court
against the Applicant’s immovable
property, fully described as Unit 1[…], Door 1[…],
Tygerberg, 4[...]-4[...],
P[...] T[...], Berea, Johannesburg;
(c)
The Applicant be granted leave to defend the main Action and to file
any pleadings necessary
in the matter by no later than 15 days from
the date of granting of this order;
(d)
ordering the Respondents to pay the costs of this application.”
[2]
THE PARTIES
2.1
The Applicant is an adult male pensioner who resides at the property
described in paragraph [1](b)
supra
. He is the Defendant
in the main action of the application.
2.2
The Respondent is ASA Capital (Pty) Ltd, a private company duly
registered in terms of the company
laws of this country with its
registered office situated at 9[...] O[...] Apartments, 7[...] R[...]
Street, Hazeldean, Gauteng.
2.3
The Second Respondent is Tygerberg Heights Body Corporate, a Body
Corporate established as such
in terms of the provisions of s 2 of
the Sectional Title Scheme Management Act 8 of 2011 with the
registered address at No. 4[...]-4[...]
P[...] T[...], Berea,
Johannesburg.
2.4
The Third Respondent is the Sheriff of Johannesburg Central, whose
offices are located at 2[...]
H[...] Street, Johannesburg.
No order is sought
against the Third Respondent.
[3]
This application for rescission is based on fraud and discovery of
new documents.
It is contended by the Applicant that if these
new documents had been placed before Basson J on 4 November 2019,
when she granted
the order which is the subject of this application,
she would not have granted the order that is the target of this
application.
[4]
The reason for the application, so contends the Applicant, is that
Basson J granted the
said judgment after the said Gauteng Local
Division, in Johannesburg, had made an order or judgment on 20 March
2019 in which it
prohibited the sale of any or all the units at
Tygerberg Heights. It appears that Basson J was not aware of
the said order.
The Applicant contends that the judgment of the
South Gauteng Local Division was deliberately withheld from Basson
J.
[5]
As at 15 December 2017 the Applicant was in arrears with the payment
of levies, interest
and penalties in the sum of R121,807.00 which
amount the Applicant has failed or refused or neglected to pay to the
First Respondent,
notwithstanding the rendering of monthly statements
by the Second Respondent to the Applicant. On 15 December 2017
the trustees
of the Second Respondent, as represented by an
administrator appointed in terms of
s 46
of the
Sectional Titles Act
95 of 1986
, entered into a written agreement of cession with the
Second Respondent in terms of which the full amount of arrears was
ceded
to the First Respondent in terms of a deed of cession annexed
to the POC as Annexure ‘B’.
[6]
On 24 January 2018 the First Respondent notified the Applicant in
writing about the said
cession and the legal effect of such a
cession. A copy of the written notification by the First
Respondent to the Applicant
is annexed to the POC as Annexure ‘C’.
Accordingly, the amount of R121,807.00 became due and payable by the
Applicant
to the First Respondent.
[7]
On or about 16 February 2018, the First Respondent instituted action
proceedings against
the Applicant under the case no. 10726/2018 in
which it sought,
inter alia
, judgment for payment of the sum
of R121,807.00, representing the accumulated arrear amounts of levies
owed by the Applicant to
the First Respondent.
[8]
On 1 March 2018 a copy of the summons was served on the Applicant
personally at his residential
place. On 15 March 2018, and not
2020, the Applicant delivered his notice of intention to defend on
the First Respondent’s
attorneys of record. As the
Applicant failed to file his plea in the matter sooner thereafter,
the First Respondent applied
for summary judgment against the
Applicant.
[9]
The application for summary judgment was heard on 23 May 2018.
It was granted.
[10]
There was subsequently an attempt by the Applicant to rescind the
summary judgment. The rescission
application was heard and dismissed
by the Court on 11 February 2019. On 14 June 2019 the writ of
execution against the immovable
property of the Applicant was issued
by the Court. On 7 August 2019 the Sheriff of the Court
attended on the property to
attach the movable assets of the
Plaintiff. The Sheriff’s return of service stated that there
were only four tenants at the
premises and no attachable goods.
[11]
For that reason the First Respondent proceeded to issue an
application for an order that the Applicant’s
movable property
be declared especially executable in terms of
Rule 46A
on 12 December
2018. The Applicant again filed a notice of intention to defend
through his new attorneys. The Applicant’s
opposing affidavit
was filed electronically on the attorneys of the Respondent on 30
August 2019.
[12]
The First Respondent filed its answering affidavit on 27 August 2019
and the matter was adjudicated
on the Opposed Motion Roll of 4
November 2019. Despite opposition from the Applicant, the Applicant’s
immovable property
was declared executable by Basson J. It is this
judgment of Basson J of 4 November 2019 which the Applicant seeks to
rescind.
[13]
The Applicant’s immovable property was advertised for an
auction sale to take place on 30 March
2020. Owing to the fact that
this date fell within the level 5 national lockdown, which was
announced by the President on 23 March
2020, the auction could not
proceed. The property was again placed for auction to take place on
Monday, 26 October 2020, but it
was postponed because on 23 October
2020, being the Friday before the date on which the auction was
scheduled to take place, the
Applicant served his current application
for rescission on the attorneys of the Respondent.
[14]
As indicated herein
supra
, the grounds of rescission of this
summary judgment or of the judgment of 4 November 2019 was that the
said judgment was obtained
fraudulently. The Court order dated 20
March 2019 under Case No. 10218/2019 of the Johannesburg High Court
was obtained by the
Respondent. The Court order obtained on 20
March 2020 has no bearing on the matter before this Court. It
is the only
basis for the rescission application.
[15]
The Applicant was in consultation with his attorney in the attorney’s
office. It would
seem that he had always been looking for a
reason to upset the judgment of Basson J or to delay its execution.
Out of the blue,
his attorney suggested that he must enquire from
some of the unit owners of any court proceedings or documents
relating to the
sale of units in Tygerberg Heights. The
attorney undertook to go and obtain copies of the relevant record. On
11 June 2020
he got the relevant information from one of the owners
of the units in Tygerberg Heights, Mr Tumelo Lerole. It was a
remarkable
coincidence. He then requested documents from him.
[16]
On or about 25 August 2020 he was given a copy of the court order of
the matter nr. 10218/2019 of the
Gauteng Local Division,
Johannesburg. This was a court order in a tribunal matter
brought by a Mr Lerole against Jan van
den Bos & Associates, Paul
Properties and Tygerberg Body Corporate, the First, Second and Third
Respondents respectively.
[17]
Of paramount importance in the court order is paragraph 29.4 of the
adjudication order made an order
of Court on 20 March 2019. It
states as follows:
“
The
Second Respondent together with the appointed service providers are
to suspend all seals of units where the owners owe levy
and handed
over, pending submission of audited financial statements to the
Applicant and other interested parties. Should
there be a
misappropriation of funds by the First and Second Respondents, the
Applicant is advised to report the parties to the
relevant
authorities.”
The matter in the said
tribunal did not involve the Applicant. I have already mentioned the
names of the parties involved in the
matter. In that matter the
Applicant, a Mr Lerole, who is a registered owner of unit 4[…],
Tygerberg Heights, had lodged
a dispute against the said Respondents
for incorrect debit of a fine on the Applicant’s levy statement
and failure by the
Second Respondent to issue correct levy statements
to the owners of units and for failing to provide him with the Body
Corporate’s
Bank Statements.
[18]
The Applicant in the application under consideration was not involved
in the dispute of Mr Lerole and
the three Respondents. He had not
disputed the correctness of the amounts that were sent to him by the
Body Corporate. The
current three Respondent’s action
proceedings have nothing to do with the dispute of Mr Lerole.
[19]
On 20 March 2019 the Court was not aware that already on 23 May 2018
the applications for summary judgment
had been granted.
[20]
The court order of 20 March 2019 is predicated on the award of the
arbitrator. It was designed
to prevent the Respondents or
anyone of them in the arbitration from selling any units in the
Scheme for as long as the issues
or complaints of the tenant, Mr
Lerole, and other issues that the arbitrator had identified, remained
unresolved. This court
order was not designed to prevent the
attachments and sale in execution or properly obtained court orders.
[21]
There are, in my view, valid and lawful reasons why the unit in
question belonging to the Applicant
had to be attached. The Applicant
owed the First Respondent. That debt has not been challenged.
The First Respondent
took steps to recover the debt. Such steps
were not resisted by the Applicant. Following such steps, the First
Respondent
obtained judgment against the Applicant. That judgment has
to be satisfied. The First Respondent has taken steps to satisfy the
judgment. The Applicant has not made any arrangements
whatsoever with the First Respondent to pay off the debt. He
may not ride on issues involving other parties’ with the
Respondent’s arbitration proceedings to forestall the
satisfaction
of a court order. In my view, any reliance by the
Applicant on the court order of 20 March 2019 is misplaced.
[22]
It is furthermore contended by the Applicant and proffered as one of
the reasons why the order in paragraph
[1] supra is sought, that the
order of 4 November 2019 by Basson J, was fraudulently obtained.
Counsel for the First Respondent
explained that the First Respondent
was aware at all material times of the order of 20 March 2019.
[23]
In fact, in his opposing affidavit, Albert Stefanus Alant, testified
that the parties to the dispute
in respect of which the court order
of 20 March 2019 was handed down are not parties to the application
under consideration. The
First Respondent was armed with a copy of
the record in the Johannesburg matter. They had obtained these
records before 4 November
2019. They were aware of the case
when they were before Basson J. Counsel for the First
Respondent told the Court that
they had not deemed it necessary to
inform Basson J of the judgment of 20 March 2019 because it was
irrelevant. The parties
were different and so were the facts
and issues involved in the matters. In other words, Basson J
would still have granted
the order of 4 November 2019 even if she
have been told of the order of 20 March 2019. That order would
not have prevented
her from granting the order of 4 November 2019.
[24]
In terms of common law, a judgment or an order of court may be set
aside on,
inter alia
, the grounds of fraud and in certain
exceptional circumstances where new documents have been discovered.
In this regard see
Schierhout v Union Government 1927 AD p 94
.
In order to succeed on the ground of fraud, an applicant for the
rescission of an order of court, it is necessary for such
an
applicant to allege and proof:
(1)
That the successful litigant,
in casu
the First Respondent,
was a party to the fraud. See in this regard
Markings v
Markings
1958 (1) SA 338
A
. In the head notes this is what
it stated that:
“
A
judgment will not be set aside on the ground of fraud including
perjury, unless it is shown that the successful litigant was a
party
to the fraud.”
At pages 344 H - 345 A
the Court stated as follows:
“
It
is not clear that R v Schiff can be said to have decided, as part of
its ratio decidendi, that a judgment will not be set aside
on the
ground of fraud, unless it is shown that the successful litigant was
a party to the fraud. But the question was under
consideration
and, as I read the judgments, the view of the members of the Court
was that the litigant must have been a party to
the fraud if the
judgment is to be open to attack. On principle that would seem
to be right. The law draws a distinction
for present purposes
between merely erroneous evidence and evidence that is fraudulently
false; the distinction is well brought
out in the judgment in
Childerley Estate Stores v Standard Bank of SA Ltd
1924 OPD 1963
, 166
at p 166-169. But there does not seem to be any reason why the
rights of the parties should not according to the wrong
evidence of
the witness was honestly given or was deliberately falsified to serve
some purpose of its own. If the successful
litigant was a party
to the perjury there would be good reason why, notwithstanding the
general desirability that lawsuits should
come to finality, the
wrongdoer should not be allowed to hold his ill-gotten judgment.”;
(2)
that the evidence was in fact incorrect;
(3)
that it was made fraudulently and with intention to mislead; and
(4)
that it diverged to such an extent from the true facts that the Court
would, if the true
facts had been placed before it, have given a
judgment other than that which it was induced by the correct evidence
to proof.
See
Rowe v Rowe
[1997] ZASCA 54
;
1997
(4) SA 160
SCA at 166
. There the Court stated as follows:
“
It
is alleged in the particulars of claim that the Respondent’s
fraudulent representations induced the appellant to enter
into the
settlement agreement and asked for a divorce in terms thereof.
It is also alleged that but for the fraud, the Court
would not have
made the order of divorce in its present form. Annexed to the
particulars of claim is the settlement agreement
signed by the
Respondent which recorded the birth of three children from the
marriage, including Brenda and Raymond who were mentioned
by name.
The respondent knew, it is further alleged, that this was not the
truth and she knew that the appellant who was
not aware of the true
state of the facts would present agreement and thus unwittingly
deceive the Court. In my view this
constituted a fraud
perpetrated on the Court itself.”
[25]
The Applicant has proved none of the above requirements. His
application, in my view, cannot
succeed.
[26]
There are, strictly speaking, no new documents discovered in the
matter. The Applicant refers
to the court order as new
documents. In any event the issue of new documents has been
dealt with by the Court in
Childerley Estate Stores v Standard
Bank of South Africa Ltd
supra
. In this judgment, De
Villiers JP concluded that a judgment could be set aside on the
ground of discovery of new documents
after the judgment has been
given under certain circumstances only. This include:
i.
testamentary suits in which judgment has been given on a will and
subsequently
a later will/codicil has been discovered;
ii.
cases in which it was in consequence of a fraud of the opposite party
but it
had the relevant documents was not found or produced at the
trial;
iii.
cases in which it was without slightest fault on the part of the
applicant seeking
to introduce the new document or his legal
representatives that the document was not filed and produced before
judgment; and
iv.
cases in which the judgment was founded on a presumption of law, on
the opinion of
the
jurisconsult
or on even expert evidence.
In the current situation
there are no new documents. The application cannot succeed.
Accordingly, I make the following order:
The application is
dismissed with costs.
PM MABUSE
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant:
Adv
SF Sibisi
Instructed
by:
Sibanda
Bukhosi Attorneys Inc.
Counsel
for the First Respondent:
Adv
M Arroyo
Instructed
by:
Marius
Blom Inc.
Date
on the unopposed roll before Mabuse J:
8
March 2021
Date
of Judgment:
12
March 2021