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[2021] ZAGPPHC 270
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Hennop v Koen (12310/2014) [2021] ZAGPPHC 270 (25 March 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
Case No: 12310/2014
REPORTABLE:YES/NO
OF INTEREST TO OTHER
JUDGES:YES/NO
REVISED
DATE:
25/03/2021
In
the matter between:
Okker Jacobus
Hennop
Applicant
And
Christiaan
Johan
Koen
Respondent
JUDGMENT
Maumela
J.
1. This
matter came before court in the opposed motion roll. It entails
interlocutory proceedings wherein the
applicant, who is the
Respondent in the main application, seeks four procedural orders
granting him leave towards the following:
1.1.
To file a supplementary affidavit.
1.2.
To file a counter-application.
1.3.
An order in terms of Section (1) (b) of the Superior Courts Act, that
the application be removed from
this Division, to the Limpopo
Division of the High Court and
1.4.
That the application be postponed
sine die.
RE: FILING OF A
SUPPLEMENTARY AFFIDAVIT.
2. The
Applicant submits that in April 2018, he appointed new attorneys to
represent him. Upon consulting Senior
Counsel, he was advised that
there are several defenses that are available at his disposal, which
were not raised by his previous
lawyers. See paginated page 8.
Applicant submits that it would be patently unjust, much as it would
not be in the interests of
justice to close the doors of the Limpopo
High Court in his face under the circumstances.
3. The
Applicant also submits that it seems that in refusing to grant his
reasonable request; the Respondent,
who is the Applicant in the main
application is seeking to gain tactical advantage to which he is not
entitled. Advancing this
argument, the applicant advances the
following reasons:
3.1.
That in Pretoria, this application was already issued. On the 24
th
of March 2014, it was opposed. This was more than four years before.
The answering affidavit was filed on the 19
th
of May 2014.
The Respondent filed his replying affidavit three years later on the
27
th
of November 2017.
3.2.
As indicated in his replying affidavit, the Respondent knows
fully well about the shortcomings of the Applicant’s previous
attorneys. This is demonstrated where the Respondent states the
following
: “I also respectfully invite the Honourable
Court’s attention to the fact that the Respondent has not filed
his counter
application, much as he has not instituted summons for an
order to transfer the property.
3.3.
It is only in 2018 that the Respondent issued another application in
the Limpopo High Court. The Applicant’s
answering affidavit in
that matter seemed to have been filed shortly after the letter of the
28
th
of May 2018. In that answering affidavit, various new
facts and defenses are raised.
3.4.
The Respondent’s attorney of record makes clear the
Respondent’s attitude in a letter dated the
4
th
of
June 2018 wherein he stated: “The pleadings have closed and the
matter should be adjudicated on the pleadings as it stands.”
3.5.
Knowing full well what the Applicant’s counter application and
defenses entail, and knowing that
the relief sought by the Respondent
would preclude the Applicant from raising the same in the Limpopo
matter, the Respondent steamrolled
ahead and enrolled this matter to
be heard before this court.
4. The
Applicant submits that he has made a clear case advancing reasons why
he has to place his version before
court. He has attached Annexure
“X4” wherein he advances a full exposition of the facts
and defenses he wishes to place
before this court. Those include the
following:
4.1.
The terms of the oral agreement with specific reference to “a
reasonable period.”
4.2.
The Applicant’s claim for rectification of clause 4 of the
written agreement.
4.3.
The fact that there has never been any demand in terms of clause 7 of
the agreement.
4.4.
The Applicant’s claim for specific performance, which is the
main relief sought in the counter
application.
4.5.
The fact that there is a reciprocal duty on both parties to
contribute in the signing of documents
for purposes of transfer.
4.6.
The fact that a contractual right to claim ownership is not a “debt”
as meant in
chapter 3, Section 10 and of the Prescription Act.
4.7.
The Respondent’s failure to elect to cancel the agreement
constitutes an express, alternatively
tacit acknowledgment of
liability.
4.8.
The Applicant’s application that the common law should be
extended
with regard to the
exceptio doli.
RE:
THE ORDER FOR TRANSFER.
5. The
Applicant seeks an order for this application to be transferred from
the Pretoria High Court to the Limpopo Division
where the Respondent
has recently instituted an eviction application. In the application
in Limpopo, the Respondent has filed his
answering affidavit and
counter-application, based on exactly the same facts as those
applicable to the application in Pretoria.
6.
Section 27 (1) (b) (i) of the Superior Courts Act 2013: (Act No 10 of
2013) grants the court a discretion to
make such an order. In that
regard, this section provides as follows:
“
If
any proceedings have been instituted in a Division or at a seat of a
Division, and it appears to the court that such proceedings
-
(a).
...
(b).
Would be more conveniently or more appropriately heard or determined
-
(i). At another seat
of that Division; or
(ii).
.....
that
court may, upon application by any party thereto, and after hearing
all other parties thereto, order such proceedings to be
removed to
that other Division or seat as the case may be.”
7. The
Applicant submits that the test is threefold as follows:
7.1.
Firstly,
the court
making
such an
order must already
have
jurisdiction. In
casu,
the
Respondent explains that when this
application
was
launched,
the Limpopo
High Court
was not yet
in operation.
This court
then
has
jurisdiction
only owing
to the fact that the transitional provisions hold that as the
application was launched prior to establishment of the
Limpopo
division,
this court
retains
jurisdiction.
7.2.
Secondly,
the court
to
which
the
Applicant
seeks
transfer
must also have jurisdiction. In
casu,
the
Respondent already
admits that
the Limpopo
division
has jurisdiction
as the
immovable
property
is in the
jurisdiction
of the
Limpopo Division
[1]
.
7.3.
The third
enquiry is of convenience, both to the court and
the
administration of justice and to the parties. In this regard the
following is apparent;
7.3.1.
The property is situated in the Limpopo Division.
7.3.2.
The Respondent is resident in the Limpopo Division, which means that
it would be more convenient
for all the witnesses (given the material
disputes of fact) to travel to a closer division.
7.3.3.
There is already an application pending in the Limpopo Division with:
7.3.3.1.
Exactly the same parties.
7.3.3.2.
Exactly the same evidence needing to be led.
7.3.3.3.
Substantially in the relief sought there is only one true difference
which shall
be mentioned
infra.
7.3.4.
The costs of having the two matters heard simultaneously will be
substantially less than having
both matters proceed concurrently,
especially in light of the material disputes of fact that will in all
probability lead to oral
evidence being lead.
7.3.5.
Given that both applications are based upon the same questions of
fact and law, the principle
of legal certainty is promoted by
avoiding the possibility of conflicting Judgments by different
division of the High Court.
7.3.6.
It is my submission also relevant here to consider the prejudice to
the Applicant if the relief
is refused. He will be precluded from
placing his defence and counter application before this court and he
will be precluded from
persisting with his defence and counter
application before the Limpopo Division owing to
stare decisis.
THE APPLICATION FOR
POSTPONEMENT.
8.
On the basis of reasons already advanced, the applicant seeks for the
main application to be postponed
sine die.
He explains that he
has had to change his legal representative after consulting Senior
Counsel.
COSTS.
9.
The Applicant submits that the Respondent should be ordered to pay
the costs of this application
because he refused to grant a
bona
fide
and reasonable request for him to consent to a procedural
relief as communicated in a letter dated the 28
th
of May
2018. The Applicant argues that the Respondent should be ordered to
pay the costs of both the interlocutory application
and the wasted
costs of the main application.
10.
The Respondent explains that when this application was launched, the
Limpopo High Court was not yet
in operation. This court has
jurisdiction only owing to the fact that the transitional provisions
hold that as the application
was launched prior to establishment of
the Limpopo division, this court retains jurisdiction. Secondly the
court to which the Applicant
seeks transfer must also have
jurisdiction. In
casu
the Respondent already admits that the
Limpopo division has jurisdiction as the immovable property is in the
jurisdiction of the
Limpopo Division.
11.
The third enquiry is then of convenience, both to the court and the
administration of justice and to
the parties. In this regard the
following is apparent;
11.1.
The property is situated in the Limpopo Division.
11.2.
The Respondent is resident in the Limpopo Division, which means that
it would be more convenient
for all the witnesses, (given the
material disputes of fact), to travel to a closer division.
11.3.
There is already an application pending in the Limpopo Division with:
11.3.1.
Exactly the same parties.
11.3.2.
Exactly the same evidence needing to be lead.
11.3.3.
Substantially the same relief sought.
12. The
costs of having the two matters heard simultaneously will be
substantially less than having both matters
proceed concurrently,
especially in light of the material disputes of fact that will lead
to oral evidence being lead. Given the
fact that both applications
are based upon the same questions of fact and law, the principle of
legal certainty can be promoted
by avoiding the possibility of
conflicting Judgments by different division of the High Court.
13.
The court finds that prejudice shall be brought to bear in the event
where the relief is refused in
that the applicant will be precluded
from placing his defence and counter application before this court
and he will be precluded
from persisting with his defence and counter
application before the Limpopo Division owing to the
stare decisis
principle.
14.
In this case, there is more than potential for prejudice to be
brought to bear in the event where the
application is refused.
Possible advantages out of refusing the application does not justify
such an outcome. Therefore, the court
inclines towards granting it.
15.
On the basis of the reasons outlined above, the application stands
to be granted and the following
order is made:
ORDER.
15.1.
The Applicant is granted leave to file a supplementary affidavit.
15.2.
The Applicant is granted leave to file a counter application.
15.3.
In terms of
section 27
(1) (b) of the
Superior Courts Act, the
court
orders for this matter to be transferred to the Limpopo Division of
the High Court.
15.4.
The application is postponed
sine die.
15.5.
The Respondent is to pay the costs of this application.
T.A.
Maumela.
Judge
of the High Court of South Africa.
[1]
Paragraph 2.28 of the answering affidavit on paginated page 62