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[2021] ZAGPPHC 314
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Mukhinindi and Another v Cedar Creek Estate Home Owners Association and Another (81830/2018) [2021] ZAGPPHC 314 (10 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
Case
Number: 81830/2018
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
DATE:10/5/2021
THINAMANO
MUKHININDI
First Applicant /
Judgment
Debtor
NDICHUWO
MUKHININDI
Second Applicant /
Judgment
Debtor
and
CEDAR
CREEK ESTATE HOMEOWNERS ASSOCIATION
First Respondent /
Judgment
Creditor
THE
SHERIFF OF THE HIGH COURT (RANDBURG WEST)
Second
Respondent
JUDGMENT
H
G A SNYMAN AJ
INTRODUCTION
[1]
This is an application by the applicants in terms of the common law
to review and set aside an order obtained by the first respondent
(“
the estate
”) against them on 24 March 2018 and
for ancillary relief.
[2]
Only the estate opposes the application. There was no appearance
on
behalf of the second respondent (“
the Sheriff
”)
[3]
The order the applicants seek to be reviewed and set aside is an
order by this court in terms of rule 46A of the Uniform Rules of
Court (respectively “
the rule 46A order”
and “
the
rules”
). In terms of the rule 46A order their residential
property known as Erf […], […] Ext […],
Registration Division
IQ, Gauteng, measuring 830 m
2
held
by deed of transfer number [….] (“
the property
”),
in which they currently still reside, was declared specially
executable. This was for a judgment debt the estate obtained
against
them in the Magistrates’ Court for the Magisterial District of
Johannesburg North, held at Randburg (“
the Magistrates’
Court
”) under case number 2018/12653 for an amount of
R48,924.06 (“
the Magistrates’ Court order”
).
This Court is at a disadvantage since copies of neither the rule 46A
order nor of the Magistrates’ Court order form part
of the
papers before me.
BACKGROUND
[4]
On or about 11 September 2008, the applicants bought the property
in
which they currently still reside.
[5]
The applicants became liable to pay levies and contributions as
determined from time to time to the estate in respect of maintenance,
upkeep and/or related expenditure. The applicants allege that
they
paid the levies up to the end of 2016, when they allegedly
encountered unforeseen circumstances which circumstances they allege
are not unique to the applicants, but do occur. What exactly this
means is not explained. The estate alleges that they stopped
paying
long before that.
[6]
When the applicants fell in arrears and on or around 7 June 2016,
the
estate commenced legal proceedings against them by issuing summons
against them out of the Magistrates’ Court. The amount
claimed
by the estate from the applicants was an amount of R48,924.06.
[7]
On or about 14 July 2016 and allegedly unbeknown to the applicants,
according to the founding affidavit, the estate obtained default
judgment against the applicants for the amount of R48,924.06 in
the
Magistrates’ Court. The applicants contend that they dispute
this judgment amount, which they allege was “
unreasonably
excessive and unreasonably inflated
”. Moreover it is
alleged as part of the founding papers that since or about 2016 the
estate has been charging them “
excessive interest and
related charges
”. It is alleged that this resulted in an
unreasonably excessive and unreasonably inflated amount outstanding
to the estate
as at current.
[8]
It is alleged that it is necessary for a review of the excessive
charges by the estate, in order for the applicants to extinguish the
correct amount due to the estate within a reasonable period
without
any further prejudice to either party.
[9]
It is also alleged by the applicants that they are not in possession
of their levy statements from inception of occupation in order for
them to determine the actual outstanding balance due and payable
by
them to the estate. As part of the application it is therefore
alleged that the estate should be compelled to provide same.
[10]
It is alleged that the applicants have contracted the services of a
financial consultant
in order to determine the actual liability. It
is stated that the financial consultant concluded “
an
interim report / findings
(analysis)
”. It is alleged
that the financial consultant requires further information, but that
there has been interim discrepancies
already established. What
exactly these discrepancies are, are not identified. It is also not
identified exactly who this financial
consultant is. A confirmatory
affidavit by the alleged financial consultant is also not attached to
the founding affidavit. A copy
of the financial consultant’s
interim report findings is attached to the application.
[11]
It appears from the founding affidavit that the outstanding amount on
the applicants’
levy account by now amounts to R186,295.74.
They allege that they do not deny liability for a reasonable amount
to the estate,
but that the current amount outstanding is
unreasonable. They allege that these charges ought to be assessed for
reasonableness
in terms of the memorandum of incorporation of the
estate under the Companies Act, Act 71 of 2008 (“
the
Companies Act
”) and the Regulations and/or the Conventional
Penalties Act, Act 15 of 1962 (“
the Conventional Penalties
Act
”). The applicants neither attach a copy of the
memorandum of incorporation of the estate to their application, nor
do they
identify exactly on which provisions of the Companies Act
they rely, nor on what provisions of the Conventional Penalties Act
they
rely.
[12]
They allege that the property is their primary residence as well as
that of their
children and elderly persons. They allege that in terms
of the decision in
First Rand (unclear) Limited v Folscher and
another, and similar matters
2011 (4) SA 314
(GNP)
at
paragraph 30, judicial oversight has to be exercised before this
property may be executed against.
[13]
The applicants allege that the property is worth R3,850,000 and they
attach the report
of a professional valuator in support of this to
their founding affidavit.
[14]
In so far as the summons in the Magistrates’ Court is
concerned, which resulted
in the Magistrates’ Court order, they
allege that they did not receive the summons commencing the action
proceedings. They
state that the return of service only states that
the summons was served by fixing a copy thereof to the outer or
principal door
of the property.
[15]
I point out that nothing is said as part of the applicants’
papers about what
transpired as part of the application for the rule
46A order, including why the applicants did not oppose that
application and
why it was allowed for that order to be granted
against them by default.
[16]
The estate in its answering affidavit, raises two points
in limine
to which a third one was added in the heads of argument filed on its
behalf. The first point
in limine
is that the applicants’
prayers 4 and 8 in the notice of motion are bad in law as it
envisages this court becoming a party
to the interactions between the
applicants and the estate’s dispute by fixing time periods for
payment, etc. The second point
in limine
is that the
application is bad since it does not include relief that the
Magistrates’ Court order be rescinded. It is alleged
that in
light thereof, the applicants cannot seek an order prohibiting the
enforcement of the judgment debt without asking for
it to be
rescinded. Therefore, it is said that prayers 2 and 3 are bad and
ought to be dismissed with costs. The third point
in limine
is
that the applicants failed to comply with the requirements for
condonation in that they failed to show good cause in their
application for their non-compliance to be condoned.
[17]
It is alleged that the applicants only made payments amounting to
R18,924 in respect
of the estate’s levies since 27 May 2014 up
to date. It is stated that the last time the applicants’
account was up
to date was on 28 July 2014. The estate also denies
that the charges are unreasonable and unfair. It is alleged that the
interim
report annexed to the founding affidavit actually shows that
the applicants were undercharged by an amount of R3,641.75. It is
stated that it is completely inappropriate for the applicants to
reside in a R3,850,000 house, and then as per the annexure to their
founding affidavit it appears that they only paid levies in the
amount of R18,924 since 27 May 2014 up to date. Counsel for the
estate took me through the report in detail at the hearing, showing
exactly how the amount was made up.
Prima facie
, as I see it,
the report does not show anything unreasonable or unwarranted if the
applicants’ payment history is taken into
account. What it does
show is that the applicants simply do not make payment in respect of
their levy account. It was in this regard
submitted that the
applicants have in fact admitted their indebtedness by attaching the
said report to their answering affidavit.
Counsel for the estate also
pointed out that on the outstanding levy account, it is apparent that
no costs in relation to the rule
46A order or in relation to the
Magistrates’ Court order is included as part of the levy
statement.
[18]
According to the estate, during this entire period the applicants and
their family
have been defaulting on their obligations resulting in
the other owners in the estate having to carry them. It is alleged
that
based on a return of service annexed to the answering affidavit,
that on 2 August 2019, the writ of attachment for the immovable
property, based on the rule 46A order and the notice of attachment
was served upon Ntombi Ncube, who is an employee of the applicants.
Yet it is stated that it took them five months following that, namely
up to 22 January 2020 to launch the present application of
rescission
of judgment. According to the estate, why the applicants do not fully
explain the delay in bringing the application
is because their
attorney previously served similar applications with identical
paragraphs on the estate. Attached to the answering
affidavit as
“
MS4
” are copies of what is said to be the
relevant pages from another application for rescission under case
number 4499/2020.
No details are, however, provided exactly what
transpired in this regard.
RESCISSION OF A JUDGMENT
IN TERMS OF THE COMMON LAW
[19]
The general, well-established rule is that once
a court has duly pronounced a final judgment or order, it has itself
no authority
to set it aside or to correct, alter or supplement it.
See
Van Loggerenberg,
Erasmus: Superior Court
Practice
RS 15, 2020 at D1-561
.
[20]
It is also trite that a
n order of a court of
law stands until set aside by a court of competent
jurisdiction. Until that is done, the court order
must be obeyed
even if it may be wrong. There is a presumption that judgments are
correct.
See
Van Loggerenberg,
Erasmus: Superior
Court Practice
RS 15, 2020 at D1-561
.
[21]
The inherent jurisdiction of the High Court
does therefore not include the right to interfere with the principle
of finality of
judgments, other than in the circumstances
specifically provided for in the rules or the common law.
[22]
A judgment or order of the High Court
could be set aside under section 23A of the Superior Courts Act, Act
10 of 2013, rule 42,
rule 31(2)
(b)
and
(6), on appeal, on common-law grounds or in the exercise of
its inherent jurisdiction by the High Court. A judgment
or order
could also be abandoned, in whole or in part, under rule 41(2).
[23]
At common law a judgment can be set
aside on grounds of fraud;
justus
error
(on rare occasions); in
certain exceptional circumstances when new documents have been
discovered; where judgment
had been granted by default; and
in the absence between the parties of a valid agreement to support
the judgment, on the grounds
of
justa
causa
.
[24]
In the present matter the application is
brought in terms of the common law on the basis that it was granted
by default. In order
to succeed with such an application, the
applicants must show good or sufficient cause. This generally entails
that the applicant
must:
[24.1]
give a reasonable (and obviously
acceptable) explanation for his default;
[24.2]
show that his application is made bona
fide; and
[24.3]
show that on the merits he has a bona
fide defence which prima facie carries some prospect of success.
[25]
It is trite that in considering an
application like this, this court retains a discretion to grant the
order, which discretion must
be exercised after a proper
consideration of all the relevant circumstances.
[26]
In
De Wet v Western Bank Ltd
1979 (2) SA 1031
(A) at
1042
, a case referred to in argument before me by counsel for the
estate, it was held at
1042G
that:
“
Thus, under the
common law, the Courts of Holland were, generally speaking, empowered
to
rescind judgments obtained on default of appearance, on
sufficient case shown. This power was entrusted to the discretion of
the
Courts. Although no rigid limits were set as to the circumstances
which constituted sufficient cause (cf examples quoted by Kersteman
(op cit sv
defaillant) the Courts nevertheless laid down
certain general principles, for themselves, to guide
them in
the exercise of their discretion. Broadly speaking, the exercise of
the Court's
discretionary power appears to have been
influenced by considerations of justice and fairness,
having
regard to all the facts and circumstances of the particular case. The
onus of showing the
existence of sufficient cause for relief
was on the applicant in each case, and he had to satisfy
the
Court, inter alia, that there was some reasonably satisfactory
explanation why the judgment
was allowed to go by default. It
follows from what I have said that the Court's discretion under
the common law extended beyond, and was not limited to, the
grounds provided for in Rules 3
and 42 (1), and those
specifically mentioned in the Childerley case.”
[27]
The Appellate Division in the above matter at 1044D refused to
exercise its discretion
in favour of the applicants for a rescission
of judgment since they were: “
The authors of their own
problems and it would be inequitable to visit the other party to the
action with the prejudice and inconvenience
flowing from such
conduct.
”
THE RELIEF SOUGHT BY THE
APPLICANTS
[28]
In terms of the notice of motion the relief sought by the applicants
includes the
following:
[28.1]
For this court to condone the late service / filing of their
application;
[28.2]
That the rule 46A order, i.e. the order granted by this court on 14
March 2018
under this same case number declaring the property
specially executable, be rescinded and set aside;
[28.3]
Interdicting the estate and the Sheriff from proceeding with the sale
in execution
of the property on auction, which auction was set to
take place on or around January 2020;
[28.4]
That the applicants be granted a period of three months within which
to appoint
an accredited third party auditor in order to determine
the actual outstanding balance due and payable by them to the estate
as
per the interim report compiled on behalf of the applicants;
[28.5]
That the estate be compelled to provide the applicants with access to
the estate’s
levy statements from inception of occupation in
order for the applicants to determine the actual outstanding balance
due and payable
by the estate;
[28.6]
That the estate be compelled to apply for the taxation and/or other
assessment
of the legal and/or related costs charged to the levy
account of the applicants since inception of the legal action
proceeding
against the applicants from or about June 2016 until
current, for determination of reasonableness;
[28.7]
That the termination be made whether the interest charged by the
estate is reasonable
in terms of the memorandum of incorporation
unique to the estate under the Companies Act and the Regulations
and/or the Conventional
Penalties Act;
[28.8]
In the interim that the applicants extinguish the actual full
outstanding arrear
levy amount within a period of 12 months in equal
instalments pending determination of this application; and
[28.9]
Directing that those respondents who oppose this application pay the
costs thereof.
[29]
The applicants are therefore not seeking an order that the
Magistrates’ Court
order be set aside (not finding that they
could have done this before this court), which order forms the basis
of their indebtedness
to the estate, upon which the estate applied
for and was granted the rule 46A order for the property to be
specially declared executable,
based upon which the estate caused the
writ of execution to be issued.
CONDONATION
[30]
Rule 27 of the rules provides as follows:
“
(1)
In the absence of agreement between the parties, the court may upon
application on notice and
on good cause shown, make an order
extending or abridging any time period prescribed by these rules or
fixed by an order extending
or abridging any time for doing any act
or taking any step in connection with any proceedings of any nature
whatsoever upon such
terms as to it seems meet.
(2)
Any such extension may be ordered although the application therefor
is not made until after
expiry of the time period prescribed or
fixed, and the court ordering any such extension may make such order
as to it seems meet
as to the recalling, varying or cancelling of the
results of the expiry of any time so prescribed or fixed, whether
such results
flow from the terms of any order or from these rules.
(3)
The court may, on good cause shown, condone any non-compliance with
these rules.
(4)
…
”
[31]
An
applicant in an application in terms of rule 27 must therefore show
good cause. This gives this court a wide discretion and it
has been
found that not only must the delay be explained, but regard must be
had to the merits of the matter seen as a whole.
[1]
[32]
In
Dalhouzie
v Bruwer
[2]
Bakers AJ considered the development of the requirements for “
good
cause
”
as envisaged in rule 27 of the rules, and found as follows:
[3]
“
In
the light of the foregoing, I am of opinion that the present Rule,
i.e. Rule 27 (1) and (3), should, subject to certain qualifications,
be interpreted as was Transvaal Rule 33: that is to say, that it
requires defendant to say on oath that he has a good defence,
and
requires him further to set out sufficient information to enable the
Court to come to the conclusion that the defence is bona
fide and not put up merely for the purpose of delaying
satisfaction of the plaintiff's claim. The defendant does not, as a
rule of law, necessarily have to set out the nature of his defence
nor does he necessarily have to make out a prima facie defence
in his affidavit. There may be occasions, however, when he will
be obliged to do one or the other or even both, in order to
satisfy
the Court that he is bona fide in his intention to defend;
whether he will be so obliged or not will depend upon, inter
alia, the amount of information which the Court can abstract from the
pleadings which may be before it. The conclusion to which
I have come
seems to be in conformity with the result in
Paterson,
N.O v Standard Bank of S.A. Ltd
.,
1967
(4) SA 524
(E)
,
a case decided under the Uniform Rules. In that case the delay in
entering appearance was adequately explained and the Court was
satisfied that
there
was a good and bona fide defence. There is no statement in
the report as to whether details were given to explain
what the
defence actually was; but the Court did not in terms say that it
required them.
”
[33]
The court
found in
Benade
v Absa Bank Limited
[4]
that three requirements have been crystallised concerning the
requirement of “
good
cause
”
in rule 27(1) of the rules:
[5]
[33.1]
An applicant should file an affidavit satisfactorily explaining the
delay. The
applicant must at least “
furnish an explanation
of his or her default sufficiently fully to enable the Court to
understand how it really came about and to
assess his or her conduct
and motives.
”
[33.2]
The applicant must, under oath, satisfy the Court that his or her
defence “
is not patently unfounded and that it is based upon
facts, which, if proved, would constitute a defence.
”
[33.3]
The plaintiff must not be prejudiced in such a way that cannot be
compensated for
by a suitable order as to postponement and costs.
[34]
In this matter, seeing that the rule 46A order was granted on 14
March 2018 and that
this application to review and set aside the
order was served on the estate only on 22 January 2020, the delay
that the applicants
were required to sufficiently fully explain to
enable this court to understand how it really came about and to
assess their conduct
and motives is a period of nearly two years.
(This is if it is ignored that the Magistrates’ Court order
upon which the rule
46A order was obtained, was already granted
nearly a year and a half before the rule 46A order.)
[35]
In paragraphs 7.1 and 7.2 of the founding affidavit applicants
attempt to explain
that they were not in wilful default. It is
explained in this regard that:
“
The Applicants
has (sic) not been able to defend the action proceedings and place
their personal circumstances before the Honourable
Court in defence
of the execution of the property. This is due to the fact that they
were unaware of the action proceedings from
inception. Further, the
Applicants as a diligent residences (sic) of the association, cannot
be subjected to excessive, exorbitant
and unreasonable charges that
have the consequence of severe prejudice.
”
[36]
This of course does not explain why they were in default when the
rule 46A order
was granted against them.
[37]
In paragraph 7.3 under the heading “
CONDONATION
”,
it is stated that:
“
The
Applicants’ reasons for not opposing the application
comprehensively at the first instance and the Applicants’
reasons for not applying for relief at an earlier stage were because,
the Applicants were unaware of the action proceedings from
inception;
further the Applicants naturally had financial constraints that
resulted in the Applicants unable to properly instruct
legal
representation timeously and/or at the given period of
knowledge/awareness. Hence the Applicants; as individual persons,
only recently after securing the necessary legal resources (fees);
and further after engaging their legal representation and receiving
the necessary advice have launched this application. This is in order
for them to finally place relevant and concrete facts before
the
Honourable Court.”
[38]
It is then in paragraph 7.4 of the founding affidavit concluded that:
“
The values of
fairness and equity dictate that each and every matter be considered
according to its merits or personal circumstances.
As such the
Applicant (sic) has attempted to explain to the Honourable Court the
background regarding the judgment debt.
”
[39]
In paragraph 8.2 of the founding affidavit it is stated under the
heading “
SUMMARY OF APPLICANTS CONTENTION
” that:
“
To the extent
that it may be necessary, I ask this court to condone the late
bringing of this application as the basis for the lateness
has been
explained in the body of the affidavit and further because no
prejudice will be suffered by any party as a result of that
lateness.
”
[40]
As I see it, the applicants’ explanation for their default is
wholly insufficient
to explain their delay in this matter. They for
instance do not even say when they became aware of the Magistrates’
Court
order granted on 14 July 2016, i.e. approximately a year and a
half before the rule 46A order and why they have still not done
anything in an attempt to set that order aside. They also do not
attempt to make out a case that that order ought to be set aside
by
that court. It was submitted before me by counsel for the applicants
that they first have to apply for the rule 46A order to
be set aside
as it “
trumps
” the Magistrates’ Court order.
It was submitted that they would deal with the Magistrates’
Court order at a later
stage because it does not trump the order of
this court.
[41]
In any event, since the Magistrates’ Court order further
charges and levies
accrued to their account, which by the time this
application was instituted amounted to R186,295.74. The applicants do
not deny
liability for a reasonable amount to the estate. However,
they contend that the R186,295.74 is an unreasonable amount.
[42]
It appears, however, that the estate has not yet instituted action to
recover the
amount for which they are indebted over and above the
judgment debt of the Magistrates’ Court order.
[43]
As I see it (accepting that this is without having the benefit of
seeing the Magistrates’
Court order, the rule 46A order, or for
that matter the warrant in execution), the order declaring the
property executable could
only have been for the R48,924.08 amount of
the Magistrates’ Court order, together with perhaps interest
and costs at that
stage.
[44]
The applicants also fail to explain exactly when they became aware of
the rule 46A
order, which they now ask this court to rescinded and
set aside.
[45]
It was submitted by counsel for the applicants before this court that
the period
that had to be explained was a period of only
approximately four months counted from 2 August 2019 when a writ was
obtained and
served upon the applicants. It was submitted that the
applicants had issues with finances. They approached their attorneys,
but
they were only really informed about the order by 28 September
2019 through an email sent to the applicants. It was submitted that
it was only then that they applicants approached their attorneys to
set the ball in motion. It was submitted that at that point
finances
were still “
a bit of a problem
”. It took time to
really get to a point where the attorneys could really come on board
and really get down to the business
of assisting in the consultations
and in the drafting of papers. It was submitted that the explanation
is simply to say that there
was some back and forth regarding how the
applicants will service the instructing attorneys and that it took
four months to really
get finalised and to get the papers drafted by
the attorneys. All of this is of course not explained in the
applicants’ papers.
As I see it, the delay is simply left
unexplained. Even on the applicants’ version it is not
explained why it took them four
or five months after they allegedly
became aware of the order, to launch their application.
[46]
As I see it, the applicants therefore failed to furnish this court
with an explanation
of their default sufficiently fully to enable
this court to understand how it really came about to assess their
conduct and motives.
On the face of it, they merely let this whole
matter lie since 2016 when the Magistrates’ Court order was
obtained against
them and only jolted into action when it became
clear that the estate caused a writ to be issued and for the property
to be sold
on execution and an auction arranged for January 2020.
[47]
As I see it, the applicants have also failed to satisfy this court
under oath that
their defence is not patently unfounded and that it
is based upon facts, which, if proved, would constitute a defence.
[48]
It is important in this regard to remember that the Magistrates’
Court
order formed the basis of the rule 46A order, which declared
the property specially executable, and then of the writ of execution
served on the applicants.
[49]
The applicants make out no case that they were not indebted to the
estate for at
least the judgment debt of R48,924.00 together with
possibly interest and legal charges, which was ordered against them
by the
Magistrates’ Court. The high water mark of their case
seems to be that the outstanding fees funning up to R186,295.74 are
unreasonable. However, the further added amounts to the account are
obviously not relevant in so far as the execution process is
concerned. Coupled with this is of course the admission on behalf of
the applicants that they know they are indebted to the estate,
but
dispute the extent of that indebtedness. On no version would that
indebtedness be lower than the execution debt obtained against
them
in terms of the Magistrates’ Court order.
[50]
In the result, the applicants have not made out a case that their
defence is not
patently unfounded and that it is based upon facts,
which, if proved, would constitute a defence.
[51]
On the third requirement, namely that the estate must not be
prejudiced in such a
way that cannot be compensated for by a suitable
order as to postponement and costs, the applicants have also failed
to make out
a case. The estate has by now been struggling to obtain
payment from the applicants since at least 2014. As I see it, they
ought
not to be prejudiced any further.
[52]
Under the circumstances, in my view, the applicants’ failure to
bring their
application timeously ought not to be condoned.
[53]
The applicants are, in the words of Trengove AJA, as he then was, in
the matter of
De Wet and others v Western Bank Limited
supra
:
“
The authors of
their own problems and it would be inequitable to visit the other
party to the action with the prejudice and inconvenience
flowing from
such conduct.
”
THE SETTING ASIDE OF THE
RULE 46A ORDER
[54]
Even if I am wrong not to grant condonation, the considerations above
apply equally
in the exercise of my discretion not to set the rule
46A order aside.
[55]
In my view, the applicants have failed to give a reasonable (an
obviously acceptable)
explanation for their default. They have also
not showed that their application is made
bona fide
; and they
failed to show that on the merits they have a
bona fide
defence, which
prima facie
carries some prospect of success.
[56]
The applicants failed in this regard to show that this court granting
the rule 46A
order did not properly consider all the considerations
they now, for the first time, raise as part of their founding papers.
[57]
No case is even attempted to be made out that the Court granting the
rule 46A order
was not perfectly correct in granting the order. Under
the circumstances of this matter it is clear that this court was
correct
in granting that order.
THE TEMPORARY INTERDICT
WHICH THE APPLICANTS SEEK
[58]
It was accepted at the hearing by counsel for the applicants that in
order for the
applicants to succeed with the interdict they apply for
against the estate and the Sheriff from proceeding with the sale in
execution,
and the ancillary relief for their levy account to be
scrutinised and abated, the applicants have to satisfy the
requirements of
an interim interdict.
[59]
It
is trite that the requirements for an interim interdict, which need
to be satisfied by an applicant, are as follows:
[6]
[59.1]
A
prima facie
right;
[59.2]
A well-grounded apprehension of irreparable
harm if the interim relief is not granted and the ultimate relief is
eventually granted;
[59.3]
A balance of convenience in favour of the
granting of the interim relief; and
[59.4]
The absence of any other satisfactory
remedy.
[60]
The applicants have not expressly addressed any of the above
requirements as part
of their papers. In any event, as I see it, they
have clearly not established that they have a
prima facie
right. Such a right under the circumstances would have had to entail
that they have a
prima facie
right for the rule 46A judgment
to be set aside. They have failed to show this. In addition, they
should have showed a
prima facie
right to challenge the
correctness of their outstanding account of R186,295.74 (to some
extent not made up of the judgment debt),
with levies and interest
and costs that accrued since the Magistrates’ Court order was
granted against them in 2016. As I
see it, they also failed to do
this. The high water mark of their allegations in this regard is that
they have appointed an expert
to scrutinise the account, a copy of
whose report is attached to their affidavit, but the conclusion then
being that the expert
requires more information. There is no
supporting affidavit by the alleged expert to show on a
prima
facie
basis that the account is for any significant amount made
up of unreasonable amounts.
[61]
Although the applicants may have a well-grounded apprehension of
irreparable harm,
if the interim relief is not granted, i.e. that
they may lose their residential home, this does not suffice. The
balance of convenience
is clearly in favour of the estate in that the
applicants have now not paid their levies due for years.
[62]
They obviously also have another satisfactory remedy, namely to pay
the judgment
debt and then in the normal course attempt to sort out
their arrears account.
[63]
They can obviously also dispute their indebtedness in accordance with
the levies
account, over and above the judgment debt, if the estate
institutes action against them for recovery of the amounts over and
above
the Magistrates’ Court order amount. As part of any such
further action, they can also call upon the estate to discover all
the relevant statements and levy accounts, which they can then test
with their alleged expert for reasonableness.
COSTS
[64]
I see no reason why costs should not follow the event.
[65]
Under the circumstances the following orders are made.
ORDER
1.
The applicants’ application is dismissed with costs.
H
G A SNYMAN
Acting
Judge of the Gauteng High Court
Pretoria
Virtually
heard: 24 February 2021
Electronically
delivered: 10 May 2021
Appearances:
For
the applicants:
Adv
NM Ncube, instructed by CSM Attorneys
For
the first respondents:
Adv
Christiaan Jooste, instructed by Jukes Malekjee & Associates
[1]
Gumede
v Road Accident Fund
2007 (6) SA 304
(C) at 307C-308A;
Du
Plooy v Anwes Motors (Edms) Bpk
1983 (4) SA 212
(O) at 216H-217A.
[2]
1970
(4) SA 566
(C)
.
[3]
At
574H
– 575C
.
[4]
2014
JDR 1155 (WCC)
.
[5]
At
[10]
.
[6]
Setlogelo
v Setlogelo
1914
AD 221
at 227
and
Erikson
Motors (Welkom) Ltd v Protea Motors Warrenton and Another
1973
(3) SA 685
(A) at p 691
.
Also see Prest,
The
Law & Practice of Interdicts
,
Juta, at pp 50 and 51.