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[2021] ZAGPJHC 429
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Khunou v Sebesho and Another In re: Sebesho v Khunou and Another (24798/17) [2021] ZAGPJHC 429 (13 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
13/9/2021
CASE
No 24798/17
In
the matter between:
KHUNOU,
JA
Known
as Mofedi,
Maki
Applicant
and
PK
SEBESHO
First Respondent
MASTER
OF THE HIGH COURT
(JOHANNESBURG)
Second Respondent
IN
RE:
CASE
NO. 24798/17
In
the matter between:
PK
SEBESHO
Applicant
and
JN
KHUNOU,
Known
as MOFEDI,
MAKI
First Respondent
THE
MASTER OF THE HIGH COURT, JOHANNESBURG
Second Respondent
JUDGMENT
MAHOMED, AJ
This
is an application for rescission of a judgment granted on 22 August
2019, by my brother, Matojane J. The applicant applied
for a
rescission of this judgment in terms of Rule 42(1) (a), on the basis
that the order was erroneously sought and granted, and
in her
absence.
BACKGROUND
1.
The applicant is an adult female who, lives
in her home in the Meadowlands Township, which she inherited from her
parent. It is
alleged that she is the sole heir in the deceased
estate.
2.
The First Respondent is described as a
pensioner, her papers do not set out her interest in this matter
other than as applicant
in two motions she launched in respect of the
property in the deceased estate.
3.
In her first motion issued in August 2017,
the First Respondent, sought to declare the transfer and registration
of the property
which the applicant occupies, null and void. This
motion is opposed, opposing papers were served in September 2017, a
replying
affidavit was filed in January 2018 and this matter is since
pending.
4.
On 7 December 2018 the first respondent
served the second motion on the applicant wherein she sought a
cancellation of the letters
of authority granted in respect of this
deceased estate. The property the applicant occupies is an asset in
the estate. The applicant
seeks a rescission of the order granted in
this motion.
5.
It is noteworthy that the two motions
relate to procedures that are interrelated and are stages in the
reporting of a deceased estate
and its consequences.
6.
Mr Backus appeared for the applicant and
informed the court that the matter was previously before van Eerden
AJ on an unopposed
basis, when he attended court and advised the
court that the matter was opposed.
6.1.
On the day the matter was removed from the
roll for the applicant to file her answering papers.
6.2.
The applicant served a notice of exception
to remove cause of complaint in this second motion and later an
application to remove
cause of complaint in terms of Rule 23.
6.3.
This exception is opposed. On 15 August
2019 the first respondent served her answering affidavit to the
exception.
6.4.
It is not disputed that an exception is
still to be argued.
THE EVIDENCE
7.
Mr Backus informed this Court that he noted
on 15 May 2020 only, upon perusal of an email from the first
respondent’s attorney,
in which he was advised of an amendment,
that an order was granted in this motion. He immediately contacted
the applicant and noted
she was not aware of the order, whereupon he
took instructions to apply for a recession of the order.
7.1.
During that period the national lockdown
posed difficulties for all, particularly in the movement of people
and the provision of
services. In June 2020 the applicant finalised
the papers in this application when they were duly served.
7.2.
He submitted that the applicant acted
within reasonable time of becoming aware of the order.
8.
He further submitted that the applicant
suffers prejudice in that the order granted has effectively placed
her living in her home,
which she inherited, in jeopardy. She was
never afforded an opportunity to place her version before a court or
even before the
Master who granted the letters of authority.
9.
Counsel for the first respondent, Mr
Mokhabukhi, submitted that the applicant was, directed to file her
answering papers, on the
last occasion, by van Eerden AJ, when the
matter was initially on the unopposed roll and failed to do so.
10.
He alleged the applicant’s attorney
was negligent and that the first respondent should not be unduly
prejudiced by the applicant’s
attorney’s failure to file
papers.
11.
He submitted further, that it is not
disputed that an electronic set down was served and that the
applicant was aware of the date
on the unopposed roll.
12.
It is not disputed that a final notice of
set down, in terms of the Rules, was not served. Counsel for the
first respondent was
unable to direct the court to the set down
notice.
13.
Mr Mokhabuki submitted that the order was
properly sought and granted, as the applicant’s attorney failed
to file the answering
papers, he knew of the date of set down on the
unopposed roll and that the first respondent was entitled to obtain
the order on
an unopposed basis.
13.1.
He submitted further that the letters of
authority were fraudulently obtained. The second respondent would
have to, in any event,
review the issue of the same letters of
authority and therefore the rescission would be futile, as parties
would still have to
traverse the same process of the proper reporting
of the estate and consideration of issue of letters of authority.
13.2.
In reply, Mr Backus submitted that there is
no evidence to support the allegations of fraud, or any proof or
confirmation of any
investigation being conducted by the second
respondent into such allegations.
13.3.
He submitted that at this stage the facts
are all anecdotal and a court is entitled to know the full facts upon
granting of an order
of court.
14.
On 22 August 2017, my brother Matojane J,
granted an order, to cancel the letters of authority on an unopposed
basis.
THE LAW
Condonation
15.
The applicant for condonation must show
good cause for a court to condone noncompliance with the Rules of
court. A “valid
and justifiable reason must exist why
compliance did not occur and why noncompliance must be condoned.”,
GENERAL ACCIDENT INSURANCE CO. SA LTD v
ZAMPELI
1988 (4) SA 407
(C ) AT 410 I-J.
16.
A court has a wide discretion on good cause
shown.
RESCISSION in terms of
Rule 42(1)
17.
Rule 42 (1) provides:
“
the
court, may … , mero motu or upon application of any party
affected, rescind or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party
affected thereby
;”
18.
This is a procedural step to correct an
obviously wrong judgment or order.
19.
A court has a discretion to grant a
rescission where the applicant through no fault on her part, was
denied an opportunity to oppose
the order granted against her.
20.
The rule contemplates that the applicant
must have a direct and substantial interest in the subject matter of
the judgment or order
granted to intervene in the original
application to which the order was granted.
21.
The crucial inquiry here is “whether
a judicial officer, would have granted the order, had he/she been
aware of the facts
that would have precluded her/him from granting an
order.
Exception
22.
Rule 23 is described as,
“ …
a
remedy… available when the objection goes to the root of the
opponent’s claim or defence
.
”
(
Herbstein and van
Winsen, vol 1 5
th
ed p 632)
23.
The exception is a “pleading”
…
24.
The rule is, “…
designed
to dispose of pleadings which are so vague and embarrassing that an
intelligible cause of action or defence cannot be ascertained
or to
determine such issues between the parties as can be adjudicated upon
without the leading of evidence. The aim of the exception
procedure
is thus to avoid the leading of unnecessary evidence and
to
dispose of a case in whole or in part in an expeditious and
cost-effective manner
.”
(p630) (emphasis added).
25.
A party may raise an exception instead of a
special plea.
Judgment
26.
The applicant has proffered a reasonable
explanation for the delay in the launching of this application for
rescission. The applicant
has also demonstrated that she has a direct
and substantial interest in this second motion, in which an order was
granted in her
absence.
27.
The subject matter of the motion relates to
the home she currently occupies and which she proffered she inherited
as the sole heir
to her mother’s estate.
28.
Clearly, the applicant is desirous of a
hearing on the matter as to her lawful possession and occupation of
her home.
29.
The issues of land and housing are highly
sensitive matters in the lives of any individual, more particularly
in the lives of vast
numbers of the people of this country. The
history of land and housing in this country is well document and a
right protected in
the Constitution of our land.
30.
The area of law of deceased estates, has
long been shrouded in mystery, and often an area of abuse,
particularly in the reporting
of small estates.
31.
I am of the view that she has not
unnecessarily delayed the launch of this application, she has
demonstrated a direct interest in
this matter and her desire to
obtain clarity on her right to ownership and occupation. She must be
afforded a hearing to fully
ventilate issues, accordingly the
application for condonation must succeed.
32.
The applicant is in fact attempting to
enforce her rights to a speedy trial, and clarity on her right to
lawfully live in her home.
33.
I inquired off counsel for the first
respondent, whether the attorney ought not to have made a telephone
call to inquire about the
opposing papers which may have been
overdue. He responded that they were not obliged to do so and
entitled to the order if an electronic
set down was served. Counsel
was adamant that the attorney for applicant was negligent and should
have followed the courts direction
to file the applicant’s
answering papers.
34.
This is indeed a disappointing response,
given that the first respondent concedes that she filed a notice to
oppose and her answering
papers to the application in terms of Rule
23 of the Uniform Rules of Court.
35.
In an application for the removal of a
cause of complaint, the applicant is afforded an opportunity to
dispense with the matter
at an “early stage and cost
effectively”. If the cause of complaint goes to the root of the
matter and she succeeds,
that will be the end of the matter. Costs
would have been limited and a finding made certain.
36.
There can be no dispute to a party seeking
a “quick resolution” of the matter, in fact it is the
ideal, given the exorbitant
costs of litigation today and the
pressures on the court rolls.
36.1.
At the hearing of this exception, the
pleadings as they appear are fully considered, sometimes on points of
law, affording the excipient
his or right to a hearing at an early
stage in the matter and a possible finalisation of matter.
36.2.
The first respondent, obviously,
refuses/does not see a reason to remove the cause of complaint, the
applicant is still prejudiced
by the pleadings and has therefore
launched a formal application to determine the nature, extent, and
impact of the offending pleading.
36.3.
A litigant cannot be denied this right by
any court, provided it has merit which will be determined by the
court who will be seized
with the matter, in the future.
36.4.
The evidence is that the first respondent’s
answering papers, have been filed and the exception is to be argued
and adjudicated
upon. That is where this matter stands procedurally.
The matter cannot be said to be unopposed.
37.
I am therefore of the view that were my
brother Matojane J, aware of the exception and its opposition
thereto, the Honourable Judge
would have understood the matter to be
opposed and would never have granted the order.
38.
Accordingly, I am of the view that the
order was erroneously sought, as the exception is to still to be
argued.
39.
It is not disputed that the exception was
taken and that it is opposed. Mr Mokhabuki is incorrect that the
first respondent is entitled
to the order as the matter is unopposed.
40.
The first respondent’s counsel has
overlooked the opposed exception which is to be heard.
41.
Accordingly, I find that the order was both
erroneously sought and erroneously granted.
I
make the following order:
1.
The late filing of this application is
condoned.
2.
The order granted on 22 August 2019 is
rescinded.
3.
The first respondent is to pay the costs of
this application.
MAHOMED
AJ
Date
of hearing :
26 August
2021
Date
of Judgment:
13 September 2021
Appearances:
For
applicant:
M Backus
Backus
Attorneys
Cell.
073 000 0369
Email:
info@bkslegal.co.za
For
Respondent:
M Mokhabukhi
Mohabukhi
Attorneys
Tel:
011 338 6000
Email:
ngwakomokhabukhi@gmail.com