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[2019] ZALMPPHC 64
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Mphepya v Mokhonoana (1512/2018) [2019] ZALMPPHC 64 (5 December 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 1512/2018
In
the matter between:
TIPE
SOLOMON BHAKOO MPHEPYA
APPLICANT
AND
STEPHINA
MOKHONOANA
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant has brought an application seeking a declaratory order
that he be declared
the owner of site number 527 Phola Park Section
Moshate. The respondent is opposing the applicant’s application
and has raised
two points
in limine.
The first point
in
limine
is that of alleged non-compliance with Rule 6(5) (d) (ii)
of the Uniform Rules of Court, and the second one is that of
non-compliance
with Rule 50 of the Uniform Rules of Court.
[2]
With regard to the first point
in limine
, the respondent is
alleging that in terms of the applicant’s notice of motion, she
was required to file her answering affidavit
within 5 days instead of
15 days. With regard to the second point
in limine
, the
respondent is alleging that the same dispute has been decided at
Mogalakwena district court under case number 443/2011 wherein
she was
declared the owner of the property. The losing party at Mogalakwena
district court lodged an appeal to North Gauteng High
Court,
Pretoria, wherein the appeal was struck off the roll and the losing
party did not take the matter further. It is the respondent’s
contention that the order of Mogalakwena district court still stand.
[3]
The applicant in his replying affidavit has stated that the 5 days
was a typing error, hence
they did not take any steps even after the
respondent did not file her answering affidavit within 5 days. With
regard to the second
point
in limine
, the applicant has stated
that he was not a party to the proceedings, but the matter was
between the respondent and one Hlahla
Malatji.
[4]
In terms of the applicant’s notice of motion, the respondent
was required to file
her notice to oppose within 5 days of being
served with the application, and thereafter to file her answering
affidavit within
5 days of filling of the notice of intention to
oppose.
[5]
The respondent has filed her notice of intention to oppose on the 6
th
April 2018 and the answering affidavit on the 3
rd
May
2018. The answering affidavit was filed outside the 5 days period as
stated on the notice of motion, and also outside the 15
days period
as required by the Uniform Rules of Court (the Rules). The respondent
has made an application for condonation for late
filing of her
answering affidavit, which application the applicant did not oppose.
[6]
In terms of Rule 6 (5) (d) (ii), any person opposing the grant of an
order sought in the
notice of motion must within fifteen days of
notifying the applicant of his or her intention to oppose the
application, deliver
his or her answering affidavit, if any, together
with the relevant documents. It is common cause that the applicant’s
notice
of motion state 5 days instead of 15 days.
[7]
In terms of Rule 27 (3) a court may on good cause shown, condone any
non-compliance with
the rules. The determining factor is whether the
breach of the rule renders the application a nullity, and also what
prejudice
did the respondent suffer.
[8]
In
Nampak
Products Ltd v Sweetcorn (PTY) Ltd
[1]
Ackermann J said:
“
In Kruger v
Minister of Police
1981 (1) SA 765
(T) at 768,
a case relied on by Mr Berg, it was held that where what has been
done amounts to a nullity it cannot be condoned in terms of Rule
27
(3) but where there is a proceedings or step albeit an irregular or
improper one it is capable of being condoned regardless
of whether
the Rule which has not been complied with is directory or mandatory
and whether there has been substantial compliance
or not.”
[9]
The respondent has filed her answering affidavit. When filing her
answering affidavit,
she did not comply with the
dies
as
stated on the notice of motion and also the 15 days’ period
provided for in the Rules. In this court counsel for the respondent
has conceded that the respondent did not suffer any prejudice as a
result of the time period specified on the notice of motion.
The
respondent has proceeded to file her answering affidavit despite the
defective
dies
as stated on the notice of motion. In my view,
the 5 days’ time period instead of 15 days does not render the
applicant’s
application a nullity. I therefore, find that there
is sufficient cause to condone the applicant’s non-compliance
with Rule
6 (5) (d) (ii).
[10]
The second points
in limine
is that of non-compliance with
Rule 50. Rule 50 deals with civil appeals from magistrates’
courts. The application before
court is not a civil appeal from the
magistrate court. The point
in limine
based on Rule 50 seems
to be misplaced. However, the essence of the point
in limine
seems
to be that of
res judicata
.
[11]
It is settled law that the requirements for the defence of
res
judicata
are that there must be (i) concluded litigation; (ii) in relation to
the same parties; (iii) in relation to the same things; (iv)
based on
the same cause of action.
(See
Mulaudzi v Old Mutual Life Assurance Company (South Africa) Ltd)
[2]
[12]
The parties under case number 443/2011 which was decided at Mokerong
magistrate court were the respondent,
Hlahla Malatji and Mokalakwena
Municipality. The applicant was not a party to the proceedings. The
cause of action in that matter
was an eviction application launched
by the respondent against Hlahla Malatji. The matter under case
number 443/2011 might have
involved the same property which is the
subject of the dispute in the present case and the dispute at
Mokerong has been concluded.
However, it still lacks the other two
essential elements which are in relation to the same parties and same
cause of action.
[13]
The parties in the present application are not the same as the one
under case number 443/2011. The cause
of action in the present
application is that of a declaratory order, whilst under case number
443/2011 is that of eviction. I am
therefore satisfied that the
requirements of
res judicata
have not been satisfied for the
respondent to succeed with her second point
in limine
.
[14]
In the result I make the following order:
14.1 The respondent’s
two points
in limine
are dismissed with costs on party and
party scale.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR
APPLICANT : ADV MAWELA
INSTRUCTED BY
:
MAPHOTO INCORPORATE ATTORNEYS
COUNSEL FOR RESPONDENT
: MR SH NYOFFU
INSTRUCTED BY
: NYOFFU ATTORNEYS
DATE OF HEARING
: 04
NOVEMBER 2019
DATE OF JUDGEMENT
:5
TH
DECEMBER 2019
[1]
1981 (4) SA 919
(T) at 922
[2]
2017 ZASCA 88
(6
th
June 2017))