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[2019] ZAWCHC 95
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Adendorff and Another v Theewaterskloof Municipality (A220/2018) [2019] ZAWCHC 95 (10 May 2019)
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No: A220/2018
In
the matter between:
PAUL
DAN IVAN
ADENDORFF First
Appellant
YOLANDI
MARGARIET
ADENDORFF Second
Appellant
and
THEEWATERSKLOOF
MUNICIPALIY Respondent
JUDGMENT DATED: 10 MAY 2019
LE
GRANGE, J
:
[1]
This is an Appeal against the whole of the Order and Judgment handed
down by the Magistrate of Caledon in terms of which the
rescission
application by the Appellants was dismissed with costs.
[2]
The Respondent instituted two separate actions against the Appellants
in the Caledon Magistrate’s Court under case numbers:
444/2017
and 445/2017, claiming payment of R81 263.81 and R277 481.46,
respectively (‘the actions’). The
amounts claimed were in
respect of water, electricity usage; and or services rendered and or
property taxes on Erf 1562, Genadendal
and Erf 510 Genadendal (‘the
properties’)
[3]
On 4 July 2017 Default Judgment was granted by the clerk of the Court
in the actions (‘the default judgment’).
[4]
On 12 September 2017 the Appellants launched an application for the
rescission of the Default Judgments (‘the Rescission
Application’). The Rescission Application was opposed by the
Respondent, who filed an opposing affidavit. The Appellants
did not
file a replying affidavit in the Rescission Application. The
Appellant’s complaint in the court
a
quo
was in essence that the Default Judgment was erroneously granted by
reason that the Municipality misled the court
a
quo
,
did not provide a full background of the matter and that the
Municipality lacks the necessary
locus
standi
to recover municipal services and rates from the Appellants.
[5]
The Magistrate in terms of Rule 51 of the Magistrate’s Court
Rules handed down the reasons for refusing the Appellants
Application
for Rescission of the said Judgments. The reasons provided can be
summarised as follows. The Magistrate found firstly,
that the clerk
of court correctly granted the Default Judgment as the summonses were
properly served upon the Appellants and they
omitted to timeously
react upon it. Secondly, the Municipality did not mislead the court
in the Application as the two erven in
question do not form part of
the Trust Land referred to in The Transformation of Certain Rural
Areas Act 94 of 1988, as the land
described as Farm 39 as per the
Deeds Officers report that was annexed to the Appellant’s
papers as “GT1”. Thirdly,
the Municipality had the
necessary
locus
standi
,
to recover the outstanding rates and taxes and lastly, it was found
that there are indeed persons or individuals who held private
and
individual Title Deeds in Genadendal.
[6]
It needs to be mentioned that the matter was initially set down on 14
September 2017 for hearing. On 12 September 2017, Desai,
J et
MacWilliam AJ, postponed the matter to a date to be determined by the
Registrar and ordered that the Appellants pay the costs
of the
postponement of the Appeal. It appears that on 20 July 2018, the
appeal had lapsed in terms of the Uniform Rules of this
Court. On 24
July 2018, the Appellants apparently obtained certain funds from the
Genadendal Transformation Committee to prosecute
the Appeal and
Application was brought to re-instate the Appeal. On 21 February
2019, and by agreement between the parties the
Judge President
postponed the matter for hearing on 22 March 2019 and there was no
order as to the costs. On 7 March 2019,
and having filed Heads
of Argument, the Appellants legal team withdrew from record. On 22
March 2019, the First Appellant was in
person and indicated that the
withdrawal of his legal team caught him unaware and created a dilemma
to him as they had been on
this matter for some time. The First
Appellant requested a further postponement to obtain legal
representation. Reluctantly, a
further postponement was granted to 26
April 2019 and the cost occasioned by the postponement stood over for
later determination.
[7]
Ultimately, the First Appellant appeared in person. He also had the
Second Appellant’s interest at heart as they are legally
married in community of property. Adv. A Coetzee, a member of
the Cape Bar, appeared for the Respondent. Upfront, I wish
to express
my gratitude to Mr. Coetzee and his attorney for the approach in this
matter, having regard to the fact that the First
Appellant was in
person.
[8]
The Appellants in their founding affidavit, apart from the
explanation for the Default, essentially advanced two main defences,
to which I will return. The background to the area known as
Genadendal and its history, where the two erven in question is
situated,
was also referred to. The First Appellant is also the
treasurer of the Genadendal Transformation Committee. The Appellants
had
further attached a Memorandum from the office of the Minister of
Agriculture and Land Affairs (at the time) dated April 2009 (“the
Memorandum”). According to the Memorandum (
para.
2.3
),
there were 23 Rural Areas, formerly known as non-white reserves
situated throughout South Africa of which one is Farm 39 Genadendal,
known today as Genadendal and includes the areas of Bereaville,
Voorstekraal and Bosmanskloof.
[9]
Furthermore, it appears from a report compiled by Walkers Attorneys
dated 2 April 2012 “the Walkers Report” to which
the
First Appellant alluded to during argument, the Farm 39 Genadendal
was initially established as a “Missionary Station”
in
the early 1900’s. According to the Walkers Report, a Deeds
searched dated 12 April 2012 recorded that the size of Genadendal
is
4515.5279 hectares in extent and that the owner is the “Gemeenskap
Van Genadendal”. It needs to be mentioned that
the Walker
Report was not part of the appeal record. As the First Appellant was
a layperson, Mr Coetzee adopted the attitude, and
in my view
correctly, not to object to the Court having sight of the Report. The
Walkers Report essentially dealt with the “Township
Establishment of the remainder of the farm 39 Genadendal” and
the subdivision of certain portions of Genadendal from the
Mother
title. Although, there were no direct large scale subdivision from
the Mother title, it appears according to the Walker
report that some
subdivision did occur of which certain subdivided erven were
registered in the Deeds Office and others not. Be
it as it may,
ultimately the Walker report has at this stage very little to do with
the issues for consideration on appeal.
[10]
The Rural Areas Act, No. 9 of 1987 currently applies to the area of
Genadendal. In the Memorandum
(
para 1.1 and 2.1)
a
request was made to the Minister by the Department of Land Affairs
for approval to commence with the transitional period of 18
months
for the area of Genadendal in accordance the provisions of the
Transformation of Certain Rural Areas Act, No 94 of 1988,
“the
Transformation Act”. The principal aim of the Rural
Transformation Act is to allow the affected communities
to decide on
different options to secure land tenure. The Transformation Act,
s3(13) further provides that if any Trust Land is
not transferred at
the expiry of the 18 month transitional period, the Minister may
continue to hold such land in trust and
s/he may, at any time
thereafter, dispose of it in accordance with the provisions of the
Transformation Act.
(Memorandum,
para 3.7)
[11]
Since December 2000, the Genadendal area falls under the jurisdiction
of the Municipality. The Municipality has taken over
the functions of
the previous Local Transitional Council in accordance with The Rural
Areas Act and the Transformation Act.
(Memorandum,
para 3.8).
[12]
According to the Memorandum
(para 3.9)
, a pivotal section of
the Transformation Act is s 3(2). In terms of that Section
,..”
No transfer of land referred to in s 3(1) must take place, unless the
Minister is satisfied that, in the event of transfer
to-
(a)
a
municipality, the legislation applicable to such municipality , or
(b)
a
communal property association or other body approved by the Minister,
the rules of such a communal property or body,
Make suitable
provision for a balance of security of tenure rights and
protection of rights
of use of-
(i)
the
residents mutually;
(ii)
individual
members of such a communal property association or other body,
(iii)
present
and future users or occupiers of land,
and the public
interest of access to land on the reminder and the continued
existence or termination of any existing right or interest
of person
such land”
[13]
According to Appellants, the Transformation process had not been
finalised due to many technical and complicated legal issues.
To this
end, according to the Appellants, no private property or individual
Title Deeds are held, as the whole of Genadendal is
still entrusted
to the Minister. In support of the latter contention, the Appellants
relied on a Settlement Agreement entered into
between the Minister,
the Municipality and the Genadendal Transformation Committee in 2008
and which was made an order of Court
on 17 October 2008. In that
agreement the land described in a Deeds Office Report marked “GT1”
was regarded as the
Trust Land referred to in terms of the
Transformation Act. A moratorium was placed on the sale of the said
Trust Land and there
would also be no distinction between the terms
“Binnemeent” and “Buitemeent”. In
GT1, under
the column “Deductions” certain land is
described as ‘portions’ and other land was given ‘erf’
numbers. Eight of those erven amounting to 206.2451 hectares were
recorded as registered in the Deeds Office and have title deeds.
The
remainder i.e the area not included in the ‘portions or ‘erven’
amounting to 134.994 hectares was recorded
as unregistered. A further
column in GT1 reflects the following: “
The
registered remainder as on 2007/04/25 of Farm 39 = 4566.77 Hectares”
and “The unregistered remainder as on 2007/04/25
of Farm 39 =
4431.7307 Hectares”.
The Appellants hold the view that their property forms part of the
land as described in GT1.
[14]
The Municipality disagrees with the Appellants on this issue and has
a different view. According to the Municipality, the Appellants
are
the legal title holders of the said erven since November 1988 and as
such the property no longer belongs to the “Community
of
Genadendal”. According to the Municipality, the Transformation
Act and its processes are of no assistance to the Appellants
as the
said properties no longer form part of the Mother Title of
Genadendal.
[15]
Turning to the defences raised by the Appellants. First, the
Appellants explanation for the default was essentially as result
of
the acrimonious relationship between the Genadendal Transformation
Committee and the Municipality, they were under the impression
the
Municipality issued the summons purely to scare them as this has
happened in the past. As a result, the Appellants never entered
an
appearance to defend. The Appellants in this regard referred to a
criminal matter where the Municipality seemed to have been
the
complainant. The matter was however withdrawn against the First
Appellant due to lack of evidence. According to the Appellants
it was
only after they received a notice in August 2017 from the
Municipality that Judgment in Default was granted against them
that
they approached their erstwhile attorney. Soon thereafter, the
Municipality indicated it will not consent to the Rescission
of the
Judgments. A formal Application was then launched for the Rescission
of the Judgements.
[16]
The Municipality holds the view that the reasons proffered by the
Appellants for their Default is poor and demonstrates their
disregard
for the legal process in general. According, the Municipality, the
reasons for the default by the Appellants do not hold
muster for the
purposes of a Rescission Application as matters are on a regular
basis instituted against private title holders.
[17]
Secondly, the Appellants are of the firm view that the Minister
should be a party to these proceedings as all the land in Genadendal
is currently entrusted to the Minister. Moreover, as stated in
paragraph [13] above, the Appellants verily believe that they are
beneficiaries of land that is entrusted to the Minister and as such
the Municipality should look to the Minister to recover the
rates and
taxes. The Appellants also aver that s 17(1) g of the Municipal
Property Rates Act, 6 of 2004 is applicable to them.
Section 17(1)
provides that a Municipality may not levy a rate on a property
belonging to a Land Reform beneficiary or his or her
heirs, provided
that this exclusion lapses ‘
(i)
10 years from the date on which such beneficiaries title was
registered in the office of the Registrar of Deeds; (ii) Upon
alienation of the property by the land reform beneficiary or his or
her heirs, dependents or spouse.’
The Appellants also complained that the simple summons issued by the
Municipality was vague and embarrassing as the liquid amount
claimed
was not easily ascertainable. According to the Appellants, the
summons failed to indicate the period of service rendered
and the
amounts that it claimed for that period. There was also no summary of
the electricity that was delivered, how it was metered,
at what price
it was metered and for what period.
[18]
The Municipality’s answer to the Appellants second defence is
that the properties in question were registered in the
Office of the
Registrar of Deeds since 1997 and 1998, in the names of the
Appellants. Accordingly, the Municipality held the view
that it
collects rates and taxes directly from the owner of the land.
Moreover, the properties in question do not belong to the
“Community
of Genadendal”. Furthermore, the Municipality is adamant that
the Appellants are not beneficiaries from
a land reform process,
where land was entrusted to the Minister and that the provisions of s
17(1)G do not apply to them. The Municipality
also denies the
assertion that the claim in the summons was vague and embarrassing.
According to the Municipality, a simple summons
can be used for
claims of that nature and if properly defended a declaration could be
filed and the amount can easily be determined
by a statement of
account.
[19]
The third defence of lack of jurisdiction by the Municipality flows
directly from the second. According to the Appellants,
the
Municipality lacks the necessary authority and jurisdiction to
enforce legal action against them due to the legislative framework
that is currently operating in Genadendal. The Municipality denies
this claim on the same grounds as articulated in the answer
to the
second defence of the Appellants.
[20]
Rescission
Applications are dealt with in terms of section 36 of the
Magistrate’s Court Act 32 of 1944 read with Magistrate’s
Court rule 49. In this instance Default Judgments were granted in the
absence of the Appellants. Accordingly, section 36(1)(a)
finds
application. It provides that:
‘
The
court may, upon application by any person affected thereby, or, in
cases falling under paragraph
(c),
suo
motu -
(a)
rescind
or vary any judgment granted by it in the absence of the person
against whom that judgment was granted
[21]
Magistrate’s Court Rule 49 deals, more fully, with Rescission
Applications and prescribes the procedure to be followed
and the
contents of the Affidavits which must be filed in support of
Rescission of the Applications.
Rule 49(1) provides as follows:
‘
(1) A
party to proceedings in which a default judgment has been given, or
any person affected by such judgment, may within 20 days
after
obtaining knowledge of the judgment serve and file an application to
court, on notice to all parties to the proceedings,
for a rescission
or variation of the judgment and the court may, upon
good
cause
shown, or if it is satisfied that there is
good
reason
to do so, rescind or vary the default judgment on such terms as it
deems fit’
[22]
The approach adopted by our courts in dealing with abovementioned
sub-rule has been fully discussed by the authors Jones and
Buckle, in
‘The Civil Practice of the Magistrate’s Courts in South
Africa 10
th
Edition, Volume II at 49-5.’ The approach has been stated
as follows:
‘
In
terms of this sub-rule the court is not entitled to rescind or vary a
judgment if the Applicant fails to show ‘good cause’
for
relief or does not satisfy the court that there is good reason for
the rescission or variation for the judgment. If the Applicant
succeeds in showing good cause, it is still in the discretion of the
court to grant or refuse relief. This discretion must be exercised
judicially in the light of all the facts and circumstances of the
particular case as a whole. An application for rescission is
never
simply enquiring whether or not to penalise a party for his failure
to follow the rules and procedures laid down for civil
proceedings in
the court. The question is rather whether or not they explanation for
the default and any accompanying conduct by
the defaulter be it
willful or negligent or otherwise gives rise to the probable
inference that there is no bona fide defence and
that the application
for rescission is not bona fide. The Magistrate’s discretion to
rescind the judgments of his/her court
is therefore primarily
designed to enable him/her to do justice between the parties. S/He
should exercise that discretion by balancing
the interests of the
parties and also any prejudice that might be occasioned by the
outcome of the application. It has further
been suggested that a
measure of flexibility is required in the exercise of the courts
discretion and that apparently a good defence
may compensate for a
poor explanation.’
[23]
Applying the abovementioned approach to the Appellants’
Application, I respectfully disagree with the Magistrate’s
reasoning and conclusion that the Appellants failed to show ‘good
reason’ for the Judgments granted in default to be
rescinded.
[24]
The reasons proffered by the Appellants for their default may, on the
one hand be considered as a poor excuse but the fact
that they were
under the impression the Municipality issued the summons purely to
scare them, cannot simply be ignored if one has
proper regard to the
litigation history between the parties, which included a criminal
matter that was later withdrawn against
the First Appellant.
Moreover, the Magistrate in my view rather adopted an inflexible
approach in exercising her judicial discretion
and failed to properly
appreciate whether the Appellants defence(s) may compensate for what
she may have regarded as a poor excuse.
[25]
The finding by the Magistrate that
the
Appellants two erven do not form part of the Trust Land referred to
in The Transformation of Certain Rural Areas Act 94 of 1988,
is
unfortunate. It appears the Magistrate’s finding was largely
premised on the fact that the erven are registered in the
names of
the Appellants since 1997 and 1998 and as such they have not shown
good cause for the Rescission of the Judgments.
[26]
The requirement that the Applicant for Rescission must show the
existence of a substantial defence does not mean that s/he
must show
a probability of success: it suffices if s/he shows a
prima
facie
case, or the existence of an issue which is fit for trial. The
requirement that the Application to Rescind must be
bona
fide
means that it must be made with the intention of enabling the
Applicant to put his/her case before the court and not with some
other motive, such as delay.
[27]
In my view, the principal defence raised by the Appellants that the
land, including their erven, in Genadendal falls within
the scope and
ambit of the Transformation Act; the Minister needs to be joined as
party to the proceedings; that they are beneficiaries
of such land
reform and in terms of s 17(1) (g) of the Municipal Property Rates
Act, 6 of 2004, the Municipality may not levy a
rate on their
properties, does indeed raise the existence of a substantial defence
that is fit for trial.
[28]
The fact that the Appellants erven may have been registered in their
names since 1997 and 1998 does not summarily mean that
they are not
Land Reform beneficiaries. It is evident; the Appellants in their
founding affidavit have demonstrated a history to
Genadendal that
simply cannot be down-played or overlooked. To that extent,
litigation has been ongoing between the Genadendal
Transformation
committee, the Municipality and the Minister. To simply suggest that
the Municipality can
recover the outstanding rates and taxes from the Appellants as there
are other persons and or individuals who
held private and individual
Title Deeds in Genadendal, without the proper ventilation of the core
legal and factual dispute(s)
as raised by Appellants would be an over
simplistic approach to this matter and would not do justice between
the parties. Moreover,
there are large portions of land as
illustrated in G1 with Title Deeds that indeed fall within the ambit
of the Trust Land. Lastly,
if granted the opportunity to defend the
claim(s), the Appellants would be able to get a proper statement of
account from the Municipality
as to how the amounts of monies were
computed and over what period.
[29]
For all the above-mentioned reasons, I am satisfied that the
Appellants have shown good cause and reason to Rescind the Judgments
granted by Default in their absence.
[30]
It follows that the appeal should succeed and that the Default
Judgments granted by the clerk of the Magistrate’s Court
should
be set aside and the Appellants be granted leave to defend the claim
against them.
[31]
As to costs, it is evident that on two occasions the matter was
postponed at the request of the Appellants. On the first occasion
an
order was made on 12 September 2017, that the Appellants pay the
costs of the postponement of the Appeal. On the second occasion
on 22
March 2019, the issue of costs stood over. On that day, the
Appellants wanted to secure legal representation. Having regard
to
the history of this matter and taking into account that the
Appellants are ultimately successful in the appeal, I am of the
view
that it would be somewhat harsh and unjust to saddle the Appellants
with a cost order for merely seeking a postponement to
secure legal
representation.
[32]
In the result the following order is made:
1.
The Appeal
succeeds with costs. The Default Judgments granted by the clerk of
the Magistrate’s Court in case numbers 444/17
and 445/17 in the
amounts of R 277 481.46 and R 81 263. 81, respectively with
costs are set aside and substituted with
the following: “
The
Application for Rescission of the Default Judgments granted in case
numbers 444/17 and 445/17 in the amounts of R 277 481.46
and R
81 263. 81 respectively, succeed with costs. The Applicants are
granted leave to defend the action, with the normal
Magistrate’s
Court Rules applying”.
________________
LE GRANGE, J
I
agree,
_______________
MARTIN,
AJ