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[2017] ZAGPPHC 165
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Jordaan NO v Tung'Ande and Others (77334/2014) [2017] ZAGPPHC 165 (14 February 2017)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 77334/2014
DATE:
14/2/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
JORDAAN
J
N.O.
APPLICANT
and
TUNG'ANDE
HR
1
st
RESPONDENT
TUNG'ANDE
E
2
nd
RESPONDENT
TUMG'ANDE
J
3
rd
RESPONDENT
TUNG'ANDE
E
4
th
RESPONDENT
EKURHULENI
METROPOLATAN MUNICIPALITY
5
th
RESPONDENT
Coram
: HUGHES J
JUDGMENT
HUGHES
J
[1]
In this application the applicants seek condonation and setting aside
of the judgment granted on 24 April 2015. The respondents
are thus
the applicants and the applicant is the respondent.
[2]
Briefly, the respondent moved an application to have the applicants
evicted in terms of section 4(2) of the Prevention of Illegal
Eviction from Unlawful Occupation of Land Act, Act 19 of 1998, from
the residential premises situated at 1[...] C[...] Avenue,
Eastleigh,
Edenvale. This residential property was one of the assets in the
deceased estate of the father of the applicants.
[3]
After the father's death the applicants moved into these premises
with their stepmother, the executrix. As the deceased estate
had a
substantial shortfall the stepmother together with the respondent
opted to sell the premises. Offers were received for the
premises but
none was forth coming from the applicants even though they were
called upon to make an offer for the property. The
executrix and the
respondent also alleged that the applicants had coursed the municipal
account to reach excessive arrears.
[4]
On 22 August 2014 the respondent had a letter sent to the applicants
demanding their vacation from the property by no later
than 20
September 2014. This was served personally on the second applicant by
the sheriff. After the eviction order was granted
the respondent
caused same to be served on the applicant's and yet again the sheriff
served same personally on the first applicant.
During the service by
the sheriff, he was advised by the first applicant that on his
attorney instructions, he was not to accept
any processes. The
applicant's had to be forcibly removed from the property by the
sheriff and the police.
[5]
The applicants in their application for condonation state that after
receipt of the application papers to evict even though
they had
opposed the application they did not receive notification as regards
when the application was to be heard. They only became
aware of the
judgment when the sheriff came to evict them on 15 May 2015. They
contend that as they had opposed the application
and there had been
communications between their attorney and the respondent, the
respondent was not proceeding further with the
application. They
state that they were under the impression that they would be advised
of the court date if a need arose.
[6]
The applicants argue that they were not in wilful default as they
were not aware that the case was being heard when the order
of 24
April 2015 was granted. Further, that they have bone fide defence as
they were heirs to the deceased's estate and as such
they had a stake
in the house and had indicted their willingness to purchase the
property.
[7]
On the other hand the respondent asserts that at all times the
applicants were aware of every step or process in the application
as
on all occasions serve of the processes in the case were served on
the applicants personally by the sheriff. As regards their
defence,
the respondent states that the applicants were indeed given the right
of first purchase of the property however they failed
to exercise
this right. In fact they were purposely dragging things along and in
doing so the estate was not being finalised whilst
they lived on the
premise without paying the municipal expenses.
[8]
The respondent contends that it is correct that the applicant's filed
their intention to defend on 19 November 2014 after the
section 4 (2)
application was served on them on 12 November 2014. It is further
correct that the parties attorneys were liaising
with each other,
however communications broke down and on 20 February 2015 the
respondent placed the applicant's on term for an
offer to be produced
within seven day and failure to do the respondent advised that that
they would be continuing with the application.
None was forth coming
and as the executrix received a section 129 demand from the bank who
had a bond over the property the respondent
instructed its attorney
to proceed with the matter. The applicant's own attorneys sent
correspondence to the effect that he had
warned the applicants that
they could not be delaying the matter any further but even in the
face of that warning an offer was
not made. On 9 April 2015 the
notice of set down was served by the sheriff personally on the first
applicant advising of the date
being 24 April 2015. Further to this
notice, the respondent's attorney by letter, advised the applicant's
attorneys of the date
of the case on 17 April 2015. No opposing
papers were filed and thus the order was granted. In addition, a copy
of the order was
transmitted by letter to the applicant's attorneys
on the afternoon of the day that the order was granted, demanding
that they
vacate by 4 May 2015. The warrant of ejectment was issued
on 6 May 2015 and served on 13 May 2015 on the first applicant. The
applicants
were forcefully removed on 15 May 2015. This is the
argument presented by the respondent.
[9]
It is trite that discretion I have to grant condonation is wide and
should be exercised after proper consideration of all the
relevant
circumstances and facts. The plaintiff ought to provide a reasonable
explanation which bears out the plaintiff's
bone fides
and
indicates that it has a
prime facie
claim with prospects of
success. See
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A)
at 764I-765F; Colyn v Tiger Food Industries LTD t/a Meadow Feed Mills
(Cape)
2003 (6) SA 1
at 9E-10B.
[10]
In this instances the applicant's fail to jump the first hurdle as
they do not provide a reasonable explanation which bears
out their
bone fides.
They say they were not aware and yet they were
personally served with the processes in this matter. They were even
advised not to
delay the matter any further by their own attorney, a
clear indication that they were staling the finalisation of the
deceased
estate for their own benefits. Just because they our heirs
to the estate is not sufficient reason to say they have any prospects
of success as regards these eviction proceedings.
[11]
In the premises I find that the applicants have not made out a case
for condonation and their application is dismissed with
costs.
[12]
Consequently the following order is made:
1.
The application for condonation brought by the applicant's is
dismissed with costs.
W.
Hughes
Judge
of the High Court Gauteng, Pretoria
Appearances:
For the Applicant:
I M Lindeque
Instructed by:
Mamba Attorneys
For the Respondent:
J J Greeff
Instructed by:
Kemp De Beer &
Goosen
Date heard:
31 January 2017
Date delivered:
14 February 2017