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[2017] ZAGPPHC 807
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Shabalala v Standard Bank Ltd and Others (1651/2012) [2017] ZAGPPHC 807 (23 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE
NO: 1651/2012
Date:
23/02/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
:
ANDREW
LESIBA
SHABALALA Applicant
And
STANDARD
BANK
LTD 1
st
Respondent
SHERIFF
OF THE HIGH COURT,
WONDERBOOM 2
nd
Respondent
REGISTRAR
OF DEEDS,
PRETORIA 3
rd
Respondent
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY 4
th
Respondent
QHUBEKISA
PROJECTS (PTY)
LTD 5
th
Respondent
MASTER
OF THE HIGH COURT,
PRETORIA 6
th
Respondent
JOELBLANDHLABANGANE 7
th
Respondent
MURIEL
MATSHIDISO
HLABANGANE 8
th
Respondent
JUDGMENT
KOLLAPEN
J:
1.
The applicant seeks the following relief in these proceedings:
i. That the order
granted by RABIE on 6 February 2014 be rescinded;
ii. Costs in the
event of opposition
2.
Only the seventh and eighth respondents oppose the relief sought,
while the first respondent supports the grant of the relief
sought.
Background
3.
On 9 December 2011, the applicant purchased the immovable
property situated at Erf [...], H. Street, Mamelodi Extension 4,
Pretoria,
Gauteng ('the property') at a sale in execution.
4.
At the time of the sale in execution the seventh and eighth
respondents were residing at the property.
5.
The sale in execution followed due to a default judgment
obtained by the first respondent against the seventh respondent (the
seventh
respondent being the former sole owner of the property).
6.
It appears the aforesaid judgment was granted as a result of
the seventh respondent's default in paying the agreed mortgage bond
instalments in respect of the property.
7.
On 14 March 2012 the property was duly registered into the
applicant's name.
8.
The applicant instituted eviction proceedings against the
seventh and eighth respondents in this Court under case number
17638/2013.
9.
On 28 August 2013 VANOOSTEN J granted a final order for the
eviction of the seventh and eighth respondents from the property.
10.
Subsequent to the aforesaid, the seventh respondent launched a
rescission application, in essence, seeking the following relief:
i.
Condonation for the late bringing of the application;
ii.
That the court order granted on 28 August 2013 under case
number 17638/2013 be set aside;
iii.
That the warrant of execution issued in respect of the
property be set aside;
iv.
That the sale in execution of the aforesaid property (to the
applicant), be set aside;
v.
Declaring the registration of the
property in favour of the applicant under title deed T17255/2012 on 4
March 2012 invalid;
vi.
Directing the third respondent to take all necessary steps to
transfer the property into the name of the seventh respondent;
vii.
Directing that the costs incurred in respect of the transfer
of the property be borne by the applicant.
11.
That rescission application ('the first rescission
application') was heard on an unopposed basis on 6 February 2014
before RABIE
J, subsequent to which the aforesaid relief was granted.
12.
It is this order of 6 February 2014 that the applicant seeks
to rescind.
13.
In advancing the relief sought the applicant's stance is as
follows:
Wilful
Delay
14.
Although it appears that the application of the seventh and
eight respondents which served before RABIE J was served on the 18th
of December 2013, service was effected at [...] Mamelodi East,
Pretoria, which the applicant states is not his place of residence.
The property was owned by him but leased at the time, and service was
effected on the tenant.
15.
The applicant states that he only became aware of the
application on the 26th of March 2014 and instructed his attorneys to
oppose
the application. Notice of intention to oppose was filed on 28
March 2014 and the answering affidavit on 23 April 2014. (It would
appear that by this time the order had already been obtained before
RABIE J on 6 February 2014.)
16.
It appears that the applicant's attorneys only became aware in
July 2014 of the order taken on 6 February 2014 and this application
was then launched in August 2014. The stance of the seventh and
eighth respondents is that they dispute this, but beyond a bare
denial, there is nothing to suggest that the explanation offered by
the applicant with regard to his knowledge of the proceedings
as well
as the order taken, is not reasonable.
17.
In addition to the above, the seventh and eighth respondents
contend that when the matter came before RABIE J, a letter was
submitted
on behalf of the applicant through attorney Riaan Meyer to
the effect that the applicant did not wish to oppose the relief
sought.
The applicant disputes this and say he does not know Mr Meyer
and he did not instruct Mr Meyer in the fashion alleged.
18.
When one has regard to the letter in question there is no
reference to the applicant as being the client of Meyer and in fact
the
letter alludes to the matter of Qhubekisa v Hlabangane. In
addition, it also appears from the founding affidavit of the seventh
respondent in the application that served before RABIE J, that he
alleged that Meyer acted for him at some stage. It is inconceivable
that Meyer would have also acted for the applicant.
19.
With regard to the question of wilful default, I am satisfied
that the applicant was not aware of service in December 2013 and only
became aware in March 2014, whereafter he acted expeditiously in
seeking to protect his interests. It cannot also be said that
he
elected not to oppose relief on 6 February 2014 for the reasons I
have already alluded to.
20.
The applicant has given a full and proper explanation for the
default and I am satisfied that he was neither wilful nor negligent.
Incorrect
Case Numbers
21.
The seventh and eighth respondents take the point that the
relief pursued is brought under case number 1651/2012 while the order
of the 6th of February 2014 set aside and rescinded the relief
granted under case number 17638/2013.
22.
The answer to this is relatively simple. When the seventh and
eighth respondents approached this Court on 6 February 2014, they
sought relief under case 1651/2012 seeking to rescind the order of 6
February 2014 where reference is made to case number 17638/2013.
23.
I fail to see the validity of the objection raised as that is
precisely how the matter unfolded when the seventh and eighth
respondents
conflated the two case numbers and the applicant was thus
obliged to bring these proceedings under case number 1651/2012 as the
order that he seeks to rescind was granted under this case number
(even though in the body of the order it refers to 17638/2013).
Bona
fide defense
24.
The applicant purchased the property in a sale in execution and it
was transferred into his name subsequent to the purchase.
It was on
this basis that the applicant was able to secure an eviction order
from this Court on 28 August 2013.
25.
The seventh and eighth respondents contend that the applicant bought
the property for Rl000-00 and that this was irregular and
that they
have sought the assistance of the South African Police Service.
26.
The applicant's stance is that the effective purchase price was R194
548-19 as the purchase consideration of RI 000-00 in real
terms was
to include arrear rates and taxes in the sum of RI93 548-19.
27.
At this stage there is no need to make a final determination on this
aspect. All the applicant has to advance is that he has
a valid and
bona fide defence and I am satisfied on the papers that he has done
so.
Costs
28.
Mr Molobedi, appearing for the seventh and eighth respondents,
conceded that a proper case had been made out. In my view, there
was
no need for opposition to the application. The grounds of opposition
are without merit and in my view, a punitive costs order
is
justified.
Order
29.
In the circumstances I make the following order:
1) The order granted
on the 6th of February 2014 by RABIE J under case number 1651/2012
and incorporating the relief under case
number 17638/2013, is hereby
rescinded and set aside in its entirety.
2) The seventh and
eighth respondents are to pay the costs of this application on an
attorney and client scale, which costs are
to include the costs of
the applicant as well as the first respondent.
3) The notice of
opposition and the answering affidavit of the applicant in the
rescission application of the seventh and eighth
respondents will
stand and the first respondent is given leave to file an answering
affidavit within twenty days from the date
of this order. The seventh
and eighth respondents may thereafter reply to the answering
affidavit of the applicant and first respondent
within the time
specified in the Rules, whereafter the matter may be enrolled.
HEARD ON: 01
February 2017 & 22 February 2017
DATE OF JUDGMENT: 23
FEBRUARY 2017
APPEARA
NCES:
FOR
THE APPLICANT: Adv.
B Bergenthuin
INSTRUCTED
BY: Burden
Swart & Botha Attorneys (ref.: S1575/Riekert-Botha)
FOR
THE 1sr RESPONDENT: Adv.
Jooste
INSTRUC1ED
BY: Findlay
& Niemeyer Inc (ref.: M Coetzee/AK/F2304)
FOR
THE 7TH & 8TH
RESPONDENTS:
Adv.
NG Molobedi
INSTRUCTED
BY: Ntimane
Attorneys (ref.: Ntimane/JB Hlabangane)