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[2016] ZAGPPHC 316
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Phenyane and Others v RNS Investment (Pty) Ltd and Others (82060/2015) [2016] ZAGPPHC 316 (25 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
82060/2015
Date:
25/4/2016
Not reportable
Not of interest to other
judges
Revised
In the matter between:
M.A. PHENYANE AND ONE
HUNDRED AND SEVENTY NINE OTHERS
1
ST
APPLICANT
EPHRAIM
MATHOLE
2
ND
APPLICANT
and
RNS INVESTMENT (PTY)
LTD 1
ST
RESPONDENT
NAZBRO PROPERTIES
(PTY) LTD 2
ND
RESPONDENT
SHERIFF PRETORIA
WEST 3
RD
RESPONDENT
THE SOUTH AFRICAN
POLICE SERVICES 4
TH
RESPONDENT
THE STATION COMMANDER
OF THE PRETORIA CENTRAL POLICE STATION,
PHUKUBYE 5
TH
RESPONDENT
THE CLUSTER COMMANDER
OF THE PRETORIA CENTRAL POLICE STATION,
MTHOMBENI 6
TH
RESPONDENT
CITY OF TSHWANE
METROPOLITAN POLICE 7
TH
RESPONDENT
RED
ANTS 7
TH
RESPONDENT
JUDGMENT
PRETORIUS J,
(1) This is an urgent
application which was heard on Saturday, 23 April 2016 at 10h00. At
the hearing the applicant requested the
matter to be argued this
morning, 25 April 2016 at 10h00, to enable him to file and serve a
replying affidavit. Mr Mathole, the
applicant, is appearing in
person.
(2) The applicant is
requesting the court for interim relief on an urgent basis to
prohibit the respondents to evict the applicant
pending the outcome
of an appeal and review.
(3) An order was granted
on 24 March 2016 by Mabuse J where the following order was granted:
"1. The forms and
service
as
prescribed by the uniform rules of court are
dispensed with and this matter is heard
as
one of urgency in
terms of rule 6(12).
2.
The 179
th
applicant is interdicted and restrained from making any
utterances, transmitting any email or in any other way publishing any
statements
of or pertaining to the first and second respondents or
its legal representatives which state or implies that:
2.1
the first
and second respondent are engaged in
criminal activities;
2.2 the first
respondent is not the owner of the immovable property known as RNS
House and situate at 125 Madiba Street, Pretoria,
Gauteng;
2.3 the first and
second respondent's legal representatives are unethical,
unprofessional or have conducted themselves in an unlawful
manner.
3. The 179
th
applicant is interdicted and restrained from making any utterances,
transmitting any email or in any other way publishing any statement
of or pertaining to the judges of the Gauteng Division of the High
Court of South Africa which states or implies that they are
corrupt,
biased or dishonest or in breach of their oath of office.
4. The registrar is
authorised to issue
a
warrant of
ejectment pursuant to
Tuchten J's order of 11 December 2015 and the third respondent is
directed to execute that order forthwith
and with such assistance
from the South African Police Services as may be necessary in the
circumstances.
5. The costs of the
application and counter application are to be paid by the 179th
applicant on the scale as between attorney and
client.
6.
The 179
th
applicant should not commence any litigation before he has paid
all the taxed costs in respect of the
cost orders against him.
"
(4) On 29 March 2016 the
applicant requested full reasons for the order which has as yet not
been given.
(5) On 31 March 2016 the
court order was served at RNS House, 125 Madiba Street, Pretoria, by
affixing it to the principal door
of the residence.
(6) On 22 April 2016 all
the occupants of the residence were evicted, hence the urgent
application.
(7) I must agree with
counsel opposing this urgent application that the applicant, Mr
Mathole, has breached the previous court order
by firstly referring
to Mabuse J, as follows, where he set out in the founding affidavit:
"To my knowledge
and understanding
a
person of this kind does not qualify to be
a
judge because the role and duties of judge is to uphold the
rule of law contained into the constitution act 108 of 1996 by
judging
a
case based on the rules and the law. I
seems
some how agree with people making accusations that the judge Mabuse
may be bribed to disregard the rules of the above court
and further
disregard the order granted by Justice Teffo on the 9 March 2016. I
have already applied full reasons of his decision
to make the draft
order handed in court on the 23 March 2016 an order of court. To me
this is
a
very serious misconduct behalf of the judge Mabuse
to disregard the rules and the constitution act 108 of 1996 only to
protect
a
person defeat the ends of justice."
(8) This is in total
disregard of the third order made by Mabuse J on 24 March 2016.
(9) It is clear that
although the court order had already been served on 31 March 2016,
the applicant failed to apply for a rescission
of judgment and failed
to apply for leave to appeal, thereby staying the execution of the
order.
(10) The applicant does
not give any explanation as to why he did not approach the court
before the order was executed, but waited
until the eviction had
already taken place.
(11)
The
applicant who is according to him legally trained, submitted that
according to him asking for reasons should stay the execution
of the
order. Once more the applicant was afforded the opportunity to read
section 18 of the Superior Court Act
[1]
to inform himself of the contents of section 18.
(12) The second
submission by the counsel is that Mr Mathole, by his own admission,
has not complied with the court order by not
paying the taxed costs
against him.
(13) In this instance the
eviction has already taken place. The applicant failed to file an
application for leave to appeal or for
a rescission of judgment. He
did absolutely nothing from the date the order was served on the
occupants of the respondents' property
until after he had been
evicted.
(14) The following order
is granted:
1. The application dated
22 April 2016 is dismissed.
2. The applicant, Mr
Ephraim Mathole, is ordered to pay the costs of this application
including the costs of 23 April 2016 on the
attorney and client
scale. The costs of 23 April 2016 include the costs of two counsel.
___________________
Judge C Pretorius
Case
number
: 82060/2015
Matter heard
on
: 23 and 25 April 2016
For the
Applicant:
: In Person
Instructed
by
: In Person
For the
Respondent
:
Instructed
by
: NM Aboo Attorneys
Date of
Judgment
: 25/04/2016
[1]
Act 10 of 2013