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[2016] ZAGPPHC 988
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Phenyane and Others v RNS Investments Proprietary Limited and Others (82060/15) [2016] ZAGPPHC 988 (2 December 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED
CASE NUMBER: 82060/15
DATE: 2 December 2016
MA
PHENYANE AND 179
OTHERS Applicants
v
RNS INVESTMENTS
PROPRIETARY LIMITED First
Respondent
NAZBRO
PROPERTIES PHOPRIETARY LIMITED Second
Respondent
SHERIFF
PRETORIA
WEST Third
Respondent
JUDGMENT
MABUSE
J:
[1]
This matter came before me as an urgent application brought by
Ephraim Mathole ("Mathole") alone despite the fact
that the
heading showed that there were one, Mr. MA Phenyane and also 179
other applicants. Mathole represented himself and not
tho other
applicants. He had no mandate to represent the rest of the
applicants. Alongside Mathole's application was a counter
application brought by the First and Second Respondents against
Mathole.
[2]
Having listened to the argument by Mathole and counsel for the first
and second respondents and after considering the matter
I dismissed
Mathole's application with costs and granted the counter-application
and gave no reasons for such orders. The following
order was granted
against Mathole:
"1. The forms and
setvice 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
manne1:
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 thejudges 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 179
TH
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.”
These
are therefore the reasons for the above order.
[3]
Mathole brought an application on an urgent basis against the
respondents. In that application he sought the following order:
"1. Dispensing
with the forms and service as prescribed by the uniform rules of
court and directing that this application be
heard as one of urgency
in terms of rule 6(12) of the rules.
2. Pending the
determination of the review application enrolled on the 15 March 2016
and the rescission application enrolled on
the 17NFebruary 2016, this
court order the followings:
2.1
Stay the writ of ejectment dated the 12 January 2016 issued by the
1
st
and 2
nd
respondent respectively pending
determination by this court the rescission application enrolled on
the 17February 2016 and the
review application enrolled on the 15
March 2016.
2.2
Interdicting and restraining the respondent from evicting the
applicants from their homes called RNS house situated at 125 Madiba
street, Pretoria.
3. An order staying
this matter until arbitration process under the jurisdiction of the
Gauteng Rental Housing Tribunal as per the
rental housing act 50 of
1999 is completed and that the above honourable had no jurisdiction
as per the prevention of unlawful
eviction from and unlawful
occupation act 19 of 1998 called the pie act 19 of 1998 to determine
and hear this matter as jurisdiction
of this matter falls to the
rental tribunal as per section 13 and 15(1) of the rental housing act
50 of 1999.
4.Costs in the above
matter
5. Further and
alternative relief."
[4]
Attached to the notice of motion were a founding affidavit "by
Ephraim Mathole" and some annexures to set aside the
writ.
Annexure 'A' to the notice of motion was a notice of motion,
application rescission. According to paragraph 8 of the founding
affidavit, Mathole had made reference to Annexure 'B'. According to
the index, the document referred to as Annexure 'B' could be
found at
pages 11-13. In the papers before me there was no such document
marked Annexure 'B'. In paragraph 9, Mathole had made
reference to
Annexure 'C' which was "a copy of the rescission reserved."
According to the index the document referred
to as Annexure 'C' could
be found at pages 14-18. There was no such document marked Annexure
'C' at the aforementioned pages. Finally,
in paragraph 16 of the
founding affidavit, reference was made to "a copy of the warrant
of execution" which was attached
as Annexure 'D'. According to
the index the said warrant of execution could be found at pages 19-21
of the papers. There was in
the whole file no document entitled
"warrant of execution" nor was there a document marked
Annexure 'D'. Mathole, as
the applicant, had a duty to make sure that
the file was properly indexed and paginated and the relevant
annexures to which reference
was made in the founding affidavit
properly marked. He failed in this duty.
[5]
The urgent application was based on the following facts. The purpose
of the urgent application was to set aside the execution
of the
warrant of execution by the police and the sheriff. It had
seemingly
been telephonically communicated to him and also personally when he
visited the sheriff's office, that the sheriff was
armed with a
warrant for the eviction of some tenants at RNS Building.
[6]
On 11 December 2015 a consent order was made an order of the Court.
For record purposes, the said order was granted by Tuchten
J and was
granted in favour of the first and second respondents, then as
applicants, against MA Phenyane and 179 Others who were
all the
respondents. Leshire Ephraim Mathole. the current applicant ,was
respondent number 179. Among the 179 tenants he was the
only one who
was said to be an unlawful occupant. He owed a sum of R1960.00 in
respect of room 602. The first applicant in that
matter was RNS
Investments (Pty) Ltd while the second applicant was Nazbro
Properties (Pty) Ltd. The said order is just too voluminous
to be
cited in this judgment.
[7]
In paragraph 2.1, the said eviction order stated that:
“
·2.
Pending the final determination of the review application, in this
Court, under case number 9460012015, and if the review
application is
unsuccessful, pending finalisation of the disputes lodged with the
Rental Housing Tribunal, it is ordered that:
2.1
An eviction order is granted against the first to the hundred and
seventy ninth respondents (hereinafter collectively referred
to as
the respondents) and any person/persons holding or claiming
occupation, under or through the respondents, from the property
being
RNS House situated 125 Madiba Street, Pretoria (the property) subject
to paragraph 3.3. 1, 3.2 and 3.3 below.
3. The respondents are
to make payment of their full monthly rentals individually in the
amount next to their names, appearing on
the schedule annexed hereto,
marked annexure ‘E’ and such payment is to be accompanied
by reference number which shall
be the fiat/room number of each
respondent.
3.1
The full rental in respect of December 2015 is to be paid on or
before 15 December 2015 by the first to the one hundred and
seventy
ninth respondents and thereafter the full monthly rental of each
respondent is to be paid on or before the first day of
each and every
consecutive month thereafter into the bank account of Tulo Properties
(Ply) Ltd, the details of which are as follows:
3.2
In the event of any respondent/s failing to pay their fut.' monthly
rentals as per paragraph 3. 1 ("the defaulting respondent'/,
the
sheriff of the Court is authorised to carry out the eviction of such
defaulting respondents alter having received two affidavits,
the one
deposed to by the applicants' attorney and the other, from the
applicants' representative, confirming the defaulting respondents'
failure to pay rental as specified in paragraph 3. 1 above.
3.3
The sheriff is to serve the two affidavits on the defaulting
respondents in terms of the Rules of Court, 14 (fourteen) days
prior
to the eviction being carried out by the sheriff and the sheriff
shall only carry out the execution in terms of this order
after ten
days has lapsed since service of the two affidavits as per paragraph
3.2 of the above, thereby affording the defaulting
respondents an
opportunity to approach the Court for appropriate relief should such
defaulting party dispute the failure to comply
with paragraph 3.1 of
the order. "
[8]
The applicant's evidence was that the said order was unconstitutional
in several respects because it took away their constitutional
rights
contained in s 26(3) of the Constitution of the Republic of South
Africa Act 108 of 1996 ("the Constitution")
read with s
4(8) of Prevention of Unlawful Eviction from and Unlawful Occupation
Act No. 19 of 1998 ("the Pie Act")
to be equated
with a Court order made after considering all the relevant
circumstances.
"
[9]
On 17 and 18 December 2015, the first respondent called the sheriff
Pretoria. The sheriff served affidavits in accordance with
the terms
of paragraph 3.2 and 3.3 of the order dated 11 December 2015. On 22
December 2015 and on 6 January 2016 an application
in terms of Rule
42 was served. The purpose of the application was to challenge the
competency of this Court in terms of s 5(2),
s 5(1) and
s 15(1)
of
the
Rental Housing Act 50 of 1999
in that the matter was pending
before the Gauteng Rental Tribunal under case number RTT0129/15 and
RTT0139/15.
[10]
The order by agreement was unconstitutional as it took away the
protection afforded to the applicant by s 26(3) of the Constitution.
It was made by agreement without consulting the tenants.
[11]
Mathole's application was opposed by the first respondent. The
affidavit of Shaheer Noormohamed was the basis of such opposition.
Firstly, he bemoaned the fact that Mathole had obtained an order
before Kubushi J on 3 February 2006 after he had indicated in
the
notice of motion signed by him that the application would only be
heard at 10h00 on 4 February 2016. The said order was obtained
without notice of the application been given to the first and second
respondents. What is of paramount importance with the order
of
Kubushi J, though, was that it was served after the writ of eviction
had been executed and all the occupiers evicted from the
property.
This sounded a death knell to Mathole's application, considering that
its purpose was to stay the execution of the warrant
of eviction. It
was therefore not competent for the Court to order the stay of the
writ of eviction, let alone, consider an application
for granting it,
as that would have been otiose and akin to closing the kraal in order
to keep the horse inside long after the
horse itself had bolted.
[12]
The order of Kubushi J, became nugatory in these circumstances
rendered so by the very fact that the purpose which it was meant
to
serve was no more. If all the facts had been placed before her on 3
February 2016, she would most certainly not have granted
the order.
In my view, the fact that the writ of eviction had already been
executed was within the peculiar knowledge of Mathole
on 3 February
2016 was evidently demonstrated by the fact that on 3 February 2016
the first respondent's attorneys wrote him a
letter in which they
stated in paragraph 3 thereof that:
"Take notice that
the Court order was served upon us after the ejectment of the tenants
from the property this morning and
the property vacated by all the
occupants, pursuant to the provisions contained in the Court order
which was made an order of Court
by agreement between the parties.”
Having
received such an email it behoved Mathole to verify the information
and, having done so, to reconsider his notice of motion
and to weigh
his options whether it was still competent for the Court under such
circumstances to grant a "stay of the warrant
of execution".
His notice of motion did not include a prayer which required the
first respondent to restore possession. The
application was doomed
even before it was heard. No purpose would therefore have been served
by flocking a dead horse.
[13]
On 12 October 2015, the first and second respondents brought an
application on an urgent basis in which they claimed, among
others,
eviction of all the occupiers and all the persons, including Mathole,
who occupied the property known as RNS House located
at 125 Madiba
Street, Pretoria. The order of eviction was sought because the
occupants had, in unison and behind the leadership
of Mathole,
embarked on a deliberate rental boycott with, it is so testified, an
express an intention to drive the first respondent
into liquidation.
In the meantime the first respondent was suffering damages on a
continuous basis. An extract attached as 'M3'
to the founding
affidavit in the application for eviction showed evidently that the
first respondent had, as at that stage, suffered
damages in the
amount of R2,718,726.00. It was contended that at the stage this
answering affidavit in this application was delivered
the damages had
escalated to R4,718,726.00 which amount included an approximate sum
of R320,000.00, which was an amount the first
respondent had to pay
in order to give effect to the eviction order granted by the Court.
[14]
The occupiers, who opposed the first respondent's application for
eviction, were all represented by one firm of attorneys and
a senior
counsel. Mathole had not filed any separate papers to oppose the
application, while a comprehensive answering affidavit
was filed on
behalf of all the other occupiers. Technically Mathole was, by his
failure to file his answering affidavit, not before
the Court.
Despite his vigorous protestations, it is not his case that he had
filed his answering affidavit to oppose the first
respondent's
application for eviction. In the circumstances, nothing would have
prevented the first respondent from seeking an
order against him and
nothing would have prevented the Court from granting it. Be that as
it may, despite the undisputed fact that
they had referred a dispute
to the Rental Housing Tribunal ("the Tribunal"), the
occupiers suggested that their taking
the law into their own hands by
embarking on a rent boycott was legitimate. It is crucial to point
out that the said Tribunal had
ordered them to continue paying rent
while it embarked on the investigation of their dispute.
[15]
Between the commencement of the proceedings of the Tribunal and the
commencement of the eviction proceedings, all the occupiers'
lease
agreements were terminated. That act of termination of the agreements
of leas•3 took away the Tribunal's powers to deal
with the
dispute except in so far as it related to the occupiers' claim, if
any, for a reduction in the rental they would have
paid. The Tribunal
was not competent to deal with the issue that related to the
lawfulness of the occupiers of the property. Accordingly
it would not
have been vested with the necessary authority to make an order that
could render an occupier's lawful occupiers of
the first respondent's
property. The Tribunal did not have the powers to decide on the
validity or invalidity of the termination
of the lease agreements
because, it was so testified, the dispute had already been referred
to Court. Moreover the first
respondent was not a party before
the Tribunal. The first respondent would consequently not have been
bound by the decision of
the Tribunal.
[16]
The first respondent's application to evict all the occupiers of its
property and all those who claimed through such occupiers
came before
Tuchten J, for the first time, on 10 November 2015. The occupiers
took a point that notwithstanding service of a Court
order on them,
the relevant Court order had not been preceded by service of a notice
in terms of s 4(2) of the Pie Act. The application
was, upon such
contention, postponed to 8 December 2015 to enable the first
respondent to serve afresh the said notice in terms
of s 4(2) on the
occupiers' attorneys. After this requirement by the Court had been
satisfied, the matter came again before the
said Judge on 8, 10 and
11 December 2015. On each of those days all the occupiers, save for
Mathole, were all represented by one
firm of attorneys and a senior
counsel. Once a11ain it needs to be emphasised that Mathole has not
set his role out at this stage
and has not alleged that he had
delivered his answering affidavit.
[17]
There were some negotiations conducted in an effort to find an
amicable solution. These negotiations resulted in a consent
order
made on 11 December 2015 referred to in paragraph 5 supra. According
to the evidence of Noormohamed, the proceedings in the
first
respondent's application for eviction of all the occupiers from its
property lasted for two days, namely the 8th and 10th
of December
2015. During all these material times, Mathole was present despite
his vigorous protestations in paragraph 7.4 of his
founding affidavit
that:
"The order by
agreement dated 11December 2015 was made without consulting the
tenants and it was made in my absence.
"
No
one of the other occupiers supported him on this statement.
[18]
Even if this Court were to accept his testimony that he was not
present when the consent order was made, the Court must still
find
that in his founding affidavit Mathole has inexplicably failed to
explain his absence when he was supposed to be at Court
on 8, 10 and
11 December 2015. He had failed to inform the Court why he was not at
Court if he knew that the matter would be heard
on those dates and
had filed his answering affidavit, if any. There is, in my view, lack
of essential details in his founding affidavit
about his
participation in the proceedings and his absence and his answering
affidavit. To crown it all, nowhere in his founding
affidavit did he
allege that he had also opposed the granting of the relief that the
first respondent sought in the application
for eviction. Again the
first respondent would have been entitled to seek the order of
eviction against Mathole irrespective of
whether or not he was
present because the application for his eviction would have been
unopposed and the Court then would have
been entitled to grant the
relief sought because there were no opposing papers by Mathole before
it.
[19]
It was the testimony of the said Noormohamed that during the said
proceedings, in other words from their inception to their
conclusion,
Mathole identified and aligned himself with the whole occupiers and
consented to being treated in the same manner as
the rest of the
occupiers. This evidence is true for the following reasons:
19.1.
he has not denied it;
19.2.
he has not alleged that he had filed his separate answering
affidavit;
19.3.
he had not arranged for his separate legal team to prepare his papers
and represent his case;
19.4.
he had not alleged that he represented himself at the proceedings;
19.5.
he had not disputed senior counsel's assertion to the Court at the
said application that he represented all the occupiers.
If that were
not true he would have stated it in his founding affidavit in this
matter;
19.6.
he would have complained that service of the prescribed notice in
terms of s 4(2) of the Pie Act on the attorneys of the rest
of the
occupiers was not served upon him. He certainly should have taken
this point.
19.7.
On February 2016 Mr. Mokgara, the attorney for the occupiers,
confirmed that he, acted also for Mathole and that his mandate
for
the occupants and him had not been terminated. Quite evidently and to
the demise of his own case, if indeed he had any, Mathole
was content
that his interest would be taken care of by all the occupiers'
attorneys and counsel.
He
made capital out of the legal services rendered to the rest of the
occupiers by the attorney and counsel. In my view, on the
basis of
the aforegoing, Mathole did not have a
casus belli with
the
fact that he was duly represented by Adv. Rautenbach when he so told
the Court that he was acting for all the occupiers.
[20]
Nowhere in his founding affidavit did Mathole claim any right of
occupation to the property. The uncontested evidence tendered
by
Noormohamed on this aspect was that with regard to the rest of the
occupiers, they were, before embarking on the rent boycott,
the first
respondent's tenants. Mathole's position was entirely different.
According to the unchallenged testimony of Noormohamed,
Mathole was
an outright unlawful occupant who had never obtained the necessary
consent by either the first or the second respondent's
to take
occupation of the property. He simply moved in. He had never paid any
rental nor did he claim in his founding a1'fidavit
that he had paid
any such rental. He never raised a defence in his founding affidavit
that h13 could not lawfully be evicted from
the premises of the first
respondent because he did not owe any rental. He just had no
locus
standi
to
launch
his application, not even for himself.
[21]
According to the evidence in the record, he told Tuchten J, that he
had paid rental in order to stay on the property. He failed
to show
the Court any proof that he had paid rental. Furthermore in this
current application he still failed to allege that he
paid rental. Of
crucial importance he failed to produce proof to support the
statement he made to Tuchten J that he had paid the
rental in order
to stay in the property. He also failed to submit proof that he was a
tenant at the first respondent's property.
He failed to explain to
this Court why he failed to pay his rental or to comply with the
order the Tribunal had made that the occupiers
should pay rental. He
failed to explain why he failed to comply with the Court order of
Tuchten J that they should pay. Accordingly,
in the absence of any
proof of the aforegoing, his occupation of the first respondent's
property was illegal.
[22]
According to the consent order, all occupiers, including Mathole,
were obliged to pay at the pain of being ejected, if they
failed to
do so. All that the Court required to be done in the event of default
by the occupiers and Mathole, in 01·der
to comply with the
Court order, was that certain affidavits should be filed. The
occupiers, including Mathole, failed to comply
with the Court Order
to pay; they failed to comply with the order of the Tribunal that
they should pay. The relevant affidavits
were filed and the first
respondent accordingly became entitled to enforce the warrant of
eviction by having it executed. This
evidence was not challenged.
Accordingly, Mathole's contention that the warrant of eviction was
unconstitutional and therefore
unlawful, was unmeritorious.
[23]
Mathole had not filed any replying affidavit. Accordingly his
application is still to be decided in terns of the law as set
out in
the Plascon Evans Paints v. Van Riebeeck Paints 1984(3) SA 623 A.D.
[24]
The Court was satisfied that Mathole had not made a good case for the
relief that he sought and furthermore, that his application
amounted
to an abuse of the processes of the Court. Such an abuse, in my view,
deserved to be met with a punitive order of costs.
Mathole was an
avid and prolific litigant. He seemed to enjoy launching Court
applications against other people despite the fact
that such
applications lacked merits. This is proved by the launching of
the current application, while he should have been
aware that it
lacked merits and his application for rescission of the order granted
by Tuchten J . It was only proper that he be
prevented from doing so
by an order of costs. He was present at Court on 11 February 2016
when the interim order granted by Kubushi
J, on 3 January 2016 was
discharged or set aside and when he was personally ordered to pay the
costs. In terms of the authorities
the conduct which is vexatious and
an abuse of the process of the Court may form the basis for an order
of costs that such costs
be paid on an attorney and client scale. See
in this regard Sabena v Beligian World Airlines v Ver Elst and
Another 1980(2) SA
238 (W), where the court quoted with approval the
following passage from Nel v Waterberg Landbouers Kooperatiewe
Vereniging
1946 AD 547
where Tindell JA, as he then was, stated at
page 607:
"That,
by reason of special considerations arising either from the
circumstances which give rise to the action or from the
conduct of
the losing party, the Court in a particular case may consider it
just, by means of such an order, to ensure effectually
than it can do
by means of a judgment for party and party costs that the successful
party will not be out of pocket in respect
of expense cause to him. "
In
my view, these proceedings were vexatious. The application itself was
unfortunately ill advised and misconceived. Accordingly,
it was
only proper to dismiss the application with costs to be paid by the
applicant on the scale of attorney and client.
[25]
Mathole had also embarked on making spurious, disparaging and
unfounded remarks or allegations about the sheriff, the respondents,
the respondents' attorney and about members of the Bench of this
Division. He seemed to do it with some measure of impunity. The
following are extracts from the emails sent to a number of people,
for instance:
25.1 ''.MY MEETING
WITH THE HAWKS ON FRIDAY THE 29-JANUARY-2016 REGARDING FRAUD AND
SERIOUS MISREPRESENTATION ON THE 08, 10 AND
11 DECEMBER 2015 IN THE
HIGH COURT UNDER CASE N0:82060/15 BY TWO ADVOCATE AND TWO ATTORNEYS.
I meet the Hawks in
Pretoria regarding the above mentioned serious misrepresentation and
fraud in the above matter case no: 82060115
on the 08, 10 and 11
December 2015 and I was advised by the Hawks to make full statement
under oath in the commercial crime police
so that the two advocates
and two attorneys can be charged of serious misrepresentation which
resulted in my prejudice.
Advise me when can I
come to take full statement under oath of what happened on the 08, 10
and 11 December 2015 so that the perpetrators
of this crime can be
brought to book irrespective of their status and knowledge in that
there is no person who is above the law
in the country. I had been
fully advised as well as by the Hawks that what happened on the 08,
10 and 11 December 2015 constitutes
serious misrepresentation and
fraud by this two advocate and two attorney and the law should take
its cause.
Yours Faithfully
Ephraim Mathole
Cell:082-697-6901/084-781-0341.
Fax:086-603-8215.
Email.matholeephraim@webmail.co.za/matholeephra
im@gmail.com"
25.2
"Attached is my complaints in a form of affidavit
against the attorney called NM Aboo and Sheriff Pretoria West for
collusion
to commit unprofessional conduct and improper conduct as
per the attorney act and sheriff act in attempting to evict with a
warrant
of execution issued while rescission application and notice
of intention to oppose was filed. Sheriff Pretoria West using South
African Police without complying with section 4(11) of the Prevention
of unlawful eviction from and unlawful occupation of land
act 19 of
1998 called the pie act 1.9 of 1998 in order to run away of
criminality by the attorney client of collecting rent in
the building
without ownership and stealing electricity from the City of Tshwane
Municipality while charging tenants huge moneys
for electricity.
Attorney
unprofessional conduct has been reported to the law society of the
northern provinces under reference number: 19912016,
make sure
attorney and sheriff respond the allegation in a form affidavit under
oath as I did.
Your Faithfully
Ephraim Mathole
Cell·OB2-697-6901/084-787-0341.
Fax:086-603-8215.
Email:matholeephraim@gmail.com/matho/eephraim@webmai/.co.za"
25.3
"Attached is my statement under oath dated the
04-February-2016 laying a criminal case against the two attorneys
called Louisa
of NM Aboo attorney and Mokgara of Mokgara attorneys
for incorporating my name in the settlement agreement dated the
11-December-
2015 despite myself not represented by the two attorneys
and not having agreed to the terms of the settlement agreement dated
the
11-December-2015 made an order of court oo the 11-Decembe-2015 in
my absence and without consulting an order of court on the
11'-December-2015 in my absence and without consulting myself.
I suffered serious prejudice as a result of misrepresentation
contained
in the settlement agreement dated 11- o, cember-2015 in
that / lost all my properties including moneys, clothes, furnitures
as
a result of illegal eviction conducted on the 03-February-2016 in
RNS building situated in Madiba street which was stopped by the
court
on the reasons of illegality because the real intention of illegal
eviction of the 03-February-2016 was to run away from
the two
unopposed application enrolled on the 04-February-2016 and the other
17-February-2016 in the high court Pretoria.
Therefore this is a
clear criminal offence fraud with serious misrepresentation. Yours
Faithfully
Ephraim Mathole
Cell.·082-697-69011084-787-0341.
Fax: 086-603-8215."
25.4
25.4.1
"(a). order granted by judge louw on the 11-February-2016 in
the high court
. Judge louw granted order on the 11-February-2016
in default discharging and setting aside order granted by Judge
Kubushi on the
03-February-2016. We have a right to file rescission
application to re-consider the matter either on urgent or normal
cause. We
were so shocked of the misleading statements made in court
and the conducte of thejudge in handling the matter that shows that
corruption, abuses of position of authority and racism is rife in our
country and the judiciary. We have been advised to as to the
deputy
judge president called Ledwaba dna judge president Mlambo.”
25.4.2
"(b). order granted on the 03-february-2016 at 22h30 by judge
Kubushi
. After judge Kubushi granted a stay of illegal eviction
of the 03-February-2016, you immediately approached the high court on
urgent
basis of the night of 03- February-2015 of reconsideration,
representation and interdict that the tenants must not be allowed to
enter the premises on the basis that the illegal eviction was already
completed by the sheriffs on the morning of the 03-Febrary-2016,
this
order granted on the night of the 03-Febrary-2016 still stands in
that the urgent application can be finalized either in the
high
court, supreme of appeal in Bloemfontein and or in the
constitutional court in braamfonein, Johannesburg.”
25.4.3
"(c). order granted by judge Kubushi in the morning of the
03-Febrary-2016
. Honestly speaking there is racism and abuse of
position of authority in judicial system in this country in that
judge Kubushi
considered all the relevant circumstances in logical
manner when she arrives that the eviction conducted on the
03-Febrary02016
by the sheriffs and red ants was illegal in that
there is no eviction order granted and that both the rescission
application by
the tenants and the review application by the landlord
were enrolled on the 04 and 17 February 2016 in the high court. The
most
important factor considered by judge Kubushi was whether did we
serve both the sheriff and the respondents on the 26-January-2016
about the urgent application enrolled on the 04- Febrary-2016 and
proof of service by way of fax transmission and notice in terms
of
rule 6(5)(d)(iii) satisfied the judge on the 03-Febrary-2016, that
has been read into the record when the judge granted her
order on the
morning of the 03-February-2016. There was no any misleading of the
judge on the 03- Febrary-2016, that lady was professional
and
competent enough to deter some of the untold facts in the case
no:82060/2016 as we saw in the night hearing.
25.4.4
“(d). order granted by judge Matojane on the
22-January-2016 in the court.
On the 22-January-2016 judge
Matojane struck the matter off the roll or.· the reasons that
we did not cite the interested
party called RNS investment (Pty) Ltd
and Nazbro Properties (Pty) Ltd in the matter because the sheriff and
attorney refused to
furnish us with warrant of execution dated the
12-January- 2016 and it was given to us as a result of judge Matojane
order.”
25.4.5
"(e). order by agreement gratned byjudge tuckter on the
11-december-2015
. We also made our complaints to the conduct
committee of the judicial commission about the conduct of this judge
on the 10-November-2015
and 08, 10 and 11 December 2015 in the high
court in Pretoria. I appeared in person on the 10-December-2015
only to alert
the judge that the high court had no jurisdiction to
entertain this matter as per wrong law called Prevention of unlawful
eviction
from the unlawful occupation of land act 19 of 1998 called
pie act 19 of 1998 in that the matter is pending in the Gauteng
Rental
Tribunal under case no:RTT-0129-15 and case no:RTT-0139-15 as
per section 13 and section 15(1)(f} of the rental housing act 50 of
1999. The judge agrees that he has no jurisdiction but proceeded with
the matter in my absence and forced parties to agree to a
settlement
agreement made an order of court on the 11- December-2015 by
incorporating my name into settlement agreement despite
myself not
agreeing to jurisdiction of court.
CONCLUSION:
it is my view and submission that the judiciary must uphold the
principle of the constitution and maintain rule of law
and justice,
corrupt and racists judiciary need not be respected by all and I want
to maintain further that the urgent application,
the rescission
application and the review application under case no:82060/2015 is
still under way and can be finalized in the High
Court, Supreme Court
of Appeal in Bloemfontein and the constitutional court in
Braamfontein Johannesburg. Therefore there is no
eviction that can be
carried until all the above mentioned process is finalized and that
on its own will be taking the law into
your own hands and will be
meet with serious resistance that will end in serious prejudice
suffered. Please let respect the law
and allow the process of the law
to take its own course. We are prepared to face any illegal action in
retaliation because we lost
our valuable goods as result of a failure
illegal eviction of the 03-February-2016.
Yours
Faithfully
Ephraim
Mathole
Cell:082-697-6901/084-787-0341.
Email:matholeephraim@gmail.com/matholee"
25.5 ''ATTEMPTED
PHYSICAL EVICTION IN THE RNS HOUSE SITUA TED AT 125 MADIBA BY FIVE
BOUNCERS IN ORDER TO RUN AWA Y FROM THE UNOPPOSED
RESCISSION
APPLICATION ENROLLED ON THE 17-FEBRUARY-2016, CASE N0:82060/2016.
Five well build
bouncers approached the building called RNS House situated in 125
Madiba Street to evict the tenants using self
help or physical
eviction without approaching the high court on urgent basis or normal
cause for relief as per section 26(3) of
the constitution act 108 of
1996 read with section 4(8) of the Prevention of illegal eviction
from and unlawful occupation of land
act 19 of 1998 called pie act 19
of 1998 as a result misconduct by judge Louw on the 11-February-2016
discharging the order granted
by judge Kubushi on the
03-February-2016 default without hearing the tenants. I want to
appeal to the attorney called NM Aboo attorney
of the building
hijacker called Nazbro Properties (Ply} Ltd to desist from conducting
illegal eviction in order to run away from
the unopposed rescission
application enrolled on the 17-February-2016 and ownership dispute
pending in the Gauteng Rental Tribunal
under case no:RTT-0129-15 and
case no:RTT- 0139-15 as per the rental housing act 50 of 1999 because
the tenants will fought forcefully
against the criminality of taking
the law into their own hand in that there is developed and civilized
methods laid by our best
constitution act 108 of 1996 in which a
person can approach court which will grant eviction order stating the
time and date in
which tenants can leave the building peacefully
other than throwing people on the street with any place to sleep. We
also surprised
by sudden missing of the file in the high court.
Yours Faithfully
Ephraim Mathole
Cell:082·697-69011084-787-0341"
25.6 "I am busy
preparing affidavit as requested by the judicially service commission
agaisth three judges of the High court
of Pretoria called Judge
Tuckter, Judge Louw and Judge Kollapen who appeared to have protected
a person who is doing criminality
in hijacking building charging
tenants huge electrictricity but stealing electricity through illegal
connection. Realizing that
the Gauteng Rental Tribunal is demanding
ownership of the building as per section 5(2) read with section 13
<.md 15(1)(f) of
the rental housin act 50 of 1999, he runs away
from the jurisdiction of the tribunal and use the wrong law in the
high court called
pie act 19 of 1998"
25.7 An undated email
that Mathole wrote to the Deputy Judge President "AA27". It
stated that:
"RE: UNOPPOSED RESclSSION APPL/CATION ENROLLED
ON THE ROLL OF THE 11-FEBRUARY-2016 BUT THE COURT DID Nor PLACED ON
THE ROLL
OF 19-02-16, CASE N0:82060/2016 MA. PHENYANEAND 119 OTHERS V
RNS INVESTMENT
I am respondent one
hundred and seventy nine (119) in the above eviction application
brought as per section 4 of the Prevention
of unlawful eviction from
and Unlawful Occupation of land Act 19 of 1998 called pie acJ 19 of
1998 to evict myself and other respondent
tenants on the basis of
non-payment of rentals. The eviction application was heard on the
10-December-2015 before the honourable
judge Tuckter welll I
successfully raised a point in limine that the high court had no
jurisdiction to hear the matter in that
the arbitration process under
the auspices of the Gauteng Rental Tribunal is pending under case
no:RTT-1029-15 and case no:RTT-0139
as per section 5(2) read with
section 13 and 15(1)(f) of the rental housing act 50 of 1999 but
later on surprised by settlement
agreement made an order of order in
my absence and without consulting.
The issue before you
now is that the matter was enrolled on the 11-February-2016 after the
respondents failed to file anwsering
affidavit within sixteen days
(16) despite notice of intention to oppose dated the
28-December-2016. The matter was not on the
roll of the
17-February-2016 and we were advised to enrol in court 2A or BE of
judge Kollapen or Judge Teffo. The matter was heard
by judge Kollapen
who adjourned the matter by calling myself in chambers and inj udge
chambers judge told me that he has phoned
attorneys of the other
party where the attorneys advised the judge that notice in terms of
rule 6(5}(d)(iii) has been filed on
the 28-January-2016 opposing
rescission application. It was my agreement with judge Kollapen that
I write an e-mail notifying the
other parties to come to court on
Friday 19-February-2016 which I did with my email dated the
17-February-2016. On Thursday the
18-February-2016 I received a call
from judge Kollapen that I must re enroll the matter on the roll
of march 2016. My worry
and concern is that the matter is unopposed
in that the respondents failed to file answering affidavit as per
rule 6(5)(c) of the
uniform court rules and application for
rescission should granted without any delay. I want to strengthen
that our and justice
systems is not consistent in that on the 09-
February-2016 the other enrolled the matter in court which was not
enrolled by myself
on the basis that there was two orders issued on
the 03-February-2016, order was taken that I must pay costs by judge
Louw despite
myself having not heard on the 11-Feb-16
What we need from the
court is to grant rescission application by to reverting the matter
back the Gauteng Rental Tribunal for completion
of arbitration and
challenge of ownership of the building as per section 5(2) read with
section 13 and 15(1)(f) of the rental housing
act 50 of 1999pending
under case no:RTT-0129-15 and case no: RTT-0139-15.
Ephraim Mathole"
25.8 "Attached is
the signed letter dated the 19-February-2016 to the Deputy Judge
President AP Ledwaba regarding the default
order to be granted in my
unopposed rescission application dated the 21-December-2015 and
served on the 22-December-2015 under
case no:82060/2015. We have
decided together with other members of the community and other stake
holders to stage a march against
racists and corrupt justice system
in our country because Judge Tuck/er, Judge Lauw and Judge Kollapen
were protecting a criminal
person who hijacked buildings, stealing
electricity through illegal connection while charging tenants huge
bills of electricity
and who run away from the jurisdiction of the
Gauteng Rental Tribunal empowered by section 5(2) read with section
13 and 15(1)(f)
of the rental housing act 50 of 1999 to enquire on
ownership of the building called RNS house situated at 125 Madiba
pending under
case no:RTT-0129-15 and case no:RTT-0139-15 in the
Gauteng Rental Tribunal and uses wrong law called the Prevention of
illegal
eviction from the Unlawful occupation Act 19 of 1998 called
pie act 19 of 1998 to run away from his criminal deeds.
Judges are not gods of
this country, there are accountable as per the supreme law of this
country called the constitution act 108
of 1996.
Yours Faithfully
Ephraim Mathole
Cell:082-697-6901"
[26]
Following these emails the first and second respondents brought the
counter-application. It was the counter-application that
led to the
order referred to in paragraph 2 supra.
___________________
P.M. MABUSE
JUDGE OF THE HIGH COURT
Appearances:
Applicant
in person:
Ephraim Mathole
Instructed
by:
Attorneys
Counsel
for the respondents:
Adv. Felgate
Adv. Vimbi
Instructed
by:
NM Aboo Attorneys
Date
Heard:
23 March 2015
Date
of Judgment:
2 December 2016