About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 489
|
|
Etindziweni Communal Property Association v Carfarm Close Corporation (A459/2014) [2015] ZAGPPHC 489 (23 June 2015)
IN
THE GAUTENG DIVISION OF THE HIGH COURT
,
PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A459/2014
DATE:
23 JUNE 2015
In
the matter between:
ETINDZIWENI
COMMUNAL
PROPERTY
.........................................................................
Appellant
ASSOCIATION
And
CARFARM
CLOSE
CORPORATION
...............................................................................
Respondent
JUDGMENT
JANSEN
J
[1]
This is an appeal against the judgment and order of Molefe J dated 3
December 2013.
[2]
The crisp issue which has to be decided
is whether the court a quo correctly held that there had been proper
service of the respondent’s
summons in the action on the
appellant.
[3]
It is common cause that the appellant is
a communal property association (CPA) and that it is registered as
such in terms of the
Communal Property Association Act, 28 of 1996
(the Act). It is also common cause that the appellant is the
registered owner of
portion 6 of the farm Sunnymead 600 JT in the
district of Barberton (Portion 6). Portion 6 and Portion 0 were
purchased for the
appellant by the Commission on Restitution of Land
Rights pursuant to a successful claim which it lodged in terms of the
Restitution of Land Rights Act, 22 of 1994
.
[4]
Section
7 of the Act sets out the procedure for the adoption of a
constitution by a community
1
.
Section 8 of the Act deals with the registration of communal property
associations. Section 8(1) provides that the Director-General
[2]
shall consider an application for registration of a communal property
association together with, inter alia, the constitution adopted
by
the association. In order to qualify for registration as a CPA in
terms of the Act, the community has to comply with the requirements
of s 8(2) of the Act. One of the requirements is that prescribed in s
8(2)(d) of the Act, which is that “the constitution
adopted by
it deals with the matters referred to in the Schedule”. The
Schedule to the Act lists 22 matters which have to
be addressed in a
CPA’s constitution. The first is its name. The second one is
the address of the association.
[5]
Section
8(3)(a) of the Act provides that, if the Director-General is
satisfied that the association qualifies for registration,
he or she
shall refer the application, constitution and his or her written
consent to the Registration Officer
[3]
,
who shall register the association in the prescribed manner, allocate
a registration number, and issue a certificate of registration.
The
appellant’s registration certificate is annexed to its founding
affidavit. Section 8(3)(b) provides that the Registration
Officer
shall keep a register of, inter alia, registered associations. In
terms of s 8(3)(c), the Registration Officer shall, on
request and on
payment of the prescribed fee, provide members of the public with
information contained in the register and with
a copy of the
constitution of any registered association. A member of the public
will therefore be able to obtain, in this way,
the address of a CPA
which has been registered in terms of the Act.
[6]
The appellant stated in paragraph 2.1 of
its founding affidavit that its “registered office” was
Portion 6. This was
not disputed by the respondent. The reference by
the appellant to Portion 6 being its registered office is obviously a
reference
to the address mentioned in the constitution which it
adopted for purposes of qualifying for registration as a CPA in terms
of
the Act. No other provision exists for a CPA to have an address
which is registered.
[7]
Section 8(6)(a) of the Act provides
that, upon the registration of an association, it shall be
established as a juristic person
with the capacity to sue and be
sued. The submission on behalf of the appellant in the court below
and before us was that the summons
should have been served in
accordance with Rule 4(l)(a)(v). The rule provides as follows:
“
4(1)(a)
Service of any process of the court directed to the sheriff and
subject to the provisions of paragraph (aA) any document
initiating
application proceedings shall be effected by the sheriff in one or
other of the following manners:
(v)
in the case of a corporation or company, by delivering a copy to a
responsible employee thereof at its registered office or
principal
place of business within the court's jurisdiction, or if there be no
such employee willing to accept service, by affixing
a copy to the
main door of such office or place of business, or in any manner
provided by law. ”
[8]
The
appellant is a juristic person, i.e. a corporation.
[4]
The evidence shows that it does not carry on business. It therefore
does not have a principal place of business where a process
of court
may be served. But it does have an address which is reflected in its
constitution and which therefore forms part of its
registration
documents in terms of the Act. There is, in my view, no difference in
principle between a registered address and a
registered office to
which the rule refers.
[9]
It follows that the summons in question
should have been served at Portion 6 in the manner provided for in
Rule 4(l)(a)(v). But
that is not what happened. What the sheriffs
return of service reflects is that he served the summons on Mr. John
Zulu, chairman
of the Etindziweni Communal Property Association at
his residence, being 119 Long Homes, Emjindini, Barberton. The return
further
reflects that several attempts were made to serve the summons
at Sunnymead farm, but that the sheriff could not find anyone to
serve the summons on.
[10]
The appellant’s founding affidavit
was deposed to by Mr. John Zulu. He states in paragraph 18 thereof
that the summons was
served on him personally on 29 December 2011
and that he took a copy thereof to the
Regional Office of the Commission on Restitution of Land Rights, and
in particular to a Mr.
Mathedimusa who informed him that he should
not worry as they would deal with the matter. He again approached the
Commission’s
offices in June 2012 and was informed that they
were dealing with the matter. He only became aware that default
judgment had been
granted against the appellant when a writ of
execution was served on him, again at his private residence, on 15
November 2012.
The sheriff attached his personal movable assets, but
the writ was set aside by the court a quo.
[11]
It was correctly pointed out by the
court a quo that the purpose of Rule 4 is to provide a mechanism by
which relative certainty
can be obtained that the process in question
has come to the attention of the defendant. If this purpose was
achieved, the court
found, there has been proper service even if
service was not effected in terms of the rules. The court then found
that the service
upon the appellant’s chairperson was
sufficient to reach the appellant’s attention. In our
respectful view, the court
erred in this regard. In terms of the Act,
the affairs of a CPA are managed by a committee elected by the
members of the CPA. See
in this regard the definition of ‘committee’
in s 1 of the Act, ss 9(l)(e)(i) and (vi) of the Act, and item 13 of
the
Schedule to the Act. There is no indication that Mr. Zulu ever
brought the existence of the summons to the attention of the
applicant’s
management committee. It appears that he simply
handed the summons over to the Commission and left it to them to deal
with the
matter.
[12]
For the above reasons, I conclude that
the service of the summons on the appellant was irregular and that
the judgment which was
granted was accordingly erroneously sought and
granted. In the result, I propose that the following order be made:
(1)
The appeal is upheld with costs,
including the costs of the appellant’s application for leave to
appeal to the court a quo
and to the Supreme Court of Appeal.
(2)
The order in paragraph [30] (a) of the
court a quo is set aside and is replaced with the following order:
(i)
The default judgment granted against the
applicant on 2 October 2012
under
case no. 65590/11 is rescinded.
(ii)
The respondent is ordered to pay the
costs of the application.
M
M JANSEN
JUDGE
OF THE HIGH COURT
I
agree
W
PUSHES
JUDGE
OF THE HIGH COURT I agree, and it is so ordered
J
W LOU W
JUDGE
OF THE HIGH COURT
Appellant’s
counsel: Adv. D.T. Skosana SC Instructed by S. Ngomane Inc.
Respondent’s
counsel: Adv. J. de Beer Instructed by Hough & Bremner Inc.
[2]
A community is defined in s I to mean a group of persons which
wishes to have its rights to or in particular property determined
by
shared rules under a written constitution and which wishes or is
required to form an association as contemplated in s 2 of
the Act.
"
Who is defined in s 1 of the Act as the Director-General of Rural
Development and Land Reform.
[3]
Who is defined in s I of the Act as an officer of the department of
Rural Development and Land Reform appointed by the Director-General
as Registration Officer.
[4]
The Afrikaans text of Rule 4( 1 )(a)(v) refers to a “regspersoon
”