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[2015] ZANCHC 23
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Van Staden N.O. v Opperman and Others (478/2014) [2015] ZANCHC 23 (24 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
478/2014
Datum
verhoor/Date heard:
05
/ 06 / 2015
Datum
gelewer/Date delivered
24
/ 07 / 2015
In
the matter between:
PETRUS
JACOBUS CORNÉ VAN STADEN N.O.
Applicant
and
PETRUS
JORDAAN OPPERMAN
First
Respondent
SYLVIA
OPPERMAN
Second
Respondent
SOL
PLAATJE MUNICIPALITY
Third
Respondent
Coram:
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
The applicant successfully applied for an order authorizing the form
and the content of a draft notice in terms of section 4(2)
of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act, No 19 of 1998 and the manner of service thereof
and further
incidental relief.
[2]
Application for the relief set out in Part B of the Notice of Motion
was to be made on 16 May 2014. Part B thereof reads
as follows:-
“
PART
B:-
1.
the
First and Second Respondents and all persons occupying the property
under then, be ordered to vacate the property known as Unit
7, Klinka
Korna, Rensleshan Street, Belgravia, Kimberley, Northern Cape
Province (“the property”) with immediate effect,
alternatively to vacate the property at a date determined by this
Court;
2.
in
the event of the First and Second Respondents failing to adhere to
this order, the Sheriff for the district of Kimberley or his
Deputy
be authorised and ordered to give effect to this order in a manner
that he deems practical and necessary and in the event
that he deems
it necessary, to obtain the assistance of the South African Police
Services for the sake of giving proper effect
to this order;
3.
the
First and Second Respondents be ordered to pay the costs of this
application, jointly and severally; and
4.
such
further and/or alternative relief be awarded to the Applicant as this
Court deems fit.
”
[3]
The first and second respondent opposed the application and the
matter was subsequently postponed to the opposed motion roll
of 18
September 2014. The second respondent has since passed away.
[4]
Lacock, J granted an order on the abovementioned date in the
following terms:
“
1.
The application is postponed sine die pending the finalisation of the
following actions/applications:
1.1
The first respondent is to institute legal proceedings against
Reverse Mortgage Co. (Pty) Ltd and/or Jacobus Frederik
van Niekerk
and/or Elizabeth Catharina Wilhelmina van Niekerk and/or Lomina 124
(Pty) Ltd (in liquidation) and/or ABSA Bank for
the cancellation of
the Agreement of Purchase and Sale entered into between the first and
second respondents and Lomina 124 (Pty)
Ltd in terms whereof the
first and second respondents sold the immovable property, 7 Klinka
Korna, Rendlesham Avenue, Belgravia,
Kimberley, to Lomina 124 (Pty)
Ltd as well as the subsequent registration of transfer of the
property to Lomina 124 (Pty) Ltd;
and for the cancellation of any
bonds registered against the aforesaid property and any anciliary
relief.
1.2
That
the court proceedings of today be transcribed in order to allow the
first respondent to apply for legal aid assistance by the
Legal Aid
Board within 10 (TEN) days from date of availability of the
transcribed record.
1.3
The
aforesaid legal proceedings shall be instituted within 20 (TWENTY)
days of the date after receipt of the decision of the Legal
Aid Board
for legal assistance.
1.4
Should
the first respondent fail to apply for legal aid assistance within
the period as aforesaid and/or fail to institute legal
proceedings
within the period as aforesaid, this application shall be immediately
re-enrolled on the opposed roll.
1.5
The
aforesaid legal proceedings are then to be finalised without undue
delay.
2.
The costs of the application shall stand over for later
determination.
[5]
The applicant then proceeded to enrol the application again and on 27
February 2015 it was postponed, by agreement, to 5 June
2015.
[6]
Adv. Stanton for the Applicant and Adv. Schreuder for the first
respondent confirmed during argument that the first respondent
had
instituted legal proceedings, as envisaged in the order of Lacock J,
in this Court under case number 2033/2014. As the
said court
file had not been placed before me and both counsel were in agreement
that the contents thereof were relevant to the
application before,
judgement was reserved in order for me to peruse the contents
thereof.
[7]
On perusal of the court file under case number 2033/2014, it appeared
that the first respondent instituted an action reclaiming
the
immovable property from the aforesaid parties, as envisaged in
paragraph 1.1 of the order granted by Lacock J on 18 September
2014.
The applicant herein had already filed a plea in the said action,
before this application was enrolled again.
This application
cannot proceed until such time as the action under case nume
2033/2014 has been finalised.
[8]
In the light of the aforementioned, the following order is made:
1.
THE
APPLICATION IS STRUCK FROM THE ROLL.
2.
THE
COSTS IN RESPECT OF THE PROCEEDINGS OF 5 JUNE 2015 ARE RESERVED.
_________________________
S
L ERASMUS, AJ
ACTING
JUDGE
On
behalf of Applicant:
Adv. A.
Stanton (oio Engelsman, Magabane Inc.)
On
behalf of Respondents
:
Adv. J.J. Schreuder (oio Hugo Mathewson & Oosthuizen)