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[2014] ZAGPPHC 501
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Pitje v Shibambo and Others (77000/10) [2014] ZAGPPHC 501 (7 March 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number 77000/10
Date: 7 March 2014
In the matter
between
I R
PITJE
...............................................................................................................................................
Applicant
And
J O
SHIBAMBO
........................................................................................................................
First
Respondent
E V
SHIBAMBO
...................................................................................................................
Second
Respondent
M H
PITJE
................................................................................................................................
Third
Respondent
REGISTRAR OF
DEEDS
......................................................................................................
Fourth
Respondent
STANDARD BANK (SA)
LIMITED
.......................................................................................
Fifth
Respondent
NEDBANK
LIMITED
..............................................................................................................
Sixth
Respondent
JUDGMENT
BAM J
1. The disputes in
this matter turn upon the ownership of a property, Erf [...], M[...].
The applicant contends it is his property.
Initially the property was
apparently part of his father's estate. The third respondent, brother
to the applicant, purchased the
property in 1992. A bond was
thereafter registered in favour of the sixth respondent. According to
the respondent he purchased
the property from his brother, the third
respondent, in 2001, after certain negotiations with the sixth
respondent. The applicant
averred that he complied with the agreement
pertaining to payments to the sixth respondent until he was advised
by the sixth respondent
that the bond account had been closed. It
appears that in the meantime the third respondent sold the property
to the first and
second respondents.
2.
On 6 April 2011 the first and second applicants issued an application
for the eviction of the applicant from the premises. A
notice to
oppose the application was duly filed by the applicant's attorneys.
According to the applicant, who is at present in
his seventies, he
was ill during May 2011 and for that reason he was advised that it
was not
"desirable
"to
depose to an opposing affidavit at the time. The respondent's
attorneys were accordingly advised.
3. On 29 August
2011, the application for the eviction of the applicant lodged by the
first and second respondents was heard in
the unopposed motion court
and an order for the eviction of the plaintiff from the said premises
was granted. It appears that the
applicant was represented by counsel
who was only instructed to apply for postponement. The application
for postponement was however
refused and the court proceeded to deal
with the matter, presumably on an unopposed basis.
4. It is not in
dispute that the applicant did not file any opposing papers, that the
application was properly enrolled, and that
the Notice of Set Down
was served on the applicant's attorneys on 19 July 2011 and on the
applicant personally on 25 July 2011.
5. On 14 September
2011 the applicant’s attorneys served a Notice of Motion on the
respondents praying for the following relief:
(i) That the Order
made by the Honourable Court on the 29
th
August 2011 be
varied to read that the application is dismissed with costs.
(ii) That the fourth
respondent be directed to cancel the registration of the transfer of
the property described as Erf [...], M[...],
Pretoria, Gauteng
Province from the names of the First and second respondents held
under Title Deed Number; T[...].
(iii) That the
fourth respondent be directed to cancel the registration of the
Mortgage Bond Number: B[...] and or any other bond(s)
that may be
registered against the aforesaid property in favour of the fifth
respondent.
(iv) That the fourth
respondent be directed to register the transfer of the aforesaid
property into the names of the applicant,
upon the latter providing a
guarantee to pay the outstanding bond amount that was due to the
sixth respondent.
(v) That the costs
of the application be borne by the respondent(s), provided opposing
the same on a punitive scale that may be
justifiable in the
circumstances.
(vi) That such
further and/or alternative relief be granted to the applicant as it
may be just in the circumstances.
6. During argument
Mr van Rensburg, appearing for the applicant, conceded that the
applicant cannot succeed with the relief for
the variation of the
order as sought, but submitted that the applicant should be entitled
to succeed with a rescission of the eviction
order of the 29 August
2011, if not in accordance with prayer 1 then under the prayer for
further or alternative relief.
7. It was contended
by Mr Mostert, appearing for the first, second and third respondents,
that the applicant could not succeed with
the relief sought for
variation or rescision of the judgment in question. The applicant’s
only remedy was to appeal the judgment.
In regards to the submission
on behalf of the applicant that the application should be dealt with
as an application for the rescission
of the judgment and that it
should be granted under the prayer of alternative relief, is, on the
submission by Mr Mostert, untenable
and not justified in law. The
judgment, argued Mr Mostert, was in any event not a default judgment
because the applicant was in
fact represented when the application
was considered by the Court.
8.
Rule 42(l)(a) of the Rules of Court provides that a court order may
be rescinded or varied if it was erroneously granted in the
absence
of any affected party. In this regard a court has a discretion. In
De
Wet & Others v Western Bank Ltd 1979(2} Sa 1031 (AD),
AT
1042F - 104A It was re-stated that the applicant must show good cause
and that the considerations of justice and fairness have
to be kept
in mind by the court hearing the application. Good cause entails a
reasonable and acceptable reason for the default
and a bona fide
defence which carries some prospects of success.
See
Chetty v Law
Society
,
Transvaal 1985(2)
SA 756 (AD) at 765 A-D
where
Miller JA stated the law and added the following:
"It is not
sufficient only one of these requirements is met; for obvious reasons
a party showing no prospect of success on
the merits will fail in the
application for rescission of a default judgment against him, no
matter how reasonable and convincing
the explanation of his default.
An ordered judicial process would be negated if, on the other hand, a
party who could offer no
explanation of his default other than his
disdain for the Rules was nevertheless permitted to have a judgement
against him rescinded
on the ground that he had reasonable prospects
of success on the merits."
9.
It
is contended by the applicant that the first and second respondents
were at all relevant times aware of the fact that he had
acquired all
the rights in respect of the said premises and that they, despite
that knowledge concluded an agreement with the third
respondent to
purchase the property. In this regard, as alluded to above, the
applicant avers that he is the owner of the property,
that he has
made payments in respect of the bond, and that he is still residing
at the property. The applicant added that the third
respondent did
not have any right to sell the property to the first and second
respondents.
It is clear that
there is a material dispute of fact between the applicant and the
third respondent, the latter contending that
the applicant never
became the owner of the property.
10. It has to be
stated that this court is not called upon to decide on the merits of
the applicant's prospects of success, what
has to be considered, as
alluded to above, is whether the applicant has a bona fide defence
which prima facie carries some prospects
of success.
In this regard, in
my view, the applicant succeeded.
11. In regards to
the question whether the applicant has shown sufficient or good cause
for his default, the following issues are
relevant. On the
applicant's own version it is clear that no opposing papers were
filed against the application for his eviction
from the property. The
explanation of the applicant that he was advised, due to his health
condition, that it was not advisable
to depose to an opposing
affidavit at the time it was due, is a bit flimsy. From the date of
the filing of the Notice to Oppose
the application for his eviction
on 6 April 2011 until the enrolling of the application in July and
the hearing on 29 August 2011,
the applicant surely had several
months to file opposing papers or at least a substantive application
for postponement. This did
not happen. However, what must be taken
into account is the fact that the applicant did file a Notice to
oppose the application
and that his attorneys did advise the
respondent's attorneys of his poor health condition. The applicant
was further represented
by counsel on the 29 August 2011, but who was
apparently briefed solely for an application for postponement.
12. In considering
all relevant issues this is not a case where the applicant's
explanation can be said to be unreasonable.
13. Accordingly,
although the relief claimed by the applicant for the variation of the
court order of the 29 August 2011 cannot
be granted, the application
for the rescission of that order should be granted. The respondents
were aware, at all relevant times,
that the applicant actually sought
an order to rescind the eviction order.
14. This application
was enrolled for the 24 February 2014. The applicant's heads of
argument were filed on 19 February 2014 without
any explanation why
it was not filed timeously in accordance with the Practice Rule. On
24 February the matter was stood down until
the 26
th
February to enable the applicant's representative to file an
affidavit explaining the late filing of the heads. An affidavit in
that regard was handed up by counsel on the 26
th
. I do not
deem it necessary to repeat the contents in view of the fact that
counsel, Mr van Rensburg conceded that the explanation
was clearly
insufficient. It suffices to say that that I will express this
Court's disapproval of the non-compliance with the Practice
Rule with
an appropriate order.
15. Accordingly the
following order is made:
1. The Court order
dated 29 August 2011 for the eviction of the applicant from Erf
[...], M[...], is rescinded.
2. The applicant is
ordered to file his opposing papers with the Registrar, and serve it
on the attorneys for the first, second
and third respondents, not
later than 17 March 2014.
3. In the event of
the applicant failing to comply with the above order, the respondents
will be entitled to enroll the application
on the unopposed motion
court roll.
4. The applicant's
attorneys are debarred from taxing and claiming any fee for the
drafting and filing of the applicant's heads
of argument in this
application.
5. The order in
respect of the costs of this application is reserved.
A J BAM
JUDGE OFTHE HIGH
COURT
5 March 2014