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[2014] ZAGPPHC 364
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Ndubane v Kibel and Another (13687/2012) [2014] ZAGPPHC 364 (13 June 2014)
SAFLII
Note:
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: 13687/2012
DATE:
13/6/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
ANNA
MOENG NDUBANE
…........................................................................................
APPLICANT
And
LANCE
KIBEL
.......................................................................................................
1
ST
RESPONDENT
ABSA
BANK
...........................................................................................................
2
ND
RESPONDENT
In
re
LANCE
KIBEL
.................................................................................................................
APPLICANT
And
NDUKO
PHINEAS
NDUBANE
.............................................................................
1
ST
RESPONDENT
ANNA
MOENG
NDUBANE
..................................................................................
2
ND
RESPONDENT
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
.....................................................................................................
3
RD
RESPONDENT
JUDGMENT
LEPHOKO
AJ
[1]
The first responded purchased the property known as erf 4[…]
S[…], Registration Division JR, Gauteng Province
(the
property) at a public auction conducted by the sheriff on 14 April
2011. It appears from the first respondent’s title
deed that
the property had been attached pursuant to a judgment obtained by the
second respondent, ABSA Bank (ABSA) as mortgagee
after Mr. Nouko
Phineas Ndubane and his wife Anna Moeng Ndubane who were mortgagors
had defaulted on their bond repayments.
[2]
On 19 June 2012 the first respondent as the new registered owner of
the property issued proceedings in terms of section 4 of
the
Prevention of Illegal Eviction from Unlawful Occupation of Land Act,
Act 19 of 1998 seeking an order to evict the alleged unlawful
occupiers of the property.
[3]
The eviction application was unopposed and on 22 August 2012 Matojane
J granted an order in terms of which the respondents in
the eviction
application and all those who occupied the property were ordered to
vacate the property on or before the 11 October
2012 failing which
they could be evicted by the sheriff on or after the 21 October 2012.
[4]
The applicant in this application is the daughter of Mr. and Mrs.
Ndubane and is in occupation of the property as one of the
alleged
unlawful occupiers. On 11 October 2011 the applicant brought an
urgent application to have the eviction order granted
by Matojane J
on 22 August 2012 suspended pending an application for rescission of
that order. The applicant also sought an order
authorizing her to
occupy the property in question. Baqwa J struck the application off
the roll with costs for lack of urgency.
[5]
The application for rescission of the eviction order was not proceed
with and the application struck off the roll by Baqwa J
remained
dormant until the first respondent in the present proceedings
enrolled it for hearing on 5 May 2014. At the hearing
of the
matter the first respondent sought an odder dismissing the
application with costs and that the applicant and her fellow
respondents in the eviction matter be evicted from the property
immediately.
[6]
The only issue I have to decide is whether the eviction order should
be suspended pending the rescission application and whether
the
applicant should remain in occupation of the property pending the
final determination of the rescission application.
[7]
The decision whether the eviction order should be rescinded vests in
the court hearing the application for rescission. I will
not attempt
to usurp the function of that court. In determining whether the
relief sought by the applicant should be granted the
court must
inter
alia
consider whether prospects exists that the court hearing the
rescission application may rescind the eviction order. In so doing
the court must evaluate the application against whether the applicant
has made allegations that are ordinarily required to found
an
application for rescission of judgment.
[8]
It is trite that in order to succeed with an application for
rescission the applicant must show that she was not in willful
default, that the application is
bona fide
and not made with
the intention to delay the claim and that she has a
bona fide
defence,
which
prima facie
has some prospects of success:
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 – 477,
Morkel v ABSA Bank Bpk
1996 (1) SA 899
(C) at 903D – E,
Standard Bank of SA Ltd v EL-Naddaf
1999 (4) SA 779
(W) at 784.
EXPLANATION
OF DEFAULT
[9]
This application is poorly drafted and there are instances where
important dates and events are not correctly set out. The first
respondent alleges that the eviction order was not granted in default
as the applicant was in court when the order was granted.
The
application was first in court on 09 July 2012 when it was postponed
to the 22 August 2012. The first respondent’s counsel
informed
the court that the postponement was to allow the applicant to obtain
legal representation.
[10]
The applicant states that she was served with first respondent’s
application for eviction during 2011. The documents
filed indicate
that the eviction application was only issued in 2012 and was served
on the executor of her father’s estate
on 30 March 2012. Once
the applicant became aware of the application she approached the Law
Society of the Northern Provinces (the
Law Society) for legal
assistance to oppose the eviction application. She was referred to an
attorney through the Law Society’s
pro bono
scheme. She
struggled to get an appointment to consult with the attorney due to
the attorney’s busy schedule which led to
the matter eventually
proceeding unopposed on 22 August 2012 when the eviction order was
granted.
[11]
The first respondent’s counsel argued that the applicant was
personally in court on 22 August 2012 when the order was
granted. It
was submitted that on 22 August 2012 the court engaged with the
applicant before granting the eviction order and that
the applicant
had the opportunity to put her case before the court before it was
dismissed.
[12]
I have perused the transcript of the proceedings on 22 August 2012.
The applicant, who is illiterate, was not legally represented
on that
day. I do not intend to deal with the procedure or merits of the
eviction application as this court is a review court or
a court of
appeal. Suffice to say that the applicant did not appear to
understand the nature of application proceedings and the
manner of
presenting evidence in such proceedings. She did not file an
answering affidavit or testify under oath at the hearing.
She did not
admit, deny or challenge any of the allegations made by the first
respondent in his founding affidavit despite the
fact that she was
there to oppose the application. She did not know or understand that
she had the right to do so in order to effectively
oppose the
application.
[13]
In my view, mere physical presence in court as a concerned observer
having a direct and substantial interest in the outcome
of the
proceedings can never amount to presence in court as envisaged in the
rules of court. An uninformed engagement with
the court does
not translate to such presence or a fair hearing.
[14]
It appears that the applicant took all reasonable and necessary steps
to protect her interest in the property as soon as she
became aware
of the legal proceedings. She sought help from the Law Society and
instructed attorneys to represent her before the
date of the hearing.
She also personally attended court each time the matter was in court
notwithstanding her illiteracy. It appears
that she was let down by
her attorneys who seemingly failed to act in her best interest.
BONA
FIDE APPLICATION
[15]
The applicant alleges the facts that are set out in paragraph 16
below. In my view a possibility exists that the court hearing
the
application for rescission may find that based on those facts the
applicant is not bringing the application solely for the
purpose of
delaying the first respondent’s claim.
BONA
FIDE DEFENCE
[16]
The applicant states that she is illiterate, unable to read or write
and does not understand how banks operate. She states
that the
property belonged to her late father and that the mortgage bond was
insured by ABSA. She further states that on the death
of her father
she took the insurance policy documents to ABSA in order to have a
claim processed for the insurance policy to pay
off the bond. ABSA
assured her that the insurance would settle the outstanding balance
in full. She went to ABSA on several
occasions to enquire about
progress. Each time she visited ABSA she was told that she would be
informed of progress.
[17]
The applicant further states that her attorney approached ABSA and
enquired about the insurance that was supposed to have paid
off the
balance on the bond. ABSA first told her attorney that the insurance
had settled the outstanding balance in full. ABSA
later informed her
attorney that there was an outstanding amount of R23 000-00 but could
not provide confirmation of the amount
paid by the insurance policy.
ABSA also failed to give reasons why it sold the property in
execution before executing on movable
property. These
allegations are confirmed by the applicant’s attorney of record
at the time in a verifying affidavit.
The attorney is an officer of
the court and the court takes her confirmatory affidavit at face
value and assumes that she would
not deliberately mislead the court.
[18]
The first respondent’s counsel referred the court to the case
of Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd1984 (3)
SA 623 (A) and submitted that in the light of the applicant’s
failure to file a replying affidavit the application
must be decided
on the first respondent’s answering affidavit and only the
admitted facts in the applicant’s founding
affidavit.
[19]
I am not persuaded that in the circumstances of the present case I
should decide the application on the basis suggested by
counsel even
when it is clear that the applicant, who is illiterate, would most
probably have filed a replying affidavit or led
rebutting evidence at
the hearing had she fully understood and appreciated the nature of
the proceedings and the significance of
filing a replying affidavit
or adducing rebutting evidence at the hearing. In this kind of
situation it would be in the interest
of justice for the court to
exercise its discretion and afford a party in the position of the
applicant an opportunity to file
a replying affidavit or to adduce
oral evidence to rebut the allegations made in the answering
affidavit. In my view, failure
to do so may lead to unintended
miscarriage of justice.
[20]
The right to housing is a fundamental right protected by section 26
of the constitution of South Africa. The courts are also
there to
protect the rights of illiterate persons, the poor and vulnerable
members of society. Courts should be loath to readily
dismiss a
defence based on a constitutionally protect right even though
protracted litigation may lead to enormous prejudice to
one of the
parties involved in the litigation.
[21]
In RGS Properties (Pty) Ltd v Ethekwini Municipality
2010 (6) SA 572
(KZD) at 575H-576C the court stated that judgment by default is
inherently contrary to the provisions of section 34 of the
Constitution
and that in weighing up facts for rescission, the court
must balance the need of an individual who is entitled to have his
dispute
resolved in a fair manner in a public hearing, against those
facts which led to the default judgment being granted. The court
observed
that whilst there is a need for the existence of a bona fide
defence the court is not seized with the duty to evaluate the merits
of the defence. The fact that the court may be in doubt about the
prospects of the defence to be advanced is not a good reason
for
refusing the application.
[23]
The court was referred to the decision in Johannesburg Housing
Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village
2013 (1) SA 583
(GSJ) where it was stated that a property owner
cannot be expected to provide free housing for the homeless on its
property for
an indefinite period. The court was also referred to the
decisions in City of Johannesburg Metropolitan Municipality v Blue
Moonlight
Properties 39 (Pty) Ltd and Another
2012 (2) SA 104
(CC)
and City of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012 (6) SA 294
(SCA) where it was decided that property owners are
entitled to rights in regard to properties of which they are the
lawful owners,
and which should be recognized by the court.
[24]
I am in full agreement with the pronouncements in the foregoing cases
but hold the view that these decisions are not authority
for the
proposition that the court must order the eviction of an alleged
unlawful occupier pending the determination of the lawfulness
of the
registered owner’s right to the disputed property. In those
cases ownership was not in dispute, in this case it is.
The fact that
one is a registered owner of immovable property does not
per se
put his right of ownership beyond scrutiny by the courts as the
acquisition may have been unlawfully acquired and subject to setting
aside.
[25]
This court is not sitting as a review court or a court of appeal and
is not competent to set aside the order granted on 22
August 2012
even temporarily. I am however of the view that in the circumstances
of this case it would be just and equitable to
restrain the first
respondent from evicting the occupiers of the property pending the
determination of the application for rescission.
I
am of the view that the applicant has shown sufficient cause why the
court should come to her assistance.
I have also taken into account
that the application was brought on an urgent basis and that that may
have limited the applicant’s
ability to deal with her grounds
for rescission in sufficient detail as she intended to bring a
separate application for rescission
that would have enable her to set
out a comprehensive and proper case for rescission.
[26]
This matter was first heard on 06 May 2014. The applicant was again
personally present in court. Counsel for the first respondent
informed the court that she had discussed the matter with the
applicant’s attorney outside court in the presence of the
applicant and an agreement had been reached that the applicant would
not proceed with the application and would vacate the property.
The
applicant’s attorney left before the matter was called and the
applicant was again unrepresented. On enquiry by the court
the
applicant denied that she had agreed to any settlement of the matter.
The matter was stood down to the 08 May 2014 so that
the applicant’s
attorney could be present in court.
[27]
On 08 May 2013 Ms. Mnisi appeared for the applicant. She informed the
court that the matter had been settled and the applicant
would vacate
the property and was not proceeding with the application. Upon
questioning by the court Ms Mnisi informed the court
that applicant
had not instructed her to settle the matter but that she had taken it
upon herself to settle based on her advice
to the applicant. The
offer of settlement was not considered by the court as it was against
the applicant’s instructions.
[28]
Before the court adjourned on 08 May 2008 counsel for the first
respondent informed the court that Ms. Mnisi does not have
a right of
appearance in the High Court. Ms Mnisi confirmed that she is not
authorized to appear in the High Court and apologized
for her
unbecoming conduct. She was reprimanded by the court and warned not
to appear in the High Court until she was properly
authorized.
COSTS
[28]
The first respondent argued that he is entitled to payment of his
costs by the Legal Aid Board
de bonis propriis
due to the
delay it had caused in finalizing the application. Cost
de bonis
pripriis
are punitive costs against a party who acts or litigates
in a representative capacity. Cost
de bonis pripriis
are not
awarded lightly and are ordered when there is good reason to do so
such as negligence or unreasonable action, improper
conduct or
recklessness on the part of the representative.
[29]
The present application was set-down by the first respondent and the
rescission application still has to be finalized. The
fact that the
Legal Aid Board neglected to enroll the application is not sufficient
justification for an award of punitive costs
de bonis propriis
.
The first respondent could have easily mitigated his prejudice by
enrolling the matter as soon as he became aware that the applicant
was failing to do so. The delay in finalizing this matter can
therefore not be solely attributed to the applicant or her legal
representatives.
[30]
As a general rule costs follow the cause. The applicant may still
succeed in having the judgment rescinded which may eventually
lead to
a possible dismissal of the first respondent’s claim or the
dismissal of the applicant’s defence. In my view,
a cost order
at this stage would be preemptive and premature. The applicant’s
legal representative was however responsible
for the unnecessary
postponement on 06 May 2014 and her action of abandoning her client
and the hearing when the matter was due
to proceed cannot be
countenanced. The Legal aid Board is therefore held responsible for
the wasted costs on 06 May 2014.
In
the circumstances the following order is made:
1.
The first respondent is interdicted from evicting the applicant and
any other occupier of the property known as erf 4[…]
S[…]
T[…], Registration Division JR, Gauteng Province (the
Property) pending the final determination of the application
for
rescission referred to in paragraph 2 below.
2.
The applicant may institute an application for rescission of the
eviction order granted by Matojane J on 22 August 2012 within
15 days
of the date of this order, failing which the order in paragraph 1
above will lapse.
3.
The applicant and the other occupiers of the property are authorized
to occupy the property pending the final determination of
the
application for rescission referred to in paragraph 2 above or the
lapse of the order referred to in paragraph 1 above.
4.
The Legal Aid Board is ordered to pay the wasted costs occasioned by
the postponement on 06 May 2014.
5.
The costs of the application shall be costs in the cause.
_____________________________________
A
L C M LEPHOKO
(ACTING
JUDGE OF THE HIGH COURT)
Heard
on: 06 and 08 May 2014.
Judgment
delivered on: 13 June 2014
For
the Applicant: Adv.: E Niewoudt
Instructed
by: Legal Aid Centre
For
the Respondent: Adv.: L van der Westhuysen
Instructed
by: Noa Kinstler