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[2013] ZAGPPHC 28
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Joubert v Mkebe and Others (69522/2011) [2013] ZAGPPHC 28 (6 February 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF THE REPUBLIC
OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
number: 69522/2011
DATE:06/02/2013
In
the matter between:
JACOBUS
PETRUS JOUBERT
….............................................................................
Applicant
and
SIPHILO
SAMUEL
MKEBE
..........................................................................................
First
Respondent
NOKUHLE
MILDRED
MKEBE
.....................................................................................
Second
Respondent
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY.
.........................................
Third
Respondent
JUDGMENT
BAM
AJ
1.
The applicant applies for the eviction of the first and second
respondents from a property purchased by the applicant during
a sale
in execution. The application is opposed by the two respondents.
2.
The sequence of events in regards to the history relevant to this
application is as follows.
(i)
First and second applicants were the registered owners of the
property in question. A bond was registered in favour of ABSA
bank.
(ii)
ABSA issued summons against the two respondents apparently due to the
fact that the two respondents failed to comply with the
terms of
repayment of the bond repayments.
(iii)
On 9 March 2009 this court granted a summary judgment against the
respondents including an order for the execution of the
property.
(iv)
On 20 May 2009 at the sale in execution, the property was sold to the
applicant. The property was registered in the name of
the applicant
on 2 September 2011.
(v)
On 1 June 2012 the respondents' application for the rescission of the
summary judgement was dismissed. (Following an initial
dismissal due
to non appearance.)
(vi)
On 15 June 2012 the respondent's application for leave to appeal
against dismissal of the application for the rescission of
the
summary judgment granted on 9 March 2009, was dismissed.
(vii)
The respondent's petition to the Supreme Court of Appeal praying for
leave to appeal against the dismissal of the application
for
rescission of the summary judgment, was dismissed on 26 October 2012.
(viii)
On 1st November 2012 the first respondents deposed to an affidavit in
support of a draft application to the Constitutional
Court for an
application for leave to appeal against the judgment on 1 June 2011
dismissing the two applicant's application for
rescission of the
summary judgment.
3.
It was contended on behalf of the two respondents, represented by Mr
van den Ordel, that an appeal against the dismissal of their
application for rescission of the summary judgment in question is
pending before the Constitutional Court, and, therefore, in
accordance with the provisions of R 49, the summary judgment granted
in 2009 should be regarded as suspended until the Constitutional
Court has adjudicated the issue. This seems to be the only defence
the two respondents are relying on.
4.
In principle this argument seems to be correct. However, I have
already alluded to the fact that no proof exists that the application
in question was indeed filed with the registrar of the Constitutional
Court. The last relevant document pertaining to this issue
was
furnished by the applicant's counsel. This document purports to be a
letter from the Registrar of the Constitutional Court
dated 17
January 2013, bearing the date stamp of the Constitutional Court with
the same date, addressed to the two respondent's
attorney of record's
Email address, with the following contents.
"Dear
Mr Sizwe Snail ka Mtuze
CCT107/12:
SIHELO SAMUEL MKEBE AND ANOTHER VABSA BANK
I
refer to your letter of 10 January 2013.
You
are hereby informed that a request for an extension of time needs to
be made by way of a substantive application and not by
letter."
5.
In my view, as submitted on behalf of the applicant, the contents of
that letter conveys that the two respondents' attorneys
applied by
letter for extension of time for the filing of the two respondents'
intended application to the Constitutional Court,
which application
by letter clearly did not comply with the Rules of that Court. It
follows that, at that stage, the intended application
of the two
respondents was not pending. There is no indication that subsequent
to the letter from the Constitutional Court, anything
had been done
by, or on behalf of, the two respondents.
6.
Consequently this Court cannot find that there is in fact an
application for leave to appeal the dismissal of the rescission
application still pending. The mere intention of the two respondents
to approach the Constitutional Court is not sufficient. The
history
of the matter, including the delay by the two respondents to lodge
the relevant applications timeously, as also pointed
out by Hiemstra
AJ when he dismissed the rescission application, creates the
impression that the two respondents were obstructive
and that they
deliberately delayed the course of the law.
7.
Counsel for the applicant also referred me to an unreported decision
of South Gauteng, per L J van der Merwe A J, case number
2011/33437
dated 30 January 2012; KNOX NO v MOFOKENG AND OTHERS, in which the
learned judge discussed the issues concerning the
rights of bona fide
purchasers of property at valid sales in execution after the judgment
authorizing the execution had been rescinded.
Based on the said
judgment, counsel for the applicant argued that the setting aside of
the summary judgment the two respondents
are complaining about, will
not automatically result in the setting aside of the sale or
registration of the property. This argument
seemed persuasive.
However, in my opinion, this Court is not, in the circumstances,
called upon to consider the nature and extent
of the rights of the
applicant in this matter.
8.
In my view ft suffices to say that the applicant clearfy has locus
standi to bring this application, that the applicant has complied
with the provisions of section 4 of Prevention of Illegal Eviction
Act, No 19 of 1998, and, that the two respondents have no valid
defence.
9.
Accordingly I make the following order.
ORDER
GRANTED IN TERMS OF DRAFT ORDER,
A
J BAM
ACTING
JUDGE OF THE HIGH COURT
1
February 2013
IN
THE NORTH GAUTENG HIGH COURT; PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 69522/2011
In
the matter between:
JACOBUS
PETRUS
JOUBERT
…................................................
.Applicant
and
SIPHELO
SAMUEL
MKEBE
............................................................
First
Respondent
NOKUHLE
MILDRED MKEB
E
…...................................................
Second
Respondent
CITY
OF TSHWANE METROPOLITAN COUNCIL
.......................
Third
Respondent
ORDER
Having
read the papers filed in this matter and having heard counsel for the
Applicant and counsel for the First and Second Respondents,
it is
ordered that:
1.
the First and Second Respondents and all persons holding occupation
through them of the premises, situated at 12 GULFSTREAM BOULEVARD,
CENTURION, being ERF 2798 HIGHVELD EXT 47 TOWNSHIP, REGISTRATION
DIVISION J.R., PROVINCE OF GAUTENG ("the property")
is to
vacate the property on or before , 25 February 2013;
2.
in the event of the First and Second Respondents and those holding
occupation under them, failing to vacate the property on or
before
the above date, the Sheriff or his deputy is authorised to evict such
persons from the property on the day following the
date referred to
above or thereafter;
3.
the Sheriff or his deputy is authorised to elicit the assistance of
the South-African Police Services in order to give effect
to this
order, if such assistance is required;
4.
The First and Second Respondents, are to pay the costs of the
application jointly and severally, the one paying the other to
be
absolved.
By
Court - Registrar