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[2012] ZAGPPHC 200
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Kok v Body Corporate of Nordey Heights and Others (12972/10) [2012] ZAGPPHC 200 (11 September 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 12972/10
DATE:11/09/2012
In
the matter between:
MAVIS
BABA
KOK
.................................................................................................
Applicant
and
THE
BODY CORPORATE OF NORDEY
HEIGHTS,
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
1st
Respondent
EY
STUART
INC
.....................................................................................................
2nd
Respondent
BUREAU
TRUST
LUQUIDATORS
…...................................................................
3rd
Respondent
THE
MASTER OF THE HIGH
COURT
.................................................................
4th
Respondent
REGISTRAR
OF
DEEDS
.....................................................................................
5th
Respondent
CITY
OF TSHWANE
METROPOLITAN
...............................................................
6th
Respondent
MUNICIPALITY
SHERIFF
PRETORIA
NORTH-EAST
.................................................................
7th
Respondent
SHERIFF
PRETORIA
CENTRAL
........................................................................
8th
Respondent
JUDGMENT
MSIMEKI, J INTRODUCTION
[1]
The Applicant seeks an order-
1.1.
rescinding the order of Tlhapi J under case number 12972/2010
authorising substituted service granted on 9 April 2010.
1.2.
rescinding the judgment (sequestration) order granted on 24 May 2010
under case number 1297/2010, and
1.3.
for costs. The application seems to be based on Rule 31 (2) (b) of
the Uniform Rules of Court.
Rule
31 (2) (b) provides:
"(b)
A defendant may within twenty days after he or she has knowledge of
such judgment apply to court upon notice to the plaintiff
to set
aside such judgment and the court may, upon good cause shown, set
aside the default judgment on such terms as to it seems
meet."
BRIEF
FACTS
[2]
The Applicant was finally sequestrated on 24 May 2010. she became
aware of that, on her version, on 28 June 2011. This application
was
launched on 12 March 2012 more than 8 months late. The Applicant,
from the reading of paragraph 5 of the founding affidavit,
was
clearly aware that the application should have been launched within
20 days after the Applicant obtained knowledge of the judgment
or
order granted against her. The Applicant averred that she had made
out a proper case for the order that she seeks while the
submission
on behalf of the Respondent is that the point in limine raised should
be upheld in that the Applicant failed to present
any explanation for
the delay in bringing the rescission application. Mr Vorster, for
First the Respondent, submitted that the
founding affidavit does not
even attempt to present such an explanation and that the request for
condonation should be refused
and the application dismissed with
costs.
[3]
Mr Mojamabu, for the Applicant, submitted that condonation was within
the discretion of the court. That is correct. The discretion,
however, is exercised after a consideration of the facts of the case
by the court. The court considers the evidence which is presented
by
the parties by way of affidavits. Mr Mojamabu further submitted that
no one, according to the constitution, should be denied
the right to
be heard due to absence of financial muscle. This was based on what
the Applicant raised in her reply which is not
enough to assist her.
It is noteworthy that the court, in the absence of relevant evidence,
cannot be expected to simply rule in
the Applicant's favour. Mr
Mojamabu implored the court to dismiss the point in limine arguing
that the court had to hear the entire
application. This cannot be
correct where the founding affidavit lacks the necessary evidence to
entitle the Applicant to the condonation
sought. This is the case in
the current matter.
The
court in Vn Wyk V Unitas Hospital
2008 (2) SA 422
(CC) at 477 [22]
said:
"
An Applicant for condonation must give explanation for the delay. In
addition, the explanation must cover the entire period
of delay. And,
what is more, the explanation given must be reasonable." This
the Applicant failed to do.
[4]
Mr Mojamabu submitted that the Applicant, when her attorneys
addressed their letter dated 22 June 2011 to the First Respondent's
attorneys, had hoped that a settlement would be reached. Mr Vorster,
for the First Respondent, submitted that such hope must have
been
removed by the First Respondent's attorneys response of 23 June 2011,
annexure MK6 on page 20 of the paginated papers, which
informed the
Applicant's attorneys that the Applicant had "been placed under
final sequestration on 24 May 2010 and that Messrs
Bureau Trust, the
Third Respondent in the matter, had been appointed as liquidators.
[5]
Mr Vorster submitted that the Applicant would have had no problems
with condonation had she complied with the requirements referred
to
in the Van Wyk matter. This according to him, she dismally failed to
do. He submitted further that no one, here, was arbitrarily
deprived
of the right to housing, as Mr Mojamabu submitted. A valid
sequestration order, according to Mr Vorster, had been granted.
I
agree.
[6]
Mr Vorster submitted, correctly in my view, that a defective case in
the founding affidavit could not be built and rectified
by the
replying affidavit (See Triomf Kunsmis (EDMS) BPK V EA & CI BPK
en Andere 1984 (2) 261 (W) and Tumisi and Others v African
National
Congress 1997 (2) 741 (0).
[7]
The Applicant, indeed, failed to comply with the requirements set out
in the Van Wyk matter. The inordinate delay was indeed,
not accounted
for. As Mr Vorster correctly submitted, the requested condonation
should be refused and the application dismissed
with costs on an
attorney and client scale in terms of Regulation 31 (5) of Annexure 8
to the
Sectional Titles Act 1986
which entitles a body corporate to
collect its attorney and client legal costs from members when it
litigates to collect levies
or to enforce rules. I again agree.
[8]
in the result the following order is made
1.
condonation is refused
2.
the application is dismissed with costs on the attorney and client
scale.
MSIMEKI,
J
JUDGE
OF THE HIGH COURT
NORTH
GAUTENG HIGH COURT
Counsel
for applicant:Advocate Mojamabu
Counsel for respondent: Advocate
Vorster
Attorneys for applicant: Selahle Attorneys
Attorneys
for 2nd respondents: EY Stuart Inc
Date heard: 10 September 2012
Date
of judgment: