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[2009] ZAGPPHC 385
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Delta Blue Trading 489 CC v Makhubela and Another (14045/2009) [2009] ZAGPPHC 385 (6 October 2009)
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IN
THE HIGH COURT OF SOUTH AFRICA
[NORTH
GAUTENG HIGH COURT, PRETORIA]
CASE
NUMBER: 14045/2009
DATE:06
OCTOBER 2009
In
the matter between :
DELTA
BLUE TRADING 489
CC APPLICANT
(REG
NO: 2006/108791/23)
and
MADIBANE
ELIAS
MAKHUBELA FIRST
RESPONDENT
(ID
NO:….....................................)
SHEILA
MARTHA
MAKHUBELA SECOND
RESPONDENT
(ID
NO: …....................................)
JUDGMENT
KEMP.
AJ
:
[1]
The order I make in this matter is as follows:
1.1
It is declared that the First Respondent's undivided share in the
immovable property known as Portion […..], Registration
Divisvon JR, in extent 344 square metres, held by the First
Respondent under title deed T [........], is executable for the
outstanding
amounts of the default judgment taken against the First
Respondent by the Applicant in the Magistrates Court for the District
of
Pretoria, held at Pretoria on 12 September 2008 under case number
134446/2007.
1.2
The First and Second Respondents is ordered to pay the costs of this
application jointly and/or severally.
[2]
After I granted the above order certain events transpired which
caused me to add the following to this judgment.
[3]
This matter form part of my opposed application roll for the period 5
October 2009 to 9 October 2009.
[4]
In terms of the latest directive from the Judge President opposed
motions are all set down for the Monday of the week in which
they
will be heard. They are distributed to by the Senior Judge to various
judges wno will do duty in the opposed motion court
during that week
in advance to enable the judges to prepare.
[5]
When the roll was callled on Monday morning the 5
th
October
2009 Adv Coetsee appeared on behalf of the Applicants. There was no
presence on behalf of the Respondents.
[6]
Since the matter had alreaay been placed on the roll for the 6
th
October 2009 I stood the matter down to ensure that if there was any
appearance on benalf of the Respondents they would have ample
time to
address me.
[7]
The Respondents gave notice of intention to defend the application on
the 3
rd
day of April 2009 their attorneys be:ng Makhabela
Attorneys. No answenng affidavit was filed on behalf of tha
Respondents.
[8]
When I received the court file in this matter there was no practice
note or heads of argument on behalf of the Respondents.
Mr Coetsee
filed a practice note but no heads of argument since there was no
case to answer or argue other than the application
itself.
[9]
After I had granted the above order and had adjourned the Court my
clerk informed me that Mr Mkhabela had approached her in
her office
and informed her that the Defendants wanted to oopose the application
but had not been able to find me or my court.
I instructed her to
immediately phone Mr Coetsee and the instructing attorney Mr Mkhabela
to request that Mr Coetsee and Mr Mkhabela
s counsel should approach
me in chambers.
[10]
Mr Coetsee relumed to the Court and approached me in chambers at
approximately 10h45. He apologised for coming to me on Mis
own bu!
informed me that he was unable to contact Mr Makhabeia or to find out
who his counsel is and could therefore not request
such counsei to
come to accompany him to my chambers. I requested him to wait and
also did go back to my court to see if he could
find anybody
representing the Respondents. He returned a short white later
accompanied by a colleague who informed me that he had
just been
instructed to ask for a postponement. I informed him that I would
hear them in court at 11h30 and wanted an explanation
why there was
no opposing papers, practice note or heads of argument. Both counsel
then left my chambers.
[11]
At 11h30 counsel on behalf of the Respondents came to my chambers
without adv Coetsee and told me that he was withdrawing as
counsel
since he could not obtain instructions. He then left.
[12]
On the face of It it would appear to me that Mr Makhabela made a
misrepresentation to my clerk when he informed her that they
could
not find my court. A statement which I found incredible since the
roll had been available for more than a week and was freely
available
throughout the building. On the rod it was dearly stated that I would
be doing this particular aoplication and my court
number was
displayed on the roll.
[13]
The First Respondent is a pensioner and according to the return of
service filed in the papers has no assets accept his joint
share in
the abovementioned property. This would appear to be worth not much
more than about R5 000.00. I do not believe that Mr
Makhabela acted
in the best interest of the Respondents.
[14]
I will request the Registrar to bring this judgment to the attention
of the Law Soctety for the Northern Provinces.
KEMP AJ