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[2024] ZAFSHC 193
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Du Toit v Absa Bank Limited and Others - Application for Condonation and Rescission of Judgment (1278/2009 ; 3211/2023) [2024] ZAFSHC 193 (7 June 2024)
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case Number:
1278/2009
3211/2023
In the matter of:
DANIEL
JOHANNES DU TOIT
Applicant
and
ABSA
BANK
LIMITED
First Respondent
CVR BOERDERY
CC
Second Respondent
THE REGISTRAR OF
DEEDS, BLOEMFONTEIN
Third Respondent
IN
RE:
Case No.: 278/2009
ABSA BANK
LIMITED
Plaintiff
and
DANIEL
JOHANNES DU TOIT
Defendant
IN
RE:
Case No.: 3211/2023
CVR BOERDERY
Applicant
and
DANIEL JOHANNES DU
TOIT
First Respondent
MADELEINE ANTOINETTE
DU TOIT
Second Respondent
ANY OTHER UNLAWFUL
OCCUPIERS OF
REMAINDER OF THE FARM
W[…] […],
DISTRICT BRANDFORT,
FREE STATE PROVINCE
Third Respondent
MASILONYANA LOCAL
MUNICIPALITY
Fourth Respondent
CORAM:
NAIDOO, J
HEARD
ON:
29 FEBRUARY 2024
DELIVERED
ON:
7 JUNE 2024
JUDGMENT
-
APPLICATION
FOR CONDONATION AND RESCISSION OF JUDGMENT
[1]
There are two applications before me, the
first being an application for rescission of an order, coupled with
an application for
condonation in respect of the late filing of the
application for rescission. The second application is an application
by the second
respondent in this matter, for the eviction of the
applicant and his wife from the property described as Remainder of
the Farm
W[…] [….], District Brandfort, Free State
Province. ("the property" or "the farm"). The
application
for condonation and rescission is opposed by the first
and second respondents, while the applicant in this matter and his
wife
(second respondent in the eviction application) oppose the
eviction application. Adv LA Roux represented the applicant, Adv R
Van
Der Merwe represented the first respondent,
ABSA Bank Limited (Absa or 'the bank")
and Adv J Els the second respondent, CVR Boerdery CC (CVR). The third
respondent, The
Registrar of Deeds, Bloemfontein, furnished a report
in this matter, but took no part in the proceedings. Similarly, the
Masilonyana
Local Municipality took no part in the eviction
application.
I
mention
that the
applicant's Replying Affidavit was
filed late, for which he applied for
condonation. Such application for condonation was not opposed by the
respondents and was accordingly
granted.
Condonation and
Rescission - Case Number 1278/2009
[2]
The applicant sought an order in the
following terms:
2.1
Condonation be granted, if necessary, for
non-compliance with the Uniform Rules of Court in
relation to time frames for the filing of
the application for rescission;
2.2
The order by the Honourable Mhlambi J dated
29 April 2021 be rescinded and set aside.
2.3
The attachment, sale in execution by the
Sheriff, transfer and registration of the immovable property known as
the Remainder of
the Farm W[…] […], District Brandfort,
Province Free State (the property), is declared null and void and set
aside;
2.4
The Third Respondent, the Registrar of
Deeds, is directed to reverse the registration of transfer of the
property in the name of
the second respondent and revert the title in
respect of the said property in the name of the applicant;
2.5
The first respondent and any other party
opposing the application be ordered to pay the costs of the
application.
[3]
Absa's version is that the applicant owed
monies to Absa in terms of a mortgage loan and an overdraft facility
with the bank. The
applicant failed to make due payments and Absa
issued summons against him. The action was seemingly undefended and
default judgment
was granted, on 4 May 2009, against the applicant
for payment of the amount of R185 547.05 together with interest
thereon as well
as an amount R68 036.62, together with interest
thereon. The property, which is the subject matter of this
application,
being
the
Remainder of
the Farm
W[...]
[...], and two other properties were declared specially executable by
the court. The latter two properties were subsequently
sold in a sale in execution and transferred
to the purchasers, while the property relevant to this matter,
remained registered in
the applicant's name. Absa alleges that this
matter has its genesis in the default judgment that it obtained
against the applicant
on 4 May 2009.
[4]
After the default judgment was granted, a
further court order was obtained on 4 August 2016, declaring the
property specially executable.
The bank proceeded to arrange a sale
in execution of the property, based on these two previous orders
declaring the property executable.
Before the sale was held in
September 2017, the applicant requested Absa to hold over the sale in
execution as he had received
an offer to purchase a subdivided
portion of the property.
[5]
The applicant
entered into an agreement with Absa in
September 2017, in terms of which he acknowledged his indebtedness to
the bank and provided
the bank with a signed power of attorney to
sell the property. They agreed that the sale in execution would be
cancelled and that
the applicant would pay to Absa the proceeds of
the sale of the property,
in
settlement
of his
debt to the bank,
either
wholly or partially.
Although
the applicant and the company purchasing the
property concluded a
written Deed of Sale, the sale did not take
place, as the applicant was not able to pay the amount due
to
the
bank
from
the
proceeds
of
the
sale.
The
applicant
thereafter failed
to pay the monies due to
the bank. By 23
February 2021, the applicant owed a total
sum of R 718 094,16.
[6]
It was thereafter that Absa approached the
court, for a third time, seeking a further order to declare the
property specially executable,
as by that time, the Rules of Court
were amended and Rule 46A was enacted, requiring,
inter
alia,
that a reserve price be set for
the sale in execution of immovable property. According to the
Sheriff's return of service, the Notice
of Motion and annexures in
terms of which the bank sought an order declaring the property
specially executable,
were
served
personally
on the
applicant
on
7 April 2021.
The applicant did not oppose the application. The order was
consequently granted by Mhlambi Jon
29
April 2021 (the Mhlambi order).
A
sale
in
execution, as authorised by the
Mhlambi
order, was scheduled for 2 December 2022, and the Notice of Sale,
together with the Conditions of Sale were served on the
applicant on
27 October 2022 by affixing it
to
the
principal
door/main entrance of the property. The Sheriff indicated that no
other means of service was possible.
[7]
The applicant's
attorney
corresponded
with
the bank's attorney
on
25 November 2022 indicating, in essence, that the applicant is aware
of the sale in execution to be held on 2 December 2022 and
that he
has lodged a complaint with the Banking Ombudsman, who was
investigating the matter. In addition, he indicated that a store
that
was built on the farm encroaches upon a neighbouring farm, and it
will be very difficult if not impossible to give transfer
of such a
property. For these reasons, he
requested
that the sale in
execution
be postponed or cancelled.
[8]
The
bank's
attorneys
were
not
amenable to
this request and
the sale went ahead. The applicant's wife,
attended the sale on 2 December 2022 and was aware that the property
was sold to CVR.
She approached the bank's attorney on that day and
advised him that she and the applicant had instructed their attorney
to approach
the High Court on the Monday, 5 December 2011, on an
urgent basis, to set aside that sale. Such an application was never
issued
or served, and the transfer to CVR was registered on 14 March
2023.
[9]
Thereafter CVR communicated with the
applicant and his wife in April 2023, pointing out that they were
aware that the property was
sold
in
execution to CVR and that transfer of ownership had passed to CVR.
The latter then demanded that the applicant and his wife vacate
the
property, which the applicant and his wife refused to do. CVR then
issued an application,
on
22 June 2023, for the eviction of the applicant, his wife and all
those occupying the property through them. It seems this was
the
catalyst that spurred the applicant into bringing an application for
the rescission of the Mhlambi order and the other relief,
which I set
out earlier. The respondents opposed this application essentially on
the basis that the appellant has not made out
a case for condonation,
in that he failed
to sufficiently
explain the
delay
in
bringing this
application. The further grounds of
opposition are that there is no merit in the application for
rescission, as the applicant does
not enjoy any prospects of success.
In short he has not met the requirements for condonation or
rescission to be granted.
[10]
The applicant's version is that he did not
receive the Notice of Motion on 7 April 2021 and challenges the
Sheriff's return on the
basis that he was not at home at the time
that the Sheriff alleges that he served the Notice of Motion.
Therefore, there could
not have been personal service of such process
on him. He had work to do in and around Bloemfontein and was in
Langenhoven Park
for much of the day erecting a stall at the
"Boeremark" (Farmer's Market), which trades on a Saturday.
In support of this contention, the
applicant attached to his Founding Affidavit a copy of his notes
which he alleges are excerpts
from his diary for the 6
th
,
7
th
and 8
th
April
2021. He
also attached a cash sale
receipt from a
shop known as Handi in DIY, which he
alleges is situated in Langenhoven Park in
Bloemfontein.
The
date
and
time
appear
to
be
7 April
2021
at 12.41.04. The applicant alleges that
this receipt proves that he
was in Bloemfontein at the time that the
Sheriff allegedly served the application on him. The applicant
further attached two unsigned
confirmatory affidavits by his wife and
one of his employees. The signed affidavits were only filed late in
the afternoon of the
day before the hearing. He asserts that, if he
had received the notice of the application,
he would have opposed the application.
[11]
The applicant also took issue with the
setting of the reserve price at R400 000.00, his contention being
that the property is worth
considerably more. If he had the
opportunity to participate, he believes that the there would not have
been a declaration of executability
or the setting of that reserve
price. In addition, the applicant alleges that at the time the order
was granted and the sale in
execution proceeded, he was not indebted
to Absa. His former attorney allegedly instructed a specialist to
audit the "statements"
and found that the "amount"
was settled. I mention that it was not clear which statements the
applicant referred to or
what amount he was referring to.
[12]
There are a number of other issues raised
by the applicant, which appear to be his defences to the Mhlambi
order. He alleged that
the
banks
interest charges relevant to his account were contrary to the
in
duplum
rule, that he made payments to a
debt counsellor, which are not reflected in the statements rendered
by Absa,
that
Absa "wrote off' the amount outstanding in respect of the
overdraft facility,
that
he
has sufficient
movable assets
to
satisfy
a
substantial portion of the outstanding amount, which amount he, in
any event, disputes and "their" eviction from the
property
will render "them" homeless and destitute.
[13]
With regard to the explanation in a
condonation application (as in the present matter), for failure to
comply with the Rules of
Court timeously, it is well settled in our
law that the applicant is required to give a full and candid
explanation in this regard.
The remarks of the court in
Melane
v Santam Insurance
Co
Ltd
1962(4) SA 531 (A),
regarding the test
for granting condonation, made over 60 years ago, are still relevant
today:
"In deciding whether
sufficient cause has been shown, the basic principle is that the
Court has a discretion, to be exercised
judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually
relevant are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily
these facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there
would be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of
what should be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good
explanation may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success
may tend to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked."
[14]
A similar view was held in the matter of
United
Plant
Hire (Pty) Ltd v Hills
1990 (1) SA
717
(A) at 720 E-G,
where the court
stated the position succinctly as follows:
"It is well settled
that, in considering applications for condonation, the Court has a
discretion to be exercised judicially
upon a consideration of all the
facts; and that in essence it is a question of fairness to both
sides. In this enquiry, relevant
considerations may include the
degree of non-compliance with the relevant Rules, the explanation
therefore, the prospects of success
on appeal, the importance of the
case, the respondent's interest in the finality of his judgment, the
convenience of the Court,
and the avoidance of unnecessary delay in
the administration of justice. The list is not exhaustive. These
factors are not individually
decisive but are interrelated and must
be weighed one against the other; thus a slight delay and a good
explanation may help to
compensate for prospects of success which are
not strong".
[15]
The applicant did not mention in his
Founding papers that after the default judgment was granted in May
2009, two of the properties
which were declared specially executable
in that order were sold and transferred to the purchasers thereof.
The applicant could
not possibly have been unaware of the default
judgment and the subsequent sales of the two properties. Similarly,
he makes no mention
of the further declaration of executability
granted in August 2016 in respect of the farm that is the subject
matter of this application.
Arising from the August 2016 court order,
a sale in execution was arranged for September 2017. Again, the
applicant was clearly
aware of the court order and the sale arising
from that order, as he approached Absa and negotiated an arrangement
with them to
suspend or cancel the sale, as he has secured a
purchaser for the farm.
[16]
As I indicated earlier, to this end, he
entered into the agreement in which he acknowledged his indebtedness
to Absa and even signed
a power of attorney in Absa's favour
authorising them to sell the farm. They in
turn agreed to cancel the sale in execution
and not act upon the power of attorney for a period of six months. A
purchase and sale
agreement in respect of the property was indeed
signed between the applicant and the prospective purchaser, but the
sale did not
proceed. The applicant's debt to Absa was in the
meantime escalating.
[17]
The applicant correctly points out that
Rule 46A requires the notice of application to declare residential
property executable be
served personally upon the judgment debtor,
but he denies the Sheriff's return of service reflecting that the
application was served
on him personally. I deal now with the various
annexures I mentioned earlier which the applicant alleges support his
contention
that he was not at his home when the application was
served. Firstly, the notes allegedly from his diary are in
manuscript, much
of which is unreadable, and such of it that is
readable, does not make much sense. No transcript, translation or
further explanation
was provided, so the court is not in a position
to assess if these notes do support the applicant's contention.
Additionally, he
refers the court to the bottom of the page as
evidence that he paid Mr Chekane for work
on "that day". There are
three pages
with
notes ostensibly from 6
th
-
8
th
April 2021. Each page has notes at the bottom which are unreadable.
Therefore, his reference to "that day" could be any
of
those three days, which begs the question, what was Mr Chekane
confirming in his confirmatory
affidavit?
[18]
With regard to the receipt from Handi in
DIY, I mention that there is no indication on that cash sale receipt
of where the shop
is situated or who the purchaser is of the items
listed thereon. The address reflected on
the receipt is
"PO Box 294
Virginia 9430".
Similarly, the affidavit by Ms Estelle
Combrinck does not assist the applicant. She was not present on the
day when the applicant
alleges that he worked at the "Boermark",
and she did
not
issue the
receipt
that was attached to her affidavit. The receipt was issued on 7 April
2021 by someone called Ishmael, who is no longer employed
by the
Boeremark. The receipt bears the number "61" and was
ostensibly issued to
"Stal No
Donkie Ker'.
Under that is the number
"40" and further down the number "40" is written
again and below that the word
"krag"
(power). The applicant's name appears nowhere on
this document, nor can Ms Combrinck's bald
(and bold) statement that
"slip 61
in the electrical purchase book confirms that on
7
April 2021 the
Applicant
attended
the
Boeremark,
paid
R40
for
his electrical use with Ishmael,
..."
be accepted, as she has no
personal knowledge of the correctness of the statement she made.
[19]
The Sheriff's return of service is
prima
facie
proof that such service was
effected in the manner indicated therein. The applicant is required
to present clear, cogent and credible
evidence that such return is
incorrect or untrue. The sheriff also signed a confirmatory affidavit
that the contents of the impugned
return of service are true. For
this reason and the more important reason that such evidence as the
applicant tendered to establish
that he was not at his home when the
Sheriff served the application to declare the property executable,
falls short of
proving
such
contention.
I
have pointed
out the problems with such documents, leaving this court in
the position that it is unable to accept
this version of the applicant. He has failed to successfully
challenge the correctness
of the Sheriff's return of service dated 7
April 2021. The purpose of Rule 46A requiring personal service on the
judgment debtor
is to ensure that he has knowledge of the application
and is acts in accordance with that knowledge. From what I have set
out and
what follows, it is clear that the applicant had knowledge of
the application and the proceedings arising therefrom. He certainly
acted in accordance with that knowledge.
[20]
I turn now to deal with the delay in
bringing the application for rescission and the explanation in
respect thereof. The applicant
alleges that he only learnt of the
order in terms of Rule 46A on 2 December 2022. I accept that his
reference to "the order"
is a reference
to the
Mhlambi
order, which was
granted
on
29 April
2021. However, this cannot be true, as
notice of the sale in execution was served on the applicant on 27
October 2022. He has not taken issue with
this service nor has he alleged that he did not receive such notice.
In fact, his attorney
wrote a letter on 25 November 2022 to Absa's
attorney in which he indicated that it was brought to his attention
that an auction
was to be held on 2 December 2022. That fact could
only have been brought to his attention by the applicant. He would
surely have
advised the applicant that a sale in execution is
based on
a
court order granted against the applicant, and as such is ancillary
to a court order authorising such sale. No mention was made
that the
applicant was not served with the application to declare the property
executable, or that the attorney was instructed
to apply to rescind
the court order.
[21]
In addition, the auctioneer mandated to
conduct the sale in execution
is
himself a
practising
attorney, and
confirmed
that he
met with
the applicant's wife prior to the sale which was scheduled to take
place on
2
December
2022,
and explained the process that would be followed, leading up to the
sale in execution. He also confirmed that Mrs Du Tait,
the
applicant's wife, attended the sale in execution on 2 December 2022,
and was aware that the property was sold to CVR. The applicant
himself confirms that his wife attended the sale. Therefore the
applicant and his wife were clearly aware of the Mhlambi order
as
well as the process that would be followed to sell the property. If
the applicant's version in respect of service of the application
to
declare the property executable is
to
be believed, then no explanation whatsoever is tendered for the
failure to bring the rescission application even before 2 December
2022.
[22]
Absa alleges that Mrs Du Tait approached
its attorney on the day of the sale and advised that she and the
applicant had instructed
their attorney to apply to the High Court on
an urgent basis to set aside the sale. It seems that the intention to
bring such an
application was formed as early as December 2022.
However, the explanation for the delay tendered by the applicant for
the period
December 2022 to December 2023 (when he ostensibly had new
legal representatives who gave him different advice to his former
attorney),
is that his former attorney undertook to bring the
application for rescission and setting aside of
the sale but did not do so. They were
advised "at that stage" that any eviction application is
without merit and that
the rescission application would be dealt with
after the eviction application was dismissed. The applicant provides
no details,
such as the date when this latter advice was given. He
makes no mention of what effort he made to follow up with his
attorney on
the progress of the matter, especially as transfer of the
property to the purchaser (CVR) would have been imminent.
[23]
It is common cause that the transfer of the
property to CVR took place in March 2023, and their eviction
application against the
applicant and his wife was issued on 22 June
2023. Therefore, the applicant's reference to "at that stage"
could surely
only be a reference to June 2023, or at best April 2023,
when a notice to vacate was sent to the applicant and his wife by
CVR.
It is unclear what the applicant did between December 2022 and
June 2023 to rescind the Mhlambi order, as
the intention to do so appears to have been
formed in
December 2022. No explanation is
forthcoming from the applicant. As I
indicated, CVR's evidence that it sent to the applicant and his wife,
a notice to vacate the
property, early in April 2023. It was only
thereafter that the applicant and his wife appear to have been
galvanised into action.
Mrs Du Tait addressed a letter on 18 April
2023 to an employee of the bank, complaining about the behaviour of
the "new owner"
of the farm, referring to CVR, and
complaining about other matters that are not necessary for me to deal
with here. A few days
thereafter, on 23 April 2023, the applicant's
former attorney wrote to
the
bank's attorney setting forth, for the first time defences that were
not previously raised, a few of which I mentioned earlier.
[24]
Although the applicant's attorney indicated
that he held instructions to bring an application to cancel the sale,
nothing appears
to have been done to advance this instruction. The
applicant once again failed to give a full and candid explanation of
what happened
between 23 April 2023 and 18 January 2024, when the
present application was issued. I am inclined to agree with the
submissions
of both Absa and CVR that the applicant has raised
defences and other issues which lack merit and that his conduct in
this matter
is designed to delay his eviction from the property.
[25]
If an application for condonation depended
only on the explanation for the non-compliance with the timeframes
set out in
the
Rules, the applicant would have fallen short of the required
standard, as his explanation
for
the
delay is
not one
that
is
detailed or
one
that covers
the entire period of the delay. His explanations are very general in
nature, lacking the detail that is required in
applications for
condonation. Such explanation is, however, only one of the factors to
be considered by the court in deciding whether
to grant, firstly,
condonation for non-compliance with the Rules of Court and secondly
rescission of the order. This court is obliged
to consider the
reasonableness and adequacy of the explanation for the delay, in
conjunction with other factors in making an order
that would achieve
fairness to both parties.
[26]
Prospects of success in the action is an
important factor in determining whether condonation should be granted
in the present matter.
It is trite that the applicant will have to
make out a case for condonation. In order to assess the strength of
his prospects of
success, traversing the merits to some extent, is
necessary. I have dealt with the merits to the extent necessary for
the consideration
of
the applications for condonation and rescission. I re-iterate that
the applicant has failed to establish that he has any prospects
of
success should the Mhlambi order be
set
aside. He has not assailed or sought the rescission of the default
judgment granted on 4 May 2009, which declared the property
executable and subsequently authorised the sale in execution of the
property. He has also failed to show any grounds upon which
the sale
of the property should be set
aside,
and
in fact
accepted that CVR is
the
owner of
the
property. The conduct of the applicant and his wife indicate that
they acquiesced in the sale, and the subsequent transfer of
the
property to CVR. It does not avail them now to seek the setting aside
of the sale, in the absence of any legal grounds for
doing so.
[27]
Mr Roux argued that if condonation and
rescission of the default judgment are not granted, the applicant
will suffer great prejudice,
in
that
he and his
family
will be
left
homeless and destitute. This then brings me to the considerations of
fairness and the interests of justice. In the context
of the history
and chronology of events in this matter, the applicant belatedly
raises the defences he does in this application,
some three years after the Mhlambi order
was granted. He alleges that he is not indebted to the bank but does
not provide any acceptable
evidence of this, except some vague
assertion that a "specialist" audited the "statements"
and concluded that
the debt was settled. In my view there is no
evidence to support this contention. If the applicant had produced
the alleged statements,
proof of payment or even a report by the
so-called specialist which strongly indicated that the amount for
which judgment was granted
was incorrect, or that such evidence was
before Mhlambi J but was not considered, I might have been persuaded
to consider this
submission more closely. In
my view, the submission as it stands is
without merit and
cannot
be
sustained. The
applicant himself sought to sell the property in 2017. If the
property was sold, he would have had to have made alternate
arrangements for his and his family's accommodation. It hardly lies
in his mouth now to say that he would be homeless and destitute
if
evicted from the property.
[28]
The applicant makes no tender of the costs
incurred by CVR in the purchase and transfer of the property into its
name. When confronted
with this, Mr Roux submitted that this can be
done later and that Absa ought to pay these amounts to CVR. This is
an untenable
proposition and the consequences that would flow from
such a situation would cause CVR and Absa extreme prejudice. The
applicant
has remained on the property and steadfastly refused to
vacate the property. He and his family have lived on the premises,
consumed
utilities such as water and electricity and made no payments
whatsoever in respect thereof, nor has the applicant paid the rates
and taxes due on
the
property, which in
my
view is unconscionable. CVR has had to bear these costs, in addition
to the amounts expended in obtaining the property, but has
been
unable to enjoy the use of the property.
[29]
If rescission were to be granted, Absa
would be in the position that it would not be able to recover the
debt due to it by the applicant,
or would have to wait several more
years before it could do so. CVR stands to be out of pocket for a
very large amount of money,
even though it is a
bona
fide
purchaser who has properly taken
transfer of the property. Rescission of the Mhlambi order would,
consequently,
be
grossly unfair to both Absa and
CVR, and would, in turn, not be in the
interests of justice. The applicant has through his own wilfulness
and less than honest conduct,
created the situation he finds himself
in, and cannot expect the court to come to his rescue
[30]
The lapse of three years before launching
this application is unreasonable. The applicant has not tendered a
reasonable or comprehensive
explanation that is persuasive enough to
grant condonation or rescission. Whichever Rule
of Court the application is brought under
(be it Rule 31(2)(b), Rule 42 or the common law), the requirements of
bringing the application
within a reasonable time and showing good
cause for condonation and rescission are still applicable. In my
view, the applicant
has failed to meet these requirements.
The
Eviction Application
-
Case Number 3211/2023
[31]
As I indicated, it is common cause that CVR
purchased the property and that transfer thereof was registered in
March 2023. CVR's
right to claim eviction of the applicant and those
occupying the property through him has not been seriously challenged.
The court
was not addressed on this by Mr Roux, who indicated that in
respect of the eviction
application,
the
only
issue he
had
was
the
period of
20
days sought by CVR for the applicant to
vacate the property. Mr Roux asserted
that
90
days was a
more reasonable period. I do not deem it
necessary to deal with the CVR's case or the applicant's opposition
thereto, as much of
what is said in the eviction application has been
covered in the rescission application.
[32]
CVR sought an order in terms of Part B of
the application for eviction, together with costs, as claimed, on an
attorney and client
scale. Absa likewise sought an
order against the
applicant for costs on an attorney and
client scale. I point out, however that Absa did not seek costs on a
punitive scale in
its
Answering Affidavit, or in its Heads of
Argument. The award of costs is, however in the discretion of the
court. The conduct of
the applicant in this matter, in
pursuing unmeritorious
claims and in
some
instances
being
very
sparing
with the
truth in order to secure the relief he seeks, has had the effect of
bringing both respondents to court at great expense
and
inconvenience. The applicant was fully aware that relief he sought
would cause great prejudice to the respondents, and that
some of the
relief he claims is not permissible. He, nevertheless, proceeded
doggedly on. In instances such as this, it would not
be remiss of the
court
to exercise
its discretion
in
respect
of costs
orders and
express its displeasure at the manner in
which the applicant has conducted the litigation in
this matter, by making a punitive costs
order against him.
[33]
In
the
circumstances
I
make the following orders:
Case No. 1278/2009
33.1
The application for condonation is
dismissed;
33.2
The application for rescission is
dismissed;
33.3
The application to declare null and void,
and set aside the attachment, sale in execution by the Sheriff,
transfer and registration
of the immovable property known as
Remainder of the Farm W[...] [...], District Brandfort, Free State
Province, into the name of
the second respondent, is dismissed;
33.4
The application to direct the third
respondent, the Registrar of Deeds, to reverse the registration of
transfer of the property
into the name of the second respondent,
and revert the title in respect of the said
property
into the
name of the applicant, is dismissed;
33.5
The applicant is directed to pay the costs
of the first respondent on a scale as between attorney and client;
Case No. 3211/2023
33.6
The
first,
second and
third
respondents
are
declared
to
be
unlawful occupiers, within the meaning of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998,
of the property known as Remainder of the Farm W[...]
[...], district Brandfort, Free State Province;
33.7
The first, second and third respondents are
ordered to vacate the property referred to in 33.6 above, no later
than Sixty (60) days
from the date of service of this order;
33.8
In the event that the first, second and
third respondents failing to comply with the order in 33.7 above, the
Sheriff of this court
is authorised and directed to evict the first,
second and third respondents from the property referred to in 33.6
above;
33.9
In the event of the Sheriff not being able
to evict the first, second and third respondents from the property,
he/she is authorised
to obtain the assistance of the South African
Police Service to do so;
33.10
The first and second respondents are
ordered to pay the costs of this application on the scale as between
attorney and client, jointly
and severally, the one paying the other
to be absolved.
S NAIDOO J
On
Behalf
of
the Applicant:
Adv LA Roux
Instructed
by:
Lovius Block
31 First Avenue
Westdene
Bloemfontein
(Ref: JG Keyl/ke/J02216)
On
Behalf of the 1st Respondent:
Adv R Van der Merwe
Instructed
by:
Phatshoane Henney Inc
35 Markgraaff Street
Westdene
Bloemfontein
(Ref: JPO/tp/271977)
On
Behalf
of
the 2
nd
Respondent:
Adv J Els
Instructed
by:
Phatshoane
Henney
Inc
35
Markgraaff Street
Westdene
Bloemfontein
(Ref: 267195/E Ward/jc)