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[2024] ZAECBHC 17
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Skiti v Skiti and Others (CA1/2023) [2024] ZAECBHC 17 (9 July 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. CA 1/2023
Reportable
/ Not Reportable
In
the matter between:
DOUGLAS
XOLISA SKITI
Appellant
and
NONKULULEKO
ADELAIDE SKITI
First respondent
ZUKISWA
GOBINGCA
Second respondent
DEEDS
OFFICE, KING WILLIAM’S TOWN
Third respondent
BUFFALO
CITY METROPOLITAN MUNICIPALITY Fourth
respondent
______________________________________________________________________
JUDGMENT
______________________________________________________________________
LAING
J
[1]
This is an appeal against the whole of the judgment and order handed
down on 8 August 2022 in the Magistrates’ Court for
the
district of Mdantsane.
Background
[2]
The second
respondent (hereafter referred to as Ms Gobingca) previously brought
an application against the appellant (hereafter
referred to as Mr
Skiti) in the Magistrates’ Court for his eviction from erf
7[…], NU 3, Mdantsane.
[1]
In her founding affidavit, Ms Gobingca alleged that she purchased the
property on 5 July 2021 from Mr Skiti’s sister, cited
as the
first respondent in these proceedings. The transfer was registered in
the deeds registry on 6 August 2021. Notwithstanding,
Mr Skiti
remained in occupation.
[3]
In his answering affidavit, Mr Skiti averred that the property
belonged to his late father; it was his family home. His late
brother
resided permanently on the property until his passing, whereupon Mr
Skiti took occupation after he lost his employment.
He currently
resides on the property with his two children, one of whom being
disabled. Similarly, the first respondent moved back
to the property.
Mr Skiti asserted that the first respondent subsequently purported to
sell the property as if it had been her
own; he intended to institute
proceedings in the High Court to set aside the sale.
[4]
At about
the same time that Ms Gobingca instituted eviction proceedings, Mr
Skiti launched an application against the first respondent,
Ms
Gobingca, the deeds registry, and the municipality for an order to
stay the eviction proceedings, pending a suitable High Court
application.
[2]
Mr Skiti
explained that there was previously no title deed for the property;
this was the case for much of the land in Mdantsane.
The municipality
previously addressed tax invoices to Mr Skiti’s late father and
subsequently to him, but this changed after
the first respondent
allegedly misrepresented herself as the owner of the property and
thereafter ‘acquired’ a title
deed. She was later
appointed as executrix of their late father’s estate. Mr Skiti
pointed out that the first respondent
required the written consent of
the heirs before she could sell the property, as stipulated by
section 47
of the
Administration of Estates Act 66 of 1965
. This
never occurred.
[5]
Ms Gobingca, in her replying affidavit in the eviction proceedings,
emphasized that the first respondent lawfully sold the property
to
her; she was the
bona fide
owner thereof. She had not,
moreover, received any notice of an application to set aside the
sale, as Mr Skiti threatened.
In
the court
a quo
[6]
It is evident from the record that, at the hearing of the matter, the
court
a quo
dealt only with Mr Skiti’s application to
stay the eviction proceedings. This was unopposed.
[7]
The magistrate, in her judgment of 8 August 2022, observed that Ms
Gobingca previously notified Mr Skiti about the commencement
of
eviction proceedings. The latter, however, failed to do anything
about the matter and never approached the High Court. The magistrate
went on to hold that, considering the parties’ competing
interests and the absence of any application to set aside the sale
of
the property, the relief sought by Mr Skiti could not be granted.
There was no provision in the rules of the Magistrates’
Court
that permitted the court to stay the eviction proceedings
indefinitely. The magistrate dismissed Mr Skiti’s application
with costs.
Grounds
of appeal
[8]
Mr Skiti listed several grounds as the basis for his appeal. He
contends, chiefly, that the court
a quo
should have found that
sections 47 and 48 of the Magistrates’ Court Act 32 of 1944
permitted a stay of the main proceedings
for a reasonable period to
allow a party to institute a counterclaim such as the application to
stay the eviction proceedings.
[9]
The above constitutes the issue that lies at the heart of the matter.
It is necessary, at this stage, to investigate the underlying
principles.
Legal
framework
[10]
The Magistrates’ Court lacks jurisdiction to deal with an
application to set aside the sale of immovable property, such
as that
which Mr Skiti intended to launch. The High Court is the appropriate
forum.
[11]
Whether the Magistrates’ Court had jurisdiction to stay the
eviction proceedings must be determined by investigating
the relevant
provisions of the Magistrates’ Court Act 32 of 1944. In that
regard, counsel for Mr Skiti referred to section
47, which provides
for a situation where a counterclaim exceeds the jurisdiction of the
court. It states as follows:
’
Counterclaim
exceeding jurisdiction
(1) When in answer to a
claim within the jurisdiction the defendant sets up a counterclaim
exceeding the jurisdiction, the claim
shall not on that account be
dismissed; but the court may, if satisfied that the defendant has
prima facie a reasonable prospect
on his counterclaim of obtaining a
judgment in excess of its jurisdiction, stay the action for a
reasonable period in order to
enable him to institute an action in a
competent court. The plaintiff in the magistrate’s court may
(notwithstanding his
action therein) counterclaim in such competent
court and in that event all questions as to the costs incurred in the
magistrate’s
court shall be decided by that competent court.
(2) If the period for
which such action has been stayed has expired and the defendant has
failed to issue and serve a summons in
a competent court in relation
to the matters and the subject of such counterclaim the magistrate’s
court shall on application
either–
(a) stay the action for a
further reasonable period; or
(b) dismiss the
counterclaim (whether the defendant does or does not reduce such
counterclaim to an amount within the jurisdiction
of the court).
(3) If the defendant has
failed to institute action within such further period or if the
action instituted by the defendant be stayed,
dismissed, withdrawn,
or abandoned, or if the competent court has granted absolution from
the instance thereon, the magistrate’s
court shall, upon
application, dismiss the counterclaim and shall proceed to determine
the claim.’
[12]
The above provisions will be discussed further, below. Counsel for Mr
Skiti also referred to section 48, which lists the various
judgments
that a magistrate may grant, depending on the circumstances.
[13]
Although not mentioned in argument, the provisions of rule 20 in the
Magistrates’ Court are also relevant. The text reads:
’
Claims in
reconvention
(1) …
(2) …
(3) …
(4) …
(5) A defendant
delivering a claim in reconvention may by notice delivered therewith
or within 5 days thereafter apply to the court
to pronounce that the
claim in reconvention exceeds its jurisdiction and to stay the action
under section 47 of the Act.
(6) Where a court finds
that the claim in reconvention exceeds its jurisdiction, the
defendant may forthwith or by notice delivered
within 5 days after
such finding apply for stay of the action.
(7) If no application for
stay is made or, having been made, has been dismissed, the court
shall on the application of the plaintiff
or otherwise of its own
motion dismiss a claim in reconvention pronounced to exceed its
jurisdiction, unless the defendant shall
forthwith abandon under
section 38 of the Act sufficient of such claim to bring it within the
jurisdiction of the court…’
[14]
The above provisions constitute the basic framework within which the
matter must be decided.
Discussion
[15]
There are several aspects to the matter, to be addressed in
accordance with the sub-headings that follow.
Section 47(1) of the
Magistrates’ Court Act 32 of 1944
[16]
As a starting point, it is necessary to determine whether Mr Skiti
met the requirements of section 47(1) to obtain an order
to stay the
eviction proceedings. The question that arises is whether he indeed
set up a counterclaim.
[17]
The meaning
of the relevant portion of section 47(1) came under scrutiny in
Esterhuizen
v Holmes
,
[3]
where the court held, per Neser J, that ‘sets up a
counterclaim’ means ‘files a claim in reconvention’.
[4]
The learned judge went on to state that:
‘
I know of no
provision in the Magistrates’ Courts Act whereby a magistrate
would be empowered to stay an action instituted
by a plaintiff
against a defendant in the magistrate’s court merely because
the defendant had, either previously to or after
issue of summons by
the plaintiff in the magistrate’s court, issued a summons in
the Supreme Court against the plaintiff.’
[5]
[18]
Furthermore, the court held, in a separate judgment per Clayden J,
that:
‘…
a plea
alleging facts which would justify a claim in reconvention being
made, or alleging facts which were the facts used to found
a claim in
reconvention or a counterclaim in some other Court, would not, in
terms of this construction, amount to setting up a
counterclaim
within the meaning of sec. 47(1)…’
[6]
[19]
The above decision is relatively dated. It has, nevertheless,
survived the passage of time and has been cited with approval
in more
recent case law.
[20]
In
Forrest
Crest Properties CC v Matthee and others
,
[7]
Murugasen J acknowledged the principles enunciated in
Esterhuizen
and observed that section 47(1) confers a discretion on a court faced
with an application to stay proceedings. She stated that:
‘…
the court
may
only order the stay
if
satisfied
that the defendant has
prima
facie
a
reasonable prospect of obtaining judgment in excess of its
jurisdiction on his counterclaim (my emphasis). It is therefore
incumbent
upon the court to consider the defendant’s
counterclaim, in order to exercise its discretion judicially. The
fact that the
defendant has already instituted an action for a claim
in excess of the jurisdiction of the Magistrates’ Court does
not preclude
its filing of a counterclaim to the plaintiff’s
action.’
[8]
[21]
The learned judge went on to hold that:
‘…
the only
basis upon which an action can be stayed in terms of section 47 is if
a counterclaim has been filed. In my view, the rationale
for this
decision clearly lies in the aforementioned obligation imposed on the
magistrate in the exercise of his discretion by
the provisions of
section 47(1).’
[9]
[22]
Furthermore:
‘…
a claim in
reconvention must be filed, whether before or after the institution
of the claim in another competent court, before a
stay may be
ordered, as a defendant is not precluded from filing a counterclaim
and applying for a stay of prosecution although
he has already
instituted an action in the High Court.’
[10]
[23]
The
decision in
Esterhuizen
was cited with approval, too, in
Afrikaanse
Christelike Vroue Vereniging van Robertson and another v Folscher and
another.
[11]
Counsel for Mr Skriti relied thereon in argument, but the case is
distinguishable from the present matter since the relevant issue
on
appeal was whether a magistrate was permitted to stay eviction
proceedings for an indeterminate period, pending the outcome
of an
action in the High Court. The court, per Cloete J, found that
sections 47 and 48 of the Magistrates’ Court Act 32 of
1944 did
not empower the magistrate to do so.
[24] From the case law,
it can be said that the courts have interpreted the relevant
provisions of section 47(1) to mean that: (a)
the defendant is
required to file a counterclaim or claim in reconvention before a
magistrate can exercise his or her discretion;
(b) the fact that the
defendant has already instituted proceedings in the High Court does
not prevent him or her from filing such
counterclaim or claim in
reconvention; (c) a plea that merely alleges the facts upon which
such counterclaim or claim in reconvention
would be warranted or upon
which it would be based in another court does not suffice; (d) the
magistrate may stay proceedings if
he or she is satisfied that the
counterclaim or claim in reconvention indicates a reasonable chance
of success but in an amount
or concerning subject matter that exceeds
the jurisdiction of the Magistrate’s Court; (e) the proceedings
cannot be stayed
for an indeterminate period but only for as long as
is reasonable to allow the defendant to institute proceedings in a
court having
jurisdiction with regard to the counterclaim or claim in
reconvention already filed; and (f) a magistrate has no
authority
to stay the plaintiff’s action simply because the
defendant has already instituted separate proceedings in the High
Court.
[25]
To the
above principles I respectfully add my view that there seems to be no
reason why the provisions of section 47(1) should not
apply equally
to action and motion proceedings. The purpose of the provisions was
clearly to address a situation where a counterclaim
or claim in
reconvention exceeded the jurisdiction of the Magistrate’s
Court. It would serve no purpose for the magistrate
to refuse to stay
the proceedings and to grant judgment in favour of the claimant,
notwithstanding the other party’s having
a counterclaim or
claim in reconvention that indicated a reasonable prospect of success
in another court with jurisdiction. This
is especially so in relation
to action proceedings for monetary claims, but the principle could,
foreseeably, also apply to other
causes of action brought in terms of
motion proceedings.
[12]
Whether
the appellant met the requirements of section 47(1)
[26]
The difficulty that confronts Mr Skiti in the present matter is that
there is nothing to demonstrate that he ever set up a
counterclaim or
filed a claim in reconvention, as required by the principles
established in
Esterhuizen
and affirmed in the cases already
mentioned. Such a step was necessary to trigger the magistrate’s
exercise of her discretion
to stay the proceedings.
[27]
To Ms Gobingca’s eviction application, Mr Skiti merely filed an
answering affidavit; the substance of it read as follows:
‘…
I should
emphasize to the above honourable court that the property in question
is a family house that belonged to my late father.
My sister,
Nonkululeko Skiti, in very curious and unexplained circumstances,
sold the property to the applicant as her own.
…
I have taken this
up with the Deeds Offices. I have also initiated investigations into
the estate of my late father through the
offices of the Master of the
High Court. As at the date of this affidavit, my efforts have been in
vain.
…
Accordingly I
have been advised to bring a high court review application reviewing
and setting aside the sale of the house entered
into by the applicant
and my sister.
…
I thus pray the
above honourable court to stay the above proceedings pending the
finalization of the high court application I intend
to bring to set
aside the sale of the property at erf 7[…] NU 3 Mdantsane as
null and void
ab
initio
.’
[13]
[28]
From the
above, Mr Skiti was clearly perplexed by the first respondent’s
conduct. He subsequently approached both the deeds
registry and the
Master of the High Court but failed to indicate the details of his
interaction with the relevant officials or
the nature of any
information that he might have received; it is improbable that his
enquiries would not have prompted further
investigation if there had
indeed been something untoward about the sale of the property. The
deed of transfer must be regarded
as
prima
facie
proof of legal title by Ms Gobingca to the land in question.
[14]
There is, moreover, nothing whatsoever to indicate the basis upon
which Mr Skiti intended to apply for the setting aside of the
sale.
[29]
The answering affidavit, on its own, was insufficient to have
triggered the magistrate’s exercise of her discretion.
No
counterclaim or claim in reconvention (here, in the form of a
counterapplication to set aside the sale) was ever filed.
[30]
To the extent that it could be argued that Mr Skiti’s
application to stay the eviction proceedings served as a counterclaim
or claim in reconvention, the affidavit filed in support thereof was
no more than that. Mr Skiti alleged that the first respondent
misrepresented herself and ‘acquired a title deed which allowed
her to sell the property as her own’. He provided no
substantiation for the allegation. He averred, again, that he
intended to institute High Court proceedings, in terms of which:
‘
the
third respondent [i.e. the deeds registry] will be required to supply
me and/or my attorneys with all documentation in relation
to the
property in question, including how the first respondent [i.e. Ms
Skriti] got the property registered in her name etc.’
[15]
[31]
Mr Skiti went on to surmise that the first respondent ‘curiously
appointed herself as the executor’ but provided
no basis for
his suspicion. He also asserted that
section 47
of the
Administration
of Estates Act 66 of 1965
stipulated that an executor was required to
sell property in the manner and subject to the conditions which the
heirs approved
in writing. In that regard, alleged Mr Skiti, his late
father died intestate, and he was an heir; he had, however, never
approved
the sale of the property.
[32]
The factual
underpinnings of the various allegations made by Mr Skiti are far
from clear. Even if the affidavit could be construed
widely as a
counterclaim or claim in reconvention, then it relied on too much
speculation and uncertainty for him to contend that
it demonstrated,
prima
facie
,
a reasonable prospect of success in relation to the High Court
proceedings which he intended to institute. On a reasonable
interpretation,
the affidavit filed in support of Mr Skiti’s
application to stay the eviction proceedings amounted to a set of
factual allegations
(unsubstantiated) upon which a counterapplication
would possibly have been justified or upon which it could possibly
have been
based, no more than that. It cannot be said to have met the
requirements of
section 47(1).
[16]
Rule
20(5)
procedure
[33]
Essentially, Mr Skiti failed to file a counterapplication for the
setting aside of the sale of the property. He also failed
to comply
with the procedure set out in
rule 20(5)
; this would have entailed an
application to the Magistrate’s Court to pronounce that the
counterapplication exceeded its
jurisdiction and to stay the eviction
proceedings in accordance with the provisions of
section 47(1).
Importantly, the
rule 20(5)
procedure depended on Mr Skiti’s
first having filed such a counterapplication. This was simply never
done.
Reasoning
of the court
a quo
[34]
The
magistrate, in her judgment, referred to
Randell
v Cape Law Society,
[17]
but this cannot be said to have been a proper basis for her decision.
The case in question dealt with the question of whether a
court ought
to stay civil proceedings against a litigant when there were criminal
proceedings pending in relation to the same issues.
Smith J held that
a court has a discretion to do so, but each case had to be decided in
light of the particular circumstances and
competing interests.
[18]
The present matter involves entirely different facts.
[35]
Reference
was also made to
Nedbank
Ltd v Jones and others
,
[19]
where Gamble J reiterated the principle that a Magistrate’s
Court was a creature of statute and exercised no inherent
jurisdiction;
it could only issue orders regarding which it was
expressly authorized.
[20]
The
principle in question is trite and well-established. The magistrate,
in the present matter, used the reference in support of
her decision
that she could not order the stay of proceedings for an indeterminate
period. The provisions of section 48 of the
Magistrates’ Court
Act 32 of 1944 constituted a
numerus
clausus
,
as it was termed, which did not permit the order sought by Mr Skiti.
[36]
The
provisions of section 48 list the competent judgments available to a
magistrate. It is clear, however, that the provisions pertain
to the
decision to be made at the conclusion of proceedings, i.e. at the end
of a trial or after an application has been argued
to completion.
[21]
That is not the situation here. The provisions of section 47(1)
undoubtedly allow a magistrate the discretion to stay proceedings
if
there is a proper basis upon which to do so, as already discussed.
Costs
[37]
The court
a
quo
dismissed, with costs, Mr Skiti’s application to stay the
eviction proceedings. Counsel referred to
Hotz
and others v University of Cape Town
,
[22]
where the Constitutional Court recognised the discretion available to
a court of first instance to determine costs; a court of
appeal
cannot interfere with the exercise of such discretion without good
reason to do so.
[23]
Nevertheless, contended counsel, the Supreme Court of Appeal
confirmed, in
Naylor
and another v Jansen
,
[24]
that a court of appeal may interfere with a costs order in
exceptional circumstances; that was the situation in the present
matter,
counsel argued, where Ms Gobingca and the remaining
respondents had not opposed Mr Skiti’s application.
[38]
The
decision in
Naylor
,
however, was more nuanced than suggested. Cloete JA held as
follows:
[25]
‘…
an appeal
court will interfere with the exercise of such a discretion only
where it is shown that:
“…
the lower
court had not exercised its discretion judicially, or that it had
been influenced by wrong principles or a misdirection
on the facts,
or that it had reached a decision which in the result could not
reasonably have been made by a court properly directing
itself to all
the relevant facts and principles.”
[26]
’
[39]
In the
present matter, I am of the respectful view that the magistrate
applied the wrong principles but reached the right decision.
There is
little scope to interfere. The order for Mr Skiti to pay costs,
however, does not seem to have been warranted. To that
effect, he did
not seek costs when he brought the application. Ms Gobingca never
opposed the matter, notwithstanding her attorney’s
ambivalence
in that regard at the hearing.
[27]
If she had indeed filed a notice of opposition and answering papers
and if her attorney had clearly approached the matter on an
opposed
basis then there would have been a reason for the costs order. But
that was not the case. The magistrate misdirected herself
in that
regard, giving rise to the exceptional circumstances that justify
interference with her order.
[40]
The appeal, too, was unopposed. Despite Mr Skiti’s failure to
have persuaded the court of its merits, there is no basis
for
ordering him pay Ms Gobingca’ costs, if any, in relation
thereto. He ought simply to bear his own costs and take advice
on
such further options as may be available to him.
Order
[41]
In the circumstances, I would make the following order:
(a)
the appeal is dismissed; and
(b)
the appellant is directed to pay his own
costs.
JGA LAING
JUDGE OF THE HIGH
COURT
I agree.
S DUNYWA
ACTING JUDGE OF THE
HIGH COURT
APPEARANCE
For
the appellant:
Mr
Nohaji
Instructed
by:
Cinga
Nohaji Inc.
36
Chamberlain Road
Berea
EAST
LONDON
Ref:
CN/dxs/045/sp
For
the respondents:
No
appearance
Date
of hearing:
28
March 2024
Date
of delivery of judgment:
09
July 2024
[1]
The application was brought under case number 990/2021.
[2]
Mr Skiti appears to have brought the application under the same case
number, i.e. 990/2021; there is no indication that the additional
respondents were ever properly joined.
[3]
1947 (2) SA 789 (T).
[4]
At 793-5.
[5]
At 797.
[6]
Per Clayden J, at 799.
[7]
(AR 194/11) [2012] ZAKZPHC 80 (30 July 2012).
[8]
At paragraph [42].
[9]
At paragraph [44].
[10]
At paragraph [48].
[11]
(23256/17)
[2018] ZAWCHC 138
(29 October 2018).
[12]
See,
too, the discussion in DE van Loggerenberg,
Jones
& Buckle: Civil Practice of the Magistrates’ Courts in
South Africa
(Jutastat e-publications, RS 10, 2016, Act), at p314.
[13]
Sic.
[14]
A copy of the deed of transfer was attached to Ms Gobingca’s
founding affidavit.
[15]
Sic.
[16]
A
further difficulty facing Mr Skiti is that there is no indication
that his application was ever properly served on either the
first
respondent or the deeds registry. There is, moreover, no indication
that he ever properly applied for their joinder to
the proceedings.
[17]
2012
(3) SA 207 (ECG).
[18]
At
paragraph [25].
[19]
2017
(2) SA 473
(WCC).
[20]
At
paragraph [16].
[21]
See
the discussion in DE van Loggerenberg, n 12
supra
(RS 26, 2022, Act), at pp 322-3.
[22]
2018
(1) SA 369 (CC).
[23]
At
paragraph [28].
[24]
2007
(1) SA 16 (SCA).
[25]
At
paragraph [14].
[26]
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs and Others
2000
(2) SA 1
(CC), at paragraph [11].
[27]
From
the record, the attorney concedes that his client, Ms Gobingca,
never formally opposed Mr Skiti’s application to stay
the
eviction proceedings. That seems to have been the basis, too, upon
which Mr Skiti’s attorney, as well as the court
a
quo
,
approached the matter at the hearing.