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[1] The applicant brought an application to have the respondents’ estate
provisionally sequestrated, averring that the latter’s levies towards the
association were in arrears. The parties’ oral arguments were only limited to the
issue regarding the late filing of the respondents’ answering affidavit after this
court directed them to answer in its order dated 27 January 2024.
[2] Before I could consider condonation application arguments in order to prepare
and write this judgment, I had to read the papers so as to satisfy myself that it
would be in the interest of justice to grant the provisional order solely on the
basis of noncompliance with the Rules of this Court.
[3] Having heard the arguments presented by both parties and read the parties’
papers, I identified very compelling and concerning aspects which required this
court’s intervention to deal with the parties’ issues once and for all.
[4] I found that the notice of motion was filed on 1 September 2023.1. The founding
affidavit was deposed by one Mr. Johny Khwe le who, according to the
voluminous papers I read, was one of the directors elected by the homeowners
more than five years before this application was made. A draft order was made
by this court on 26 January 2024, directing both parties to act in terms the reof.2
On page 14 -38-14-57 of the caseline, I found a Community Scheme Ombud
Services(CSOS) adjudication order dated 17 April 2022, which directed the
board of directors whose legitimacy to govern was challenged by some
homeowners to convene an Annual Gene ral
Meeting(AGM) after an auditor has finalized the association’s audited financial
statements.
[5] It is clear from the papers I read that the applicant is one of the people who
alleged that he diverted the payment of his monthly levies to an Attorney’s Tru st
account until all governance issues have been dealt with.
[6] The deponent to this affidavit approached this court for a provisional
sequestration order on 1 September 2023 fully aware of the CSOS order but
failed to disclose its existence to this court a nd why the provisional order was
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08-1-08-4.
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sought before compliance with the CSOS order. Clearly when this court granted
the draft order on 26 January 2024, the CSOS order was not brought to its
attention for it to exercise a judicial discretion on whether it was in the interest
of justice to make such an order when there were clear pending issues related
not only to the governance of the association but also to clear audited financial
statements of the association.
[7] The latter was very important to assist the cou rt in determining whether a prima
facie case of indebtedness was made before even directing the applicant to file
any answering affidavit. The CSOS order, as I read, seeks to have all the
association’s governance and financial matters corrected by a board of
directors elected in terms of its own constitution. This court cannot allow any
party to approach it for this kind of relief when such a party is aware of pending
issues that have the potential to resolve the complaint of any form of
indebtedness toward s the association.
[8] It is also clear from the papers that contempt of this court’s application was
served on the board of directors for its failure to comply with the CSOS order
and that such order was according to the papers, still pending before this cou rt.
The deponent to the founding affidavit failed to disclose this important
developments to this court when filing the sequestration application. These non -
disclosures clearly had the effect of prompting this court to grant the draft order
of the applica nt as it believed that the information provided by the applicant was
the only information known to the applicant for the court to consider and to the
extent of directing the respondents to answer the allegations made in the
sequestration application.
[9] Instead, what the applicant’s counsel did during the hearing was simply argue
that I must grant the draft order he presented because the respondents failed
to explain the reasons the answering affidavit was filed late. I was tempted to
grant the order until I satisfied myself that such would not have been in the
interests of justice given all these non -disclosures on the part of the applicant.
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[10] Property ownership is one of the most valuable assets and right protected by
this country’s Constitution and for any court to assist a third party to deprive
another party of that right, this court must be satisfied that it is the only remedy
available to the aggrieved party. Put differently it is an intervention of the last
resort.
[11] The applicants in this case are not innocent litigants on the association’s
financial matters because they have, according to these papers, still failed to
comply with the CSOS order and it is approximately more than two years since
it was issued by the Ad judicator.
[12] Since the parties have not argued the preliminary issues of jurisdiction and the
applicant’s locus standi raised by the applicant as the court only limited them to
arguing condonation for the late filing of the answering affidavit, I am not going
to make any determination on the two points of law, including Rule 7(1). I am
equally not going to make any order on the issue of the respondents’
condonation application or lack thereof. I am not going to endorse the draft
order handed by the applicants either.
[13] This court, when making the order on 26 January 2024, was not provided with
full details of the board of d irectors’ governance status, no audited financial
statements as ordered by CSOS against the applicants, in order to assist this
court in clearly determining the extent of the respondents’ indebtedness. The
order made by this court on 26 January 2024 was er roneously granted in the
absence of the affected party and further that there was an omission. This court
has inherent powers to make judicial decisions which promote the interests of
justice against always fixating itself to penalizing parties because of slight non -
compliance with its Rules.
[14] It is for these reasons that I make the following order
14.1 This application is struck off the roll subject to the following
condition:
14.1.1 The applicants or their successors must prove to the court
that they have c omplied with the CSOS order and that the