IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NO: 17555/2024
In the matter between:
JUDE ONUCHUKWU UMEGBOLU First Applicant
ZIKONA BUYEYE Second Applicant
And
DUNNO PROPRIETARY LIMITED First Respondent
RAWSON PROPERTIES Second
Respondent
(RAWSON AUCTION WESTERN CAPE)
REGISTRAR OF DEEDS CAPE TOWN Third Respondent
(WESTERN CAPE DIVISION)
Coram: Parker, AJ
Matter heard on: 12 September 2024
Judgment reserved on: 15 October 2024
Judgment delivered electronically on: 25 November 2024
______________________________________________________________________
JUDGMENT
PARKER, AJ:
Introduction
[1] On 16 August 2024 an order was granted in the urgent court wherein I dismissed
the urgent application with no order as to the costs. Only first respondent opposed the
application.
[2] This was followed by an application for leave to appeal delivered by the
applicants. The grounds of appeal, inter alia are:
2.1 That the Honourable Court allowed a certain Mr. Michael Jambwa who is
neither a legal practitioner nor is entitled to by law, to appear at the
hearing on 16 August 2024 and make submissions on behalf of first
respondent. The Honourable Court accepted, admitted and/or considered
a certain (undelivered, unfiled and/or not properly served and filed)
documents together with oral submissions by Mr. Jambwa from the bar to
the prejudice of the applicants.
2.2 The Honourable Court did not with respect, afford applicants, the
opportunity to have insights into and/or properly respond to said
documents and/or submissions of Mr. Jambwa, despite applicants’
requests to so do.
2.3 The Honourable Court in making a determination of the applicants
application, did not fully consider all the relevant facts and evidence
presented by and/or on behalf of the applicants.
2.4 The Honourable Court did not give reasons for dismissing the applicants’
application.
[3] The Applicants persisted with the leave to appeal despite the court’s indication
via the Registrar to the applicants that reasons are to be sought formally.
[4] Needless to say, the leave to appeal was heard on 12 September 2024 and the
respondent was in person who elected not to appoint a legal r epresentative.
Furthermore an agreed timeline for the filing of heads of argument were directed for
delivery on the 1, 8 and 15 October 2024 respectively.
The appeal
[5] The test for leave to appeal is well known.
[6] In terms of section 17(1)(a)(i ), re mains a determination of whether there are
reasonable prospects of success. The Supreme Court of Appeal1 held at paragraph [10]
that:
“The test of reasonable prospects of success postulates a dispassionate decision
based on the facts and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In other words, the appellants in this
matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of succ ess must not be remote, but there
must exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.”
1 See the unreported judgment in Ramakatsa and Others v African National Congress and Another
(724/2019) [2021] ZASCA 31 (31 March 2021).
[7] Section 17(1)(a)(ii) elevates the onus in the weight in which leave to appeal may
be granted when “there is some other compelling reason why the appeal should be
heard”.
[8] There is no exhaustive list of what constitutes a compelling reason; each case
must be decided on its own facts.2 Cachalia JA observed in Caratco3 that:
“A compelling reason includes an important question of law or a discreet issue of
public importance that will have an effect of future disputes. But here too, the
merits remain vitally important and are often decisi ve. [The applicant] must
satisfy this court that it has met this threshold.”
Legal Authority
[9] The challenge to the legal authority of the first respondent was not dealt with in
the founding affidavit at all, neither was it raised in argument when the urgent
application was heard. The applicant s now on appeal raises the issue that first
respondent being a “ company is a separate legal entity, must be represented by
someone who has a right of audience like an advocate or attorney except on an
exceptional circumstance which are rare ”. In this regard the applicant s had ample
opportunity when it learnt that first respondent was opposing the matter and at the
hearing to raise the challenge and or deliver the application in terms of Rule 7 of the
Uniform Rules of Court to challenge the legal authority of the respondent. The argument
therefore cannot be sustained.
Lack of reasons
[10] At the appeal the applicants argued that a fundamental importance in our judicial
system is the furnishing of reasons for the decision made. The averments made in
2 See Transnat Durban (Pty) Ltd v Ethekwini Municipality (D4178/2020) [2021] ZAKZDHC 3 (8 February
2021).
3 See dictum in Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA).
argument that the “ lack of reasons for the decision regrettably does not favour the
applicant” are grounds for appeal. The applicants points to a judgment that an “appeal
court may have the difficulty of presiding over a judgment without reasons ”.4 Whilst I
agree with the last sentence, I need to make it clear what transpired in this matter,
which unfolds below.
[11] Whilst the applicant s’ attempts to show that the court shut down the applicants
constitutional rights, this is far from the truth. Applicant s failed to seek reasons formally
and therefore its argument that “a violation of the constitutional right of access to courts,
if reasons are to be withheld by a judicial officer,” is frowned upon, given the Registrar’s
communication to the attorney for the applicants. Applicant s elected not to request
reasons in terms of rule 49(1)(c), an avenue which was available to them.
[12] The criticism of the failure to g ive reasons for the decision when the order was
granted, is misplaced. When one is on urgent duty, given the nature of the matters
brought in the urgent court one does not always have the opportunity to deliver written
judgments. This does not mean that I did not apply my mind when arriving at the
decision.
Procedural issue
[13] Secondly applicant s contends that they have been denied the opportunity to
have insight or respond to the first respondent’s answering affidavit and uses this as a
compelling reason for the appeal.
[14] At the hearing of the application, applicant s elected to proceed with the matter
despite respondent only filing its answering papers on the day of the hearing.
Applicants brought this matter on urgency. The answering affidavit was delivered to the
court on the day of the hearing. Applicant s however were served with the opposing
affidavit the day before (although incomplete as certain of the annexures were not
4 S v Van Der Berg and Another 2009 (1) SACR 661.
attached) the hearing . I then stood the matter down for applicants’ counsel to take
instructions whether they intended to proceed with the hear ing of the application given
that the attorney for applicants were not at court. Fifteen or so minutes later applicants
elected to proceed.5
[15] As such the applicant cannot now raise that the court denied applicant its right to
request a postponement o f the matter. Both parties wanted to proceed and have the
matter heard. Applicants’ reliance on the Isibaya Home Body Corporate Case6 does not
assist them.
Urgency
5 The extract of the transcript of the record reads “ RT: Okay. Mr Jambwa, you must not go away at all.
Please just hang around. I'm going to give Adv Mtunzi and the instructing attorney to consider what their
position is, because you've only brought this to me now, literally 15 minutes ago.
MR JAMBWA: Okay.
COURT: Thank you. Court adjourned, then.
MS MTUNZI: As the Court pleases.
COURT: When you are ready, just let us know, please.
MS MTUNZI: Will do so, M’Lady.
COURT: I am available for you.
COURT ADJOURNS[10:07]
------------------------
COURT RESUMES[10:23]
MS MTUNZI: M’Lady, my instructions are, I consulted with my instructing attorney and my instructions
are, for the application to be heard today and then the Court then if the Court then finds in our favour or
grants the interim interdict then set down the return date and in the return date stipulate when or order or
direct when the filing of the …[intervenes]
COURT: Of the further timetable.
MS MTUNZI: ... further timetable.
COURT: Okay. so basically, you are asking for the interim relief today?
MS MTUNZI: Interim relief today.
COURT: Then, ja, if I grant the interim relief, and I'm satisfied with your submissions, then we will come
back on another day, so that the ꟷ to afford you an opportunity to reply.
MS MTUNZI: Correct, M’Lady.
COURT: If I find.
MS MTUNZI: If you do. We then came up with dates as well.
COURT: Okay, no that is fine. I just want to be sure that Mr Jambwa understands us. Okay. Mr Jambwa ,
I'm not sure if you followed what the counsel had said. Would you like me to explain it to you? Yes, okay.
So the applicant has come here on an urgent basis. Seeking certain relief. One, either to stop the auction;
two, if the sale continues, for that the money that's going to be ꟷ because you are selling the property,
am I right?
MR JAMBWA: Yes.”
6 Isibaya House Body Corporate SS279/2007 and Another v City of Johannesburg Metropolitan
Municipality (29079/2017) [2021] ZAGPJHC 846 (11 June 2021) paragraph [23].
[16] The parties are embroiled in litigation in another forum arising from the
applicants’ occupancy on the property of first respondent. The application is to interdict
the auction, sale and transfer of the immovable property, and or proceeds of the sale be
interdicted from paying out such proceeds, interdicting the third respondent from
transferring the property to any person or entity pending the outcome of the action and
directing the insertion of an “interdict” against the title deed of the property, preser ving
the proceeds in a designated trust account pending the outcome of the applicants
damages claim.
[17] The requirements for an urgent interim interdict are trite. The first question to be
answered is whether the applicant has satisfied the requirement of prima facie, even if it
were open to some doubt. The applicant would also have to show –
17.1 that it had no alternative remedy,
17.2 that it had a reasonable apprehension of irreparable harm if the interdict
were not granted,
17.3 and that the balance of convenience favours the granting of the interim
relief.
[18] The requirement to show a favourable balance of convenience would fall away if
the applicant were able to show a clear right to the final relief, and the stronger the
prima facie right the less important the influence of the balance of convenience.
[19] An important obstacle presented to applicants’ case to justify the relief sought is
that there is no evidence presented to show that the first respondent is planning to
remove his assets from this court’s jurisdiction with the intention to defeat the
applicant’s claim in the other forum. The applicants failed to plead such grounds in its
founding affidavit. Such an intention is a prerequisite for an anti -dissipatory interdict. In
Poolman v Cordier and others, Erasmus AJ said:7
“[17] A Mareva injunction is a species of an interim interdict compelling a
respondent/defendant to refrain from dealing freely with his assets to which the
applicant can lay no claim. The purpose thereof is to prevent the intended
defendant, who can be shown to have assets and who is about to defeat the
plaintiff's claim or defeat the plaintiff's claim or dissipating assets, from doing so.
To be successful, the applicant must show that the respondent is wasting or
secreting assets with the intention of defeating the claims of creditors.”
[20] In the present matter the evidence is that the applicants occupied the home since
2013 under a lease agreement until first respondent purchased the property. On 30
September 2022 the second respondent delivered a notice to the applicants to vacate
the property on or before 10 October 2022.
[21] On 20 O ctober 2022 applicants were successful with its spoliation remedy
against first respondent, following a housebreaking and removal of applicants’ property.
[22] The order granted against first respondent was to restore the movable assets.
This remains an issue be tween the parties, which is the subject of the damages claim.
Applicants learnt of an auction of the immovable property on 11 July 2024, wherein
Applicants were invited in an email correspondence dated 18 July 2024 to consider the
purchase of the immovabl e property however there appeared to be some uncertainty
regarding the auction.
[23] Save for stating that the first respondent is a peregrinus from Zimbabwe , t he
applicants argues that the property is its only security and allegedly its only asset in
7 Poolman v Cordier and others [2017] ZANCHC 49 para 17. See Knox D'Arcy Ltd and others v Jamieson
and others [1996] 3 All SA 669 (A); 1996 (4) SA 348 (A), Bassani Mining (Pty) Ltd v Sebosat (Pty) and
Others 2021 JDR 2276 (SCA) paras 12 to 19, and the judgment by Moshoana J in Commissioner for the
South African Revenue Services v Moloto and Others 2022 JDR 3201 (GP) paras [8] to [18].
respect of its damages claim. Applicants contends that first and second respondents are
acting with mala fides as to conduct an auction to frustrate the applicants claim. The first
respondent submissions are that the applicants are abusing the court process and
remain in unlawful occupation which is compounded by applicants failure to pay the
rental, levies and rates.
[24] However Applicants failed to provide sufficient evidence that first respondent was
secreting away assets to avoid paying its debts. Neither was there any evidence to
show it would be impossible to execute the judgment of the damages claim, if
successful. There was no evidence that it would be expensive or that exceptional
circumstances that merit an anti dissipatory interdict.8
[25] I conclude that the applicant s has not made out a prima facie right, it has not
proven that the harm is imminent and therefore in my view found there to be no
reasonable apprehension of irreparable harm and the application stands to be
dismissed. The applicants have other remedies which they have pursued and are
currently embroiled in, (the damages claim) and which is yet to be determined. There
are no reasons to justify applicants coming to court, with nothing to support its case for
urgency. The balance of convenience does not favour applicant s. For all the above
reasons I made the order as reflected in paragraph 1.
Costs
[26] In considering legal costs, I did not grant costs when the application was
dismissed. However, under these circumstances, first respondent has been put through
efforts in having to oppose the leave to appeal and for these reasons costs of the
appeal should follow the result.
Order
8 Evoke Reality (Pty) Ltd v Jacobus and Others 2023 JDR 3221 (GJ) at para [36].
[27] In the circumstances the following order is made:
27.1 The application for leave to appeal is dismissed.
27.2 The applicants are to pay the first respondent’s legal costs.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for Applicants : Mr. P Sharuh
Instructing Attorney : Paul Sharuh Attorneys
Counsel for First Respondent : Mr. M Jambwa – Director in person
Instructing Attorney :