SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION , JOHANNESBURG
Case No: 0 53812/20 22
In the application between:
MOJALEFA MOTAUNG APPLICANT
and
PHAHLANE P. MOLEBOGENG PULENG FIRST RESPONDENT
MASTER OF HIGH COURT JOHANNESBURG SECOND RESPONDENT
EMFULENI LOCAL MUNICIPALITY. THIRD RESPONDENT
DIRECTOR GENERAL DEPARTMENT OF HUMAN SETTLEMENT GAUTENG PROVINCE FOURTH RESPONDENT
REGISTRAR OF DEEDS PRETORI A FIFTH RESPONDENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
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JUDGMENT
NHARMURAVATE AJ
INTRODUCTION
[1] The Applicant is an adult male, residing at house number 2[ …] he Zone 1[ …]
S[…]. He has instituted an application wherein he seeks an order cancelling the title
deed of house number 2 […] Zone 1[…], S[…] which he alleges wa s registered under
the names of Philipp Malefetsane and Dimakatso Patricia Motaung. Secondly , he
seeks a n order directing that after cancellation of the title deed, the granting of the
ownership of house number 2[ …] Zone 1[ …] be referred to the D irector General of
the Department of H uman Settlement , Gauteng Province for an inquiry to be held in
terms of Section 2 of the C onversion of C ertain Rights to L easehold Act 8.
[2] This application is opposed only by the First Respondent namely Pear l
Molebogeng Puleng Phahlane an adult female appointed as the executrix of the
deceased estate (Phillip Malefetsane and Dimakatso Patricia Motaung) in terms of
the letters of authority issued by the Second Respondent on the 5
th of March 2020.
She is currently residing at 8[ …] S[…] Street S […].
[3] The First Respondent’s answer was filed in this regard wherein a point in
limine was raised that the Applicant is not before court with clean hands as she had
brought an application which was successful , evicting the Applicant from the said
property in 2022.
[4] It is imperative that this court examines the point of law raised by the First
Respondent before considering the merits of the matter. That is so because if the
First Respondent is successful with the point in limine raised there will be no need to
venture into the merits .
THE POINT IN LIMINE
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[5] Mr Jacobs for the First Respondent argued that the Applicant was before
court with dirty hands in that the very property that is in issue in this application, he
was lawfully evicted there from, by the Sebokeng Magistrate Court. He argued that
the Applicant was served with a court order in terms of section 4 (2) of Act 19 of
19981 which notified him of the pending eviction and the fact that he had to make
himself available for court on the 17th of January 2022.
[6] On the 17
th of January 2022 t he Applicant did make an appearance wherein
he sought a postponed which was granted to the 24th of January 2022 so that he
could obtain legal presentation. However, on the 24th of January in the Applicant ’s
absence the order evicting him was granted. The Applicant was thereafter lawfully
removed by the Sheriff on the 12th of October 2022. Despite the lawful removal he forced his way back to the property in issue by causing damage and he is currently still residing there unlawfully and intentionally.
[7] Mr Hlatshwayo for the Applicant did not deny that the Applicant was residing
in the property unlawfully in fact his explanation wa s that it is the members of the
public who forced him back into the property. Mr Hlatshwayo further argued that
there was a pending rescission application before the Sebokeng Magistrate Court
against the eviction order . He argued that the Applicant was not before the court with
dirty hands as there was nothing prohibiting him or this court from making it s
decision as the other was a decision from a lower court which bears no relevance to the application at hand.
[8] He implored the court to ignore the eviction court order and to only consider
the application at hand.
ANALYSIS OF THE ARGUMENT
[9] In my view , the Applicant is indeed not before this court bona fide in fact he
has no locus standi to bring forth such an application. In every application the
1 Prevention of illegal eviction from and Unlawful Occupation of Land Act
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applicant must establish his or her standing before delving to the merits of the
matter. That is a premise of every litigation as the Applicant must demonstrate a direct or substantial interest in the matter the interest must be actual and current which has not been established by the Applicant.
[10] The Applicant was and still is knowledgeable of the existence of the
Magistrate Court order which evicted him as far back as 3 years ago. In terms of the
constitution of the Republic of South Africa, which is the highest law in the land,
judicial authority of the Republic is vested in the courts and no person or organ of state may interfere with the functioning of the courts
2.
[11] In terms of the constitution, an order or decision issued by a court binds all
persons to whom it applies
3 and the definition of the courts in terms of section 166(d)
of the constitution includes the M agistrate courts . The Magistrate court inclusive of
its orders are not given a lower status by the constitution. Therefore, one cannot
disregard an order from the Magistrate Court simply because one is of the view that it is a lower court as argued by the A pplicant . That argument is flawed.
[12] The court order from the Magistrate court is clear and it needs no
interpretation nor was there an argument raised by the Applicant that he was
confused by the order or that same was not clear. The Applicant understood that he
had no right over the property situated at Zone 13 at number 22 68 as from the time
he was served with the court order granted on the 24
th of January 2022. This means
he has no locus standi to bring about such an application and seeking such
declarators at this stage.
[13] This court cannot sit as a court of rescission which is not before it. Alarmingly ,
the Applicant did not volunteer this information in his founding papers . The
unlawfulness of his occupation was raised by the First Respondent in her answer .
The Applicant stands and falls by his founding papers tritely the Applicant cannot
2 Sect 165 (1) to (3) of the Constitution as amended Act 108 of 1996
3 Sect 165(5)
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make out his case in the replying affidavit4 as there was no explanation made why
this information was left out of the founding papers.
[14] Additionally, even if the said court order was in error, it remains binding, and
the implication thereof is that the Applicant has no locus standi to bring about such
an application concerning this property as he was declared an unlawful occupant
and evicted. In line with various judgements, it is a crime in this country to unlawfully
and intentionally disobey a court order. There is no exception to the rule.
[15] In terms of the Fakie judgement at paragraph 50 the court stated that : it is
important to note that it is a crime to unlawfully and intentionally to disobey a court
order
5. The crime of contempt of court is said to be a blunt instrument because of
this willful dis obeyance of an order made in civil proceedings is both contemptuous and a criminal offence
6.
[16] In my view, the Applicant is attempting to circumvent the law mala fide.
Unsubstantiated allegations are made on the replying affidavit which should have been addressed on the founding papers such as the issue around the absence of the
Applicant on the 24
th of January at Sebokeng Magistrate Court. If indeed there were
such circumstances, there is a court which is already ceased with the subject matter of the rescission as that is not what is before me. The fact of the matter is that the
Applicant knew that he had to appear in court on the 24
th of January and that failure
to do so will amount to an order evicting him which he ignored, no attempts were
made by him to be in court on the 24th of January 2022 which resulted in a court
order he is in defiance of.
4 Brayton Carlswald (Pty) Ltd vBrews 2017 (5) SA 498 (SCA) at 507I –J; Passenger Rail Agency of
South Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at 227E –228I; Mostert v
FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) at 448D –E; Global Environmental
Trust v Tendele Coal Mining (Pty) Ltd [2021] 2 All SA 1 (SCA) at paragraph [96]; Trustees, Bymyam
Trust v Butcher Shop & Grill CC 2022 (2) SA 99 (WCC) at paragraph [54].
5 S v Beyers 1968 (3) SA 70 (A)
6 Meadow Glen Homeowners Association V City OF Tshwane Metropolitan [2014] ZASCA 209 At
Para 15
Page 6 of 7
[17] Constitutionally , parties on the face of an existing court order are called upon
to obeyed it, up until such time that it has been lawfully set aside7. As long as the
court order exist or still subsists it must be obeyed. In my view , as things stand the
Applicant has failed to establish a right over this property regard being had to the
Sebokeng Magistrate Court order in line with the application brought especially,
considering the position of the First Respondent who is the executrix over this
property and who has made all lawful attempts to assert her right over this property
in issue.
CONCLUSION
[18] In my view , this c ourt cannot move beyond the issue s raised in the point in
limine by the First Respondent. The Applicant was declared an unlawful occupier by
a competent court and this decision still subsists. He does not have any lo cus standi
to bring about such an application pertaining to this property . There is no probable
explanation provided why he is i n occupation of the property wherein he was lawfully
evicted by a competent court order .
[19] Therefore the A pplicant has no right or capacity to bring about such an
application on the face of the existing Magistrate court order.
[20] In conclusion, t he following order is made :
1. The Application is dismissed with party and party costs with Counsels fees on scale “B”
NHARMURAVATE, AJ
JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA
For the Applicant : Mr D Hlatshwayo
Instructed by . : Hlatshwayo - Mhayise Inc
7 Culverwell v Beira 1992 (4) SA 490 (W) at 494A
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For the First Respondent : Adv A Jacobs
Instructed by. : Legal Aid South Africa – Vereeniging Local Office
Date of Hearing : 03 March 2025
Date of Judgment: 0 9 April 2025