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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO : 2935/20 08
DATE : 12-02-2025
DATE 12 February 2025
In the matter between
THOKWANA , BIKWAPHI MIRRIAM Applicant
and
STANDARD BANK SA LTD First Responde nt
SIPHONO JOHNSON VILAKAZI Second Respondent
PRINCE NHLANHLA MABENA Third Respondent
THE REGISTRAR OF DEEDS Fourth Respondent
PRETORIA
THE SHERIFF FOR THE HIGH COURT: Fifth Respondent
KEMPTON PARK SOUTH
JUDGMENT (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
BARNES , AJ: This is an application to set aside the sale in
execution of an immovable property , namely : Erf 2 […], Birch
Acres, Ext 17 , Kempton Park . In what follows , I will refer to it
simply as “the property. ”
There is no appearance by the Applicant despite proper notice of
the set down of the matter for today. In this regard there is, on the
papers before me, a return of service from the sheriff which
confirms that the notice of set down for today was served on the Applicant.
In addition to this, I have been directed to an email,
(using the email addresses that have been utilised by the parties to th is litigation by agreement), advising the Applicant of today’s
set down.
Before dealing with the present application, it is
necessary to refer to the history of this litigation, which began as far back as 2008, and is characterised by some very troubling
features.
On 11 June 2008 default judgment was granted against the
Applicant and the Third Respondent jointly and severally in terms
of which, inter alia, the property was declared specially
executable.
On 25 March 2010 the property was sold in execution. On
19 May 2010 the Applicant and the Third Respondent launched an
application for recission of the default judgment.
This will be referred to as “ the first recission application. ”
The first recission application was postponed pending attempts at
settling the matter . This culminated in the conclusion of a re-
payment agreement between the First Respondent , on the one
hand, and the Applicant and the Third Respondent , on the other,
and the cancellation of the sale of the property.
In the event , the Applicant and the Third Respondent
failed to honour the terms of the re-payment agreement , and the
First Respondent brought an application in terms of Rule 46(11). On 29 July 2015 this Court granted that application and made an
order in terms of which the property was put up for sale again.
To date the first recission application has not been
disposed of or withdrawn by the Applicant and the Third
Respondent. Notwithstanding this , 17 February 2016 the Applicant
launched a second recission application , again seeking to set
aside the default judgment.
The Applicant failed to prosecute the second recission application
and it was set down on a number of occasions by the First
Respondent, only to be pos tponed on every occasion at the
instance of the Applicant.
Eventually , on the 23 April 2018, the second recission
application was dismissed by this Court with punitive costs.
Thereafter, the necessary procedures were complied with
and on 20 September 2018, the property was sold in execution to the Second Respondent. On 19 June 2019 the present application
to set aside the sale in execution of the property was launched.
The Applicant has taken not a single further step in
relation to the present application since it was launched over five
years ago. Yet again, it fell to the First Respondent to set the
matter down on numerous occasions in an attempt to dispose of
it.
On 19 May 2022 the matter came before this Court and
the Applicant sought a postponement. The Court granted the postponement and ordered the Applicant to deliver her heads of
argument within three days , failing which her claim would be
struck out with punitive costs. The Applicant failed to comply with
that order.
Thereafter, the matter was again set down on 18 November 2022
at the instance of the First Respondent. The Applicant again sought a postponement , this time on the grounds that she had no
legal representation. This Court postponed the matter sine die
and afforded that Applicant three days to obtain legal representation and five days to deliver her heads of argument. Yet
again, the Applicant failed to comply with this order.
The Applicant is accordingly in default of both the
aforesaid orders of this Court, issued on 19 May 2022 and 18 November 2022 respectively.
The present application has again been set down at the instance of the First Respondent. There is no appearance for the Applicant
today. As stated above, I am satisfied that the Applicant has had
proper notice of today’s set down and of the fact that a punitive costs order is being sought against her.
The history set out above clearly demonstrates that the Applicant
has litigated in bad faith. She has over many years launched applications and failed to take steps to prosecute them. Orders of this Court affording the Applicant the indulgence of a postponement or granting her a final opportunity to deliver heads of argument have been routinely ignored. This conduct is
unacceptable and warrant s a punitive costs order against the
Applicant.
In the circumstances, I make the following order:
The application to set aside the sale in execution of the
immovable property, namely: Erf 2[ …], Birch Acres, Ext 17 in
Kempton Park is set aside.
The Applicant is to pay the costs of this application on the
attorney and client scale.
BARNES , AJ
JUDGE OF THE HIGH COURT
DATE : 12 February 2025