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[2026] ZAGPJHC 541
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Von Arnim v Von Arnim (2026/098132) [2026] ZAGPJHC 541 (7 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
Number: 2026-098132
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
ALEXANDER
BODO VON ARNIM, THE UNLAWFUL OCCUPIERS ELGIN AVENUE FERNDALE
RANDBURG
Applicant
and
DOREEN
N.O VON ARNIM
Respondent
JUDGMENT
C
E THOMPSON AJ
[1]
The Applicants were respondents in the Randburg Magistrate’s
Court in eviction proceedings under case number 21252/2025
wherein
the Learned Magistrate Jansen granted a final order of eviction
against them on 13 April 2026. The eviction proceedings
were
dealt with in terms of the Prevention of Illegal Evictions and
Unlawful Occupiers Act in the lower court.
[2]
In terms of the order granted, the Applicants were to vacate the
property in question voluntarily by 30 April 2026, failing
which the
Sheriff is authorized to evict the Applicants by 8 May 2026.
This application is the second application in as many
weeks to stay
the eviction proceedings.
[3]
The first stay application was enrolled before Minnaar AJ for the
week of 28 April 2026. Minnaar AJ struck the matter
from the
roll,
inter alia
due to the fact that the stay of execution
sought was open-endedly sought. In other words, the stay sought
was not dependent
on the happening of any other event, it would have
endured indefinitely. By the time the matter was heard by
Minnaar AJ,
there were already murmurings on the side of the
Applicants of a possible appeal against the decision of the Learned
Magistrate
or a possible review application in relation to the
conduct of the proceedings in the lower court. The fact that
neither
had been launched by the time that the matter was before
Minnaar AJ weighed heavily on Minnaar’s mind and his decision
to
strike the matter from the roll.
[4]
With Minnaar AJ striking the first urgent application from the roll
on 29 April 2026, the Applicants launched this second
urgent
application on 30 April 2026, to be heard before me on 5 May 2026.
The catalyst for the having this second application
enrolled on 5 May
2026 was due the impending eviction to be carried out on 8 May 2026.
This second application also followed
on the launching of review
proceedings on 30 May 2026 thereby, so the argument goes by the
Applicant, curing the concern of Minnaar
AJ. For reasons
unknown to the court, the Applicants did not seek a consent to stay
the execution of the eviction order pending
the finalization of the
review application. The second urgent application was simply
launched.
[5]
This action taken by the Applicants on the basis of extreme urgency
caused a set of founding papers to be presented to
the court which
does not, by any stretch of the imagination, amount to the standard
of court pleadings and affidavits required
for High Court
litigation. The head piece to the litigation refers to the two
of the Applicants, whose identity is known
to the First Applicant as
well as the attorney, Mr Moodley, as “
Unlawful Occupants
”.
The founding affidavit is a muddled-up version of events, to such an
extent that it is difficulty if not nigh impossible
to discern
whether the order in lower court was granted by default or not.
This latter issue required clarification during
argument as it
impacted on the nature of the relief sought. Much of the
argument before me had to traverse the history of
the lower court
litigation just so that the court could get an understanding of
whether the lower court order was by default or
not. Much of
the court’s time was spent on this issue alone. Had the
papers been properly drawn, this would not
have been an issue, and
unnecessary time would not have had to be spent on obtaining the
material background to the matter.
[6]
The extreme
urgency with which the matter was brought also resulted in purported
confirmatory affidavits being delivered by each
of the Applicants in
support of the affidavit deposed to by Mr Moodley (the attorney)
which referred to a non-existent supplementary
affidavit. I was
informed in the proceedings before Minnaar AJ there was a
supplementary affidavit which required confirmatory
affidavits.
Mr Moodley, in preparing the papers, did not pay due attention to his
professional work and duties and merely
copied and pasted documents
without due regard to the contents thereof.
[1]
The concern of possible fraud by utilizing affidavits pertaining to a
different affidavit was waylaid by counsel appearing
for the
Applicants by demonstrating that the order of Minnaar AJ was 29 April
2026 and the (wrongly headed) supplementary affidavits
were dated 30
April 2026.
[7]
It is trite that in urgent matters, urgency lies in the fact that
there is an absence of substantial relief in due course.
As was
stated in
East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite
(Pty) Ltd
2012 JDR 1836 (GSJ), urgency is not for the
taking. The grounds upon which reliance is placed for urgency
must be expressly
set out. It follows that the lack of
substantial redress in due course must not only be pleaded, it must
be demonstrated.
The Second Applicant, being Messrs Mokgore and
Thobejane, both indicated in the lower court that they have
alternative accommodation
available to them. This was not
disputed during argument. The record of proceedings in the
lower court pertaining
to Mr Mokgore was available and confirms the
aforesaid.
[8]
Messrs Mokgore and Thobejane also lay claim no right to the property,
or occupation thereof, from which their eviction
is being sought.
In my view, they do not demonstrate that they cannot obtain
substantial redress in due course.
[9]
The First Applicant, who styles himself as a businessman, hangs his
hat on the fact that the Last Will and Testament by
which his mother,
the First Respondent in this court and the applicant in the lower
court, obtained her letters of executorship
is a fraud. He also
contends that he will be rendered homeless. The issue of
homelessness would have been dealt with
by the lower court and I need
to revisit it. In any event, the allegation by the First
Applicant in this regard is so bald
and vague that no weight can be
attached thereto. He does not even begin to attempt to
demonstrate that, despite being a
businessman, he has no funds
available to procure alternative accommodation.
[10]
The issue of the alleged fraudulent will is even more fatal to the
First Applicant. The letters of executorship
were issued by the
Master in February 2025, based upon the Master’s acceptance of
the will. Save for a criminal complaint
which will not undo the
Master’s decision unless the Master’s decision is
specifically challenged, the First Applicant
has not sought to
challenge the Master’s decision to accept the will. The
First Applicant, being a businessman, has
not demonstrated that he
was constrained for financial reasons to proceed by way of a criminal
complaint as he cannot afford an
expert of his own to inspect the
will.
[11]
Worse still, in the lower court in an apparent challenge to the
locus
standi
of the First Respondent (the applicant in that court), the
First Applicant relied on a photograph taken by Mr Moodley (the
attorney)
of the disputed signature and his and Mr Moodley’s
interpretation thereof. Subject a challenge to the Master’s
decision and issuing of the letters of executorship, the letters of
executorship is valid and the inadmissible opinion evidence
on which
reliance is placed to dispute the First Respondent’s
locus
stand
as executrix is a non-starter. Otherwise stated, the
Applicants fail demonstrate a basis to attack the underlying judgment
of the lower court.
[12]
During argument and upon questions by the court in an attempt to
discern the lack of substantial redress available to
the First
Applicant in due course, it was discovered that the First Applicant
contends (from the Bar) that he will inherit the
property on an
intestate basis if the will is found to be fraudulent. Two
issues arise in this respect. Firstly, this
case is not made
out in the founding papers before me. Secondly, the First
Applicant is seriously misguided or ill-advised
in this respect.
A right to inherit is no more than a
spes
. In other
words, he has a possible right to receive something from the deceased
estate, he does not have an inherent right
to receive something.
In addition to the aforesaid, unless the potential intestate heirs
(if the will, to which there is
presently no challenge pending in a
court, is found to be a fraud) agrees to a distribution of the estate
in a particular manner,
the First Applicant has no
spes
to
inherit the property and take transfer thereof. At most he will
receive a portion of the value of the property, dependent
on the
intestate calculation.
[13]
Succintly put, the First Applicant also fails to demonstrate that he
cannot be afforded substantial redress in due course.
[14]
The First Applicant has also created his own urgency. He has
known since February 2025 of the alleged fraudulent
will and the
appointment of the First Respondent as executrix. He has not
sought to challenge the Master’s decision,
or even to suspend
the Master’s decision pending a review of the Master’s
decision. Criminal complaints, it is
trite, runs separately
from civil proceedings. The urgency in this matter does not
arise from the eviction order itself.
The urgency, in my view,
arises from the First Applicant’s failure to take steps since
February 2025 to challenge the Master’s
decision. The
reason is simple, if he had timeously challenged the Master’s
decision, he would have had reasonable
grounds to seek the stay of
the eviction proceedings and, upon a refusal of such a stay, a review
of the refusal to stay the eviction
proceedings.
Locus standi
goes
to the heart of a matter and I cannot see a court of review refusing
to hear a review application on the basis that the proceedings
had
not been finalized. This is because in the absence of
locus
standi
, there is no case to deal with.
[15]
The First Applicant has only himself to blame for the present state
of affairs by failing to challenge the Master’s
decision.
[16]
As the Applicants cannot demonstrate a lack of substantial redress in
due course, it follows that the matter is not urgent
for the purposes
of Rule 6(12). The Applicants also fail to demonstrate that it
would be in the interests of justice to stay
the eviction order from
the lower court.
[17]
Much time was spent in argument on whether Mr Moodley (the attorney)
should pay the costs of the application
de bonis propriss
.
The suggestion was that either this court is to grant such an order
or to call upon Mr Moodley to advance reasons why such
an order
should not be granted. It was argued before me on the strength
of
Lion v Ram SC N.O. and others
(Labour Court,
Johnannesburg case number 2025-240674) that Mr Moodley is playing
casino with the urgent court by approaching the
urgent court in two
consecutive weeks, playing with the same hand by advancing
substantially the same case. In my view, as
much as litigants
must be persuaded not to approach the urgent court week after week
hoping for a different judge to provide a
different outcome, this
matter is distinguishable from the
Lion
-case. In this
matter Minnaar AJ expressed a concern as to a
lacuna
in the
Applicants’ case, namely the absence of a review application.
This
lacuna
is now addressed, which means that a fact that did
not exist before Minnaar AJ now exists and is dealt with for the
first time.
It must, however, be added that the mere existence
of the review application does not assist the Applicants in
demonstrating an
absence of substantial redress in due course.
[18]
As much as a displeasure must be expressed at the duplicitous
approach to the urgent court, coupled with poorly drafted
papers, I
cannot find that Mr Moodley acted with gross negligence or abused the
process of court (this time). The conduct
must be deprecated
and I am of the view that a strongly worded admonishment directed to
Mr Moodley would suffice. The lack
of action on the part of the
First Applicant to challenge the Master’s decision should be
carefully considered by Mr Moodley
and the impact it had on the
unfolding of events over the past year and 3 months before seeking to
again approach the urgent court,
or any other court for that matter.
Further approaches to the urgent court on the aforesaid facts or on
this matter generally
without something materially changing or coming
to the fore that is not presently before the court or has not been
dealt with may
very well lead to this court making adverse costs
orders against Mr Moodley. At this juncture I cannot find that
such an
order is justified and even if the court were to call for
reasons to be advanced by Mr Moodley why costs
de bonis propriss
should not be granted against him, I cannot foresee that this court
would, in future and upon such explanation, granted a costs
de
bonis propriss
order against Mr Moodley in due course in this
matter.
[19]
In the aforesaid premises I grant the following order:
1. The
application is struck from the roll.
2. The
Applicants are to pay the costs, jointly and severally the one paying
the other being absolved, on Scale
C.
C E THOMPSON AJ
JUDGE OF THE HIGH
COURT
JOHANNESBURG
[1]
Lembore
and Others v Minister of Home Affairs and Others
(2023/097427) [2024] ZAGPJHC 502 (21 May 2024) at para [93] and [94]