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[2013] ZAWCHC 127
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Snyman v Honourable Magistrate: Folscher and Others (6919/2012) [2013] ZAWCHC 127 (6 September 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPEHIGH
COURT, CAPE TOWN)
CASE NO: 9619/2012
In
the matter between:
JOSEPH FREDERICK
SNYMAN
...........................................................................
Applicant
and
THE
HONOURABLE MAGISTRATE
MR
HANNES FOLSCHER
.........................................................................
First
Respondent
ABSA
BANK LIMITED
..........................................................................
Second
Respondent
EBEN
JOHANNES VAN TONDER
...........................................................
Third
Respondent
MINISTER
OF JUSTICE AND
CONSITUTIONAL
DEVELOPMENT
.......................................................
Fourth
Respondent
Coram
Blignault J and Davis AJ
Heard:
8 March 2013, 31 May 2013
JUDGMENT DELIVERED ON
6 SEPTEMBER 2013
DAVIS AJ
Introduction
The applicant in this
matter seeks to review and set aside one or more decisions of the
first respondent, the Robertson magistrate
(‘the magistrate’).
The papers do not pertinently identify the decisions sought to be
set aside,or the grounds of
review relied upon. One sees from the
notice of motion that it is complained that:
1.1.
the magistrate ‘took some drastic irregular decisions resulting
in the sale of the applicant’s house in
(sic)
auction
in settlement of a debt which did not exist’;
1.2.
in reaching the decision ‘todeprive the applicant’s
fundamental right
(sic)
to own property’ the magistrate acted unfairly and irregularly;
1.3.
the magistrate deprived the applicant of his right to be heard and
violated due process of law, as a result of which ‘the
applicant could not properly respond to the allegations against him’;
1.4.
there were serious irregularities involving procedures and rules to
be complied with when property is sold on an auction;
1.5.
the magistrate ignored the fact that the case against the applicant
was based on a fraudulent bond and power of attorney.
The application is
opposed by second respondent (‘Absa’) and third
respondent (‘Van Tonder’), both of
whom are represented
by attorneys and counsel.
The applicant was not
represented by a qualified attorney or advocate. It appears from the
affidavits that he was first assisted
in bringing this case by the
Robertson Community Workers Forum, a non-profit organization which
serves the community in regard
to ‘human rights, justice,
social grants, municipal problems and other social-legal problems’
and which handles ‘complaints
related to illegal evictions,
land claims, fundamental rights, labour law and consumer rights’.
He was later assisted by
Professor Jozana Ka Mahwanqa (‘Ka
Mahwanqa’) of the Human Rights and Public Interest Law Forum.
When the matter first
came before us on 8 March 2013, the applicant did not appear. He
sent Ka Mahwanqa as his representative,
who explained that the
applicant was ill and requested that the matter be postponed in
order that the applicant could attend.Ka
Mahwanqaalso mentioned that
the applicant wished to obtain legal representation and required an
opportunity to do so.
The application for a
postponement was initially opposed by Absa. We were of the view that
the matter was in any event not ripe
for hearing as the papers were
not in order. No record of the relevant proceedings in the Robertson
Magistrates’ Court
had been filed, as required in terms of
rule 53, and the matter could not proceed in the absence thereof as
the record was clearly
essential for the proper determination of the
matter. Althoughresponsibility for preparation of the record lay,
strictly speaking,
with the applicant as
dominus litis
, we
considered that a measure of responsibility in this regard rested on
second and third respondents’ legal representatives
in
circumstances where the applicant, to their knowledge, lacked the
benefit of qualified legal assistance.
In the event, Absa did
not persist with its opposition to the application for a
postponement, and we made an order in the following
terms:
‘
1. The
review application is postponed to 31 May 2013 for hearing;
2. The applicant shall before that
date take all steps necessary to obtain legal representation if he so
chooses;
3. The second respondent will
prepare a bundle including the record of the proceedings in the
Magistrates’ Court of Robertson
that gave rise to the default
judgment and consequent sale of the property at execution by 12 April
2013;
4. The third respondent will
prepare a bundle including the record of the proceedings in the
Magistrates’ Court of Robertson
that gave rise to the eviction
order and consequent warrant of eviction by 12 April 2013;
5. The third respondent will file a
supplementary affidavit and an application for leave to file such an
affidavit by 20 March 2013;
6. This order, the record referred
to in paragraphs 3 and 4, and the supplementary papers referred to in
paragraph 5 shall be served
on the applicant in terms of the rules of
court;
7. The parties will file heads of
argument (or additional submissions) in terms of the rules of court;
8. The costs occasioned by the
postponement will stand over for later determination.’
During the course of the
hearing on 8 March 2013 it was drawn to the attention of Ka Mahwanqa
that the applicant had failed to
attach to his founding affidavit
the annexures referred to therein and that this was an aspect which
the applicant needed to
correct. No order was made in this regard,
however.
Absa and Van Tonder duly
complied with the obligations imposed on them in terms of the order
of 8 March 2013. Copies of all documents
filed were properly served
on the applicant.
Three days before the
hearing on 31 May 2013, applicant sought to file an additional
bundle of documents pertaining to the matter
(‘the additional
bundle’).Copies of the additional bundle had not been served
on the attorneys representing Absa
and Van Tonder. We enquired of
applicant as to the nature of the documents and why they were sought
to be filed at the eleventh
hour without service on the respondents.
The applicant was simply unable to give a satisfactory answer in
this regard, even with
the assistance of Ka Mahwanqa (who sat next
to him and guided him during the course of the hearing).
1
In the event we declined
to entertain the documents on account of their late submission,
without explanation of their relevance
or the delay in filing them.
Relevant background
The following facts,
which are common cause save where indicated, are gleaned from the
records in this review application.
The applicant and his
wife, Mrs Rachael Charlotte Snyman, to whom he is married in
community of property, has at all relevant
times resided at the
property being Erf 2866 Robertson, more usually described as 35
Watsonia Street, Panorama, Robertson (‘the
property’).
Rachael Snyman is not cited as a co-applicant. She deposed to an
affidavit, however, in which she clearly supports
the application
and associates herself with the relief sought.
Applicant and his wife
(‘the Snymans’) purchased the property for R 40 000.00
in 1997, with funding from
a loan from Boland Bank Limited
(‘Boland’) secured by a mortgage bond over the property
(‘the original bond’).
At some stage Absa took over
Boland, and acquired the rights under the original bond.
In 2005 the Snymans took
out a loan from Absa (‘the loan’). Applicant alleges
that the loan was for an amount of R 20 000.00
and that
the loan was unsecured.The written loan agreement could not be
produced as it was destroyed in a notorious fire in 2009,
which
burned down a document storage facility housing many of Absa’s
documents.
On or around 9 May 2007,
Absa issued summons against applicant, as first defendant, and
Rachael Snyman, as second defendant, under
case number 362/2007 in
the Robertson magistrates’ court (‘the action’).
In the action Absaclaimed payment
of the sum of R 89 690.46,
plus interest, in respect of the amount due and owing by the
defendants to plaintiff under
Mortgage Bond Number B120534/2005
passed by the defendants in favour of plaintiff in 2005 (‘the
bond’).In addition
Absa soughtan order declaring the property,
which had been hypothecated under the bond, executable for the
amount claimed.
The bond, a copy whereof
was annexed to the summons in the action, records that the Snymans
acknowledged their indebtedness to
Absa in the capital sum of
R 82 000.00 and that the bond constitutes a continuing
covering security for the capital
amount. It reflects that the
Snymans executed a power of attorney at Robertson on 20 September
2005 in favour of one Anton Luther
Posthumus (‘Posthumus’),
in terms whereof they authorised him to appear before the Registrar
of Deed and to register
the bond on theirbehalf (‘the power of
attorney’).
The sheriff’s
returns of service appearing in the record of the default judgment
proceedings indicate that summons in the
action was served
personally on the applicant (the first defendant in the action) and
on Rachael Snyman (the second defendant
in the action) on 24 May
2007.
On 10 August 2007,
Messrs Balsillies Strauss Daly (‘Balsillies’), the
attorneys acting on behalf of Absa at the time,
applied for default
judgment in respect of the action.On 23 August 2007 the Clerk of the
Court raised certain queries regarding
the National Credit Act 34 of
2005 (‘the
National Credit Act&rsquo
;). Balsillies responded
and dealt with the queries in a letter dated 14 December 2007.
On 18 December 2007 the
magistrate granted default judgment in the action against applicant
and Rachael Snyman, jointly and severally,
for payment of the amount
of R 89 690.46, together with interests and costs, and an
order declaring the property executable(‘the
default
judgment’). A warrant of execution against the property was
issued by the clerk of the court on the same day.
The warrant of execution
issued on 18 December 2007 was re-issued by the clerk of the court
on 18 December 2010. It is not apparent
from the papers what
happened in the intervening three years, or why the writ had to be
reissued.Returns of service contained
in the record show that a
warrant of execution and notice of attachment of the property were
served on the applicant personally
on 1 February 2011.
A sale in execution of
the property was held on 6 December 2011. The applicant was aware of
the sale in execution and attended
the auction sale. The property
was purchased on auction by Van Tonder for R 95 000.00.
On 15 December 2011 Van
Tonder gave notice to the Snymans to vacate the property by 9
January 2012. When they failed to do so,
Van Tonder brought an
application in the Robertson Magistrates’ Court in terms of
the Prevention of Illegal Eviction and
Unlawful Occupation of Land
Act 19 of 1998 (‘PIE’), for the eviction of the
applicant and his wife from the property.
On 13 January 2012 the
magistrate granted an order in terms of section 4(2) of the PIE
authorising the institution of eviction
proceedings against the
Snymans, and calling upon them to appear on 9 February 2012 to
oppose the application. This order was
served personally on the
applicant on 18 January 2012.
On 9 February 2012 the
Snymans attended at court to oppose the application, together with
Ms Lakey (‘Lakey’), an attorney
from the Legal Aid
Board. The matter was postponed by agreement until 16 February 2012
in order to attempt to reach a settlement.
On 16 February 2012
Lakey withdrew as attorney of record for the Snymans. She informed
the magistrate that they did not wish to
settle the matter because
they had a dispute with Absa.
The magistrate took the
view that the Snymans had no defence to the application and
proceeded to grant an order on 16 February
2012 directing them to
vacate the property by 11 May 2012, failing which the sheriff was
authorised to evictthem from the property
on 14 May 2012 (‘the
eviction order’).
On 27 February 2012
registration of transfer of the property into the name of Van Tonder
took place.
On 26 April 2012 Van
Tonder entered into a deed of sale in terms whereof he sold the
property to Alec and Wilma Wehr (‘the
Wehrs’) for
R 295 000.00. The deed of sale provides that the Wehrs
willtake occupation of the property on transfer,
but does not
stipulate a date for the passing of transfer, which has not yet
occurred. It is recorded in the deed of sale that
the Wehrs are
aware that the property is occupied by its former owners, i.e. the
Snymans, and that Van Tonder undertakes to take
all necessary steps
in order to give vacant occupation to the Wehrs, including legal
proceedings to have the Snymans ejected
from the property, and
indemnifies the Wehrs against any responsibility in this regard.
Grounds ofreview
The grounds on which the
proceedings of a Magistrates’ Court may be brought on review
before a division of the High Court
are set out in section 24(1) of
the Supreme Court Act, Act 59 of 1959 (‘the Supreme Court
Act’). They are:
27.1.
absence of jurisdiction on the part of the court (s 24(1)(a));
27.2.
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer (s 24(1)(b));
27.3.
gross irregularity in the proceedings (s 24(1)(c)); and
27.4.
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence (s 24(1)(d)).
There is no clear
delineation in the papers of what is impugned by the applicant and
what grounds of review are relied upon. Upon
a consideration of the
affidavits it seems, however, that the applicant seeks to review and
set aside three ordersor proceedings,
namely:
28.1.
the default judgment;
28.2.
the sale in execution; and
28.3.
the eviction order.
I consider in turn
whether the applicant has made out a proper case for the review and
setting aside of any of these proceedings.
The default judgment
The attack on the
default judgment is based on the allegations that the summons was
not served on the Snymans, and that the bond,
on which the judgment
was founded, was ‘fraudulent’. Applicantcontends,
further, that the default judgment should
not have been granted as
there had not been due compliance with the requirements of the
National Credit Act or
section 26(1) of the Constitution.
The applicant complains
that the default judgment was granted in his absence and without him
being aware of the proceedings. The
record of the default judgment
proceedings, however, contains returns of service which show that
the summons was served personally
on the applicant and also on
Rachael Snyman on 24 May 2007. During the hearing of the review
applicant was questioned regarding
these returns of service. He
persisted with his denial that the summons had been served on him
and his wife, and insisted that
the sheriff had lied in the returns
of service.
This is a serious
accusation which cannot be accepted merely at face value. The
applicant has put up no evidence whatsoever to
substantiate his
claim that the contents of the sheriff’s returns are false,
and in the absence thereof I cannot accept
the applicant’s
version that the summons was not served on him and his wife. More to
the point, however, is the fact that
the returns of service were
proper and regular on the face of it and the magistrate was
therefore entitled to accept the summons
had been properly served.
The applicant alleges
that the bond and the power of attorney are both fraudulent. These
allegations are made in the baldest terms
in the founding affidavit,
without any amplification or substantiation. During the course of
the hearing the applicant was questioned
in this regard, whereupon
he stated that the signatures on the power of attorney, purporting
to be his and his wife’s,
are forgeries. Again, these are
serious allegations made without any attempt at corroboration.In my
view they are not sufficient
to make out a
prima facie
case
of fraud.
Applicant’s
argument based on non-compliance with the
National Credit Act is
misplaced given that the summons in the action was served on 24 May
2007, whereas the
National Credit Act only
came into operation on 1
June 2007 and therefore did not apply in this case.
The applicant complains
that the default judgment was granted without due compliance with
section 26 of the Constitution. It is
evident, however, that the
summons contained the so-called ‘Saunderson warning’ in
compliance with the practice direction
issued by the Supreme Court
of Appeal in
Standard Bank of South Africa v Saunderson and
Others
2006 (2) SA 264
(SCA). The relevant notice read as
follows:
‘
The
Defendants’ attention is drawn to Section 26(1) of the
Constitution of the Republic of South Africa which accords to
everyone the right to have access to adequate housing. Should the
Defendants claim that the order for execution will infringe that
right it is incumbent on the Defendants to place information
supporting that claim before the court.’
Given that the summons
containing the Saunderson warning was duly served on the Snymans,
who failed to appear and place information
before the court to show
that the execution order would infringe their rights under section
26(1) of the Constitution, there
is no basis, in my view, for the
complaint that the default judgment violated their Constitutional
rights under that section.
In short, I consider
that the default judgment record reveals that the papers before the
magistrate were complete and regular
on the face of it, and that no
procedural irregularity was committed when the default judgment was
granted. In the circumstances
the applicant has not made out a case
for the setting aside of the default judgment in terms of section 24
(1)(c) of the Supreme
Court Act.
As regards the remaining
review grounds contained in section 24(1) of the Supreme Court Act,
the only ground notionally relevant
in this case is that of judicial
misconduct of the nature contemplated in section 24(1)(b). No
evidence has been put up to establish
the requirements of this
section.The serious but baseless allegations against the magistrate,
which suggest that he is racist,
corrupt and guilty of unlawful
conduct, do not come close to discharging the onus of provingthat
the magistrate was guilty of
‘interest in the cause, bias,
malice or corruption on the part of the presiding judicial officer’
as contemplated
in section 24(1)(b) of the Supreme Court Act. In
short there is no evidence of wilful misconduct on the part of the
magistrate,
and the accusations against him were, in my view,
recklessly made.
It follows that, in my
view, the applicant has not made out a case for the review of the
default judgment.
The Sale in Execution
The applicantalleges
that there were irregularities in the procedure pertaining to the
sale in execution of the property and asks
that the sale in
execution be set aside. He raises the following complaints in this
regard:
40.1.
The default judgment was not executed within three years of its
pronouncement, and no order of court was obtained to reissue
the
warrant of execution judgment (‘the superannuation issue’).
40.2.
The property was not attached.
40.3.
The sale was not advertised.
Applicant states as
follows regarding the sale in execution:
‘
The sale
took place (on 6 December 2011) in the presence of the then Sheriff
and the prospective buyer, Mr Van Tonder.
The
house was never attached, and the sale was not advertised
.
We were very shocked. All of this happened because of the presiding
magistrate who granted the irregular default judgment and
orders for
the house to be sold in an auction. There were no other prospective
buyers at the auction. In fact the auction was illegal.’
(Emphasis
added.)
The applicant’s
complaint that the property was ‘never attached’ is not
borne out by the contents of the record
of the default judgment
proceedings. Returns of service compiled by the sheriff at that
time, Mr E. P. Terblanche (‘Terblanche’),
indicate that
a warrant of execution and a notice of attachment in respect of the
property were served on the applicant personally
on 1 February 2011.
The allegation that the
sale in execution was not advertised is unsubstantiated. No detail
is given as to what searches, if any,
the applicant (or those
assisting him) undertook to ascertain whether the sale had been
advertised. To my mind the applicant’s
bald allegations
regarding the alleged failure to attach the property and to
advertise the sale in execution are not sufficient
to make out a
prima facie
case for the setting aside of the sale in
execution.
The superannuation
issue, however, is another matter. The applicant states as follows
in this regard:
‘
The other
question to ask – is why it took ABSA Bank almost three years
to enforce a default judgment issued in 2007. The
order was not even
re-issued as required by law.’
Although the relevant
statutory provision is not identified in the founding affidavit, the
applicant’s complaint in this
regard is clearly made with
reference to the provisions of section 63 of the Magistrates’
Court Act 32 of 1944, which lays
down that:
‘
Execution
against property may not be issued upon a judgment
after
three years from the day on which it was pronounced
or
on which the last payment in respect thereof was made,
except
upon an order of the court
in
which judgment was pronounced …on the application and at the
expenses of the judgment creditor,
after
due notice to the judgment debtor
to
show cause why execution should not be issued.’
(Emphasis
added.)
Section 63 of the
Magistrates’ Court Act must be read with rules 36 (1) and (5)
of the Magistrates’ Court Rules, which
stipulate that:
‘
(1) The
process for the execution of any judgment … shall be by
warrant issued and signed by the registrar or clerk of the
court and
addressed to the sheriff.
…
(5) The registrar or clerk of the
court shall at the request of a party entitled thereto reissue
process issued under subrule (1)
without the court having sanctioned
the reissue.’
The record of the
default judgment proceedings, read together with the magistrate’s
affidavit, reveals that the default
judgment was granted on 18
December 2007 and a warrant of execution against immovable property
was issued on the same day.On
18 December 2010, the clerk of the
court reissued the warrant of execution against immovable property,
and the property was attached
and sold in execution on the strength
of the reissued warrant.
The crisp question,
therefore, is whether or not it was competent for the clerk of the
court to reissue the warrant of execution
on 18 December 2010
without the sanction of the court.
It is clear that section
63 of the Magistrates’ Court Act operates to prohibit the
issue of process in executionafter
three years from the date of
the judgment
, unless authorised by an order of court sought by
the judgment creditor on notice to the judgment debtor.The
question,then, is
how the relevant period of three years is to be
calculated.
The computation of
calendar years is governed by the civil method of computation. (See
Fouche v Mutual Fire and General Insurance Co Ltd
1969 (2) SA
519
(D) at 522 H – 523 B;
LAWSA
2 ed.Vol 25 Part I para
352 (q)
; LAWSA
First Reissue Vol 27 para 428.)This method
involves including the first day of the period and excluding the
last.When the civil
method of computation is applied to the facts at
hand, the result is that the three year period referred to in
section 63 of
the Magistrates’ Court Act commenced on 18
December 2007 and expired at midnight on 17 December 2010.
That being the case, it
follows that the default judgment became superannuated at midnight
on 17 December 2010, and the prohibition
in section 63 operated with
effect from 18 December 2010 to preclude the issue of any process in
execution thereof without an
order of court. It was therefore not
competent, in my view, for the clerk of the court to reissue the
warrant of execution on
18 December 2010 in terms of rule 36 (5),
and the reissued warrant was invalid for non-compliance with section
63 of the Magistrates’
Court Act. The question which then
arisesis the effect, if any, of the absence of a valid warrant of
execution on the validity
of the sale in execution - and subsequent
sales.
In
Menqa and Another
v Markom and Others
2008 (2) SA 120
(SCA) (‘
Menqa’
)
Cloete JA drew a distinction between essential formalities and
non-essential formalities pertaining to sales in execution and
concluded, at para [46], that:
‘
(A)t
common law a sale in execution was void for non-compliance with an
essential formality, but that non-compliance with non-essential
formalities did not have this result.’
A valid warrant of
execution is clearly a pre-requisite for a valid attachment of
immovable property in terms of rule 43 of the
Magistrates’
Court rules. As such, it is an essential formality for a valid sale
in execution. The invalidity of thewarrant
of execution carries the
consequence that theproperty was not validly attached and the
subsequent sale in execution was a therefore
a nullity(see
Menqa
(supra)
at para [45], p 141 C - D).
It must be accepted that
Van Tonder had no knowledge of these defects and that he purchased
and took transfer of the property
in good faith. The question, then,
is whether Van Tonder’s title is protected in terms of section
70 of the Magistrates’
Court Act, which provides that:
‘
A sale in
execution by the messenger shall not, in the case of movable property
after delivery thereof or in the case of immovable
property after
registration of transfer, be liable to be impeached as against a
purchaser in good faith and without notice of any
defect.’
Cloete JA concluded in
Menqa
(
supra
) at para [46] that section 70 of the
Magistrates’ Court Act does not avail a purchaser in
circumstances where the warrant
of execution was invalid, and the
sale in execution accordingly void.He reasoned as follows in this
regard (at paragraphs [47]
and [48]):
‘…
s70
should be interpreted as not protecting a ‘sale’ which is
void for to do so would put it in conflict with the basic
principle
of legality (which requires public power to be properly exercised in
terms of a valid law that authorises it) and s 25(1)
of the
Constitution which provides that ‘no law may permit arbitrary
deprivation of property’. Neither consequence
could be
justified in terms of s 36 of the Constitution – sales in
execution were not sacrosanct at common law and there
is no reason
why they should be in the modern South Africa (save only in the two
respects mentioned in s70).
It is for these reasons that I
support the conclusion of my colleague Van Heerden and the court a
quo that s 70 cannot be interpreted
as rendering a sale in execution
unimpeachable because this would defeat the whole purpose of the
Constitutional Court ruling in
the Jaftha case.
In my
judgment this is achieved by not interpreting s70 as applying to
‘sales’ in execution that are void, whether by
reason of
the decision in Jaftha or for any other reason
.
’(Emphasis
added.)
I therefore find that
the sale in execution of the property to Van Tonder was a nullity
and liable to be set aside. In the circumstances
the sheriff had no
authority to transfer ownership of the property to Van Tonder, who
did not acquire ownership despite registration
of transfer of the
property into his name.As was stated by Van Heerden JA in
Menqa
(supra)
at para [24]:
‘
The
sheriff derives his or her duty and authority to transfer ownership
pursuant to a sale in execution of immovable property from
rule
43(13) of the Magistrates’ Court Rules. If the sale in
execution is null and void because it violates the principle
of
legality, as in the present case, then the sheriff can have no
authority to transfer ownership of the property in question to
the
purchaser who will thus not acquire ownership despite registration of
the property into his or her name.’
Given that Van Tonder
did not acquire ownership of the property, it follows that he could
not pass valid title in the property
to the Wehrs in terms of the
subsequent sale thereof.
The conclusion that the
sale in execution is a nullity and liable to be set aside is,
however, not the end of the matter. The
question arises whether this
review application should be dismissed on the ground that the
applicant delayed unreasonably in
bringing the application.
Absa argues that the
applicant should be denied relief on account of the fact that he
delayed unreasonably in bringing this review
application. It deals
with the delay point as follows in its answering affidavit:
‘
I am
advised that a review application must be brought within a reasonable
period and that failure to do so requires detailed explanation
and an
application for condonation for such failure. The present application
was not only delayed for a period far beyond the limits
of what could
be considered reasonable but furthermore lacks credible explanation
or any prayer that the inordinate delay be condoned.
I accordingly
submit that the application should fail for this reason alone.’
2
Van Tonder does not
pertinently raise the defence of unreasonable delay in his original
or supplementary answering affidavits,
but he complains that he is
suffering prejudice as a result of the bringing of the application.
He alleges in this regard that:
‘
1.8. I am
suffering prejudice as a result of the Applicant’s insistence
in launching the review application, his dragging
out the
finalisation of the review application and his refusal to vacate the
property.
…
1.9. I will suffer further
prejudice should this Honourable Court find that the eviction
proceedings were irregular (which I maintain
they were not) in that:
1.9.1. I acquired legal right and
title in the property through due legal process. …
1.9.2. I acted
with the necessary bona fides throughout.
1.9.3 I am the
owner of the property.
1.9.4. I will
have to incur further legal costs as I would have to launch another
application for the Applicant’s eviction,
despite having
followed proper process.
1.9.5. I am precluded from
occupying the property.
1.9.6. I am deprived of the
opportunity to earn an income from the property through having it
rented out to prospective tenants
or selling the property.
1.9.7. I have nevertheless, and
being bona fide, managed to secure a purchaser and we have concluded
a Deed of Sale. I respectfully
submit that I am totally entitled to
sell the property (if) I so choose. … I suffer prejudice in
that I cannot have the
property transferred to the purchaser and I
fear that I will be held liable towards the purchaser for breach of
contract.’
As was pointed out by
Brand JA in
Associated Institutions Pension Fund and Others v Van
Zyl and Others
2005 (2) SA 302
(SCA)(‘
Associated
Institutions’
) at para [46], the
raison d’être
of the delay rule in review proceedings is said to be twofold:
‘
First,
the failure to bring a review within a reasonable period of time may
cause prejudice to the respondent. Secondly, there is
a public
interest element in the finality of administrative decisions and
administrative functions.’
The correct approach to
the application of the delay rule was laid down as follows in
Wolgroeiers v Afslaers (Edms) Bpk v Munisipaliteit van
Kaapstad
(‘
Wolgroeiers
’)
1978 (1) SA 13
(A) at
39 C – D:
‘
Word
beweer dat die aansoekdoener nie binne redelike tyd die saak by die
Hof aanhangig gemaak het nie moet die Hof beslis (a) of
die
verrigtinge wel na verloop van ’n redelike tydperk eers
ingestel is en (b), indien wel, of die onredelike vertraging
oor die
hoof gesien te word. Weereens, soosdit my voorkom, met betrekking tot
(b), oefen die Hof ’n regterlike diskresie
uit, met inagneming
van al die relevante omstandighede.’
In
Gqwetha v Transkei
Development Corporation Ltd and Others
2006 (2) SA 603
(SCA)
(‘
Gwetha v TDC
’) at para [24], Nugent JA stated
with reference to the first leg of this enquiry that:
‘
Whether
there has been an undue delay entails a factual enquiry upon which a
value judgment is called for in the light of all the
relevant
circumstancesincluding any explanation that is offered for the delay.
(Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie, en ’n Ander
1986 (2) SA 57
(A) at 86D –
F and 86I – 87A). A material fact to be taken into account in
making that value judgment – bearing
in mind the rationale for
the rule – is the nature of the challenged decision. Not all
decisions have the same potential
for prejudice to result from their
being set aside.’
If the delay is found to
be unreasonable in all the circumstances, the court has a discretion
to overlook the delay and entertain
the review application
nonetheless. (See
Gwetha v TDC(supra)
at para [31];
Associated Institutions (supra)
at para [47] – [48].)
I venture to suggest
that, although the
Wolgroeiers
test is formulated with two
legs, the application thereof does not appear to involve a
mechanical two-step exercise, but a composite
and comprehensive
examination of all the relevant facts and circumstances in order to
answer the two discrete questions posed.
The question of prejudice –
actual and potential – is an important consideration, both as
regards the question whether
the delay has been unreasonable, and,
if so, whether it should be overlooked. With this in mind, I turn to
consider the relevant
facts and circumstances in the present case.
It is striking that,
whereas Absa obtained the default judgment on 18 December 2007, it
apparently took no steps to execute on
the judgment for three years,
with the result that, as I have found, the writ superannuated and
required the sanction of the
court for reissue thereof. Even then,
another year lapsed before the sale in execution took place. No
explanation has been put
up by Absa for its tardiness in this
regard.
Following the (unlawful)
reissue of the writ by the clerk of the court on 18 December 2010,
it appears from the returns of service
that the warrant of execution
and notice of attachment of the property were served on the
applicant on 11 February 2011, and
that the ‘nature and
exigency of the said process’ was explained to him by the
sheriff. Given that the summons in
the action had been served on the
applicant as far back as 24 May 2007, the applicant could be
forgiven for being confused about
this unexpected turn of events.
Having caused the writ
of attachment to be served on the applicant on 11 February 2011, one
sees that no further steps were taken
in regard to execution until
July 2011, when the applicant alleges he received a letter from
Balsillies informing him that a
sale in execution would take place
on 5 August 2011. He states in this regard that:
‘
We were
very worried and
immediately
approached Consumer Guardian Services
,
who interdicted ABSA Bank from selling the house. ABSA Bank cancelled
the sale. (See Annexures H & I).’
(Emphasis
added)
It is not clear, given
the applicant’s failure to attach theseannexures, exactly what
arrangements were made between Absa
and Consumer Guardian Services
on behalf of the Snymans in July 2011. What is plain, however, is
that the applicant, having been
afforded due notice before the sale
in execution, soughthelp from a consumer protection organization.It
would appear that the
arrangements madewere of a temporary nature,
since the house was again put up for sale in December 2011.
Applicant states as
follows in this regard:
‘
However,
five months later, on the 5
th
of
December 2011,
I
received another letter of sale of the house in execution scheduled
for the following day the 6
th
of
December 2011. With only one day before the sale took place! I had no
sufficient time at all to get legal advice for another
interdict.
Besides,
when ABSA Bank cancelled the first sale, I believed that the matter
was settled. (See Annexure J).
’(Emphasis
added.)
It is evident from the
applicant’s founding affidavit that he was present at the sale
in execution and that he was aware
that the property was sold to Van
Tonder on 6 December 2011. On 15 December 2011 Van Tonder caused a
letter to be served on the
Snymans personally in which they were
formally notified that he had purchased the property on a sale in
execution on 6 December
2011, and that they were required to vacate
the property by 9 January 2012, failing which an eviction order
would be sought.
The sheriff’s return of service indicates
that the sheriff explained the nature and the content of the letter
to the Snymans.What
does not appear from the papers is whether the
sheriff’s explanation was understood by the Snymans.
In the event, the
Snymans did not vacate the property by 9 January 2011, and on 18
January 2012 applicant was served with notice
of an eviction
application in terms of PIE to be heard on 9 February 2012.The
Snymans evidently sought legal assistance following
receipt of the
eviction application, for the magistrate’s affidavit reveals
that the Snymans were represented on 9 February
2012 by Ms Lakey of
the Legal Aid Board, who was apparently only available to assist for
the purposes of settling the matter.
The matter was accordingly
postponed to 16 February 2012 for that purpose. On that date Ms
Lakey withdrew as attorney for the
Snymans and the magistrate
granted the eviction order, in terms whereof the sheriff was
authorised to evict the Snymans from
the property on 14 May 2012 if
they did not vacate by 11 May 2013. It does not appear from the
papers why Ms Lakey withdrew as
the Snymans’ attorney, but it
is clear that she was only prepared to offer limited assistance to
the Snymans.
The applicant then
evidently sought the assistance of the Robertson Community Workers
Forum. It does not appear from the papers
when he first made contact
with this organization. Judging by the typed dates on the affidavits
of applicant and his wife, the
papers in this application were
prepared during April and early May 2012. The affidavits were
finally signed on 14 May 2012,
and on 15 May 2012 the applicant
launched the present review application under case number 9619/2012
together with an application
under case number 9620/2012 for an
order that the eviction proceedings be stayed.
In evaluating whether or
not the time taken to launch the review application was reasonable,
I consider that one has to take into
account the fact that the
applicant is an unsophisticated person who describes himself as
‘semi-literate’. When he
appeared before us, he had
great difficulty understanding the import of the legal proceedings
in which he was engaged.To my mind
he should not be penalised for
failing to react with the promptitude which one could reasonably
expect from a more sophisticated
person when faced with the same
situation. One sees that from the time he received notice of the PIE
application, the applicant
did not display a supine attitude but
took what I consider to be reasonable steps, with the resources
available to him, to seek
legal redress.
In this regard it should
not be ignored that the applicant was not represented by an attorney
or advocate. The persons who assisted
the applicant with this case
do not appear to be qualified legal professionals. Indeed, Ka
Mahwanqa adverted during the hearing
to the fact that the applicant
has experienced difficulties in procuring legal representation. To
my mind these facts should
be borne in mind when evaluating any
shortcomings in the presentation of the applicant’s case,
including his failure to
explain why the review application was not
launched earlier.
It is significant that
Absa has not made out any case that it has been, or will be,
prejudiced by the applicant’s alleged
delay in launching the
review application. Given Absa’s failure, without apology or
explanation, to execute on the default
judgment for nigh on four
years, it hardly behoves Absa to complain about a delay of five
months in bringing the application
for the setting aside of the sale
in execution.
Van Tonder likewise has
not made out a case in his affidavits that he has been prejudiced as
a result of the alleged delay in
bringing the review application.The
prejudice of which he complains is linked to the Snymans’
continued occupation of the
property, and his alleged inability to
perform in terms of his sale contract with the Wehrs – none of
which has anything
to do with the time when the review application
was launched. What is pertinently missing from Van Tonder’s
affidavits,
is any allegation that he would not have paid for and
taken transfer of the property had applicant applied earlier for the
setting
aside of the sale in execution.In the absence of such an
allegation there is no basis, in my view, for finding that Van
Tonder
was prejudiced by the alleged delay in bringing the review
application.
Having regard to (a)the
lack of any prejudice shown by Absa and Van Tonder on account of the
alleged delay, (b) the prior delay
on the part of Absa in executing
on the default judgment, (c) the difficulties faced by the applicant
in bringing the application
effectively as an unrepresented person
and (d) the general public interest in the lawful exercise of public
power which requires
that the invalid sale in execution be set
aside, I am not persuaded that the delay of five months in launching
the review was
unreasonable. But even if it were, in my view this in
an instance where, having regard to all the circumstances, the court
should
exercise its discretion in favour of the applicant and
overlook such delay.
I therefore find that
the sale in execution of the property to Van Tonder on 6 December
2011 is null and void and falls to be
set aside.
The eviction order
It follows from this
conclusion regarding the sale in execution that the Snymans were not
in unlawful occupation of the property
as at 16 February 2013, and
that the eviction order falls to be set aside on this ground alone.
I shall, for the sake of completeness,
however, deal with the
applicant’s complaints regarding the eviction order as a
separate challenge, on the assumption that
the sale in execution was
valid.
The applicant’s
complaint in regard to the eviction order is that the Magistrate
failed to give him a proper hearing. He
alleges that:
‘
The
magistrate called both of us in his office, and
without
giving me a chance to say anything
,
he warned me that I was breaking the law and undermining his court
judgment. He ordered me and family (sic) to vacate the premises
before May 11
th
2012,
failing which he would authorize the Sheriff to throw us out with all
our belongings.’
(Emphasis
added.)
The magistrate deals as
follows with the events leading to the granting of the eviction
order:
‘
13. On
the 9
th
of February 2012 an application in terms of Section 4(1) of Act
19/1998 (the “PIE” act), in which the Applicant and
his
wife were the First and Second Respondents served before me. Ms Lakey
of the Legal Aid Board represented the Respondents. The
matter was
postponed by agreement to 16 February 2012 for the parties to try and
reach an agreement.
14. On 16 February 2012 Ms Lakey
informed me that the Respondents do not wish to settle the matter as
they had a dispute with Absa
Bank. She further informed me that she
was only on record for the Respondents to seek a settlement and then
withdrew as Attorney
of Record on behalf of the Respondents.
15.
I then informed the
Respondents that their dispute with Absa Bank was a separate issue
which they should take up with Absa Bank.
I further explained to them
that the Applicant bought the property on an Execution Auction and
that he has a valid claim to the
property and that they are illegally
occupying the property
. I then granted an Order that the
Respondents must vacate the property on the 11
th
of May
2012, failing which the Sheriff of the Court could execute the
Eviction Order on 14 May 2012. A copy of the Order is annexed
hereto
as Annexure “JHF 7”.
16. I once again reiterate that I
in no way acted irregular or unreasonable (sic) in granting the
Eviction Order.
From the documents filed of record, it was
clear that the Respondents did not have a valid defense to the
Applicant’s claim
.
’ (Emphasis added.)
Section 4 of PIE deals
with applications by an owner or person in charge of land for the
eviction of an unlawful occupier. An
unlawful occupier is defined in
section 1 as ‘a person who occupies land without the express
or tacit consent of the owner
or person in charge, or without any
other right in law to occupy such land’ save for certain
exclusions which are not relevant
in this instance.
The Snymans were
notified by Van Tonder to vacate the property by 9 January 2013, on
which date their occupation of the property
allegedly became
unlawful. The relevant provision, therefore,is subsections 4(6) of
PIE, since the Snyman’s had been in
unlawful occupation of the
property for less than six months at the time when the eviction
application was launched. Section
4(6) read as follows:
‘
(6)
If an unlawful occupier has occupied the land in question for less
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so
,
after
considering all the relevant circumstances
,
including the rights and needs of the elderly, children, disabled
persons and households headed by women.’
Section 4(6)
contemplates a two-phase enquiry. The court is first called upon to
determine whether or not the occupier is, in
fact, an unlawful
occupier and, if so, to determine whether or not it is just and
equitable to grant an eviction order,
having regard to all the
relevant circumstances
, including, but not limited to, those
listed in the section.
It was stated by Sachs J
in the landmark decision of
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
(P E Municipality)
at para
[36] that:
‘
The
Constitution and PIE require that in addition to considering the
lawfulness of the occupation the court must have regard to
the
interests and circumstances of the occupier and pay due regard to
broader considerations of fairness and other constitutional
values,
so as to produce a just and equitable result.’
Proper exercise of the
judicial discretion conferred upon the court in terms of section 4
(6) requires that the court be informed
regarding the circumstances
of the occupier. As was pointed out in
P E Municipality (supra)
at para [32]:
‘
The
obligation on the court is to “have regard to” the
circumstances, that is, to give them due weight in making its
judgment as to what is just and equitable. The court cannot fulfil
its responsibilities in this respect if it does not have the
requisite information at its disposal. It needs to be fully apprised
of the circumstances before it can have regard to them.’
Having regard to the
contents of the magistrate’s answering affidavit, it seems to
me that the applicant’s complaint
that he did not receive a
proper hearing is not without substance. Once Ms Lakey withdrew as
the attorney of record for the applicant,
he was before the court as
an unrepresented litigant. The matter was postponed from 9 to 16
February 2012 for purposes of settlement
only, and the Snymans had
not yet filed an answering affidavit setting out their case.
It is difficult to
fathom how the magistrate could properly reach the conclusion that
the Snymans were in unlawful occupation
of the property when he only
had Van Tonder’s application before him. The unavoidable
impression conveyed by the contents
of the magistrates’
affidavit, is that he ‘laid down the law’ to the Snymans
without giving them an opportunity
to present their side of the
story.
Furthermore, it does not
appear from the magistrates’ affidavit that he paid any
attention to the question of whether or
not it was just and
equitable to grant an eviction order in all the circumstances, as
required by section 4(6) of PIE. In the
absence of an answering
affidavit from the Snymans, he had no information before him
regarding the circumstances of the occupiers.
He had no way of
knowing whether or not the granting of an eviction order would have
the effect of infringing the Snymans’
constitutional rights to
adequate housing.
It is noteworthy that
Van Tonder’s affidavit in support of the application for
eviction contains what appears to be an error
with significant
potential to mislead in this regard. He alleges that:
‘
Die
Respondente is geskik om permanent werksaam te wees en behoort ook in
staat te wees on alternatiewe akkomodasie te bekom onder
andere as
gevolg van die feit dat die balans van die koopsom soos
terugbetaalbaar aan die Respondente
ongeveer
R50 000.00 behoort te beloop
.’
Given that Van Tonder
paid R 95 000.00 for the property, whereas the default
judgment and warrant of execution were
for an amount of some
R 89 000.00 (excluding costs), it seems clear that the
Snymans will receive very little, if anything,
from the proceeds of
the sale. There exists a real need, therefore, to investigate the
question of whether or not the granting
of an eviction order would
render them homeless.
In my view the
magistrate committed a gross irregularity in granting the eviction
order in circumstances where the Snymans had
not been granted a
proper opportunity to present their case, where he did not have the
requisite information before him to properly
exercise his discretion
in terms of section 4 (6) of PIE, and where he failed to apply his
mind to the relevant considerations
and to exercise the said
discretion at all.
For these reasons I
would set aside the eviction order.
Costs
As a party who has
achieved substantial success, the applicant would ordinarily have
been entitled to a costs order in his favour
had he been represented
by an attorney. As I have indicated, however, the applicant was
assisted by the Robertson Community Workers
Forum and Ka Mahwanqa of
the Human Rights and Public Interest Law Forum, apparently on a
gratuitous basis.
I mention, for the sake
of completeness, that in circumstances where the applicant has made
serious allegations of impropriety,
without any proof, against the
first to third respondents, I would deem it appropriate to deprive
him of an order for payment
of any costs which he might have
incurred in bringing this application.
Conclusion
[96] In the result I
would make the following orders:
(i)
The application for the review and setting aside of the default
judgment granted on 18 December 2007 under case number 362/2007
in
the Robertson Magistrates’ Court is dismissed.
(ii)
The sale in execution held on 6 December 2011 under Robertson
Magistrates’ Court case number 362/07 in terms whereof
Erf 2866
Robertson situate at 35 Watsonia Street, Panorama, Western Cape (‘the
property’) was sold to Eben Johannes
Van Tonder (ID 730216 5088
082) is declared null and void and set aside.
(iii)
The eviction order granted against the applicant and Rachael Snyman
on 16 February 2012 under case number 02/2012 in the Robertson
Magistrates’ Court is set aside.
_______________________
D.M. DAVIS, AJ
I agree and it is so
ordered.
_______________________
A.P. BLIGNAULT, J
1
Ka
Mahwanqa did not address the Court initially as the respondents
objected to his representing the applicant on account of the
fact
that he is not admitted as an attorney or advocate. Later during the
course of the hearing, however, we afforded Ka Mahwanqa
the
opportunity to make submissions on behalf of the applicant.
2
Absa
Answering Affidavit, Review Record p 35, para 8.