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[2014] ZAWCHC 60
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Mitchell v Mathews and Others (2522/2014) [2014] ZAWCHC 60; 2015 (4) SA 351 (WCC) (23 April 2014)
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THE REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
WESTERN CAPE
DIVISION, CAPE TOWN
CASE
NO: 2522/2014
DATE:
23 APRIL 2014
In the matter
between:
MICHAEL
MITCHELL
...............................................................................................
FIRST
APPLICANT
LORRAINE REBECCA
MITCHELL
...................................................................
SECOND
APPLICANT
And
DALE
MATHEWS
.................................................................................................
FIRST
RESPONDENT
ELTON JAMES
OLIVER
................................................................................
SECOND
RESPONDENT
FIRSTRAND BANK
LIMITED
........................................................................
THIRD
RESPONDENT
WASZZM AHMED
DADARKER
.................................................................
FOURTH
RESPONDENT
DADARKER &
ASSOCIATES
ATTORNEYS
.................................................
FIFTH
RESPONDENT
THE STANDARD BANK
OF SOUTH AFRICA LIMITED
...........................
SIXTH
RESPONDENT
THE SHERIFF OF
THE COURT,
MITCHELLS PLAIN
NORTH
.................................................................
SEVENTH
RESPONDENT
DE ABREU &
COHEN
INC
........................................................................
EIGHTH
RESPONDENT
SUNSET BAY
TRADING 546 cc trading as
PAM GOLDING
PROPERTIES
ATHLONE
................................................
NINTH
RESPONDENT
CITY OF CAPE
TOWN
..................................................................................
TENTH
RESPONDENT
THE REGISTRAR OF
DEEDS
.............................................................
ELEVENTH
RESPONDENT
SOUTH AFRICAN
REVENUE
SERVICES
...............................................
TWELFTH
RESPONDENT
Heard: 3 March
2014
JUDGMENT: 23
APRIL 2014
BREITENBACH, AJ:
1. This unusual
application came before me in the unopposed motion court on Monday 3
March 2014. The applicants (‘the Mitchells’),
who are
married to one another in community of property, are the registered
co-owners of Erf 1….., M……. P……,
situate at 5….. B……. Street, L…….
M……. Plain (‘the property’). They
apply
for (a) an order declaring that they are the owners of the property,
(b) an order that the first and second respondents (‘Matthews
&
Oliver’), who are mother and son, are occupying the property
unlawfully, (c) an order directing Matthews & Oliver
to vacate
the property within 30 days failing which the Sheriff must evict them
and (d) an order that the Mitchells must institute
within 30 days any
action against any of the respondents to recover damages for any
losses they may have suffered.
2. The sequence of
events culminating in the present application is as follows.
3. On 19 May 2009,
in an action in this Court under case number 1178/09 between the
third respondent (‘FirstRand Bank’)
(as plaintiff) and
Matthews & Oliver (as defendants), the Registrar of this Court,
acting in terms of under rule 31(5)(b) of
the Uniform Rules of Court
read with rule 45(1), granted default judgment against Matthews &
Oliver in favour of FirstRand
Bank. The orders made included orders
for payment of R279 922.81 plus interest due under a loan agreement
and an order declaring
the property, of which Matthews & Oliver
were then the registered owners and over which FirstRand Bank was
then the mortgage
bond holder, specially executable in satisfaction
of that judgment debt and FirstRand Bank’s costs of suit on the
attorney
and client scale. On the same day the Registrar issued a
warrant of execution authorising the Sheriff to attach and sell the
property.
4. On 15 March 2011,
at the ensuing sale in execution conducted by the Sheriff, the
property was purchased by the fourth respondent
(‘Dadarker’).
5. On 13 July 2011
the property was transferred to Dadarker and registered in his name
in the Deeds Registry.
6. On 22 August 2011
the Mitchells purchased the property from Dadarker. The deed of sale
included a term (clause 5) providing
that Dadarker would give the
Mitchells vacant possession of the property on the date of transfer.
7. On 10 September
2011 the Mitchells and Dadarker concluded an addendum to the deed of
sale which included a provision recording
that Dadarker would not
give them vacant possession of the property on the date of transfer
and deleting clause 5 of the deed of
sale. The background to this
provision was that Matthews & Oliver were still living in the
house on property (which is the
property’s main improvement)
and had failed to move out despite correspondence from Dadarker’s
attorneys (dated 23
March 2011 and 26 August 2011) requiring that
they do so or face proceedings for their eviction.
8. On 14 October
2011 the property was transferred by Dadarker to the Michells and
registered in their names in the Deeds Registry.
To pay for the
property the Mitchells borrowed money from the sixth respondent
(‘Standard Bank’) and caused a mortgage
bond over the
property in its favour to be registered in the Deeds Registry. This
occurred on the same day as the registration
of the transfer. Since
then, and despite the events described below, Standard Bank has
insisted that the Mitchells pay the monthly
instalments due in terms
of the loan agreement and they have duly done so.
9. On 15 October
2011, while Matthews & Oliver were still living in the house on
property, the Mitchells gained access to the
house and moved in with
their belongings. In the ensuing proceedings by Matthews &
Oliver for the eviction of the Mitchells
referred to in paragraph 13
below, the Mitchells said they gained access to the house through a
hole in the glass next to the front
door which allowed them to
unlatch the door from the inside. Matthews & Oliver however said
the Mitchells gained access by
breaking the doors. What was common
cause, however, is that Matthews & Oliver were out at the time
and when Matthews arrived
back at the house the Mitchells told her
that they had moved in because they were now the registered owners of
the property. After
an argument Matthews left with some of her
belongings, saying the Mitchells would hear from her lawyers.
10. On 25 October
2011 Matthews & Oliver brought an application in this Court under
case number 21507/11 for orders rescinding
the default judgment
granted by the Registrar in case number 1178/09 on 19 May 2009
(incorrectly stated in the notice of motion
to have been granted on
15 May 2009) and setting aside the sale in execution of the property
to Dadarker on 15 March 2011.
11. The respondents
were FirstRand Bank and Dadarker. The Mitchells were not cited as
respondents, although Matthews’s founding
affidavit mentions
them as having ‘invaded my house and forcefully evicted me,
telling me they had bought the house’.
It appears the reason
the Mitchells were not cited as respondents was that a computerised
Deeds Office search report obtained
by Matthews & Oliver, though
dated 20 October 2011, incorrectly did not reflect the registration
of transfer from Dadarker
to the Mitchells on 14 October 2011. It
instead showed Dadarker as the being the registered owner of the
property.
12. The facts and
allegations supporting the application for rescission of the default
judgment and the setting aside of the sale
in execution, as they
emerge from the various parts of Matthews’s founding affidavit
(which is not well structured), are
as follows:
12.1. FirstRand
Bank’s summons in case number 1178/09 did not allege that
Matthews & Oliver were in default or had otherwise
breached any
of the terms of the mortgage loan;
12.2. when Matthews
received the summons she immediately approached the bank’s
attorneys, made an arrangement to pay and was
told no further legal
action against her would be taken;
12.3. she thereafter
made payments in terms of the arrangements;
12.4. she was not
aware the bank had applied for default judgment;
12.5. neither the
bank nor its attorneys told her that the default judgment had been
granted and instead the bank continued to accept
payments from her;
12.6. when she
received a notice of the impending sale in execution she again
approached the bank’s attorneys and made another
arrangement to
pay (a reduced monthly amount) and was given an assurance that no
further legal action against her would be taken;
12.7. thereafter she
made payments in terms of the arrangement; she was not informed the
property had been sold in execution;
12.8. she ignored
the March and August 2011 letters from Dadarker attorneys demanding
that she vacate the premises because she was
continuing to make
payments to the bank in accordance with their arrangement;
12.9. she
subsequently caused a Deeds Office search to be done and found out
the transfer of the property to Dadarker had been registered
on 13
July 2011;
12.10. she would be
approaching the court to regain possession of the property and ‘in
respect of registering the property
in my name’; and
12.11. the granting
of default judgment by the Registrar ‘has been rendered
unconstitutional’ by ‘recent Constitutional
Court cases’
(presumably a reference to Gundwana v Steko Development and Others
2011 (3) SA 608
(CC) (‘Gundwana’), which followed Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC) (‘Jaftha’)).
13. On 26 October
2011 Matthews & Oliver brought an urgent application in this
Court under case number 21566/11 against the
Mitchells. In that
application Matthews & Oliver sought the eviction of the
Mitchells from the property and an interdict preventing
them from
re-occupying the property pending the finalisation of their
application for rescission of the default judgment granted
by the
Registrar on 19 May 2009. In their answering affidavit the Mitchells
said they would be filing and application for leave
to intervene in
the application for rescission because they had ‘a substantial
interest’ in the property. (However,
for a reason which is not
apparent from the papers, the Mitchells did not bring the application
for leave to intervene.)
14. On 26 October
2011, in case number 21566/11, this Court (per Cloete J), having
heard the attorney for Matthews & Oliver
in chambers, granted a
rule nisi with interim effect requiring that, pending the
determination the application for their eviction
brought by Matthews
& Oliver, the Mitchells vacate the property or face eviction by
the Sheriff. The Mitchells thereupon vacated
the property and
Matthews & Oliver returned.
15. On 1 December
2011 this Court (per Saldanha J) granted, on an unopposed basis, the
relief sought by Matthews & Oliver in
case number 21507/11
referred to in paragraph 10 above, i.e. the orders rescinding the
default judgment granted by the Registrar
in case number 1178/09 on
19 May 2009 (again incorrectly referred to in the order as having
been granted on 15 May 2009) and setting
aside the sale in execution
of the property to Dadarker on 15 March 2011. Saldanha J did not
give reasons for his order, to which
I shall refer as ‘the
rescission order’.
16. On 29 February
2012, in case number 21566/11, this Court (per Allie J) granted a
final order that the Mitchells be evicted from
the property, with the
result that Matthews & Oliver have been staying there ever since.
In the course of her ex tempore judgment,
after referring to the
rescission of the default judgment and the setting aside of the sale
in execution by Saldanha J, Allie J
said the following:
“It now
remains for the applicants [i.e. Matthews & Oliver] to bring the
necessary application to reassert their right
to ownership of the
immovable property, which I understand they have not launched to
date…. In the interim period we have
a situation where as a
result of the interim court order granted on 26 October 2011 the
applicants [Matthews & Oliver] are
now in occupation of the
immovable property. The respondents [i.e. the Mitchells] have
vacated the immovable property, but the
immovable property is still
registered in the names of the respondents [the Mitchells] and is no
longer registered in the names
of the applicants [Matthews &
Oliver]. So it is clear to me that certain steps would have to be
taken to bring finality to
the aspect of ownership of the immovable
property.”
17. Matthews &
Oliver however did not take any steps aimed at having the property
re-registered in their names.
18. On 29 January
2013 the Mitchells brought an application under case number 1094/13
for a range of relief, including relief substantially
in the form of
the relief set out in the present application and summarised in
paragraph 1 above. The respondents cited in that
application are the
same as the respondents in the present application. That application
was opposed by Matthews & Oliver,
and in addition Standard Bank
brought a conditional counter-application to the effect that if the
property was to be re-registered
in the names of Matthews &
Oliver that could not occur until the Mitchells had repaid their loan
with it and its mortgage bond
over the property had been cancelled.
19. On 10 January
2014 this Court (per Ndita J) delivered a written judgment in the
application under case number 1094/13 in which,
amongst other things,
she said the following about the Mitchells’ claim for an order
declaring that they are the owners of
the property:
19.1. “…
there is no legal basis upon which this Court may set aside the order
issued by Saldanha J rescinding the
default judgment” (p. 12);
and
19.2. “…
it is established law that where a judgment by default is rescinded
and the sale in execution set aside, any
warrant of execution issued
pursuant thereto becomes null and void and the judgment debtor is
entitled to the restoration of the
status quo ante. In Menqa and
Another v Markom and Others
2008 (2) SA 121
SCA, the court restated
the principle thus: “[19] … where there was no sale in
execution or where the sale in execution
which purported to have
taken place was a nullity, then it could not have served to pass any
title to the property concerned to
the purchaser or to any
successor-in-title into whose name the property was subsequently
transferred: The plaintiff [the judgment
debtor], as owner of the
property, would be entitled to recover the [property] by way of a rei
vindicatio” (See also Campbell
v Botha and Others
[2008] ZASCA 126
;
2009 (1) SA
238
(SCA).) It follows as a matter of course that in the present
matter no title can be said to have passed to either the fourth
respondent
[i.e. Dadarker] or the applicants [i.e. the Mitchells].
The registration of the property in the applicants’ and fourth
respondent’s
names did not make either of them the owners of
the property” (pp.13-14).
20. Having made
these findings, Ndita J, went on to refer to the invidious position
in which the Mitchells find themselves: they
are currently the
registered owners of the property but are not permitted to occupy it
and, despite that, Standard Bank insists
that they pay the monthly
payments on the loan they took out to pay for the property.
21. Ndita J also
castigated Matthews & Oliver for not taking any concrete steps to
secure the re-registration of the property
in their names in the
period since Allie J’s judgment in late February 2012.
22. Ndita J then
continued as follows:
“Allie J, in
her judgment evicting the applicants from the premises, dated 29
February 2012, was alive to the fact that steps
would have to be
taken to bring to finality the aspect of ownership of the immovable
property. In as much as the respondents [i.e.
Matthews & Oliver]
are in lawful occupation of the property as per court order, it is
clear to me that the court is bound to
exercise its discretion in
favour of finding alternative relief in order to ameliorate the
apparent inequitability. To my mind,
an order compelling the
respondents [Matthews & Oliver] to institute proceedings
regularising their ownership of the property
within a stipulated
period and failing which the applicants [i.e. the Mitchells] will be
entitled to, on the same papers duly amplified,
to apply for an order
declaring them as the owners of the property and the eviction of the
respondents [Matthews & Oliver]
is justified” (pp 22-23).
23. Ndita J
concluded her judgment with an order which included the following
provisions relevant to the present application:
“1. The first
and second respondents [i.e. Matthews & Oliver] are ordered to
within 20 (twenty) days of service of this
order take steps necessary
to regularise their ownership of the property described as erf 17295
Mitchell’s Plain, situate
at 52 Bamboo Street, Lentegeur,
Mitchell’s Plain.
2. The first and
second respondents [Matthews & Oliver] are further ordered to
file proof of the re-registration of the property
in their names
within 20 (twenty) days of service of this order.
…
4. Should the first
and second respondents [Matthews & Oliver] fail to comply with
this order, at the stipulated time, the
applicants [i.e. the
Mitchells] are entitled to apply on these papers, duly amplified for
an order declaring them as owners of
the property.”
24. On 17 January
2014 the Sheriff served Ndita J’s order on Matthews &
Oliver.
25. On 17 February
2014 the Mitchells issued the present application and on 21 February
2014 it was served on Matthews & Oliver.
As neither of them
opposed the application or delivered any papers, it came before me,
as stated earlier, in the unopposed motion
court. The application
was moved by Adv. T Möller, who at my request prepared written
submissions and addressed oral argument
to me in support of the
application.
26. In the founding
affidavit the Mitchells allege that Matthews & Oliver have not
taken any of the steps required by paragraphs
1 and 2 of Ndita J’s
order. The Mitchells consequently ask for an order declaring them to
be the owners of the property.
27. As I see this
matter the relief sought by the Mitchells and summarised in (a) and
(b) of paragraph 1 above, both of which concern
the ownership of the
property, raises three questions for decision. The first question is
whether the mere bringing of this application
entitles the Mitchells
to the relief sought. If the answer to that question is “No”,
the second question is whether
I must refuse the relief sought in
this application because I am bound by Ndita J’s reasoning and
findings, quoted in paragraph
19.2 above, that “no title can be
said to have passed to either the fourth respondent or the
applicants. The registration
of the property in the applicants’
and fourth respondent’s names did not make either of them the
owners of the property”.
If the answer to the second question
is also “No”, the third question is whether the Mitchells
are indeed the owners
of the property.
28. In my view, when
Ndita J’s judgment and order are read as whole it appears both
the first and second questions must be
answered in the negative. As
I understand it the judgment makes provisional findings and allows
this Court, in any proceedings
the Mitchells may bring under
paragraph 4 of the order (i.e. the present proceedings), to determine
finally whether or not the
Mitchells are not merely the registered
owners of the property but also the true owners.
29. That brings me
to the third question described in paragraph 27 above.
30. The possibility
that despite the registration of the property in the Mitchells’
names they may not be the true owners
arises for two reasons. First,
our system of deeds registration is a negative one, i.e. any
information in the deeds office that
is inaccurate may be corrected
(CG van der Merwe Sakereg 2 ed (1989) at 342; Barclays Nasionale Bank
Bpk v Registrateur van Aktes,
Transvaal, en ’n Ander
1975 (4)
SA 936
(T) at 940B-941C; Standard Bank van SA Bpk v Breitenbach en
Andere
1977 (1) SA 151
(T); Knysna Hotel CC v Coetzee NO
[1997] ZASCA 114
;
1998 (2) SA
743
(SCA) at 753B-C). Secondly, the effect of the rescission order
in case number 21507/11 on 1 December 2011 rescinding the default
judgment granted in case number 1178/09 on 19 May 1009 and setting
aside of the subsequent sale in execution of the property to
Dadarker, may have been that the ensuing registration of the transfer
of the property into Dadarker’s name and the subsequent
sale
and transfer of the property by Dadarker to the Mitchells became void
ab initio. If that is correct, then Matthews &
Oliver did not
lose their ownership of the property despite the registration in the
Deeds Registry of its transfer to Dadarker
and thereafter its
transfer to the Mitchells.
31. The question for
decision, therefore, is what effect, if any, did the rescission order
have on the registration of the transfer
to Dadarker, the sale by
Dadarker to the Mitchells and the ensuing registration of the
transfer to the Mitchells.
32. On its face the
rescission order (for which as stated no reasons have been given), is
limited to rescinding the Registrar’s
default judgment and
setting aside the sale in execution to Dadarker. Does this mean the
order does not extend to the registration
of the transfer to Dadarker
or the sale and registration of the transfer to the Mitchells?
33. As appears from
paragraph 12 above, one of the grounds for rescission set out in
Matthews’s founding affidavit in the
application for rescission
was the granting of default judgment by the Registrar in terms of
rule 31(5)(b) of the Uniform Rules
of Court read with rule 45(1) was
held to be inconsistent with the Constitution of the Republic of
South Africa, 1996 (‘the
Constitution’) by the
Constitutional Court. As indicated there, the case in question is
Gundwana.
34. In Gundwana,
following Jaftha, the Constitutional Court declared that the granting
by High Court registrars, who are administrative
not judicial
officers, of orders declaring specially executable hypothecated
property constituting a person’s home, unconstitutionally
infringes the right to housing in section 26(1) of the Constitution.
35. Having made that
finding, the Constitutional Court in Gundwana (per Froneman J) turned
to the implications of the declaration
of unconstitutionality for the
validity of such orders by registrars granted prior to the date of
its judgment (11 April 2011).
It said the following at paras 57-60:
‘[57] But what
about retrospectivity? In Jaftha, this court placed no limit on the
retrospectivity of its order. The declaration
of invalidity of the
legislative provisions in that matter did not entail, however, that
all transfers made subsequent to invalid
execution sales were
automatically invalid. Individual persons affected by the ruling
still needed to approach the courts to have
the sales and transfers
set aside if granted by default. This was made clear in Menqa and
Another v Markom and Others.
[2008 (2) SA 120
(SCA). See also
Campbell v Botha and Others
[2008] ZASCA 126
;
2009 (1) SA 238
(SCA).] A similar
approach should be followed here.
[58] There may be a
fear that the decision in this matter will lead to large-scale legal
uncertainty about its effects on past matters,
where homes were
declared specially executable by the registrar, and sales in
execution and transfers followed. The experience
following Jaftha
may be an indication that this fear is overstated. It must be
remembered that these orders were issued only where
default judgments
were granted by the registrar. In order to turn the clock back in
these cases, aggrieved debtors will first
have to apply for the
original default judgment to be set aside. In other words, the mere
constitutional invalidity of the rule,
under which the property was
declared executable, is not sufficient to undo everything that
followed. [Oudekraal Estates (Pty)
Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1)
at paras 27-38; and
Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty)
Ltd and Others (CC case No CCT 39/10, 13
November 2010) ([2010] ZACC
26), as yet unreported, in paras 81-85.] In order to do so the
debtors will have to explain the reason
for not bringing a rescission
application earlier, and they will have to set out a defence to the
claim for judgment against them.
[Grant v Plumbers (Pty) Ltd
1949 (2)
SA 470
(O); Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at
764I-765D; and De Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1042.] It may be that in many cases those aggrieved may find
these requirements difficult to fulfil.
[59] From what has
been stated above, in relation to the legitimacy of resorting to
execution in order to obtain satisfaction of
judgment debts sounding
in money, and that only deserving cases would justify other means to
satisfy the judgment debt, it follows
that a just and equitable
remedy, following upon the declaration of unconstitutionality, should
seek to ensure that only deserving
past cases benefit from the
declaration. I consider that this balance may best be achieved by
requiring that aggrieved debtors,
who seek to set aside past default
judgments and execution orders granted against them by the registrar,
must also show, in addition
to the normal requirements for
rescission, that a court, with full knowledge of all the relevant
facts existing at the time of
granting default judgment, would
nevertheless have refused leave to execute against specially
hypothecated property that is the
debtor's home.
[60] Once these
hurdles have been cleared, and it is determined that special
execution should not have been allowed, the question
of the effect of
invalid execution sales and subsequent transfers will have to be
considered as a next step. It is not possible
to lay down inflexible
rules to deal with all the permutations that may arise in these
cases. Existing legal principles and rules
will be sufficient to
deal with most cases in a just and equitable manner.’
36. As I understand
this part of the judgment in Gundwana, it means the following:
36.1. the
Constitutional Court’s declaration that it is unconstitutional
for a registrar of a High Court to declare the home
of a person
specially executable when ordering default judgment under Uniform
Rule 31(5), does not entail that every such default
judgment order
made by a registrar and every sale in execution and transfer pursuant
to such a sale is automatically invalid;
36.2. a person
affected by such a default judgment order may bring a rescission
application in the relevant High Court to have the
order and any
ensuing sale in execution and transfer set aside;
36.3. to succeed in
such an application the person must explain the reason for not
bringing a rescission application earlier, set
out a defence to the
claim for judgment against him or her and, in addition, show that a
court with full knowledge of all the relevant
facts existing at the
time of the granting of the default judgment, would nevertheless have
refused leave to execute against specially
hypothecated property that
is the person’s home; and
36.4. if the High
Court decides that the registrar should not have declared the
person’s home specially executable, it must
consider the effect
of the invalid execution sale and subsequent transfer and deal with
them in a just and equitable manner.
37. When viewed
against this part of this part of the judgment in Gundwana, two
problems with the rescission order emerge.
38. The first
problem is that it does not mention the transfer to Dadarker or the
sale and transfer to the Mitchells, nor does it
deal with the effect
of that sale and those transfers. I presume the absence of a
reference to the sale and transfer to the Mitchells
was due to the
fact that the incorrect computerised Deeds Office search printout
annexed to Matthews’s founding affidavit
showed Dadarker not
the Mitchells as the registered owner of the property. I presume the
absence of a reference to the transfer
to Dadarker is because the
order follows the form and content of the notice of motion, which
similarly is confined to the sale
in execution to Dadarker and does
not mention the transfer to him. Having said that, if the rescission
order means what it says,
it does not invalidate the registration of
the transfer to Dadarker or the sale and registration of the transfer
to the Mitchells.
39. The second
problem with the rescission order is that it was made in proceedings
to which the Mitchells had not been joined as
parties.
40. For the reasons
which follow, if, despite the ostensibly limited scope of the
rescission order, its legal effect was that it
invalidated the sale
and transfer to the Mitchells despite not referring to them –
see in this regard Menqa and Another v
Markom and Others
2008 (2) SA
120
(SCA) at paras 24-25 and Campbell v Botha and Others
[2008] ZASCA 126
;
2009 (1) SA
238
(SCA) at paras 12-13 and 20; see also Knox NO v Mofokeng and
Others
2013 (4) SA 46
(GSJ) at paras 20-22 – then, because the
Mitchells were not joined as parties, the rescission order was a
nullity, it has
no force and effect and it may be disregarded without
the necessity of a formal order setting it aside.
41. In Lewis &
Marks v Middel
1904 TS 291
at 303, Mason J (Innes CJ and Bristowe J
concurring) said:
‘It was
maintained that the only remedy was to appeal against the decision of
the Land Commission; but we think that the authorities
are quite
clear that where legal proceedings are initiated against a party, and
he is not cited to appear, they are null and void;
and upon proof of
invalidity the decision may be disregarded, in the same way as a
decision given without jurisdiction, without
the necessity of a
formal order setting it aside (Voet, 2, 4, 14; and 66; 49, 8, 1, and
3; Groenewegen, ad Cod. 2; 41; 7, 54; Willis
v Cauvin,
4 N.L.R. 98
;
Rex v Stockwell,
[1903] T.S. 177
; Barnett & Co. v Burmester &
Co.,
[1903] T.H. 30).
’
42. In Sliom v
Wallach’s Printing & Publishing Co Ltd
1925 TPD 650
at 655,
Curlewis JP (Krause J concurring) said:
‘The action,
therefore, of the respondent company in applying for judgment,
apparently by default, against the individual
partner Sliom, the
appellant in the present case, was an illegal and wrongful act. A
judgment was thereby obtained against a person
who had not been
legally cited before the Court, and the effect of that judgment is
that it is a nulllity; it is invalid and of
no effect. In the case
of Lewis & Marks v Middel, to which Mr Murray has referred us,
and also in an earlier case where the
Roman-Dutch authorities were
examined, it was laid down on the authority of Voet that a judgment
given against a person who had
not been duly cited before the Court
is of no effect whatsoever. It is a nullity and can be disregarded.
It seems to me that
is the position here. A judgment was obtained
against the individual Sliom personally, whereas he had never been
cited personally
and individually to appear before the Court.
Therefore, that judgment was wrongly obtained against him, and that
judgment, in my
opinion, was a nullity as far as he was concerned.
The only judgment the plaintiff, on that citation, was entitled to
was against
the partnership.’
43. Both Lewis &
Marks and Sliom were cited with approval by the Supreme Court of
Appeal (‘SCA’) in S v Absalom
1989 (3) SA 154
(A) at
164E-G and in The Master of the High Court (North Gauteng High Court,
Pretoria) v Motala NO and Others
2012 (3) SA 325
(SCA) at paras
12-13. Moreover, Lewis & Marks was cited with approval by the
SCA in Campbell v Botha and Others, supra, at
para 16.
44. Even though the
Mitchells were aware of the rescission application, could have
applied to be joined as respondents and (in the
eviction proceedings)
said they intended doing so but then never did so, the fact remains
that, throughout, the Mitchells were
never parties to the rescission
application. It was consequently not legally permissible to make any
order in the rescission application
the effect of which was to
invalidate the sale and transfer of ownership of the property by
Dadarker to the Mitchells.
45. Therefore, the
registration of the transfer of owners\]hip of the property by
Dadarker to the Mitchells was not affected by
the rescission order.
Despite the rescission order the Mitchells have remained the owners
of the property. Moreover, as Matthews
& Oliver are occupying
the property without permission from the Mitchells, their occupation
is unlawful.
46. If Matthews &
Oliver wish to try and change the current legal position they must
bring a fresh application for rescission
of the default judgment
granted by the Registrar and the setting aside of all the
consequential steps (i.e. the sale in execution
and transfer to
Dadarker and the sale and transfer to the Mitchells). They must also
apply for condonation for the late bringing
of that application.
They must join Dadarker, FirstRand Bank, the Mitchells and Standard
Bank as respondents in those proceedings
and their founding papers
must deal with all of the matters mentioned in paragraphs 36.3 and
36.4 above.
47. As appears from
(c) in paragraph 1 above, the Mitchells have also sought orders
directing Matthews & Oliver to vacate the
property and
authorising the Sheriff must evict them if they do not do so. Those
orders cannot be granted in these proceedings
because Matthews &
Oliver are ‘unlawful occupiers’ referred to in the
Prevention of Illegal Eviction from and Unlawful
Occupation of Land
Act 19 of 1998 (‘PIE’) (Ndlovu v Ngcobo; Bekker and
Another v Jika
2003 (1) SA 113
(SCA) at para 5), PIE gives Matthews &
Oliver some protection against eviction including the right to
receive a notice in terms
of sections 4(2) and (5) of PIE before the
Mitchells may approach the court for an eviction order and the
Mitchells have not complied
with this procedural requirement. The
Mitchells’ application for the eviction order must therefore be
refused.
48. For so long as
the Mitchells remain the owners of the property and Matthews &
Oliver remain in unlawful occupation, the
Mitchells may bring a fresh
eviction application, provided that when doing so they comply with
the procedural requirements of PIE.
49. As appears from
(d) in paragraph 1 above, the Mitchells also seek an order that they
must institute within 30 days any action
against any of the
respondents to recover damages for any losses they may have suffered.
There is no legal basis for such an order.
If the Mitchells want to
institute any such actions they are free to do so, subject to their
complying with any applicable laws
and to the claims on which such
actions are based not having been extinguished by prescription.
50. As to costs,
despite the refusal of the eviction relief and the prayer for the
order concerning the institution of damages actions,
in my view the
Mitchells have been substantially successful, Matthews & Oliver
have been substantially unsuccessful and consequently
Matthews &
Oliver should ordered to pay the Mitchells’ costs.
51. Finally, in view
of the impact of this judgment on the real rights of Matthews &
Oliver, Dadarker, FirstRand Bank and Standard
Bank, I shall direct
that the applicants ensure that a copy is served on each of them
within 30 days.
52. I make the
following order:
1. It is declared
that the applicants are the co-owners of Erf 1………,
M….. P…., situate at 5……
B….
Street, L….. M….. P…… and that the first
and second respondents are in unlawful occupation
of such property.
2. The application
for orders directing the first and second respondents to vacate the
property and authorising the Sheriff must
evict them if they do not
do so, is refused.
3. The application
for an order directing the applicants to institute within 30 days any
action against any of the respondents to
recover damages for any
losses the applicants may have suffered, is refused.
4. The applicants
shall ensure that a copy of this judgment is served on each of the
first to fourth respondents and the sixth respondent
within 30 days.
5. The applicants’
costs shall be paid by the first and second respondents jointly and
severally, the one paying the other
to be absolved.
BREITENBACH, AJ
For the
Applicant: Adv. T Möller
Instructed by
Dalene Kuhn Attorneys