Buffalo City Metropolitan Municipality JUDGMENT

Transcription

1 1 IN THE HIGH COURT OF SOUTH AFRICA EAST LONDON CIRCUIT LOCAL DIVISION Case nos: EL270/17; ECD970/17 Date heard: 22/6/17 Date delivered: 28/6/17 Not reportable In the matter between: David Barker Applicant and Nati Anne Zimemo First Respondent Buffalo City Metropolitan Municipality Second Respondent Yazbeks Inc Third Respondent JUDGMENT PLASKET J: [1] This is an application, brought by Mr David Barker, for the eviction of Ms Nati Anne Zimemo from the home that she occupies. It is brought in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Although the Buffalo City Metropolitan Municipality and a firm of attorneys, Yabeks Inc, have also been cited as respondents, no relief is sought against them and they have taken no part in the proceedings.

2 2 Background [2] In 2009, a person by the name of Jean King took a default judgment against Ms Zimemo in the East London Magistrate s Court. Thereafter, in November 2016, a sale in execution of the property occupied by Ms Zimemo was conducted by the Sheriff. At the sale, Mr Barker purchased the property from which he now wants Ms Zimemo evicted. [3] Mr Barker paid the initial deposit, the remainder of the purchase price and the ancillary costs. The property was transferred into his name in January [4] Mr Barker stated in his founding affidavit that he made contact with Ms Zimemo in order to negotiate the taking of possession of the property on mutually acceptable terms. His efforts were rebuffed and, in due course, he initiated this application for Ms Zimemo s eviction in terms of PIE. [5] The notice of motion in this application is dated 23 February On 24 April 2017, Ms Zimemo launched an application to review and set aside the default judgment granted against her in She stated in her answering affidavit: I humbly ask this court to dismiss this application by the applicant because it is founded on the judgment, order, writ of execution, warrant of attachment, warrant, auction, sale, transfer and registration into the name of the applicant that is subject to dispute and application for review and setting aside. In the alternative, she sought the postponement of the eviction application pending the finalisation of the review application. [6] The review application was initiated in this court. Being a circuit local division of the Eastern Cape High Court, Grahamstown, its powers and jurisdiction are curtailed in certain ways. In terms of rule 18(c) of the Joint Rules of Practice for the High Courts of the Eastern Cape Province, no application may be enrolled for hearing in this court where a quorum of two or more judges will be required. In terms of rule 19(b), the quorum of a court hearing a review of a magistrate s decision is two judges. Consequently, the review application cannot be heard in this court, but that fact does not render it a nullity.

3 3 The issues [7] Ms Burger, who appeared for Mr Barker, argued that the eviction order could and should be granted: the review had no prospects of success as it was hopelessly out of time and, because the review was launched after the transfer had been effected, it could not be undone, irrespective of the outcome of the review. [8] As indicated, Mr Zimemo, who appeared in person, argued for the dismissal of the application, alternatively, its postponement pending the determination of the review. The review [9] Ms Zimemo s argument (advanced in her affidavit) that the application should be dismissed because of the review application puts the cart before the horse. The review is, in effect, her defence to the eviction application and would first have to succeed before the possibility of the eviction application being dismissed would arise. [10] Ms Burger s argument that the review application is bound to be dismissed and so can be ignored for purposes of this application also puts the cart before the horse. It is true that there has been a very long delay between the granting of the default judgment in 2009 and the sale in execution in It is not for me to speculate as to the prospects of the delay being condoned by the judges hearing the review or the prospects of success on the merits. These issues are not before me. [11] The review application is in the nature of a counter-application and constitutes Ms Zimemo s defence to the eviction application. That being so, and subject to Ms Burger s second argument, the interests of justice require that the eviction application be postponed pending the determination of the review application. Can the transfer be undone?

4 4 [12] Ms Burger argued that even if the reviewing court was to find irregularities in the granting of the default judgment or the process that followed it, that could not avail Ms Zimemo. She argued that once transfer had occurred, subject to one exception, Mr Barker s title was unassailable. [13] She relied on the judgment of Van der Merwe AJ in Knox NO v Mofokeng & others 1 in which it was held that where transfer of ownership had been effected pursuant to the sale in execution by the time the judgment has been rescinded, the judgment debtor is not entitled to recover possession of the property in question, unless it can be established that the judgment and/or the sale in execution constituted a nullity. 2 [14] Van der Merwe AJ s statement of the common law position that applies in the high courts is correct and accords with the corresponding interpretation of s 70 of the Magistrates Courts Act 32 of The meaning and application of that provision was considered in Menqa & another v Markom & others, 4 a case in which a default judgment that included a declaration of executability, had been granted by the clerk of the court and not a court. [15] In considering the circumstances in which a transfer could be set aside, Van Heerden JA held: 5 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' Courts 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 in his or her name. [16] In a separate concurring judgment, Cloete JA: 6 1 Knox NO v Mofokeng & others 2013 (4) SA 46 (GSJ). 2 Para 5. 3 Section 70 provides: 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. 4 Menqa & another v Markom & others 2008 (2) SA 120 (SCA). 5 Para Paras

5 5 [46] I therefore conclude that at common law a sale in execution was void for want of compliance with an essential formality, but that non-compliance with non-essential formalities did not have this result; and that s 70 should be interpreted as being to the same effect, save that a sale in execution in a magistrates' court can be impugned even for want of non-essential formalities where the purchaser did not act in good faith or had notice of the non-compliance. It is not necessary for the purposes of this appeal to consider what are non-essential formalities. Because of the modern legislation which deals with formalities required for a valid sale in execution, resort to the old authorities would not necessarily be a safe guide. In each case regard would have to be had in particular to the reason for the formality, the extent of the non-compliance and the prejudice or potential prejudice caused to interested parties, especially the judgment debtor. But where, as here, the warrant of execution was invalid, the sale must be regarded as void and accordingly s 70 does not protect Menqa. [47] I reach the same conclusion by having regard to the Constitution, s 39(2) of which provides: When interpreting any legislation... every court... must promote the spirit, purport and objects of the Bill of Rights. The Constitutional Court held in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: in re Hyundai Motor Distributors (Pty) Ltd v Smit NO and Others that this section provides a guide to statutory interpretation under the constitutional order. The court laid down the principle that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be given that meaning. Following this approach, s 70 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 s 70). [17] In terms of s 22(1) of the Superior Courts Act 10 of 2013, a high court may review and set aside the proceedings of a lower court on the following grounds: (a) absence of jurisdiction on the part of the court; (b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;

6 6 (c) gross irregularity in the proceedings; and (d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence. [18] In the well-known case of Johannesburg Consolidated Investment Co v Johannesburg Town Council 7 Innes CJ stated that the purpose of the review of the decisions of lower courts was to deal with and correct grave irregularities or illegalities occurring during the course of proceedings in those courts. When a grave irregularity of illegality is found in review proceedings, the result is that the judgment of the lower court is set aside it is a nullity. [19] That will be the result if the review in this matter succeeds. The argument that it is possible to determine the eviction order without the review having been decided has no merit. The result [20] The review application cannot be enrolled for hearing in the East London Circuit Local Division. An application will have to be made, by either party, in terms of s 27 of the Superior Courts Act 8 for the matter to be transferred to the seat of the court in Grahamstown. It is probably practical to apply to transfer the eviction application at the same time and to have both matters heard together. [21] I make the following order. (a) The matter is postponed sine die. (b) The costs of the postponement shall be costs in the cause. 7 Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111 at Section 27 provides: (1) If any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the court that such proceedings- (a) should have been instituted in another Division or at another seat of that Division; or (b) would be more conveniently or more appropriately heard or determined- (i) at another seat of that Division; or (ii) by another Division, that court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be. (2) An order for removal under subsection (1) must be transmitted to the registrar of the court to which the removal is ordered, and upon the receipt of such order that court may hear and determine the proceedings in question.

7 7 C Plasket Judge of the High Court APPEARANCES For the applicant: Ms LS Burger instructed by Bax Kaplan Russell Inc For the first respondent: In person