---

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 29/02/2008

Case No: 37742/2005

UNREPORTABLE

In the matter between:

GERTUIDA JOHANNA BEUKES 1^ST APPLICANT

ADOLPH CHARLES BEUKES 2^ND APPLICANT

MOKGABUDI MESHACK 3^RD APPLICANT

NAROK ONDUGANI 4^TH APPLICANT

WILLIAM MARABE MOKGABUDI 5^TH APPLICANT

TLOU VICTOR HOPANE 6^TH APPLICANT

OUPA MANAS 7^TH APPLICANT

NGOEPE JOEL TJOKOTJI 8^TH APPLICANT

ARTHUR MATLWAYI 9^TH APPLICANT

BHALILE JOHANNES MAHLANGU 10^TH APPLICANT

BONANG ELIZABETH MUSI 11^TH APPLICANT

And

CITY OF THSWANE METROPOLITAN

MUNICIPALITY RESPONDENT

In re:

CITY OF THSWANE METROPOLITAN

MUNICIPALITY APPLICANT

And

GETRUIDA JOHANNES BEUKES RESPONDENT

JUDGMENT

MOLOPA J

The Applicant Getruida Johanna Beukes ("The First Applicant") launched this Application against the Respondent, the City of Tshwane Metropolitan Municipality ("Respondent") for an order in the following terms:

1. That the Applicant be granted the condonation (if necessary) for the late delivery of this application;

2. That the second to eleventh Applicants be granted leave to intervene in the main Application and be joined as the Second to Eleventh Respondents in the main application under the abovementioned case number;

3. That the order granted on 21 June 2006 by his Honourable Justice Motimele (a copy/of which is annexed to the founding papers as Annexure A) be set aside and the Applicants be given leave to deliver their answering Affidavits within 15 days of this order;

4. That the Respondent be ordered to pay the costs, of this application only if it opposes.

The First Applicant in this instance is the Respondent in the main application whereas the Respondent in this instance is the Applicant in the main application. The Parties shall be referred to herein as First Applicant (GJ Beukes) and Respondent (City of Tshwane Metropolitan Municipality/CTMM).

The issues set out in the .P-ClQerS ~nunciatOCl as-the basis of this Application are briefly that:

On 22 November 2005 the Respondent ("CTMM") launched an Application ("the main application") against the First Applicant (GJ Beukes) concerning certain various contraventions of the National Building Regulations and Building Standards Act 103 ofl977 ("The Act"), on the First Applicant's immovable property known as ERF 186 Faerie Glen, Pretoria ("The subject property"). The buildings on the property aforesaid are allegedly dilapidated and in a state of disrepair in contravention of the Act, the buildings on the subject property have allegedly been erected and occupied in contravention of the Act, and the subject property is allegedly being used in the contravention of, inter alia, The Pretoria Town Planning Scheme, 1974 ("The Scheme").

Subsequent to the service of the main Application the First Applica.t1t's Attorneys of record, Pillay and Shabangu Inc. filed a notice of intention to oppose dated 28 November 2005, (served on Respondents on 01/12/2005) on behalf of the First Applicant. The First Applicant did not at any stage until the matter was adjudicated upon on 21 June 2006 file an answering Affidavit. However, it is not in dispute between the parties that the First Applicant's Attorney, Mr Pillay and her husband were in court on 21 June 2006 when the order was granted in favour of the Respondent (CTMM). Apparently the Attorneys for the First Applicant did not move for or request a postponement on the day in question.

The thrust of the main application is that the Respondent (CTMM) sought an order from his court whereof the first Applicant is ordered to comply with the applicable legislation i.e.

The National Building Regulation and Building Standards Act (Act 103 of 1977 ("the Act");

- The regulations promulgated by virtue of Section 17 of the Act, as published in Government Notice R 2378 of 1990 ("the Building Regulations");

- The South African Bureau of Standards Code of Practice ("SABS 0400") incorporated as part of the Building Regulations;

- The regulations promulgated by virtue of section 27 of the Health Act as published in Government Notice 1128 of 28 May 1991 ("the Health Regulations");

- The Sanitation By-Laws published in Notice 647 of 10 September 2004 ("the Sanitation By-Laws");

- The Electrical Safety Regulations, better known as SANS 10142-1:2003 published in Government Notice 1373 of 8 November 2002 ("the Electricity Regulations"); and

- The Occupational Health and Safety Act, Act 85 of 1993 as well as the regulations published in terms thereof (“the Occupational Health Act").

As already stated the order was granted on 21 June 2006, Annexure 'GJB' FA, 1 page 16 of the papers, and Annexure M AA.

It is trite that the requirements for rescission under Rule 31 (2) (b) are as follows:

- The Applicant(s) must give a reasonable explanation for their default. If it appears that the default was wilful or that it was due to gross negligence the court should not come to their assistance;

- The Application must be bona fide and not made with the intention of merely delaying the Respondent's claim

- The Applicant(s) must show that they have a bona fide defence to the Respondent's claim. It is sufficient if they make a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle them to the relief sought.

The first Applicant raises lack of funds for legal fees as a reason for not having proceeded in opposing the main application, and in support thereof she attached Annexures "GJB IS" and "GJB 16", correspondence between her Attorneys dated 7 February 2006, and a letter from Scorpion Legal Protection (Pty) Ltd (Scorpion) dated 5 July 2006.

From the correspondence aforesaid it emanates that the letter from the first Applicant's Attorneys dated 7 February 2006 (GJBI5) was a letter on behalf of the first Applicant's husband, AC Beukes (not first Applicant),confirming cover ("confirmation of cover"). The letter from Scorpion dated 05 July 2006, on the other hand is obviously after the order was granted on 21 June 2006 in the main application. The Applicant does not attach any letter to Scorpion and/or claim form prior to the order being granted on 21 June 2006 showing that she at any stage applied for funds for legal fees, whether with Scorpions, or Legal aid Board or any loan with any financial institution prior to the granting of the order, and that such application was declined/refused. It seems, in any event that this issue about lack of funds for legal fees only surfaces now in this Application for rescission and that this was never proffered before.

After the main Application was served on the First Applicant there seems to have been negotiation attempts to settle the matter by way of round­-table conference, which negotiations failed. These negotiations did not, in my view, preclude the First Applicant from filing her Answering

Affidavit. Even after the matter was postponed between the parties on 26 April 2006, [because the First Applicant had not filed her Answering Affidavit], refer Annexures 'H','I' and 'J' to the Respondent (CTMM)'s Answering Affidavit, the First Applicant still did not file her Answering Affidavit, despite her having been informed by letter dated 05 May 2006 that the matter was set down for 21 June 2006 and that she should file her Answering Affidavit, and only a few days before the matter was to go back to court, on 07 June 2006 did she again request another round table, despite the fact that the round table negotiations had previously failed. The Respondent again duly informed her by letter dated 8 June2006 (through her Attorneys) that the matter would be proceeding and advised her to file her Answering Affidavit which she did not file, refer Annexure 'K' and 'L' to the Respondent (CTMM)'s Answering Affidavit. Suffice to state that on thereof hearing the First Applicant herself did not deem it important to attend court instead she allegedly attended a meeting for her employer. This does not look (to me) like a person who took this matter seriously, she simply had other priorities, and this matter was not one of them.

In any event her husband and her Attorney were in court as already stated above when the order was granted. It cannot be true that the Applicant only learnt of the order on 03 July 2006, this is a deliberate attempt by the First Applicant to mislead this court. There is no way that her Attorney would not have known of the order on the 21 June 2006 and communicated this to her, even if it were to be said that her Attorney left court at some stage before the order was granted, a prudent Attorney would have, in the interests of his client, established on the same day what the final order was. In any event apparently the Attorney of record who was present at court on the day in question (21 June 2006) and the First Applicant's husband who was also present in court did not ask nor request a postponement for the First Applicant, nor did they allude to the fact that the First Applicant still desired to oppose the Application but could not do so for lack of funds. I have already dealt with issue of lack of funds and do not intend to repeat same.

On what has been stated hereabove, it is clear that the First Applicant fails on the first leg. She was definitely in wilful default, and/or was grossly negligent in conducting her affairs in this matter. On a proper construction of the facts herein, the order granted on 21 June 2006 by Motimele AJ was not in default as envisaged in Rule 31 (2 )(b) since the First Applicant knew that the matter was set down for 21 June 2006, her husband and her Attorney of record duly attended court, she wilfully neglected and/or failed to file her Answering Affidavit.

Further it cannot be said that the order granted on 21 June 2006 was erroneously sought and/or erroneously granted as envisaged in Rule 42 (1) (a) as alleged by the First Applicant, refer paragraph 24 Founding Affidavit, page 14 of the papers. The First Applicant here somewhat seeks to rely on Rule 42(1) (a) for rescission without any basis whatsoever in her papers. In my opinion Rule 42 (1) (a) does not even come into play in this matter.

Looking at the conduct of the First Applicant, from when the main application was launched, to her late filing of her rescission application, [it is not in dispute that the First Applicant filed her rescission application out of time, it is clear that the First Applicant is deliberately, in my view, frustrating the Respondent. Her husband and Attorney attend court on 21 June 2006 when the order, ‘GJB’ 1 is granted she knew that the matter (main application) was going to court on 21 June 2006, she decides that it is more important to attend to her employer's meeting than to attend to court on the day in question to see to her matter. She on her own version states that she requested her husband to attend court to oppose the matter (not to seek postponement) refer paragraph 11 Founding Affidavit, page 10. No attempt was even made to file an Answering Affidavit. Her husband and her Attorney attended court on 21 June 2006, yet she wants this court to believe that she only learnt of the court order on 03 July 2006 when it was faxed to her Attorneys of record by the Respondent. The First Applicant is clearly misleading this court, in all probabilities there cannot be any truth in what she states in this regard. Instead of complying with the court order she decides to bring/launch rescission proceedings on facts which cannot be true. She cannot be said to be bona fide. In my opinion she merely wants to frustrate the Respondent in executing the order granted on 21 June 2006.

For the First Applicant to succeed with rescission she must also show that she has a bona fide defence to the Respondenf s main claim. She alleges in her Founding Affidavit that building plans for the subject property were submitted to the Respondent in 1981 and have been approved by the Respondent. That the Respondent does not have copies and records since these were destroyed in the fire at Munitoria-Respondent's premises in about 1994 and that the Respondent had no microfish backups.

According to the Respondent it has a database with information of the building plans that were approved during 1981 relating to the properties neighbouring the subject property. Surely if First Applicant's building plans were approved in 1981 as she alleges, such information would have been on the database of the Respondent. Apparently there is not even any record of any plan fees having been paid by the First Applicant in relation to the relevant plans. Neither do the plans aforesaid have any plan numbers as happens when plans are approved. This does no accord, in my view with plans that have been lawfully approved. According the Respondent the plans in question are in any event not approved.

The First Applicant apparently submitted revised building plans to the Respondent for approval just prior to launching this rescission Application (on 5 July 2005) after the order in the main Application had been granted. It is very questionable why the First Applicant did this, if not only to cure/remedy the contraventions of the Act. Only after the revised plans aforesaid were disapproved on 18 July 2006, did the First Applicant launch the Rescission Application herein, which was issued in this court on 25 July2006. The First Applicant's conduct herein, in my view, is extremely calculated.

It is not in dispute that the relevant building operations took place in 2003, refer Annexure GJB 16 Scorpion's letter alluding to this fact, the First Applicant herself does not even deal with this aspect in her Founding Affidavit, only in her replying Affidavit in reply to the allegation by the Respondent in its Answering Affidavit in this regard does the First Applicant deal with the issue. It is trite that the Applicant should make her case in her founding affidavit as the affidavit constitutes evidence, see

- National Director of Public Prosecutions v Phillip and others 2002(4) SA 60 @ 160 CC

- T Beeck v United Resources CC and another 1997(3) SA 315(c) at 328-B.

In any event from the response of Scorpion to the First Applicant and/or her husband one can deduct that from information received from the Applicant the building operations took place in 2003. That being the case, in terms of sections 7(4), 11 (1l) and 11 (5) of the Act, buildings in terms of building plans must be erected within one (1) year from date of approval. So even if it were to be accepted that the First Applicant's plans were approved in 1981, which I cannot find and/or accept on the papers before this court, such plans would have been rendered null and void by 2003 when the building operations commenced.

The First Applicant also seeks to hold the view that since, according to her, the third to eleventh Respondents (3rd -11th) allegedly do not pay rental to reside on her property, since she is not running any sort of business on the property, she is not contravening any legislation. That they are one 'large family'. I find this absurd to say the least. The provisions of the applicable legislation, more in particular the Pretoria Town Planning Scheme, 1974, are very clear. There is no pre-requisite that rental should be collected from tenants before their occupation constitutes a contravention of the provisions thereof. The scheme defines:­

A 'commune' as:

"a dwelling house where persons, other than in a family context, live together, but does not comprise a dwelling house. . ."

A 'tenement' as:

"a residential unit without a kitchen".

The Respondent's case in the main Application is, amongst others, that the First Applicant allows building on the subject property to be used as a commune and/or tenements to house tenants in contravention of the zoning of the subject property. It is not in dispute that the third to eleventh (3rd-11th) Respondents are not family members of the First Applicant, yet they live on the subject property apparently in residential units without a kitchen. This is clearly in contravention of, amongst others, The Pretoria Town Planning Scheme, 1974, and hence cannot be a defence to the main Application. The subject property is undisputedly zoned "special residential" and does not allow a commune or tenements.

The First Applicant further contends that she has not contravened 'any of the Acts and/or Regulations and/or schemes referred to by Respondent in the main application" and in support of this allegation she attached a report, purportedly an 'expert report' by one Mr Phillipus Carl Prinsloo, Annexure GJB 17 to the Founding Affidavit.

It is trite that an expert testimony must be placed before court of the facts relied upon by the expert for his opinion as well as the reasons upon which it is based. The court is not merely a rubber stamp for the acceptance of the expert's opinion, see

Nel v Lubbe 1999 (3) SA 109 at 111E-G. Clearly the statement by Prinsloo does not in my view amount to expert evidence. It is not clear what his sources were in coming to the conclusion he did, nor does it appear what investigation he did specifically before coming to his conclusion. In any event the opinion of an 'expert' witness is admissible whenever, by virtue of the special skill and knowledge he possesses in his particular sphere of activity, he is better qualified to draw inference from the proved facts than the Judge himself, see Nel v Lubbe Supra. This cannot be the case in this instance in so far as Prinsloo is concerned. We have the Respondent "self who have established that there is contravention of the applicable legislation, and the facts herein undisputedly proves this. Photographs have been annexed to the main application annexures V9 Founding Affidavit page 51- 75 which clearly shows the encroachments and dilapidated conditions, amongst others, of the buildings in question herein.

No case has been made out in my view for the rescission of judgement. In so far as the Application for the intervention/joinder of the second to the eleventh Applicants is concerned, such intervention is sought for these Applicants to intervene in the main application, refer paragraph 4 Founding Affidavit, page 7. It is obvious that even before leave can be granted for them to intervene in the main application, the order granted on 21 June 2006 must be rescinded. As appears from what is stated above the First Applicant has failed to make out a proper case for rescission.

The attempt by the First Applicant to rely on the PIE Act is in my view misplaced. The order granted on 21 June 2006 is specifically directed at the First Applicant, the owner of the subject property in contention herein, to take all reasonable steps to desist from her illegal/unlawful use of the property. The Respondent obviously has neither link nor connections with the other Applicants; they are staying on the subject property at the pleasure of the First Applicant. Where the Respondent experiences/sees problems on the property of someone, in this case the First Applicant, the Respondent has to approach the owner of the property and no one else. It is the owner (First Applicant) who has to fix defects and all other problems found on her property, not the other tenants/Applicants. The Respondent cannot force the other Applicants to comply with the Acts and regulations; it can only have recourse against the registered owner of the property, who is the First Applicant in this case. Looking at the facts and issues in this matter, in my view, the PIE Act has been misconstrued.

Having dealt with merits of the case aforesaid I, do not deem it necessary to consider the points raised in limine, of condonation and non­ compliance of the notice of motion.

For the reasons stated above it is my considered view that the First Applicant does not make out a case for the rescission of judgement granted on 21 June 2006, whether under Rule 31 (2) (b) or Rule 42 (1) (a) of the uniform Rules of court. In the result the Application for rescission, as well as the Application for intervention is dismissed with costs on an Attorney and client scale.

The Respondent is a public body operating on tax payer's money; it will be grossly unfair for the Respondent to be out of pocket due to the conduct and the launching of this application by the First Applicant. It is only appropriate that the First Applicant be ordered to pay the costs on an Attorney and client scale.

In the result the order of Mo time le AJ dated 21 June 2006 stands and this application is dismissed with costs on an Attorney and client scale.

L M Molopa

JUDGE OF THE HIGH COURT

---