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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DISION, PRETORIA

 

(1)       NO REPORTABLE

(2)       NOT OF INTEREST OTHER JUDGES

(3)       REVISED

Case no: 65631/2017

12/4/2018

 

In the matter between:

 

KGOLOLESEGO KEONENG TLOU                                                                Applicant

 

And

 

SOLOMON MATOME RALEBIPI                                                                     1^ST Respondent

REGISTRAR OF DEEDS                                                                                     2^ND Respondent

RICHARD MACHABA                                                                                        3^RD Respondent

JUDGMENT

MSIMEKI J:

[1]         The applicant, on an urgent basis, brought this application seeking an order:

"1.        THAT the rules relating to forms and service be dispensed with and that the present Application be dispose of as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court;

2.            THAT, pending the determination and finalisation of the appeal pending before the full bench of this above Honourable Court and enrolled for hearing on 22 May 2019, the First Respondent be and is hereby interdicted and restrained forthwith from selling, disposing of an d / or dissipating any and all of the assets that form part of the joint estate between the Applicant and the First Respondent, they being, inter alia:

2.1               An immovable proper ty, being [….], as held under Title Deed [….];

2.2               An immovable property, being ERF [….], as held under Title Deed T5713/ 2012;

2.3               An immovable property, being ERF [….], as held under Title Deed [….];

2.4               Business interests, shareholding and/or equity in the registered and operating companies in which the First Respondent is involved in, as more fully described in Annexure "X" hereto;

2.5               Policies, savings and/or investments as held with any and/or various financial institutions in the name of and under the identity document of the First Respondent;

2.6               All motor vehicle registered in the name of the First Respondent, amongst which is a Range Rover motor vehicle bearing registration letters and numbers [….] as well as a Mercedes Benz C63 AMG motor vehicle registered in the name of the First Respondent and whose registration numbers and letters are to the Applicant unknown.

 

3.            THAT the Second respondent be and is hereby interdicted and restrained forthwith from effecting registration and transfer of the immovable properties mentioned hereinabove and in particular the immovable property mentioned under paragraph 2.2 above to the Third Respondent herein.

4.            THAT the First Respondent be ordered to pay the costs of this Application.

5.            THAT there be no Cost Order against the Second and Third Respondents unless they oppose the relief sought herein.

6.            GRANTING the Applicant further and/ or alternative relief."

 

BRIEF FACTS

 

[2]        The application stems from a divorce action which the applicant instituted against the first respondent. The matter, simply, was dealt with in different stages.

[3]        Makgoka J had to determine if the parties had contracted a valid customary marriage. His decision was in the affirmative.

[4]        Kollapen J , before the divorce action was finalised , and after the issues were separated in terms of Rule 33(4) of the Uniform Rules of Court, on 10 August 2016, granted a forfeiture order against the applicant. The applicant lodged an appeal against Kollapan J's Judgement and Orders. On 16 March 2017 Kollapen J granted leave to appeal "to the full bench of this division."

[5]        In the meantime, the respondent put one of the properties on the market. This prompted the applicant to bring what she called an anti-dissipation application against the respondent. The application served before Davis AJ. The application failed and was dismissed for various reasons one of which was that the applicant had failed to file the application for leave to appeal timeously.

[6]        Davis AJ dismissed the application on 12 March 2017 while Kollapen J granted leave to appeal the forfeiture order on 16 March 2017. This, notably, is a difference of a few days.

[7]        The marriage between the parties was dissolved on 10 March 2017 by Davis AJ.

[8]        Tlhapi J, in the meantime, under case number 64298/ 17, made an order declaring unlawful the first and second respondents ' action of preventing the applicant from obtaining and gaining access to Midstream Estate and particularly to house No. [….] , as more properly described as Erf [….] as held under Title Deed [….] (the property). The order was a sequel to the application which was also brought by way of urgency by the applicant against the first, second and third respondents under case number 64298/ 17. The second respondent was The Midstream Estate Home Owners Association . The third respondent in the application was the current first respondent in this application while the current third respondent was the first respondent. The applicant has now brought the current application.

[9]       The applicant is represented by Adv J Engelbracht SC (Mr Engelbracht) while Mrs L Mbanjwa (Mrs Mbanjwa), in the current application, appears for the first respondent. The second and third respondents do not oppose the application. I, at the outset, need to mention that service on the third respondent was effected on the attorneys for the first respondent. This, as the papers show, because the first respondent's attorneys did not furnish the applicant's attorneys with the third respondent's address.

[10]      Mr Engelbrecht, for the applicant, objected that the notice of intention to oppose the application dated 26 September 2017 be received on the day of the hearing of the matter. The said notice, however, was delivered on 26 September 2017. It appears that Mr Engelbracht was not aware of this. The first respondent did not file his papers but the court, in the interest of justice, allowed Mrs Mbanjwa to argue the matter. The first respondent, as their heads of argument disclose, filed no other papers as he, according to Mrs Mbanjwa , relies on the Exceptio rei Judicatae as an absolute defence.

[11]      The parties, at the end of the matter, agreed to file their heads of argument for which I am thankful.

[12]      As explained in the brief summary of facts, the applicant brought two applications. The first application served before Davis AJ. The application, according to the applicant, was an "anti-dissipation" application. The application , according to Mr Engelbracht, was necessitated by the "legal vacuum" which was created by the fact that the application for leave to appeal had not been delivered timeously meaning that there was no application for leave to appeal, proper. This resulted in the applicant not having locus standi to bring the application for lack of the prima facie right. For this and other reasons, the application was dismissed.

[13]      The applicant, thereafter, brought this application. Mrs Mbanjwa , in the first respondent's heads of argument and when she argued the matter, submitted that the matter lacked urgency; that the substantive order sought in this application is identical, in all respects, to the order sought in the Notice of Motion filed under case number 4081/ 2013 which was dismissed by the court and that no opposing papers were filed on behalf of the first respondent who, according to her, relies herein on the Exceptio rei judicatae as an absolute defence.

 

THE ISSUES

[14]      The issues are by now distinct. These are:

1.    Whether Exceptio rei judicate is applicable in this application.

2.    Whether it is an absolute bar to the applicant's application.

3.    Whether Davis AJ finally resolved the issues between the current parties.

 

[15]     It is noteworthy that Davis AJ, in the application that served before him , gave his judgement on 12 March 2017. It also must be remembered that Kollapen J, on 10 August 2016, gave his judgement ordering that the applicant forfeits all her patrimonial benefits of the marriage entered into between herself and the first respondent on 2 May 2011 except for the benefits arising out of the property known as Erf [….] Gauteng Province. Sight should also not be lost of the fact that Kollapen J , on 16 March 2017, gave the applicant leave to appeal the forfeiture order.

[16]      Mr Engelbract, regarding the present application, unlike in the first application, submits that the applicant by reason of leave to appeal having been granted by Kollapen J, now has locus standi to bring the second application which now serves before me. It is his further submission that the provisions of section 18 of the Superior Courts Act 10 of 2013, in this application, automatically come into operation and that the applicant is reinstated as joint owner who has an undivided half-shar e in all patrimonial benefits of their dissolved marriage until the forfeiture order is confirmed on appeal.

[17]      It is important to refer to Section 18(1) of the Superior Courts Act 10 of 2013 and the forfeiture Order of Kollapen J.

[18]      Section 18(1) of Act 10 of 2013 provides:

subject to subsection (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. (My emphasis)

 

[19]       The Forfeiture order reads:

 

"           25 ORDER

I.          It is ordered that the plaintiff forfeits all the patrimonial benefits of the marriage entered into between herself and the defendant on the 2nd of May 2011 except for the benefits arising out of the property known as Erf [….] Gauteng province.

II.        The plaintiff shall be entitled to fifty percent of the net value of the aforementioned property to be determined as at the date of this order, the net value being the market value of the property less the total value of all mortgages registered against the property.

III.       Each party is to pay its own costs."

 

[20]      Although the first respondent did not file his papers, Mrs Mbanjwa argued the matter basing her arguments and submissions on urgency; Exceptio rei judicatae; the judgement of Davis AJ; requisites for interlocutory relief; balance of convenience; lack of an other remedy adequate in the circumstances and the Matrimonial Property Act 88 of 1984.

[21]       It is common cause that a late application for leave to appeal does not stay the operation of the order against which leave to appeal is sought (see Panayiotou v Shoprite Checkers (Pty) Ltd and others 2016(3 ) SA 110 (GT). A judgement is not suspended by the late delivery of an application for leave to appeal even if such an application may be accompanied by a simultaneous service of a con donation application. (See in this regard Modderfontein Squatters, Greater Benoni City Counsel v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resource Centre, Amici Curiae) President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre , Amici Curiae) 200 4 (6 ) SA 40 (SCA)

[22]      The applicant did not file her application for leave to appeal against Kollapen J's judgement timeously. The application for leave to appeal, as a result, did not stay the operation of the forfeiture order. However, on 16 March 2017, Kollapen J gave the applicant leave to appeal the Forfeiture Order. This, according to Mr Engelbrecht, had the effect of giving the applicant locus standi and staying the execution of the order as a proper notice of appeal has also been lodged with the registrar in terms of the rules. Mrs Mbanjwa conceded that the applicant has a prima facie right pending the outcome of the appeal. Mr Engelbrecht submitted that the Forfeiture Order was suspended as soon as leave to appeal was granted on 16 March 2017.

[23]      Mr Engelbrecht submitted that the applicant was reinstated as joint owner of the patrimonial benefits of their marriage when the leave to appeal was granted by Kollapen J on 16 March 2017. This, as pointed out above, was followed by the lodgement of the Notice of Appeal. The appeal will be heard on 22 May 2019 .

[24]      I shall deal with the matter following the sequence hereunder.

 

URGENCY

[25]      Mrs Mbanjwa submitted that the matter was not urgent. On 20 October 2016 the application for leave to appeal together with the condonation application were postponed sine die. This, because the Court had taken the view that there would be no prejudice as the effect of the Order would only eventuate once the divorce was granted. The application, according to the Court, could be re-enrolled following the finalisation of the divorce.

[26]      Before the divorce action was heard, the first respondent, according to the applicant, took steps to dispose of some of the assets forming part of the parties' joint estate. This necessitated the first application which served before Davis AJ and which was dismissed for lack of locus standi and other reasons as explained above.

[27]      Despite the fact that the appeal has been set down for hearing on 22 May 2019 , the first respondent went on and sold the Midstream house to Mr Richard Machaba, the third respondent in this matter, who was supposed to move in on 20 September 2017. The applicant, by way of urgency, sought an order declaring unlawful the action of the first respondent (Richard Machaba) and the second respondent, the Midstream Estate Homeowners Association, under case number 64298/ 2017, of preventing the applicant from obtaining and gaining access to Midstream Estate House commonly known as Erf [….] held under Title Deed [….]. Tlhapi J granted the order.

[28]      The first respondent's conduct demonstrates that he does what he decides to do and does not await the outcome of the appeal. This, closely viewed, affects the applicant in many respects. She is affected emotionally and financially. No one can gainsay this. One wonders how many more applications the applicant will bring before the appeal is heard. The applicant must have spent a lot of money securing the service of her legal team. It is clear that the parties do not have the same financial muscle. This renders the matter urgent.

 

RES JUDICATA

[29]      This is the defence which, according to Mrs Mbanjwa , the first respondent relies on for opposing the applicant's application.

[30]      In African Wonderers Football Club 1977(2)SA 38 (AD) at 45 E Muller J A said:

"Because SHEARER, J., found in favour of the club by applying the doctrine of res judicata, it is necessary to restate briefly the requirements for the application of that doctrine. Voet , 44 .2.3 (Gane's trans., volume. 6, p.554) states as follows:

 

"There is nevertheless no room for this exception unless a suit which had been brought to an end is set in motion afresh between the same persons about the same matter and on the same cause for claiming. so that the exception falls away if one of these three things is lacking." (My emphasis)

 

Again, at 45 F Muller JA further said:

 

"And in Custom Credit Corporation (pty) Ltd Corporation (pty.) Ltd. v Shembe, 1972 (3) S.A 462 (A.D), VAN WINSEN, A.J.A., stated at p. 472A:

 

....••• "The law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause. This is the ratio underlying the rule that, if a cause of action has previously been finally litigated between the parties, then a subsequent attempt by the one to proceed against the other on the same cause for the same relief can be met by an exception rei judicatae vel litis finitae." (My emphasis)

 

[31]      In AON South Africa (Pty) Ltd v Van der Merwe N.O. (615/2016) 2017 ZASCA 66 (30 MAY 2017) the Court said:

"As mentioned earlier the plea of res judicata in this case takes the attenuated form commonly referred to as issue estopel (sic). Res judicata deals with the situation where the same parties are in dispute over the same cause of action and the same relief and in the form of the issue estopel (sic) arises." (My emphasis)

 

[32]       In Amler's Precedents of Pleadings, Eighth Edition at page 322 the following is said:

"The exceptio rei judicatae is based on the rebuttable presumption thata final judgement on a claim submitted to a competent court is correct. This presumption is founded on public policy which requires that litigation should not be endless and on the requirements of good faith, which does not permit of the same thing's {sic) being demanded more than once." (My emphasis)

 

[33]      It is by now clear that to successfully raise res judicata as a defence three requirements have to be satisfied. These are that:

1.         The judgement must be final and definitive of the issues.

2.         The judgement must be in respect of the same parties.

3.         The judgement must be on the same issues or cause of action .

 

[34]      It is important to remember, as Mr Engelbrecht correctly submitted, that the application that served before Davis AJ dealt with an "anti-dissipation" interdict while the relief sought in the current application concerns a final relief pending the finalization of the appeal.

[35]      The applicant in the first application did not have locus standi to apply for the relief sought whilst such locus standi she now has in the present application.

[36]      It must be remembered that the third respondent has brought a different dimension to the matter. He and the Midstream Estate Homeowners Association forced the applicant in the urgent application brought under case number 64298/2017 to seek an Order preventing them from unlawfully preventing her from obtaining and gaining access to Midstream Estate and, in particular, Erf [….] held under Title Deed [….].

[37]      The first respondent first placed one of the joint estate's properties on the market prompting the applicant to bring the first application. Secondly, he sold the property, the subject of the spoliation application, to the third respondent. This, in my view, clearly demonstrates that the first respondent proceeds with the endeavour to dissipate the assets that form the joint estate between him and the applicant notwithstanding his knowledge that the appeal will he heard on 22 May 2019.

[38]      It can never be gainsaid that the first respondent and his attorneys know the address of the third respondent. The third respondent, no doubt, must know that the joint estate between the first respondent and the applicant still must be dealt with by the appeal court. The applicant's attorneys endeavoured to get the third respondent's address from the first respondent's attorneys. They appear to have been unsuccessful. It is unthinkable that this address is unknown to the first respondent and his attorneys. At any rate, service of the papers on the third respondent was effected on the first respondent's attorneys. I find no fault with this particularly if regard is had to the applicant's attorneys' endeavours to obtain the third respondent's address.

[39]      In the first application, the first respondent placed one of the properties on the market whereas in the current application the first respondent sold the property to the third respondent. The third respondent, assisted by the Midstream Homeowners Association, took a step further in wanting to disturb or stop the applicant from obtaining or gaining access to the property. Surely this demonstrates the difference between the two applications.

[40]      Mrs Mbanjwa submitted that the applicant, in the first application, failed to meet the requirements for an interim relief and that the position remained the same in this application. This does not appear to be correct. It must be remembered that if one of the requisites for res judicatae is lacking the defence cannot be successfully raised.

[41]      Having regard to the history of the two applications and the parties involved in the two applications, it can hardly be said that the parties are the same. The circumstances of the two applications are also different. The applicant in the Davis AJ matter did not have locus standi to bring the application while she, in the present matter, has it.

[42]      The applicant, unlike what Mrs Mbanjwa says in her submissions, satisfies the necessary requirements for an interdict. She now has locus standi to bring the application. The necessary leave to appeal has now been granted by Kollapen J, a proper Notice of Appeal was duly lodged with the registrar of the court and the appeal will be heard on 22 May 2019.

[43]     The applicant, clearly, is experiencing financial loss because of the conduct of the first respondent and the third respondent. It is obvious that the services of attorneys and counsel became necessary and may still remain necessary. The applicant has to date brought these two applications and on urgent basis. This is an injury actually committed and reasonably apprehended.

[44]      It has been argued by Mrs Mbanjwa that the applicant may rely on the provisions of section 15(9) of the Matrimonial Property Act 88 of 1984. What should never be lost sight of is that while one may be a man of substantial means today the position may not be the same on 22 May 2019 when the appeal is finally heard. This is because circumstances change. We have seen rich people become men of straw . Mrs Mbanjwa's submission that Section 15(9) of the Matrimonial Property Act 88 of 1984 provides an alternative remedy to the applicant may not be helpful if the first respondent's circumstances have changed .

[45]      It is important to note that the provisions of Section 18 of the Superior Courts Act 10 of 2013 had not yet come into force when the application was brought before Davis AJ. The section only came into force after the leave to appeal was granted. The applicant, at this stage, regained ownership of the undivided half share of their estate. This enables the applicant to interdict the first respondent from selling the property which belongs to the joint estate and also to interdict the second respondent from registering the property in the name of the third respondent.

[46]      The applicant, having been married in Community of Property to the first respondent, became the owner of an undivided half-share of their joint estate until the joint estate is terminated or in this case the forfeiture order is confirmed by the appeal court on 2·2 May 2019. (see Mazibuko v The National Director of Public Prosecutions (113/08) [2009) ZASCA 52 (26 May 2009)

[47]      Having regard to the history of the matter, the facts hereof, the applicant, in my view, has made out a case for the relief that she seeks. The defence of res judicata that the first respondent relies on, in my view, cannot successfully be raised in this application which must succeed .

[48]      I, in the result , make the following order:

1.                   The matter, in terms of Rule 6(12) of the uniform Rules of Court, is urgent

2.                   Pending the determination and finalisation of the appeal pending before the full bench of this Court and enrolled for hearing on 22 May 2019 , the First Respondent is hereby interdicted and restrained forthwith from selling, disposing of and/ or dissipating any and all of the assets that form part of the joint estate between the Applicant and the First Respondent, they being, inter alia:

2.1               An immovable property, being [….], as held under Title Deed […];

2.2               An immovable property, being [….], as held under Title Deed […];

2.3               An immovable property, being ERF [….], as held under Title Deed [….] ;

2.4               Business interests, shareholding and/or equity in the registered and operating companies in which the First Respondent is involved in, as more fully described in Annexure "X" to the Notice of Motion·

2.5               Policies, savings and/or investments as held with any and/ or various financial institutions in the name of and under the identity document of the First Respondent;

2.6               All motor vehicles registered in the name of the First Respondent, amongst which is a Range Rover motor vehicle bearing registration letters and numbers [….] as well as a Mercedes Benz C63 AMG motor vehicle registered in the name of the First Respondent and whose registration numbers and letters are to the Applicant unknown.

3.                   The Second respondent is hereby interdicted and restrained forthwith from effecting registration and transfer of the immovable properties mentioned hereinabove and, in particular, the immovable property mentioned under paragraph 2.2 above to the Third Respondent herein.

4.                   The first respondent is ordered to pay the costs of this application.

 

 

 

MW MSIMEKI

JUDGE OF THE HIGH COURT, GAUTENG

DIVISION , PRETORIA

 

 

Counsel for the applicant                          : Adv J Engelbrecht SC

Attorneys for the Applicant                      : Ndumiso Voyi Incorporated

Attorneys for the First Respondent          : L Mbanjwa Incorporated

For First Respondent                                : Mrs L Mbanjwa

 

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