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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED: YES/NO

CASE NO: 23224/2020

 

In the matter between:

MASIPA MASUBE MICHAEL                                                                       1^st Applicant

THOBJA JOHN MASIPA                                                                               2^nd Applicant

and

MASIPA MATSHEDISO RUTH                                                                    Respondent

 

JUDGMENT

Coram Van der Schyff J

Introduction

[1]  This application is considered in the urgent court during the National State of Disaster declared by the State President in terms of the Disaster Management Act, No 57 of 2002 and the ensuing extended Covid-19 national lockdown. It was dealt with in accordance with the Urgent Court Directive dated 28 May 2020 issued by the senior Judge of the Urgent Court, Judge D S Fourie.

 

[2]          Before a court will make a finding on the merits of an urgent application, the court must first consider whether the application is indeed so urgent that it must be dealt with on the urgent court roll. Where an applicant does not succeed in convincing the court that the he will not be afforded substantial redress at a hearing in due course, the matter will be struck from the roll. This will enable the applicant to set the matter down again, on proper notice and compliance – SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; 2006 (4) SA 292 (SCA). Likewise, where the facts indicate that the urgency is self-created, an applicant will not be entertained and the application will be struck from the roll – Lindeque and Others v Hirsch and Others, In Re: Prepaid24 (Pty) Limited (2019/8846) ZAGPJHC 122 (3 May 2019).

 

[3]          Rule 6(12) affords an applicant to create its own rules within which a respondent must file a notice to oppose and an answering affidavit. This is why condonation must be sought when the court is approached. A respondent who ignores the timeline so set by an applicant does it at his own peril and runs the risk of an order been granted against him by default. However, an applicant who cannot convince the court of the rationality and necessity for the timeline devised by it, should expect its application to be struck from the roll with costs.

 

[4]          Whether a matter is urgent depends on the relief sought seen in context with the facts of a case. As a result, urgency is determined on a case-by-case, context specific basis.

 

Relief sought

[5]          The applicants seek an order to the effect that:

                      i.        The application is regarded as urgent and that non-compliance with the rules and service be condoned;

                    ii.        The respondents and any other persons or agency be interdicted from changing any locks be it for the gates or any other entrances at [….] Gauteng Province;

                   iii.        That the respondents and any other persons or agency be interdicted from disturbing [and/or] evicting the applicants from [….] Gauteng Province;

                   iv.        That the respondents and any other persons or agency be interdicted from operating and or running any business from the matrimonial property as the area is primarily zoned for residential purposes only and has not been rezoned;

                    v.        The respondent be directed to pay the costs of this application on an attorney and client scale.

 

Time periods provided for in the notice of motion

[6]          The applicants required that the respondent file a notice of intention to oppose accompanied by its answering affidavit within 24 hours of receipt of the notice of motion and committed to file their replying affidavit within two hours of receipt of the answering affidavit.

 

[7]          The notice of motion is dated 27 May 2020 and both the founding and confirmatory affidavits were signed and commissioned on 27 May 2020. An unsigned return of service purports to indicate that the notice of motion and annexures thereto were served on the respondent personally on 28 May 2020. This application was thus launched on an extremely urgent basis, despite counsel’s submission that the application is semi-urgent.

 

[8]          The respondent’s notice to oppose is dated 28 May 2020 and her answering affidavit. The answering affidavit was signed and commissioned on 1 June 2020 and on the same day delivered by e-mail to the applicants and filed on caselines. No replying affidavit was filed.

 

[9]          Due to the extremely short time frames set by the applicants, the respondent’s late filing of the answering affidavit is condoned. This condonation does not prejudice the applicants in any manner. There was still sufficient time to file a replying affidavit in the event that they wanted to.

 

The applicants’ case

[10]       The applicants place the following version before the court:

                      i.        The respondent obtained an interim protection order against the first applicant on 29 January 2019. A final order was obtained on 15 March 2019;

                    ii.        Although the first applicant initially continued to stay in the same residence as the respondent after the protection order was obtained, he vacated the house on 1 May 2019 to stay with a friend;

                   iii.        On 24 May 2020 the first applicant realised he “overstayed his welcome” at his friend’s place. He also received a salary cut of 30% as a result of the Covid-19 pandemic and would no longer be able to pay rent for his accommodation. He decided to move back to the matrimonial home (the property) out of necessity;

                   iv.        He then realised on 24 May 2020 that his access to his matrimonial home has been blocked as his remote to access entry into his place of residence was no longer working. He also noted that the lock system has been changed without his consent. He went back to his friend’s premises and asked permission to stay one more night;

                    v.        On the same day he also received a call from the second applicant who informed him that he too no longer has access to the respondent’s premises where he stayed in a backroom, as the pedestrian gate was welded to the frame of the main gate;

                   vi.        The applicants submit that they were in peaceful possession of the property before the respondent unlawfully disturbed the peace they enjoyed;

                  vii.        The applicants submit that the matter is urgent because of the fact that the regulations issued in pursuit of the national lockdown being announced require that every person be restricted to his or place of residence;

                 viii.        The first applicant left the matrimonial home out of necessity in May 2019 and could not approach a lawyer at the time due to the level 5 restrictions imposed during the national lockdown(sic);

                   ix.        There is a prohibition on evicting people from their homes during the national lockdown and the application is extremely urgent since it creates a health hazard for anyone to be without a primary place of residence during the pandemic;

                    x.        The second applicant has been staying on the property since 2009 and it will be inhumane to evict him under these circumstances.

 

[11]       Based solely on the facts provided by the applicants, and accepting such as the sole version before the court for purposes of determining whether the matter should be heard on an urgent basis, I am not convinced that the first applicant made out any case for the relief he seeks, to be considered on an urgent basis.

 

[12]       The first applicant left the matrimonial home more than a year ago in circumstances where the relationship between himself and the respondent was clearly acrimonious and volatile. He attempts to convince the court that the Covid-19 pandemic renders the application so urgent that he can launch an application to access his so-called matrimonial home after his absence of longer than a year and requires the respondent to react in 24hours.

 

[13]       I fail to see the submitted nexus between the alleged urgency and the Covid-19 pandemic. The applicant does not reveal how much he earned and how the salary cut affected his nett salary. He does not indicate how much his rent was, and he does not attach a confirmatory affidavit that he paid rent while staying with his friend. As a result, I cannot find that the first applicant’s application needs to be heard on an urgent basis.

 

[14]       In determining whether the relief sought by the second applicant should be considered on an urgent basis, it is necessary to also consider the facts placed before the court by the respondent. Since no replying affidavit was filed by the applicants and since final relief is sought, the court is obliged to apply the well-known Plascon Evans principle when determining the factual basis upon which to adjudicate a factual dispute.

 

[15]       The respondent denies that she prevented the second applicant from entering the property at any given time, and she confirms that she has no intention to do so. She attaches a letter from the applicants’ attorney to her attorney dated 20 December 2019, to her answering affidavit. In this letter it is stated that as a result of the locks to the property being changed, that the second applicant requested to be provided with a key to the gate to gain access to the property. It is thus patently clear that the allegation that the second applicant could not access the property on 24 May 2020 because the lock system to the gate and his back room was changed, and that this renders the application urgent does not hold water. The same is true for the first applicant’s statement that he only realised on 24 May 2020 that the lock system at his matrimonial house was changed.

 

[16]       As a result, I am not of the view that the relief sought by the second applicant necessitates this court’s urgent attention.

 

ORDER

In the result it is ordered that:

 

1.    The application is struck from the roll.

 

2.    The applicants are to pay the costs of the application on an attorney and own client scale, jointly and severally, the one paying the other to be absolved.

 

E van der Schyff

Judge of the High Court, Gauteng, Pretoria

 

Counsel for the applicants:                             Adv S J Phaladi

Instructed by:                                                  Makokga Attorneys

For the respondent:                                        H Mendelow

Instructed by:                                                  Hinda Mendelow Attorney Inc

Date on the roll:                                              2 June 2020

Delivered:                                                       4 June 2020

 

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