Maluleke v JR 209 Investments (Pty) Ltd and Another (60330/2021) [2021] ZAGPPHC 861 (15 December 2021)

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 DIVISION, PRETORIA

CASE NO: 60330/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 15/12/2021

LENYAI AJ

In the matter between:

MOLOKOMME JOSEPH MALULEKE

APPLICANT

and

JR 209 INVESTMENTS (PTY) LTD

FIRST RESPONDENT

M&T DEVELOPMENTS (PTY) LTD

SECOND RESPONDENT

This matter has been heard in terms of the Directives of the Judge President of this Division dated 25 March 2020, 24 April 2020 and 11 May 2020. The judgment and order are accordingly published and distributed electronically. The date and time of hand-down is deemed to be 14:00 on 15 December 2021.

JUDGEMENT

[1] The urgent court judgement and order in this matter was granted ex tempore on the 3rd December 2021 and the respondents requested a written judgement in terms of Rule 49 of the Uniform Rules of Court.

[2] In this application the following order was sought against the respondents:

(a) That this application be heard as an urgent application in terms of Rule 6 (12) of the Rules of this Honourable Court and that the forms and service provided for in the Rules be dispensed with, and the

Applicant’s non-compliance with the timeframes in the Rules be condoned.

(b) That the First and/or Second Respondents restore to the Applicant full access to the premises – Unit 2[…], The P[…], Southdowns Estate, Bakwena Avenue, Doringkloof, Centurion, 0062 (“the property”), by ensuring the reconnection of water and electricity supplies, and granting the applicant biometric, telephonic and other electronic

access to the property.

[3] This is a spoliation application brought by the applicant against the respondents. The applicant brought a substantial application detailing the material facts and the harm he was suffering as a result of the unlawful conduct of the respondents. In the founding affidavit, the applicant avers that he is a lawful tenant of the property. The second respondent is the registered owner of the property (the lessor) and the first respondent is the representative or agent of the lessor.

[4] The Applicant has been in undisturbed occupation of the property since the 1st April 2019 to date. The date of the spoliation is the 2nd December 2021 when the second respondent cut off the water and electricity supply to the unit and also disconnected electronic access to the property.

[5] The applicant avers in the founding affidavit that on the 2nd December he was diagnosed as being COVID-19 positive, and was inside the property self-isolating. His partner who was diagnosed as being COVID-19 positive earlier was also with him inside the property self-isolating. The first respondent was made aware of their COVID-19 Status but despite this knowledge has despoiled him by cutting the water , electricity and access to the property.

[6] The applicant conceded in his papers that he has on certain occasions been late with the payment of the rental and this has been a course of concern for the first respondent. The first respondent wrote an email to the applicant on 19th October 2021 requesting him to vacate the property by the 30th November 2021 and failure by him to vacate the property would result in them seeking an eviction order.

[7] The applicant responded by indicating that the COVID-19 Pandemic has negatively affected his legal practice which resulted in him having cashflow challenges. He advised the first respondent that he had paid the rental until end of January 2022 and also indicated that he will look for another place once he has recovered and move out by end of March 2022. This information was not well received by the respondents and there were several exchanges of correspondences between the applicant and first respondent which did not help the situation. On the 1st December 2021 the first respondent again wrote to the applicant requesting him to vacate the property and he responded by advising that his partner had tested COVID-19 positive and he was awaiting receipt of his results. On the 2nd December 2021 the applicant received his results confirming that he tested positive for COVID-19 and he shared that information with the first respondent.

[8] The applicant further avers in his founding affidavit that on the 1st December 2021 the first respondent sent someone to his Unit to evict him because he was owing rent and when this did not have the desired result, his access to the property was terminated by blocking the rights associated with his biometric access and telephonic access control. On the 2nd December 2021 the water and electricity supply to the property he is occupying were cut off.

[9] The applicant avers that he has been in continuous, peaceful and lawful occupation of the property until the 1st and 2nd December 2021 when the first respondent despoiled him in the manner described above in their attempts to evict him due to rental

disputes.

[10] The respondents filed their notice of intention to oppose on the 3rd December 2021. They did not file any other documents. It is noteworthy to mention that there was a legal representative who appeared in court however she advised the court that she assisted the respondents to prepare , serve and file the notice of intention to

oppose and did not have instructions to deal with the merits.

[11] The founding affidavit of the applicant was not signed by the deponent in front of a Commissioner of Oaths in compliance with the Regulations Governing the Administration of an Oath or Affirmation, which were made by the Minister of Justice in terms of Section 10(1)(b) of the Justices of Peace and Commissioners of Oath Act 16 0f 1963 ( the Act). The Act empowers the minister to make regulations prescribing the form and manner in which an oath or affirmation shall be administered. Regulation 3(1) requires that a deponent shall sign the declaration in the presence of a commissioner of oaths. In the matter before me the deponent to the affidavit had just tested COVID-19 positive at the time of deposing to the affidavit and it was not possible for him to have the affidavit commissioned in the normal way as this would have amounted to irresponsible behaviour on his part and he would have exposed and possibly infected those who would have been in a position to commission for him.

[12] The applicant’s legal practitioner deposed to a separate affidavit wherein he gave a detailed explanation of the steps taken by him to ensure that there was considerable compliance with the requirements in regulation 3(1) and to ensure that the deponent to the founding affidavit signed in the presence of a commissioner of oaths, which was impossible as stated above due to the deponent’s positive COVID-19 status at the time. The legal practitioner avers in his confirmatory affidavit that he has been in touch with the applicant through telephonic and email links before and after the preparation of the notice of motion and founding affidavit. The applicant has confirmed to him that he is satisfied with the contents of the founding affidavit and that the statements made in the founding affidavit are those that he wishes to place before court.

[13] In the matter of S v Munn 1973 (3) SA 734 (NC), it was confirmed that the Regulations are directory only and that non-compliance would not invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining the deponent’s signature to an affidavit. The court further found that the purpose of obtaining a deponent’s signature to an affidavit is primarily to obtain irrefutable evidence that the relevant deposition was indeed sworn to. The Munn case confirmed years ago that the requirement of physical presence between the deponent and the commissioner is not peremptory and can be relaxed on proof on the facts of substantial compliance with the requirements.

[14] In the matter before me, I am satisfied that the affidavit of the legal representative of the applicant is sufficient proof that there was substantial compliance with the requirements.

[15] In my view the proper approach to the question of urgency is to ascertain that the applicant’s case is a good one on the merits and that the applicant has a right to the relief sought. It is upon the applicant to set out in the founding affidavit facts which justify the bringing of the application at a time other than the time as set out in the rules. In other words, the applicant must set out explicitly the circumstances which render the matter extremely urgent. Luna Meeubel Vervaardigers (Edms) Bpk v Makin & Another ( t/a Markin ‘s Furniture Manufacturers) 1977 (4) SA 135 (W) at 136 H ; Twentieth Century Fox Film Corporation v Anthon Black Films (Pty) Ltd 1982 (3) SA 582. ; Eayrs NO obo The Daku Trust v Strydom NO and Others (3704/11) [2012] ZAEGPEHC 4.

[16] The applicant in this matter avers that he together with his partner were in the property self-isolating after having been diagnosed as both COVID-19 Positive. The electricity and water supply to the property had been cut off by the respondents. Their access to the property has been disconnected and they were unable to exit the property or allow others to gain access to the property and bring them whatever they required during their isolation.

[17] In my view the behaviour of the respondents towards the applicant and his partner was inhumane, cruel and unkind. The respondents were made aware of the COVID-19 status of the applicant and his partner and despite this, they proceeded to act in a manner that offends our Bill of Rights, in particular Section 12(1)(e) “ Everyone has the right to freedom and security of the person, which includes the right not to be treated or punished in a cruel, inhumane or degrading way”, and put the lives of the applicant and his partner in grave danger. I am satisfied that this was a matter of life and death and the applicant has explicitly set out the circumstances in the founding affidavit and made out a case of extreme urgency and the non-compliance with the timeframes in the rules in respect of forms and service are condoned.

[18] It is trite that a person may not take the law into his or her own hands. When one is aggrieved by the conduct of another, one must follow proper legal procedures in order to address their grievances in an orderly and civilised manner to obtain the necessary relief they desire.

[19] The applicant avers that he was in continuous, undisturbed, lawful and peaceful occupation of the property since 1st April 2019. The wrongful spoliation occurred on the 1st and 2nd December 2021 when his access to the property was terminated by blocking the rights associated with his biometric access and telephonic access control and the water and electricity supply to the property was cut off.

[20] In the matter before me the only version before the court is that of the applicant. There is a dispute between the applicant and the respondent regarding the late payment of the rent by the applicant. The respondent is within his rights to evict the applicant if he is not adhering to the terms of the lease agreement. However the respondents must follow the eviction procedure to the letter and they cannot resort to self-help methods which cause more harm in the end.

[21] I am satisfied that the applicant was in peaceful and undisturbed control of the property. The control of the applicant was disturbed by the first respondent in an unlawful manner as the respondents were not in possession of a court order authorising them to evict the applicant.

[22] In the premises, the following order is made:

1. This application be heard as an urgent application in terms of Rule 6 (12) of the Rules of this Honorable Court and that the applicant’s non-compliance with the timeframes in the Rules in respect of forms and service are condoned.

2. The First and / or Second Respondents are to forthwith restore to the Applicant full access to the premises – Unit 2[…], The P[…], Southdowns Estate, Bakwena Avenue, Doringkloof, Centurion, 0062

(“the property”), including:

2.1 ensure the immediate reconnection of water and electricity supplies to the property; and

2.2 grant the Applicant biometric, telephone and other electric access to the property.

3. The First and/or the Second Respondents to pay the costs of this application, jointly and severally, on a party and party scale.

M.M.D. LENYAI

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 60330/2021 HEARD ON: 3 DECEMBER 2021 FOR THE APPLICANT: ADV S OGUNRONBI INSTRUCTED BY: MALULEKE INCORPORATED FOR THE RESPONDENTS: AB LOWE ATTORNEYS ORDER GRANTED: 03 DECEMBER 2021 DATE OF JUDGMENT: 15 December 2021