Matlou v High Commission of Nigeria and Others (15910/2017) [2020] ZAGPPHC 424 (12 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES

(2) OF INTERESTTO OTHER JUDGES: YES

(3) REVISED.

CASE NO: 15910/2017

12/8/2020

IN THE MATTER BETWEEN

OCTAVIA MATSHIDISO MATLOU

Applicant

AND

THE HIGH COMMISSION OF NIGERIA

First Respondent

THE DEEDS OFFICE

Second Respondent

SEEFF (PTY) LTD

Third Respondent

MEYER VENTER GEYSER ATTORNEYS

Fourth Respondent

JUDGMENT

Kollapen, J

[1] The Applicant has brought proceedings in which it seeks to interdict the First and Second Respondents from alienating the property known as Erf 495 Eridanus Street, Waterkloof Ridge, Pretoria (the property).

[2] The First Respondent is the current registered owner of the property while the stance of the Applicant is that she entered into a binding agreement with the seller of the property to acquire the property. To that, end, she intends bringing an action arising out of what she regards as the unjustifiable alienation of the property to the First Respondent. That action has not yet been instituted but she says that the interdictory relief she seeks in these proceedings is necessary in order to ensure that any order she ultimately obtains in the action she intends bringing, is not a hollow victory.

[3] The Third Respondent acted as agent for the seller in both the dealings with the Applicant as well as with the First Respondent. In the Notice of Motion no relief is sought against the Third Respondent. It is not however clear whether the Applicant will seek relief against the Third Respondent in the action she intends instituting even though there is some intimation in her founding affidavit in these proceedings that she will.

[4] The Third Respondent filed a notice to oppose the interdictory relief and also filed what it termed as an Opposing Affidavit. In it the deponent thereto states unequivocally that from a perusal of the Notice of Motion, it is clear that the Applicant does not seek any relief against the Third Respondent nor any costs order against the Third Respondent. He says however that it is strange that the Applicant has not cited the Third Respondent as a nominal respondent.

[5] The Applicant did not take any further steps to prosecute the application and there has been a change in her attorneys of record. The Third Respondent's attorneys wrote to the Applicant's attorneys requesting that the action application against the Third Respondent be withdrawn and that the Applicants pay the costs of the Third Respondent on an attorney and client scale. There was no response to that letter as well as additional letters that pursued the same request .

[6] The Third Respondent then enrolled the application in which it sought an order that the application be dismissed with punitive costs. For the sake of completeness the First and the Second Respondents did not oppose the application. The Fourth Respondent filed a notice to oppose as well as an opposing affidavit.

[7] The Applicant has brought an application for a postponement of the application on the basis that she seeks to join other parties to the application while the Third Respondent has indicated that it opposes the application for a postponement. During argument it emerged that what the Third Respondent ultimately seeks is to be extricated from

the application and has no real interest in whether a postponement is granted or not.

[8] That being the case and reverting to the stance that the Third Respondent takes in its Opposing Affidavit it appears that its primary concern was that it was not cited as a nominal party. While the citation did not formally say that the Third Respondent was being cited as a nominal party on overview of the relief sought would have made it abundantly clear that it was in substance cited as a nominal party.

[9] I understand the Third Respondents stance is that its citation should have made it expressly clear that it was being cited as a nominal party. I am not sure how the Third Respondent having correctly concluded that no relief was sought against it nor any costs order could have harboured any doubt that it was anything but a nominal Respondent. Its own affidavit makes that clear. I am accordingly satisfied that the Third Respondent was cited as a nominal respondent in this application .

[10] Having accepted that no relief was sought against it nor any costs against it, was the Third Respondent justified in opposing the application and then proceeding to seek its dismissal? It is difficult to understand what there was to oppose and the opposing affidavit lays no basis for opposing any of the relief the Applicant sought against the First and the Second Respondents.

[11] In the matter of Kruger and others v Aciel Geomatic (Pty) Ltd1 JA 87 /2014 [2016] ZALAC 92 the Labour Appeal Court dealt with the position of a nominal respondent and it was held that such a respondent was naturally entitled to involve itself in the proceedings if it so elected .

[12] In this regard the Labour Court largely endorsed the position advanced by Counsel in that matter to the following effect :-

"having been cited as a respondent, (the nominal respondent) had three option s. First/ it was entitled to oppose the relief sought in which event it was entitled to file an answering affidavit refuting the applicant’s case. Secondly, it could have elected not to oppose the application but to abide by the relief sought. Thirdly, (the nominal respondent) could have decided, if it was not content to have the applicants make out a case for the application of section 197, to be joined as a second applicant in order to make out its own case"

[13] In casu the Opposing Affidavit of the Third Respondent does not satisfy the generally accepted criteria of an opposing affidavit in that:-

a) The contents thereof raise no objection, or opposition, to the relief being sought ;

b) The contents thereof do not address the specific merits of the application in any detail;

c) The contents thereof advance the matter no further, save for the confirmation of one common cause aspect; namely that no relief is sought against the Third Respondent.

[14] Thus reverting to the options open to a nominal respondent , the Third Respondent did not elect to follow any of them, yet sought to somehow oppose the relief sought in name but then having done so did not advance anything in its opposing affidavit in support of that stance.

[15] For all these reasons the Third Respondent cannot seek the dismissal of the application as it does. I am also of the view that it has no basis to oppose the application for a postponement - it is a nominal respondent, is not impacted upon by the relief sought in this application and is not prejudiced by any delays in the finalisation of this application .

[16] In the circumstances I would grant the application for a postponement and refuse the Third Respondents request that the application be dismissed.

[17] On the matter of costs which remains within the discretion of the Court my view is that while the Third Respondent was not entitled to have the matter enrolled and conduct itself as a party against whom relief was being sought, the Applicant was remiss in not responding to the correspondence of the Respondents attorney which could have resulted in the resolution of the position of the Third Respondent. For these reasons it may be appropriate for the parties to bear their own costs.

I accordingly make the following order

1. The application is postponed sine die for the Applicant to consider the joinder of other parties.

2. The Third Respondent's application for the dismissal of the application is refused.

3. The Applicant and the Third Respondent are to bear their own costs in respect of this application.

NJ. KOLLAPEN

JUDGE OF THE HIGH COURT, PRETORIA

APPEARANCES:

Applicant:

Adv A Greyling

Instructed by:

Lautenburg Morris Atorneys

Respondent:

Adv E P Van Rensburg

Instructed by:

VZLR Incorporated

DATE OF HEARING: 27 July 2020

DATE OF JUDGMENT: 12 AUGUST 2020