Mnisi v Kungoane and Others (91/2001) [2001] ZANWHC 38 (30 August 2001)

DISTRIBUTABLE

TO PRACTITIONERS CASE NO. 91/2001

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

PULANE

EMILY MNISI APPLICANT

and

FRANS KUNGOANE 1ST

RESPONDENT

JACOB MAKINTA 2ND

RESPONDENT

REGISTRAR OF DEEDS 3RD

RESPONDENT

ESKOM (PTY) LTD 4TH

RESPONDENT

RAND WATER (ODI RETAIL WATER) 5TH

RESPONDENT

_______________

REASONS

FOR JUDGMENT

MOGOENG J.

INTRODUCTION

[1] This application came before me on 15 March 2001. I dismissed it with costs on the same day but did not give reasons for judgment.

[2] I learnt for the first time on Thursday, 23 August 2001 that the following things happened since I dismissed the application. ) Applicant filed a notice of application for leave to appeal and a request for reasons for judgment on 26 March 2001 (almost five months ago); On 03 August 2001 the Applicant’s attorneys of record sent a reminder to the Registrar’s office relating to the above but never received a reply; Applicant’s attorneys were again constrained to demand, as they are entitled to, a reply to their above request on 23 August 2001.

[2] I learnt for the first time on Thursday, 23 August 2001 that the following things happened since I dismissed the application.

) Applicant filed a notice of application for leave to appeal and a request for reasons for judgment on 26 March 2001 (almost five months ago);

On 03 August 2001 the Applicant’s attorneys of record sent a reminder to the Registrar’s office relating to the above but never received a reply;

Applicant’s attorneys were again constrained to demand, as they are entitled to, a reply to their above request on 23 August 2001.

[3] I found the file at my house on the evening of 23 August 2001. In the interests of justice I decided to deal with this matter notwithstanding the fact that I am on long leave. I could have disposed of the request by the latest 15 April 2001, had it been drawn to my attention timeously. The Registrar’s office did not give me any explanation for the delay. Inordinate and unexplained delays by the Registrar’s staff in handing files to the Judges and other forms of dereliction of duty occur with such regularity that I think that time has come for all interested parties to fight this malady before it is too late. Speaking for myself, I urge all practitioners to always notify me whenever something that requires my attention, e.g. request for reasons for judgment, is filed with the Registrar’s office. This would enable me to follow the matter up and facilitate its speedy disposal. I am worried by the delay in this and other matters because in the absence of the above remarks, litigants would be left with a wrong impression that it is the Judges who are responsible for the delay. Litigants and practitioners deserve better treatment than they received in this matter and I regret the inconvenience they suffered. [4] The reasons for the judgment follow below.

THE MERITS [5] Some time in 1994 the Applicant and the second Respondent entered into an agreement of sale involving house no. 451 Block X, Mabopane, North West Province (“the house”). The purchase price was fixed at R42 000.00 and the occupational rental, payable after June 1995, was R270.00. On 08 February 1995 the same parties concluded another agreement of sale relating to the same house which provided inter alia that the purchase price would be R38 000.00 and that a deposit of R8 393.00 had already been paid. [6] It is common cause that as at 15 March 2001, the total amount paid by the Applicant to the second Respondent for the purchase of the house was R10 000.00. There is however, a dispute as to whether the outstanding amount was R28 000.00 as contended for by the Applicant or R32 000.00 as alleged by the second Respondent. What is clear on the information before me is that the second Respondent instituted an action against the Applicant and was granted judgment by default on 11 February 2000 in inter alia the following terms: 6.1 cancelling the agreement between the parties; and

[3] I found the file at my house on the evening of 23 August 2001. In the interests of justice I decided to deal with this matter notwithstanding the fact that I am on long leave. I could have disposed of the request by the latest 15 April 2001, had it been drawn to my attention timeously. The Registrar’s office did not give me any explanation for the delay. Inordinate and unexplained delays by the Registrar’s staff in handing files to the Judges and other forms of dereliction of duty occur with such regularity that I think that time has come for all interested parties to fight this malady before it is too late. Speaking for myself, I urge all practitioners to always notify me whenever something that requires my attention, e.g. request for reasons for judgment, is filed with the Registrar’s office. This would enable me to follow the matter up and facilitate its speedy disposal. I am worried by the delay in this and other matters because in the absence of the above remarks, litigants would be left with a wrong impression that it is the Judges who are responsible for the delay. Litigants and practitioners deserve better treatment than they received in this matter and I regret the inconvenience they suffered.

[4] The reasons for the judgment follow below.

THE MERITS

[5] Some time in 1994 the Applicant and the second Respondent entered into an agreement of sale involving house no. 451 Block X, Mabopane, North West Province (“the house”). The purchase price was fixed at R42 000.00 and the occupational rental, payable after June 1995, was R270.00. On 08 February 1995 the same parties concluded another agreement of sale relating to the same house which provided inter alia that the purchase price would be R38 000.00 and that a deposit of R8 393.00 had already been paid.

[6] It is common cause that as at 15 March 2001, the total amount paid by the Applicant to the second Respondent for the purchase of the house was R10 000.00. There is however, a dispute as to whether the outstanding amount was R28 000.00 as contended for by the Applicant or R32 000.00 as alleged by the second Respondent. What is clear on the information before me is that the second Respondent instituted an action against the Applicant and was granted judgment by default on 11 February 2000 in inter alia the following terms:

6.1 cancelling the agreement between the parties; and

6.2 ejecting the Applicant from the house. [7] In response to the above default judgment, the Applicant brought an application for the rescission of that judgment. While that application for the rescission of judgment was still pending before the Magistrate’s Court, the Applicant launched this application on an urgent basis, for an order in the following terms: “1. Treating this application as extremely urgent and dispensing with the rules relating to service and time frames as laid down in Rule 6 of the Uniform Rules of the above Honourable Court. Ordering that service of this application on K. R.MABANDO ATTORNEYS, practising at Flat 257 Zone 16, Ga-Rankuwa is proper service on the Second Respondent. Cancelling the registration of property Erf No. 451 Block X, Mabopane, North West Province also known as unit 451 Block X,

Mabopane, North West Province in the name of First Respondent and registering same in the name of Applicant against payment of R28 000,00 being the balance of the purchase price. Ordering the Fourth Respondent to reconnect the supply of electricity to house no 451 Block X, Mabopane, North West Province. Ordering the Fifth Respondent to reconnect the supply of water to house no 451 Block X, Mabopane, North West Province. Enforcing the contract of sale dated 08th February 1995 between Applicant and Second Respondent. Ordering First and Second Respondents to pay the costs of this application jointly and severally the one paying the other to be absolved on own attorney and client scale.”

6.2 ejecting the Applicant from the house.

[7] In response to the above default judgment, the Applicant brought an application for the rescission of that judgment. While that application for the rescission of judgment was still pending before the Magistrate’s Court, the Applicant launched this application on an urgent basis, for an order in the following terms:

“1. Treating this application as extremely urgent and dispensing with the rules relating to service and time frames as laid down in Rule 6 of the Uniform Rules of the above Honourable Court.

Ordering that service of this application on K. R.MABANDO ATTORNEYS, practising at Flat 257 Zone 16, Ga-Rankuwa is proper service on the Second Respondent.

Cancelling the registration of property Erf No. 451 Block X, Mabopane, North West Province also known as unit 451 Block X,

Mabopane, North West Province in the name of First Respondent and registering same in the name of Applicant against payment of R28 000,00 being the balance of the purchase price.

Ordering the Fourth Respondent to reconnect the supply of electricity to house no 451 Block X, Mabopane, North West Province.

Ordering the Fifth Respondent to reconnect the supply of water to house no 451 Block X, Mabopane, North West Province.

Enforcing the contract of sale dated 08th February 1995 between Applicant and Second Respondent.

Ordering First and Second Respondents to pay the costs of this application jointly and severally the one paying the other to be absolved on own attorney and client scale.”

I will deal with only those prayers which I think are relevant to the determination of the issues. “Enforcing the contract of sale dated 08th February 1995 between Applicant and second Respondent.”

I will deal with only those prayers which I think are relevant to the determination of the issues.

“Enforcing the contract of sale dated 08th February 1995 between Applicant and second Respondent.”

[8] There would only be room to consider the question of enforcing the contract of sale of 08 February 1995 if that contract were not cancelled. If that contract were cancelled by a court order of 11 February 2000, then this Court would have no power to grant prayer 6. The Applicant’s contention is that on 11 February 2000, the Magistrate’s Court cancelled an agreement of sale of December 1994 which was already cancelled and substituted by the contract of sale of 08 February 1995. She contends therefore that the order of 11 February 2000 is irrelevant to this case and should serve as no obstacle to the granting of this prayer. Clearly, the Applicant misunderstood the second Respondent’s case when he brought an action for the cancellation of the agreement of sale. In his particulars of claim, annexed to the Applicant’s own papers, the second Respondent refers to the written agreement of sale concluded ‘[d]uring or about February 1995 . . .’ At no stage was reference made to 1994 in the action for the cancellation of the agreement of sale between the parties. It must have been clear to the Applicant from the contents of the combined summons that the second Respondent intended to cancel the agreement of sale that existed then between him and the Applicant. There is no doubt in my mind that it is the contract of sale relating to the house and the contract of sale of 08

February 1995 that was cancelled by the Magistrate’s Court on 11 February 2000. Since the contract that the Applicant is asking this Court to enforce was cancelled by the order of Court on 11 February 2000 and because that order still stands, prayer 6 cannot be granted. “Cancelling the registration of property Erf No. 451 Block X, Mabopane, North West Province also known as unit 451 Block X, Mabopane, North West Province in the name of First Respondent and registering same in the name of Applicant against payment of R28 000,00 being the balance of the purchase price.” [9] The contract of sale which is foundational to the granting of both these prayers was cancelled by a court of law. That order still stands since it has not yet been set aside by any court of law. The cancellation of the agreement of sale of February 1995 means that the very basis for considering the granting of prayer 3 has ceased to exist and that, therefore, prayer 3 is without any basis in law and cannot be granted. “Ordering the Fourth Respondent to reconnect the supply of electricity to house no 451 Block X, Mabopane, North West Province.”

[8] There would only be room to consider the question of enforcing the contract of sale of 08 February 1995 if that contract were not cancelled. If that contract were cancelled by a court order of 11 February 2000, then this Court would have no power to grant prayer 6. The Applicant’s contention is that on 11 February 2000, the Magistrate’s Court cancelled an agreement of sale of December 1994 which was already cancelled and substituted by the contract of sale of 08 February 1995. She contends therefore that the order of 11 February 2000 is irrelevant to this case and should serve as no obstacle to the granting of this prayer. Clearly, the Applicant misunderstood the second Respondent’s case when he brought an action for the cancellation of the agreement of sale. In his particulars of claim, annexed to the Applicant’s own papers, the second Respondent refers to the written agreement of sale concluded ‘[d]uring or about February 1995 . . .’ At no stage was reference made to 1994 in the action for the cancellation of the agreement of sale between the parties. It must have been clear to the Applicant from the contents of the combined summons that the second Respondent intended to cancel the agreement of sale that existed then between him and the Applicant. There is no doubt in my mind that it is the contract of sale relating to the house and the contract of sale of 08 February 1995 that was cancelled by the Magistrate’s Court on 11 February 2000. Since the contract that the Applicant is asking this Court to enforce was cancelled by the order of Court on 11 February 2000 and because that order still stands, prayer 6 cannot be granted.

“Cancelling the registration of property Erf No. 451 Block X, Mabopane, North West Province also known as unit 451 Block X, Mabopane, North West Province in the name of First Respondent and registering same in the name of Applicant against payment of R28 000,00 being the balance of the purchase price.”

[9] The contract of sale which is foundational to the granting of both these prayers was cancelled by a court of law. That order still stands since it has not yet been set aside by any court of law. The cancellation of the agreement of sale of February 1995 means that the very basis for considering the granting of prayer 3 has ceased to exist and that, therefore, prayer 3 is without any basis in law and cannot be granted.

“Ordering the Fourth Respondent to reconnect the supply of electricity to house no 451 Block X, Mabopane, North West Province.”

[10] No case was made for the granting of this order. The Applicant has not told the Court whether or not the electricity for the house in question is still owing. If it is still owing, regardless of who is responsible for the bill the Applicant has not said why the fourth Respondent is not entitled to cut off the electricity supply to that house until the bill is paid in full. I think the fourth Respondent was acting perfectly within its rights by cutting off the supply. After all it did so at the request of the first Respondent who is the lawful owner of the house. There is no contravention of any law or contractual obligation by the fourth Respondent by keeping the supply cut off. It is a ridiculous proposition to say that this Court must order that electric power be reconnected to the house just so that the Applicant can use the refrigerator, etc. Assuming that the Applicant has a right to occupy the house in question, she must go and make suitable arrangements with the fourth Respondent rather than drag it to Court as she has done. “Ordering the Fifth Respondent to reconnect the supply of water to house no 451 Block X, Mabopane, North West Province.” [11] It appears from annexure “FK4" that the water bill stood at R5 600.00 as at 12 December 2000. The Applicant has not denied this. The fifth Respondent is entitled to cut off the supply of water to those who do not pay for the water consumed. This Court cannot order the fifth Respondent to reconnect the supply of water to the house in question when thousands of rands are already owing. No case has been made for the granting of this prayer.

CONCLUSION [12] The application was dismissed with costs for the above reasons. M.T.R.

MOGOENG

JUDGE

OF THE HIGH COURT

[10] No case was made for the granting of this order. The Applicant has not told the Court whether or not the electricity for the house in question is still owing. If it is still owing, regardless of who is responsible for the bill the Applicant has not said why the fourth Respondent is not entitled to cut off the electricity supply to that house until the bill is paid in full. I think the fourth Respondent was acting perfectly within its rights by cutting off the supply. After all it did so at the request of the first Respondent who is the lawful owner of the house. There is no contravention of any law or contractual obligation by the fourth Respondent by keeping the supply cut off. It is a ridiculous proposition to say that this Court must order that electric power be reconnected to the house just so that the Applicant can use the refrigerator, etc. Assuming that the Applicant has a right to occupy the house in question, she must go and make suitable arrangements with the fourth Respondent rather than drag it to Court as she has done.

“Ordering the Fifth Respondent to reconnect the supply of water to house no 451 Block X, Mabopane, North West Province.”

[11] It appears from annexure “FK4" that the water bill stood at R5 600.00 as at 12 December 2000. The Applicant has not denied this. The fifth Respondent is entitled to cut off the supply of water to those who do not pay for the water consumed. This Court cannot order the fifth Respondent to reconnect the supply of water to the house in question when thousands of rands are already owing. No case has been made for the granting of this prayer.

CONCLUSION

[12] The application was dismissed with costs for the above reasons.

M.T.R.

MOGOENG

JUDGE

OF THE HIGH COURT

APPEARANCES DATE OF HEARING : 15 MARCH 2001

DATE OF JUDGMENT : 30 AUGUST 2001 COUNSEL FOR APPLICANT : ADV G.L.M BOKABA COUNSEL FOR 1ST & 2ND RESPONDENTS : ADV R.D HENDRICKS ATTORNEYS FOR APPLICANT : RICHIE THAGA

ATTORNEYS ATTORNEYS FOR 1ST & 2ND RESPONDENTS : TLHAPI & MOOKELETSI

APPEARANCES

DATE OF HEARING : 15 MARCH 2001

DATE OF JUDGMENT : 30 AUGUST 2001

COUNSEL FOR APPLICANT : ADV G.L.M BOKABA

COUNSEL FOR 1ST & 2ND RESPONDENTS : ADV R.D HENDRICKS

ATTORNEYS FOR APPLICANT : RICHIE THAGA

ATTORNEYS

ATTORNEYS FOR 1ST & 2ND RESPONDENTS : TLHAPI & MOOKELETSI

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