Molatoli v Silverstone Home Owners Association and Others (65974/2019) [2019] ZAGPPHC 936 (20 September 2019)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISON, PRETORIA)

CASE NO: 65974/2019

In the matter between:

CHABELI JOHANNES

MOLATOLI

Applicant

and

SILVERSTONE

HOMEOWNERS

ASSOCIATION

First Respondent

ESTATE MANAGER:

CHARLENE CROUS

Second Respondent

DIRECTORS OF

SILVERSTONE

HOMEOWNERS

ASSOCIATION

Third Respondent

JUDGMENT

SARDIWALLA J

Introduction

[1] The applicant approached this Court on 2 September 2019 on an urgent basis praying for the following relief as set out in the Notice of Motion:

“1. That the matter be heard in terms of rule 6(12) of the Uniform Rules of Court and matter ne declared sufficiently urgent and the court dispense with the forms of service provided for in these rules;

2. That the rule nisi granted by court on 22 November 2018 under case no; 84925/2018 be made a final order;

3. That the respondent be held in contempt of the rule nisi granted on 22 November 2018 under case no: 84925/2018;

4. That the respondent be interdicted form denying the applicant and his family the use of the tennis/multipurpose court, and any Silverstone communal facilities at reasonable times;

5. That the respondents be ordered to restore the status quo by restoring the lights of the multipurpose court from 6am Monday to Saturday for the applicant to be able to use the facilities for sporting;

6. That the respondents be personally ordered to pay costs of both applicants on attorney and client scale one pay absolving the others;

7. That the respondents be instructed and directed to ensure that the homeowners facilities are for the sole use of the members of the Silverstone Homeowners Association;

8. That the estate manager and any Board members who took the decision to unlawfully deprive the applicant and his family the use of the multipurpose centre be ordered to pay the costs of this application personally on punitive scale of Attorney and Client scale;

9. Further and alternative relief.

[2] At the hearing the applicant withdrew prayers 1 and 2 of its notice of motion. After hearing submissions by the respective legal representatives of the parties, this Court struck the matter from the roll due to lack of urgency and further ordered the applicant to pay the wasted costs. An application was made for reasons in terms of rule 49(1)(b). Here follows the reasons for my order/judgment.

[3] The applicant instituted an urgent application on 22 November 2018 on the basis that the respondent denied the applicant access to the estate and property. However, prior to the return date of the rule nisi the parties entered into a settlement agreement on 26 November 2018. The applicant launched this application on an extremely urgent basis for an order directing the respondents to restore the status quo that ensued until 26 August 2019. It is alleged by the applicant that the respondents switched off the lights in the multipurpose court from 6am to prevent the applicant’s use of the facility and therefore sought a mandament van spoelie.

[4] A point in limine was raised by the respondents that the application lacks urgency and amounts to an abuse of the court processes. It was alleged on behalf of the respondent that no cogent reasons were advanced as to why this matter should be treated as extremely urgent. Further that the applicant has a distinct alternative remedy in the form of the procedures prescribed by the Community Schemes Service Act 9 of 2011 to approach the relevant Ombudsman service.

[5] The reasons for the urgency can be summarized as follows:

a. Normal applications take up to eight months to finalise;

b. The passage of time will render the relief sought moot and the applicant will not be able to obtain substantial redress in the normal course of events;

c. Once the applicant was made aware that the negotiations will not be honored by the respondents he immediately launched the current proceedings;

d. Levies are paid to the respondents without having the benefit of utilizing the multipurpose court. As such with each day which passes the applicant experiences financial harm due to the unlawful deprivation of the possession; and

e. That the respondent was provided with a reasonable time to oppose the matter and therefore are not prejudiced.

[6] When dealing with urgency in terms of Rule 6 (12), this Court has a

discretion whether or not to treat a matter as urgent. The relevant provisions of rule 6 (12) of the Rules read:

“(a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at hearing in due course.”

[7] Where the application lacks the requisite element or degree of urgency, the court can, for that reason, decline to exercise its powers under this rule. The matter is then not properly on the roll. That enables the applicant to set the matter down again on proper notice and compliance with the rules[1].

[8] The applicant must not only set out explicitly the circumstances on which he relies to render the matter urgent but also the reason(s) why he cannot be afforded substantial relief at a hearing in due course. The court in Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers)[2], had the following to say:

“Mere lip service to the requirements of Rule 6(12)(b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm,...”

[9] Similarly and to which the applicant’s Counsel correctly referred to in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others,3 where the court said:

“[6] The import thereof is that the procedure set out in rule 6(12) is not there for taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.”

[10] I was not satisfied that the matter was not of such a nature as to require urgent attention and I agreed that the applicant had suitable alternate redress as averred by the respondent in terms of the CSOS Act. Due to the lack of urgency, this matter was struck from the roll. The merits of the application with specific reference inter alia to spoliation was not dealt with and can be decided in the ordinary course by this Court.

[11] It for the aforementioned reasons I ordered that the application be struck off the roll with costs.

JUDGE OF THE HIGH

COURT

APPEARANCES

Date of hearing

: 20 September 2019

Date of judgment

: 20 September 2019

Plaintiff’s Counsel

: ADV.:

S VAN RENSBURG SC

Plaintiff’s Attorneys

: Chabedi Molatoli Attorneys Inc.

Defendant’s Counsel

: ADV.: L

DE BEER

Defendant’s Attorneys

:

Pretorius Le Roux Inc.

[1] Erasmus, Superior Court Practice at page B1 – 56.

[2] 1977 (4) SA 135 (W).