Moloto Communal Property Association v Tshoane (2017/86589) [2019] ZAGPPHC 325 (19 February 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH

AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 2017/86589

19/2/2019

In the matter between:

MOLOTO

COMMUNAL PROPERTY ASSOCIATION

Applicant

and·

TSHOANE:

SELLO PETER

Respondent

JUDGMENT

MOKOSE J

[1] An application was made to this co4rt by the applicant against the respondent for contempt of an order of Cambanis AJ of 18 April 2018.

[2] The order directed, inter alia, that the respondent is interdicted and prohibited from interfering with the administration and affairs of the applicant and to deliver to TP Moloto of International Chambers in Benoni all the original title deeds belonging to the applicant in his possession within 12 hours of receipt of the order.

[3] The respondent, who was not represented in court, filed a supplementary affidavit in which he brought to the court's attention that the applicant was placed under administration and that Mr Brandon Tshabangu had been appointed the administrator of the applicant. Accordingly, the applicant lacked locus standi in the matter.

[4] Mr Tshabangu had been subpoenaed by the applicant to appear in court to confirm or deny the delivery of e said documents as per the court order of Cambanis AJ. He addressed the court and confirmed that he as administrator, had not instruct Mr TP Moloto to appear on behalf of the applicant in the matter in casu and as such, Mr Moloto lacked the locus standi to move the application .

[5] As a general rule applicable to locus stand/, the applicant must have a direct interest in the subject matter which interest must not be far removed. A mere moral interest is insufficient to ground a right to institute a matter.

[6] It is evident from the papers on hand, that the respondent had raised a point in limine in the matter which had come before Kollapen J on 28 June 2018 in the urgent court that the applicant lacked locus standi. This matter was struck from the court roil for lack of urgency. However, the applicant proceeded to enrol the matter Of the opposed motion roll on the same papers thus Ignoring the contents of the allegations contained in the affidavit and referring the court to a 'Round Robin Resolution'[1] dated 28 December 2017 in which an interim Executive Committee of the Moloto CPA resolved to proceed in obtaining an urgent interdict for an order against the respondent. The said resolution makes no mention of Mr Tshabangu, the administrator, having delegated his powers to the interim committee of the applicant.

[7] Whilst the correct procedure in the matter is to file a special plea which would have been dealt with at the commencement of the hearing, I will condone the fact that it was not brought as a special plea in the interests of justice as the respondent was unrepresented.

[8] I am of the view that Mr Moloto has attempted to mislead the court in the replying affidavit by stating at paragraph 4 thereof that Mr Tshabangu had duly delegated his powers to the interim committee of the applicant. Mr Tshabangu, in his submissions to the court confirmed that no powers had in fact been delegated to the committee. The court takes a very dim view of this conduct by Mr Moloto as a senior attorney of this court making such allegations under oath.

[9] In light of the fact that an administrator has been appointed on behalf of the applicant who had been vested with the powers in terms of the Communal Property Associations Act 28 of 1996 as amended, I am of the considered view that the applicant has no locus standi to deal with the matter as those powers now vest in the administrator.

[10] I will not deal with the merits of the case on account of the finding that the applicant lacks locus standi in the matter.

[11] Accordingly, the following order is granted:

(i) The application is dismissed.

Judge of the High Court

of South Africa

Gauteng Division,

Pretoria

For the Plaintiff:

Mr TP Moloto

Instructed by

TP Moloto and Co Inc

For the First Defendant:

In person

Date of Hearing: 13 February 2019

Date of Judgement: 19 February 2019

[1] MCPA 2(a) on page 15 of main application