IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, EAST LONDON

CASE NO: 2785/2009 
Date Heard: 25/11/10
Date Delivered:2/12/10 

In the matter between:

NOMAKHOSI JUWONDER NOSISANE NKUZO          APPELLANT 

Versus 

BARRY PAUL DIASLEY  	N.O.	   	         1ST   RESPONDENT 

SHERRIF FOR THE DISCTRICT OF                2ND RESPONDENT 
FORT BEAUFORT 

MASTER OF THE HIGH COURT, 			3RD RESPONDENT 
GRAHAMSTOWN 

REASONS FOR ORDER GRANTED ON 25 NOVEMBER 2010

SMITH J:

[1]	On 25 November 2010 I granted an order dismissing the application with costs and indicated that my reasons would follow at a later stage. I now provide the reasons for my decision. 

[2]	The applicant seeks an order interdicting the respondents from evicting her from property situated in Fort Beaufort and which is owned by a deceased estate, pending the finalization of an action for reimbursement of costs incurred by her in improving the property and/or the unjust enrichment of the deceased estate. The applicant essentially relied on an improvement or unjust enrichment lien for the relief which she seeks. 

[3]	That application was brought as matter of urgency, issued out of court on 27 October 2010 and set down for hearing on 28 October 2010. 

[4]	It appears that papers were served on the respondents on 27 October 2010, effectively giving them only one day’s notice of the hearing. I agree with Mr De La Harpe, who appeared on behalf of the first respondent, that the urgency is of the applicant’s own making. 

[5]	The correspondence from the first respondent’s attorneys informing her that they held instructions to proceed with the eviction were dated 26 August 2010 and 30 September 2010 respectively. There is no justification on the papers for the delay of approximately one month. I am of the view that the application can be dismissed solely on this basis. 

[6]	The applicant however faces far more fundamental and insurmountable problems. Firstly it clearly appears from the papers that the matter is res iudicata and secondly the applicant's attempt to resist eviction in terms of a valid court order on the basis of an improvement or unjust enrichment lien is simply not sanctioned by the law. 

[7]	It appears from the respondent’s opposing affidavit that: 
(1) 	First respondent obtained an order against her on 21 September 2007 in the magistrates court, Fort Beaufort, requiring her to vacate the said property; 

(2)	Applicant failed in an application to rescind the judgement of the magistrate’s court and subsequently in an appeal to the High Court against the dismissal of the rescission application; 

(3)	The applicant had caused a further application to be issued out of the magistrate’s court, Fort Beaufort on 1 September 2010 in an attempt to set aside a writ of ejectment issued in pursuance of the judgment. That application was settled on the basis of an undertaking that she would vacate the premises by 20 September 2010.

[8]	The applicant had relied on the improvement lien to resist attempts to have her evicted both in her application for rescission of the magistrate’s court judgment and also in the subsequent appeal. It is clear from the High Court judgment which is annexed next to the first respondent’s affidavit that this issue had been considered by the presiding judge. 

[9]	In these circumstances I am agreement with Mr De La Harpe that the same facta probanda which are pertinent in this matter have previously been raised in litigation between the parties. These issues are therefore res iudicata and the applicant is precluded from seeking the relief in this matter on the basis thereof. 

[10]	The applicant’s attempt to resist eviction from the property pursuant to a valid court order on the basis of an improvement or enrichment lien is in my view also misplaced. As things stand the applicant is presently in contempt of that court order. 

[11]	It is trite that such a lien may only be enforced in circumstances where possession is lawful. See Roux v Van Rensburg 1996 (4) SA 271 (SCA).

[12]	The applicant has failed to place material facts before the court when she approached the court for the urgent interim relief. These facts were clearly within her personal knowledge and her failure to bring them to the attention of the court compels the inference that she deliberately did not disclose them. The deliberate withholding or obfuscation of facts which may impact on the relief sought in urgent proceedings (or any proceedings for that matter) is a serious matter and deserving of sanction through the award of punitive cost order. I agree with Mr De La Harpe that the application amounted to an abuse of the processes of this court. The application was clearly brought by the applicant as a stratagem to delay her inevitable eviction from the property. It appears that it was for this reason that the applicant failed to file a replying affidavit once these facts were disclosed by the first respondent. 

[13] I am therefore satisfied under the circumstances that the applicant should be ordered to pay the costs of the first respondent on an attorney and client scale. 

[14]	It is for this reason that I granted an order dismissing the application and ordered the applicant to pay first respondent’s costs on an attorney and client scale. 

J.E. SMITH 
JUDGE OF THE HIGH COURT

Appearances 
Counsel for the Applicant	:	Advocate Kaizer 
Attorneys for the Applicant 	: 	G. M Yeko 	
						109 High Street
						GRAHASMTOWN 
						Ref: Mr Yeko 

Counsel for the Respondent	:	Advocate De La Harpe 
Attorney for the Respondent	: 	NETTELTONS 
						118A High Street 
						GRAHAMSTOWN 
						Ref: Mr. Nettelton/Sam