REPUBLIC OF SOUTH AFRICA

IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG

CASE NO: 34702/12

(1)	REPORTABLE: YES 
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

In the matter between:

DU PLESSIS, GERT CORNELIUS					            Applicant

and

LETSHEKO, MICHAEL TANKISO					       Respondent
___________________________________________________________________ 
J U D G M E N T
___________________________________________________________________

MUDAU, AJ:

[1] 	This is an opposed application for the eviction of the respondent and all the occupants claiming any right, title, interest or occupation of a certain immovable property through the respondent. In terms of the notice of motion the applicant seeks an order in the following terms:-

1.1	Declaring that the respondent and all occupants or persons claiming any right, title or interest to occupy the immovable property being Erf 1302 Bosmont, in the Province of Gauteng, measuring 528 (five hundred and twenty-eight) square meters in extent, situated at 8 Geelhout Street Bosmont, Johannesburg (“the immovable property”) are in unlawful occupation thereof.

1.2 	Directing that within one (1) month from the date on which this order is served on the respondent, alternatively on a date to be determined by this court, the respondent and all the occupants claiming any right, title, interest or occupation of an immovable property through the respondent, be evicted from the immovable property.

[2]	In addition, the applicant seeks certain ancillary orders in the event the respondent and all the occupants fail to comply with the eviction order.
 
[3]	The immovable property was previously registered in the name of Grand Slam Ventures CC (“Grand Slam”) under Deed of Transfer No. T83974/2002.

[4]	It is the applicant’s case that, during 2008, Chetty De Villiers and Mafokane Incorporated instituted action against Grand Slam and obtained an order in terms whereof, inter alia the property was declared specially executable. 

[5] 	It is furthermore the applicant’s case that, on 22 October 2009 the Applicant purchased the immovable property at a sale in execution for the sum of R241, 000.00. 

[6] 	It is the applicant’s version that on the 27 January 2011 the property was registered in his name. The applicant omitted however, to attach a copy of the tittle deed in this regard. I consider this to be a glaring omission.

[8]	The application under consideration is not the first one. A similar application was launched before this court on the 23 February 2011 under case no: 2011/7877 (see paragraph 13, page13 of the indexed bundle). A copy of the notice of motion and founding affidavit thereof is marked “GCD 6”. In the founding affidavit at paragraph 18 the applicant states as follows:

“[18] 	Ex facie the previous application, more particularly paragraphs 7 to 9 thereof, I based my application for the eviction of the occupiers of the immovable property on a written offer to purchase entered into between me and Grandslam, a copy whereof is annexed as annexure “GCD.2” to the previous application.”

[7]	Further at paragraphs19-21, the applicant states under oath as follows:

“19.	The aforementioned agreement of sale was annexed mistakenly to the founding affidavit in the previous application. I say so for the following reasons:-
19.1 	Ex facie page 5 of the offer to purchase, it was signed by me and one “Billings” of Grandslam on the 23rd day of July 2010. This date is incorrect, as we signed this document on the 23rd day of July 2009.
19.2 	When I signed the offer to purchase as aforesaid on the 23rd day of July 2009, I was unaware at the time of the fact that Chetty De Villiers and Mafokoane Incorporated, which have been referred to hereinabove, had already obtained judgement against Grandslam, inter alia for an order in terms whereof the immovable property had been declared specially executable.
19.3 	I therefore regarded the offer to purchase as null and void.
19.4 	After the sale in execution of the immovable property had been duly advertised, I purchased the property at a sale in execution on 22 October 2009, as hereinbefore set out.
19.5	Ex facie page 2 of the offer to purchase, the purchase price that I offered Grandslam at the time when I mistakenly entered into the agreement with them, was the sum of R600,000.00. I eventually purchased the property at the sale in execution for the sum of R240, 000.00.
20.	I provided the incorrect instructions to my attorney of record in the previous application, by specifically not providing them with the conditions of sale as referred to herein, but with a copy of the offer to purchase, which sale was never proceeded with as a result of the fact that it was void ab initio.
21. 	I only realised my mistake when my attorneys of record advised me thereof after receipt of the First Respondent’s answering affidavit in the previous application. For the sake of completion, the Respondent answering affidavit in the previous application is annexed hereto and marked annexure “GCD.7”.”

[8]	It is common cause in this matter that upon receipt of the respondent’s answering affidavit applicant withdrew the application for eviction and tendered costs in favour of the respondent. The applicant initiated the present proceedings on the 18th day of April 2013 and before Mahalelo AJ whereupon the matter was postponed sine die. Applicant was ordered to pay the wasted costs.

[9]	The relevant part of the respondent’s affidavit can be paraphrased as follows. It is the respondent’s version that he is the legal occupant of the immovable property known as Erf 1302, which property is situated at 8 Geelhout Street, Bosmont, Johannesburg since 2002. He bought the house for R200, 000.00 (Two Hundred Thousands) in cash from an old Indian couple, Shabir and Ayesha Ismail. He was in the process of a divorce at the time and did not want the immovable property to be part of the joint estate as the divorce papers were already issued. His friend, Colwyn Billing advised him to register the immovable property in the name of his Close Corporation, Grandslam Ventures 120 CC, which he did as he trusted him.

[10]	After his divorce, he approached Billing for the change of ownership, but Billing avoided him until he lost contact with him. During 2009 the house was unbeknown to him, placed on auction and this he discovered when he saw advertisement boards outside the said immovable property. He subsequently searched for the previous owners, the Ismails for them to furnish him with proof that he was the one who bought the property during 2002. Mrs Ayesha Ismail deposed to an affidavit (“MTL2” and confirmed same.

[11]	Acting on the advice of his legal representative, he went to the Cipro Offices in Pretoria to draw the CK2 to check the members of Grandslam Ventures 120 CC.  He discovered that the Close Corporation was registered in the name of Catherina Dora Du Plessis on 26 September 2002. He suspects that Catherina Dora Du Plessis is a close relative to the applicant in this matter. The Close Corporation was registered in Billings’ name on the 28 October 2002. A copy of the CK2 of Grandslam Ventures 120 CC is attached hereto marked Annexure “MTL 3”.

[12]	The applicant relies on a computer printout document titled “Search-works” marked GCD.1 (page 22 of the indexed bundle). The document suggests that the property was transferred from Ismail Shabir at a value of R200, 000.00 to Grandslam Ventures 120 CC.

[13]	According to the Auction Sale Agreement marked “GCD 2”, the immovable property was sold on 22 October 2009 for R241, 000.00 to “Nhazier Amiel” of 852 Witwatersrand Avenue, Strubensvallei.
 [14]	The mystery deepens further, according to Annexure A titled “INFORMATION FOR CONVEYANCER”, the purchaser’s particulars are reflected as Gert Cornelius Du Plessis and “Nhaziee Amiel”.

[15] 	In his founding affidavit the applicant does not explain how he acquired the property from Nhazier Amiel, furthermore whether ”Nhaziee” and “Nhazier” Amiel referred to for purposes of conveyance, is one and the same person. 

[16] 	I now turn to deal with the current application. In his sworn affidavit the applicant sets up the background from paragraphs 17-18 in the following terms:

“On 23 February 2011 I lodged an application in the above Honourable Court under case number 2011/7877, in terms whereof I sought the eviction of the occupier of the immovable property as herein described. A copy of the notice of motion and founding affidavit under the aforesaid case number, is annexed hereto and marked annexure “GCD.6”. 
Ex facie the previous application, more particularly paragraphs 7 to 9 thereof, I based my application for the eviction of the occupiers of the immovable property on a written offer to purchase entered into between me and Grandslam, a copy whereof is annexed as annexure “GCD.2” to the previous application.

Paragraphs 19-21of the applicant‘s founding affidavit, is a repeat of the contents of the affidavit referred to in paragraph 7, above.

[17]	A clear reading of the papers before me shows that the respondents’ opposition is based on a challenge to the locus standi of the applicant based on the material and inherent contradictions in the latter’s affidavit. By way of example two amounts are mentioned by the applicant as the sale price for the immovable property, i.e. R241, 000, 00 and R240, 000, 00. It is most probable that the sale price is the former if one has regard to the agreement. However, given the history of the matter where applicant by his own admission, gave “incorrect instructions” to his attorneys, this court has to adopt a cautious approach. 

[18]	In his replying affidavit regarding the auction sale agreement “GCD 2” (page 145 of the indexed papers) at paragraph 14.2.2, applicant states that: “I signed the conditions of sale as evidenced by the bottom of page 29 of the indexed papers”. It is however not clear whether the applicant signed the said agreement as a representative of a juristic person and binding himself as a co-principal debtor. This is crucial as ex facie “GCD 2”, the immovable property was sold to “Nhazier Amiel”. Nowhere in his affidavit does the applicant refers to any juristic entity or “Nhazier Amiel” or the role (if any), played by the latter. 

[19]	In their nature, motion court proceedings are intended to resolve legal disputes between parties in circumstances where the facts are either common cause or are readily ascertainable. It is trite law that where in application proceedings there are disputes of fact which cannot be decided without the hearing of oral evidence the court has discretion to either: (i) dismiss the application with costs; (ii) order that oral evidence be heard in terms of the rules or; (iii) order the parties to go for trial. [See Plascon Evans Paints v Van Riebeck Paints (Pty) LTD. See also Stellenbosch Farmers’ Winery LTD v Stellenvale Winery (Pty) LTD. This approach has been re-affirmed in innumerable cases.

[20]	Recently in National Director of Public Prosecutions v Zuma, Harms DP said:

“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise in the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma's) affidavits, which have been admitted by the respondent (NDPP), together with the facts alleged by the latter, justifies such order. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers …”

[21]	The applicant’s initial application to have the respondent evicted from the immovable property was, it is common cause, withdrawn on what he terms “incorrect instructions” to his attorneys of record. In my view the so-called “incorrect instructions” with regard to the date of sale, the parties to the auction sale agreement, as well as the amounts involved underlines the seriousness of the dispute regarding how the applicant acquired the said immovable property. 

[22] 	The allegations by the applicant with regard to the application before me are not materially different to the initial application which was withdrawn. In his affidavit, the respondent raises valid questions which the applicant does not adequately address.

[23]	Having regard to the evidence placed before me and the submissions made on behalf of the parties, I can come to no other conclusion than that this case presents a number of disputes of fact as it did in the initial application. This is not a case where a narrow issue has been clearly identified to be referred to oral evidence.

[24]	Where an applicant should have realised when launching an application that a serious or material dispute of fact, which is not capable of being resolved on the papers, was likely to develop, a court hearing the application will dismiss the application.

[25]	In Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd  it was stated that:

"A litigant is entitled to seek relief by way of notice of motion. If he has reason to believe that facts essential to the success of his claim will probably be disputed he chooses that procedural form at his peril, for the court in the exercise of its discretion might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but to dismiss the application.”

[26] 	It is clear from the papers the applicant was well aware of the fact that the respondent alleges that the immovable property was obtained fraudulently, further that a member of the entity in whose name the property was registered, one Ms Du Plessis apparently related to the applicant, was one of the previous owners. This might be relevant to the question of doctrine of prior knowledge on the part of the applicant.  It is trite law that a real right generally prevails over a personal right even if the personal right vested prior in time when they come into competition with each other. However, the doctrine of notice, an equitable doctrine that runs counter to the rule that a real right must take preference over a merely personal right, provides that a person who acquires an asset while aware that someone else has a prior personal right to it, may be held bound to give effect to that right. Should the respondent prove this, he may well succeed in enforcing his right against the applicant.
[27]	In my view, applicant clearly foresaw that a material dispute of fact would arise between the parties. The dispute as to the ownership of the immovable property is not in my view one capable of resolution on the papers nor is it one, given the common cause facts, which is so far-fetched as to enable the court to reject the allegations on the papers alone. The disputes of fact are not capable of resolution by a common-sense approach as suggested in Soffiantini v Mould. Neither is this a case where a narrow issue has been clearly identified justifying referral of the issue to oral evidence.

[28] 	The application ought to be dismissed by reason of the fact that the applicant clearly contemplated at the point at which he launched these proceedings that a material dispute of fact was likely to arise. 

 	[29] 	In the result I make the following order:
   
The application is dismissed with costs. 

				                  _____________________________________
						    	         T P MUDAU
					       ACTING JUDGE OF THE SOUTH GAUTENG
						     HIGH COURT, JOHANNESBURG

				
COUNSEL FOR THE APPLICANT 	JA SWANEPOEL	
		
INSTRUCTED BY 	MOSTERTS INC 
	
COUNSEL FOR THE RESPONDENT 	TML MASHITOA	
		
INSTRUCTED BY 	MOGWERANE & LETSWALO ATTORNEYS 	

DATE OF HEARING:  			18 SEPTEMBER 2013

DATE OF JUDGMENT:  			19 SEPTEMBER 2013