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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

3. REVISED. 

CASE NO: 42822/20201

In the matter between:

ESKOM HOLDINGS SOC LIMITED                                                              Applicant

 

And

 

SISUSOMHAMBI ELECTRICAL CONSTRUCTION CC                            First Respondent

DANIEL MNISI                                                                                                   Second Respondent

JUDGMENT

BALOYI-MERE AJ

1.    This application came before me in the urgent court brought by the Applicant in part A and part B. What was before me was part A where the Applicant sought access to a property situated at Portion 54 of the Farm Nooitgedacht 525, Registration Division JR, Gauteng Province (“the property”).

2.    In short, the facts of the matter are that the Applicant registered a servitude on this property on the 30^th August 2011. On the 01^st February 2015 the property was sold to the First Respondent.  On the 03^rd October 2020 the Applicant requested access to the property and alleges that it was denied. The Applicant wrote a letter to the First Respondent on the 05^th May 2021 putting the Respondents on terms.

3.    The Applicant alleges that this matter is urgent in that the construction of the Kusile-Lulamisa 400KV Section A Project and overhead power line for the transmission of electricity to form the Kusile Power Station is necessary in order to evacuate electrical power from Kusile Power Station and to strengthen the electricity network in the northern part of Johannesburg.

4.    Before I get into the merits of this case, I need to point out that I gave the parties an opportunity to discuss and try to find each other by way of settlement and by also giving each party a chance to get a land surveyor to go and determine where the servitude starts and ends. The reason for me giving the parties such an opportunity is that the Respondent submitted that they are not against the Applicants accessing their servitude, the only problem is that the point of where the servitude starts and ends is in dispute hence the request that the two parties should each employ the services of a land surveyor to determine where the servitude starts and end. This exercise did not yield any positive result and thus the matter had to be considered in its totality.

5.    I have already outlined the timelines as contained in the Applicant’s founding affidavit that the letter of demand of putting the Respondents on terms was dated the 05^th May 2020 but the Applicant only brought its application on the 25^th August 2021 and set it down to be heard in the urgent court on the 07^th September 2021.

6.    The Respondents took issue with the urgency and submitted that the Applicants’ urgency is self-created. The Respondents further submitted that if the Applicants are prejudice because of the lack of access to the property, then they can have redress in due course in a form of damages and revenue loss due to their lack of access to the property.

7.    The requirements of urgency are trite and settled law. These requirements were long articulated in the classic case of Luna Meubel Vervaardigers (EDMS) BPK v Makin and Another (T/A Makin’s Furniture Manufactures) 1977 (4) SA 135 (W) (“Luna Meubel”) where it was held that there are degrees of urgency and for an urgent application to pass muster it should satisfy the requirements as contained in the Luna Meubel’s case.

8.    It is also trite that a litigant who brings an urgent application must satisfy the requirements as set out in rule 6(12) of the Uniform Rules of Court.

9.    It is also trite that a litigant, in its affidavit supporting the relief for urgency, must set forth explicitly the averments that make the application urgent and also set forth why it cannot get redress in due course. In this application, the Applicant failed to satisfy both the rules and requirements of urgency. The Applicant tried to supplement its reasons for urgency in the answering affidavit. This cannot be permitted as an Applicant should set out its full case in the founding affidavit. In this regard, reference is made to Molusi and Others v Voges NO and others [2015] 3 All SA 131 (SCA), and Titts Bar Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368 G – H where the court pronounced unequivocally that it is settled law that the purpose of the pleadings is to define the issues for the parties and the court. The court further held that in application proceedings, the affidavit do not only constitute evidence but they also fulfil the purpose of the pleadings, therefore they must set out the cause of action in clear and unequivocal terms to enable the Respondent to know what case to meet.

10. The Applicants tried to amplify their case especially on urgency in the replying affidavit. This cannot be accepted. The Applicants have failed dismally to demonstrate to this court why their case is urgent and therefore the Applicant’s application fail on the basis of urgency.

11. In the premise I make the following order:

1.    The Applicant’s application is struck off the roll for lack of urgency;

2.    The Applicants are ordered to pay the costs of the application on a party and party scale.

EM BALOYI-MERE AJ

14^th September 2021

 

This judgment is handed down electronically due to the current pandemic. It will be circulated to the parties by way of electronic mail and by uploading it to the electronic files of this matter on Caselines.

 

Dated 09^th September 2021

Judgment granted on the 14^th September 2021

 

Appearances

 

Counsel for the Applicant: Adv BL Manentsa

 

Counsel for the 1^st and 2^nd Respondent: Adv S Luthuli

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