- October 10, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PROCEDURE – SUMMARY JUDGMENT FOR EJECTMENT; COMPLIANCE WITH RULE 39(9) AND (10)
The plaintiff was the registered owner of the Erf in question, subsequent to the purchase and transfer of the property into her name. The plaintiff claimed that the defendant was in unlawful occupation of the said property and issued summons to evict the defendant from the said property, which was defended. The plaintiff launched an application for summary judgment as the plaintiff was of the view that the respondent had no bona fide defence to the plaintiff’s claim.
On 15 July 2022, the parties were directed to file a report in terms of rule 32(10), the application for summary judgment, and an answering affidavit thereof. In his answering affidavit, the defendant opposed the application and raised a point in limine that the plaintiff did not comply with rules 32(9) and (10). On 14 September 2022, the court granted summary judgment, with costs, and ordered the ejectment of the defendant from the property. Reasons for the order were reserved and given on 10 October 2022 by PRINSLOO J as follows:
In terms of rules 60(b) and 60(5) of the High Court Rules, the respondent must satisfy the court that there exists a bona fide defence to the action and the affidavit resisting the application must disclose fully the nature and grounds of the defence and the material facts relied on.
[17] …This means a sufficiently full disclosure of the material facts to persuade the Court hearing the application for summary judgment that, if the respondent’s allegations are proved at a trial, it will constitute a defence to the applicant’s claim.
[18] In the current instance, it is not clear where the defendant fits into the scheme of things. Despite the averments by the defendant that he was part owner of a company (which turns out to be a close corporation), the juristic entity was not the owner of the immovable property in question. That much is clear from the citation of the parties on the agreement of sale of the immovable property. The late Mr. Pretorius was clearly the owner of the house, which gainsay the defendant’s reference to ‘we’ and ‘our’. The defendant had no part in the agreement between Mr. Pretorius and the plaintiff at all.
[19] …In all instances, the defendant signed as a witness, and not as a party to the so-called agreements attached to the answering affidavit.
[20] The defendant seems to labour under the idea that as a result of a power of attorney, signed by Mr. Pretorius on 5 December 2020 and 25 January 2021 respectively, some ownership was transferred to him.
[21] …he is not, neither has he ever been the owner of the said property.
[22] The defendant relies on an agreement between Mr. Pretorius and Mr. Moodley regarding an outstanding amount payable to him by Mr. Moodley. That might be so in respect of Mr Moodley but the plaintiff and Mr. Moodley are married out of community of property and the terms of the agreement between Mr. Pretorius and the plaintiff has been complied with and the agreed payment was fulfilled.… The bottom line is that the plaintiff is the lawful and registered owner of the immovable property and has the right of enjoyment of the said property.
[23] The defendant took the law into his own hands when he moved into the property in an attempt to force the hand of the plaintiff to make payment in his favor as a result of an agreement that she was no party to.
[25] I am of the view that the defendant cannot resist the summary judgment application of the plaintiff as a result of the agreement between Mr. Pretorius and Mr. Moodley.
[26] Lastly, on the issue of the defendant’s complaint that there was no due compliance with rule 32(9) of the Rules of Court. From the papers before me, it is clear that there was a telephonic discussion of the issues wherein it was made clear that the defendant does not intend to vacate the property in question. A report in terms of rule 32(10) was filed and I am satisfied that there was sufficient compliance with rule 32(9) and (10) process and that the complaint by the defendant in this regard is without any merit.
Moodley v Mahoshi NAHCMD 10 October 2022