Maziwa v Manzin

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TA Maumela J
• Judgment Date: 09 June 2021
• Docket Number: 11955/2017
• Hearing Date: 09 June 2021
• Court: Gauteng High Court, Pretoria
• Citation: 2021 JDR 1325 (GP)

Maumela J:

1.

In this case, the applicants applied for an order towards the

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cancellation of a title deed over the property referred to as Erf 67 Maloka Street Atteridgeville, Pretoria. This property is registered in favor of the First Respondent. In the order sought, the Applicant also seeks for his Attorneys of record to be appointed as liquidators who shall dispose of the property accordingly. The application is opposed.

2.

The Defendant raised points in limine. The First Point in Limine raised is that the Applicants filed documents in their second indexed bundle to this application that do not form part of any affidavit. The Defendants also raise the issue that this includes among other items, letters of authority and a report from the Registrar of Deeds. The Defendants point out that these documents do not form part of the founding or replying affidavit of the Applicants.

3.

The Defendants point out that a litigant in civil proceedings has the option of approaching a court for relief on application as opposed to an action. Should a litigant decide to proceed by way of application, Rule 6 of the Uniform Rules of Court applies. This will set out the applicable sequence and the timing for the filing of the affidavits by the respective parties. They point out that an advantage inherent to application proceedings, even if opposed, is that they can lead to a speedy and efficient adjudication and resolution of the disputes between the parties. Unlike in actions, in application proceedings, the affidavits take the place, not only of the pleadings, but also of the essential evidence which would be led at the trial.

4.

It is trite that in application proceedings, evidence must be led before court, by way of affidavit. The affidavits are limited to three sets. The Defendants point out that the Rule was succinctly explained in the Supreme Court of Appeal judgment in the case of Hano trading CC v J R 209 Investments (Pty) Ltd and Another [1] where the court stated the following: "it follows thus, that great care must be taken to fully set out the case of the party on whose behalf an affidavit is filed. It is therefore not surprising that the Rule 6 (5) (e) provides that further affidavits may only be allowed at the discretion of the court."

5.

In The case of Standard Bank of SA Ltd v Sewpersadh and Another [2] , it was held: "[13] clearly, a litigant who wished to file a further affidavit must make a formal application for leave to do so. It cannot simply sign the affidavit into the court file (as appears to have been the case in the instant matter). I am of the firm

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view that this affidavit falls to be regarded as pro non scripto." Rule 6 (5) (e) establishes clearly that the filing of further affidavits is only permitted with the indulgence of the court. A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is good reason for doing so.

6.

The Defendants point out that the Applicants in this case did not even attempt to file a supplementary affidavit in order to request the court to exercise its discretion towards allowing such affidavit to be filed of record. Instead, the Respondents merely attempted to place the documents before court via the indexes they filed. The Defendants make the point that this is not compliant with the Rules of Court. On that basis, they submit that these documents ought to be deemed to be inadmissible.

SECOND POINT IN LIMINE: PRESCRIPTION:

7.

The First Applicant also indicated that there is no possibility that the opposing parties in this matter may ever resolve their dispute on paper and that is why he and the other Applicants had to launch this application in order to obtain relief. The first Applicants stated that Ms. Manamela has accepted her appointment as 'Receiver and Liquidator' to dispose of the property. Her consent in that regard is attached as "FM5". The First Respondent stated that from the time of the death of the deceased until now, only the First, Second and Third Respondents have benefited from possession and use of the property. He said that in that regard, he and the other Applicants reserve their rights to sue for damages to such extent as they suffered such.

8.

The First, Second and Third Respondents attested to affidavits in opposition of this application. Margret Manzini, the Second Respondent, resident at No 18 Semenya Street, Attredgeville, Gauteng, stated that she and the other two Respondents are biological...