Seeletso and another v Ntefeng and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Reddy AJ
• Judgment Date: 06 September 2023
• Citation: 2023 JDR 3316 (NWM)
• Hearing Date: 24 August 2023
• Docket Number: UM 170/23
• Court: North West Division, Mahikeng

Reddy AJ:

Introduction

[1]

The applicants approached this Court on an urgent basis on 24 August 2023, seeking relief in the following terms:

1.

That this application be heard as one of urgency and that the non-compliance with the Rules of this court be condoned.

2.

That the third respondent be interdicted from executing the warrant of execution issued by the Registrar of this Court on the 09 June 2023 pending the M180/21 application for leave to appeal of an order dated 14th AUGUST 2023 and the application to set aside the title deed in application M340/23;

3.

That the Warrant of Execution issued by the Registrar of the court on the 09th June 2023 be stayed pending both the Application for leave to Appeal with the case number M180/21 and an application with the case number M340/23 to set aside the title deed relating to the property on question;

4.

That the first and second respondents be ordered to pay the costs of this application on attorney and client scale.

[2]

This application for urgent relief has somewhat of a tortuous ligation history. To properly appreciate the relief sought in the present urgent application, a detailed and complete chronology is necessitated.

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Reddy AJ

The parties

[3]

Being duly cognisant of the various applications that have engaged different Judges of this Division, which will be delineated infra, a convenient point of departure would be an introduction to the dramatis personae. For purposes of brevity, the parties will be cited as they are in this application.

[4]

The first applicant is Mr Tiroyaone Leonard Seeletso (“Seeletso”), an adult male attorney practicing under the name and style of TL Seeletso Attorneys, No 484 DP Kgopleng Street, Montshiwa, Mmabatho. Seeletso was nominated by the deceased Tikanyetso Magaret Malekutu (“the deceased”) as the Executor of her deceased estate.

[5]

The second applicant is Boikanyo Babedi (“Babedi”), who is cited as an heir in the estate of the deceased. Seeletso and Babedi are referred to individually and collectively as the applicants in this judgment.

[6]

The first respondent and second respondents are Mr Gaeatloge Edward Ntefang, an adult male pensioner, and Mrs Kagelelo Cornelia Ntefang (“the opposing respondents”), who are married in community of property.

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Reddy AJ

[7]

The third respondent is the Sheriff of the North West High Court, with its geographical location at James Watt Crescent, Industrial Site, Mahikeng. The Sheriff is duly authorized to execute the warrant of execution which is sought to be interdicted and stayed herein.

[8]

The fourth respondent is the Master of the High Court, North West Province, with its address at No.44 Shippard Street Mahikeng. The fourth respondent is the custodian of deceased estates. The unfinalized estate of the deceased, lies with this Master.

[9]

The opposing respondents entered a Notice of Intention to Oppose the relief sought in this application, followed by a Notice in terms of Rule 30 and Rule 30A of the Uniform Rules of Court (“the Rules”). The fourth and fifth respondents have not noted any opposition to the relief sought.

Chronology

[10]

The opposing respondents contend that they are the registered owners of the immovable property described as ERF 2599 MMABATHO UNIT 9, REGISTRATION DIVISION J Q, THE NORTH WEST PROVINCE, IN EXTENT 457(FOUR HUNDRED AND FIFTY SEVEN SQUARE METRES, situated at 2599 ANDRIES BLOEM CLOSE, UNIT 9, MMABATHO (“the immovable property”).

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Reddy AJ

[11]

The immovable property was initially registered in the name of the deceased. When the deceased’s husband passed away in 1993, she experienced financial distress. At this stage the deceased remained the registered owner of the immovable property.

[12]

With the deceased’s financial position on a steady decline she approached the opposing respondents with a proposal to purchase the immovable property. The opposing respondents acquiesced in the proposal by the deceased, resulting in the conclusion of a purchase agreement for the immovable property. The transfer of the immovable property was attended to by Messrs Koikanyang Attorneys, and subsequently transferred into the names of the opposing respondents in the Deeds Registry at the Deeds Office in Vryburg, on 4 February 2014. The opposing respondents accordingly assumed liability for the payment of all utilities in respect of the immovable property.

[13]

Given the dire circumstances of the deceased, the opposing respondents by way of an informal agreement, allowed the deceased a right of habitation of the immovable property until her death on 24 September 2020 when the informal agreement signalled the end of the right of habitation ex lege. The nub of the issue in this regard is that the right of habitation was not registered against the title deed.

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Reddy AJ

[14]

Seeletso avers that he was appointed as the Executor of the deceased’s entire estate, which was bequeathed to Babedi, in terms of the deceased’s last will and testament. According to Seeletso he placed Babedi in possession of the immovable property. Babedi, in turn leased the immovable property to derive a financial benefit therefrom.

[15]

Based on their right to peaceful and undisturbed possession, the opposing respondents pursued spoliatory relief. This found favour with Petersen J, who on 18 November 2021 [1] ordered inter alia, the first and second applicants to immediately give undisturbed access and possession to the opposing respondents in respect of the immovable property. The first and second applicants were ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved, on an attorney and client scale. A little over a year later, on 4 November 2022, Petersen J granted leave to appeal to the Full Court of the Division. Ex facie the pleadings, the appeal was not prosecuted within the prescribed timelines. This axiomatically resulted in the appeal being deemed lapsed.

[16]

On 6 June 2023 the Registrar of this Court issued a warrant of ejectment. The warrant of ejectment came to the knowledge of Babedi on or around the second week of July 2023. As a result, the applicants launched the first urgent application predicated on the warrant of ejectment in which they sought to interdict the Sheriff of

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Reddy AJ

the High Court from executing the warrant of ejectment, and to stay the warrant of ejectment pending finalization of the appeal under case number CIVAPPFB09/23 (pursuant to leave being granted by Petersen J under case number M180/21), and an application under case number M340/23, in which the applicants seek to set aside the title deed relating to the immovable property.

[17]

The first urgent application came before Dewrance AJ on 14 August 2023 under case number M180/21. Dewrance AJ dismissed the first urgent application with costs on an attorney and client scale. On 15 August 2023, a request for reasons for the judgment was filed simultaneously accompanied by an application for leave to appeal to the Supreme Court of Appeal alternatively to the “Full Bench”. Dewrance AJ, in giving his order of 14 August 2023, made no declaration that reasons would be furnished to any of the parties on application in accordance with Rule 49(1)(c). The request for reasons on 15 August 2023, it must therefore be accepted is pursuant to Rule 49(1)(b) which provides:

“49

Civil Appeals from the High Court

1

(b)

When leave to appeal is required and it has not been requested at the time of the judgment or order, application for such leave shall be made and the grounds therefor shall be furnished within fifteen days after the date of the order appealed against: Provided that when the reasons or the full reasons for the court’s order are given on a later date than the date of the order, such application may be made within fifteen days after such later date: Provided further that the court may, upon good cause shown, extend the aforementioned periods of fifteen days.”

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Reddy AJ

[18]

It is not clear whether Dewrance AJ handed down his reasons in a judgment delivered ex tempore. If he did, the request for reasons must therefore be construed as an application for the transcription of the record in which the reasons were furnished. If that is not correct, then, notwithstanding the absence of the reasons requested from Dewrance AJ, which in terms of Rule 49(1)(b) would be due within fifteen (15) days of the order of 14 August 2023, the applicants launched the present application on 25 August 2023, which the respondents take issue with.

[19]

The applicants take issue with what appears to be the main reason for the order of 14 August 2023, which is delineated as follows in the application for leave to appeal:

“Pending appeal before the full bench

5

The acting trial judge erred and misdirected himself to conclude that there was no appeal pending (when a condonation application and a reinstatement application which was to be heard by the full bench at the later stage and when anything heard by three judges in a full bench constitutes an appeal proceedings);”

The pending application for condonation and reinstatement of the lapsed appeal

[20]

The applicants contend, premised on the ground of appeal against the order of Dewrance AJ as aforesaid, that the appeal against the judgment of Petersen J is pending and a condonation application

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Reddy AJ

to reinstate the appeal has further been made and is pending as well before this Court. Further, it is asserted that an application with case number M340/23 to set aside the title deed registered in the names of the opposing respondents, on the basis that the said immovable property was illegally and unlawfully transferred into their names, is pending in...