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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 60330/2021

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 15/12/2021
LENYAI AJ
In the matter between:

MOLOKOMME JOSEPH MALULEKE APPLICANT

and
JR 209 INVESTMENTS (PTY) LTD FIRST RESPONDENT

M&T DEVELOPMENTS (PTY) LTD SECOND RESPONDENT

This matter has been heard in terms of the Directives of the Judge President of this
Division dated 25 March 2020, 24 April 2020 and 11 May 2020. The judgment and
order are accordingly published and distributed electronically. The date and time of
hand-down is deemed to be 14:00 on 15 December 2021.

JUDGEMENT

LENYAI AJ

[1] The urgent court judgement and order in this matter was granted ex tempore
on the 3rd December 2021 and the respondents requested a written
judgement in terms of Rule 49 of the Uniform Rules of Court.
[2] In this application the following order was sought against the respondents:

(a) That this application be heard as an urgent application in terms of Rule

6 (12) of the Rules of this Honourable Court and that the forms and
service provided for in the Rules be dispensed with, and the Applicant’s
non-compliance with the timeframes in the Rules be condoned.

(b) That the First and/or Second Respondents restore to the Applicant full
access to the premises – Unit 2[…], The P[…], Southdowns Estate,
Bakwena Avenue, Doringkloof, Centurion, 0062 (“the property”), by
ensuring the reconnection of water and electricity supplies, and
granting the applicant biometric, telephonic and other electronic access
to the property.

[3] This is a spoliation application brought by the applicant against the

respondents. The applicant brought a substantial application detailing the
material facts and the harm he was suffering as a result of the unlawful
conduct of the respondents. In the founding affidavit, the applicant avers that
he is a lawful tenant of the property. The second respondent is the registered
owner of the property (the lessor) and the first respondent is the
representative or agent of the lessor.

[4] The Applicant has been in undisturbed occupation of the property since the 1st
April 2019 to date. The date of the spoliation is the 2nd December 2021 when
the second respondent cut off the water and electricity supply to the unit and
also disconnected electronic access to the property.

[5] The applicant avers in the founding affidavit that on the 2nd December he was
diagnosed as being COVID-19 positive, and was inside the property self-
isolating. His partner who was diagnosed as being COVID-19 positive earlier
was also with him inside the property self-isolating. The first respondent was
made aware of their COVID-19 Status but despite this knowledge has
despoiled him by cutting the water , electricity and access to the property.
[6] The applicant conceded in his papers that he has on certain occasions been
late with the payment of the rental and this has been a course of concern for
the first respondent. The first respondent wrote an email to the applicant on
19th October 2021 requesting him to vacate the property by the 30th
November 2021 and failure by him to vacate the property would result in them
seeking an eviction order.

[7] The applicant responded by indicating that the COVID-19 Pandemic has
negatively affected his legal practice which resulted in him having cashflow
challenges. He advised the first respondent that he had paid the rental until
end of January 2022 and also indicated that he will look for another place
once he has recovered and move out by end of March 2022. This information
was not well received by the respondents and there were several exchanges
of correspondences between the applicant and first respondent which did not
help the situation. On the 1st December 2021 the first respondent again wrote
to the applicant requesting him to vacate the property and he responded by
advising that his partner had tested COVID-19 positive and he was awaiting
receipt of his results. On the 2nd December 2021 the applicant received his
results confirming that he tested positive for COVID-19 and he shared that
information with the first respondent.

[8] The applicant further avers in his founding affidavit that on the 1st December
2021 the first respondent sent someone to his Unit to evict him because he
was owing rent and when this did not have the desired result, his access to
the property was terminated by blocking the rights associated with his
biometric access and telephonic access control. On the 2nd December 2021
the water and electricity supply to the property he is occupying were cut off.

[9] The applicant avers that he has been in continuous, peaceful and lawful
occupation of the property until the 1st and 2nd December 2021 when the first
respondent despoiled him in the manner described above in their attempts to
evict him due to rental disputes.
[10] The respondents filed their notice of intention to oppose on the 3rd December
2021. They did not file any other documents. It is noteworthy to mention that
there was a legal representative who appeared in court however she advised
the court that she assisted the respondents to prepare , serve and file the
notice of intention to oppose and did not have instructions to deal with the
merits.

[11] The founding affidavit of the applicant was not signed by the deponent in front
of a Commissioner of Oaths in compliance with the Regulations Governing
the Administration of an Oath or Affirmation, which were made by the Minister
of Justice in terms of Section 10(1)(b) of the Justices of Peace and
Commissioners of Oath Act 16 0f 1963 ( the Act). The Act empowers the
minister to make regulations prescribing the form and manner in which an
oath or affirmation shall be administered. Regulation 3(1) requires that a
deponent shall sign the declaration in the presence of a commissioner of
oaths. In the matter before me the deponent to the affidavit had just tested
COVID-19 positive at the time of deposing to the affidavit and it was not
possible for him to have the affidavit commissioned in the normal way as this
would have amounted to irresponsible behaviour on his part and he would
have exposed and possibly infected those who would have been in a position
to commission for him.

[12] The applicant’s legal practitioner deposed to a separate affidavit wherein he

gave a detailed explanation of the steps taken by him to ensure that there was
considerable compliance with the requirements in regulation 3(1) and to
ensure that the deponent to the founding affidavit signed in the presence of a
commissioner of oaths, which was impossible as stated above due to the
deponent’s positive COVID-19 status at the time. The legal practitioner avers
in his confirmatory affidavit that he has been in touch with the applicant
through telephonic and email links before and after the preparation of the
notice of motion and founding affidavit. The applicant has confirmed to him
that he is satisfied with the contents of the founding affidavit and that the
statements made in the founding affidavit are those that he wishes to place
before court.
[13] In the matter of S v Munn 1973 (3) SA 734 (NC), it was confirmed that the
Regulations are directory only and that non-compliance would not invalidate
an affidavit if there was substantial compliance with the formalities in such a
way as to give effect to the purpose of obtaining the deponent’s signature to
an affidavit. The court further found that the purpose of obtaining a deponent’s
signature to an affidavit is primarily to obtain irrefutable evidence that the
relevant deposition was indeed sworn to. The Munn case confirmed years ago
that the requirement of physical presence between the deponent and the
commissioner is not peremptory and can be relaxed on proof on the facts of
substantial compliance with the requirements.

[14] In the matter before me, I am satisfied that the affidavit of the legal
representative of the applicant is sufficient proof that there was substantial
compliance with the requirements.

[15] In my view the proper approach to the question of urgency is to ascertain that
the applicant’s case is a good one on the merits and that the applicant has a
right to the relief sought. It is upon the applicant to set out in the founding
affidavit facts which justify the bringing of the application at a time other than
the time as set out in the rules. In other words, the applicant must set out
explicitly the circumstances which render the matter extremely urgent. Luna
Meeubel Vervaardigers (Edms) Bpk v Makin & Another ( t/a Markin ‘s
Furniture Manufacturers) 1977 (4) SA 135 (W) at 136 H ; Twentieth Century
Fox Film Corporation v Anthon Black Films (Pty) Ltd 1982 (3) SA 582. ; Eayrs
NO obo The Daku Trust v Strydom NO and Others (3704/11) [2012]
ZAEGPEHC 4.

[16] The applicant in this matter avers that he together with his partner were in the
property self-isolating after having been diagnosed as both COVID-19
Positive. The electricity and water supply to the property had been cut off by
the respondents. Their access to the property has been disconnected and
they were unable to exit the property or allow others to gain access to the
property and bring them whatever they required during their isolation.
[17] In my view the behaviour of the respondents towards the applicant and his
partner was inhumane, cruel and unkind. The respondents were made aware
of the COVID-19 status of the applicant and his partner and despite this, they
proceeded to act in a manner that offends our Bill of Rights, in particular
Section 12(1)(e) “ Everyone has the right to freedom and security of the
person, which includes the right not to be treated or punished in a cruel,
inhumane or degrading way”, and put the lives of the applicant and his
partner in grave danger. I am satisfied that this was a matter of life and death
and the applicant has explicitly set out the circumstances in the founding
affidavit and made out a case of extreme urgency and the non-compliance
with the timeframes in the rules in respect of forms and service are condoned.

[18] It is trite that a person may not take the law into his or her own hands. When
one is aggrieved by the conduct of another, one must follow proper legal
procedures in order to address their grievances in an orderly and civilised
manner to obtain the necessary relief they desire.

[19] The applicant avers that he was in continuous, undisturbed, lawful and
peaceful occupation of the property since 1st April 2019. The wrongful
spoliation occurred on the 1st and 2nd December 2021 when his access to the
property was terminated by blocking the rights associated with his biometric
access and telephonic access control and the water and electricity supply to
the property was cut off.

[20] In the matter before me the only version before the court is that of the
applicant. There is a dispute between the applicant and the respondent
regarding the late payment of the rent by the applicant. The respondent is
within his rights to evict the applicant if he is not adhering to the terms of the
lease agreement. However the respondents must follow the eviction
procedure to the letter and they cannot resort to self-help methods which
cause more harm in the end.
[21] I am satisfied that the applicant was in peaceful and undisturbed control of the
property. The control of the applicant was disturbed by the first respondent in
an unlawful manner as the respondents were not in possession of a court
order authorising them to evict the applicant.

[22] In the premises, the following order is made:

1. This application be heard as an urgent application in terms of Rule 6 (12)
of the Rules of this Honorable Court and that the applicant’s non-
compliance with the timeframes in the Rules in respect of forms and
service are condoned.

2. The First and / or Second Respondents are to forthwith restore to the

Applicant full access to the premises – Unit 2[…], The P[…], Southdowns
Estate, Bakwena Avenue, Doringkloof, Centurion, 0062
(“the property”), including:

2.1 ensure the immediate reconnection of water and electricity

supplies to the property; and

2.2 grant the Applicant biometric, telephone and other electric

access to the property.

3. The First and/or the Second Respondents to pay the costs of this
application, jointly and severally, on a party and party scale.

M.M.D. LENYAI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

CASE NUMBER: 60330/2021

HEARD ON: 3 DECEMBER 2021

FOR THE APPLICANT: ADV S OGUNRONBI

INSTRUCTED BY: MALULEKE INCORPORATED

FOR THE RESPONDENTS: AB LOWE ATTORNEYS

ORDER GRANTED: 03 DECEMBER 2021

DATE OF JUDGMENT: 15 December 2021