08/03/2021 Yahoo Mail - CASE No. 19506/2017: ST.

JANES DE CHANTAL HOME + 2 OTHERS v A W SIMAAN + 6 OTHERS

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CASE No. 19506/2017: ST. JANES DE CHANTAL HOME + 2 OTHERS v A W SIMAAN + 6
OTHERS

From: hannah kitele (kitelehannah@yahoo.co.uk)

To: mariuss@savage.co.za; stephenl@savage.co.za; moray.hathorn@webberwentzel.com;

tshego.phala@webberwentzel.com
Cc: stjanesdechantal@yahoo.com; smithwjosephine@gmail.com

Date: Monday, 8 March 2021, 16:13 SAST

Good day,

Attached please find the Applicants heads of arguments in the Applicants application in terms of Rule 42, 30 and
47(3) duly served.

Regards

19506.17 Applicants heads of arguments Rule 42.30 & 47.pdf

503.1kB

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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA
Case No.19506/2017

In the matter between:

ST. JANES DE CHANTAL HOME 1STAPPLICANT

JOSEPHINE SMITH 2ND APPLICANT

HANNAH KITELE 3RD APPLICANT

and

ANDREW WILLIAM SIMAAN

(Id No.5605065166085 or 5605065166002) 1ST RESPONDENT

JANE’S HAVEN CHILDREN’S HOME a.k.a

JANE’S HAVEN CHILDREN’S VILLAGE 2ND RESPONDENT

WEBBER WENTZEL ATTORNEYS 3RD RESPONDENT

TSHEGOFATSO CLAUDETTE PHALA 4TH RESPONDENT

ALEXANDER WILLIAM PULLINGER 5TH RESPONDENT

CHIARA VAN INGEN 6TH RESPONDENT

CAITLYN VAN RENSBURG 7TH RESPONDENT

In re:

ANDREW WILLIAM SIMAAN 1ST APPLICANT

JANE’S HAVEN CHILDREN’S HOME NPC 2ND APPLICANT

WEBBER WENTZEL ATTORNEYS 3RD APPLICANT

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TSHEGOFATSO CLAUDETTE PHALA 4TH APPLICANT

ALEXANDER WILLIAM PULLINGER 5TH APPLICANT

CHIARA VAN INGEN 6TH APPLICANT

CAITLYN VAN RENSBURG 7TH APPLICANT

and

HANNAH KITELE 1ST RESPONDENT

PATRICK KITELE 2ND RESPONDENT

JOSEPHINE SMITH 3RD RESPONDENT

ST. JANE’S DE CHANTAL HOME NPO 4TH RESPONDENT

NICHOLAS PELSER 5TH RESPONDENT

APPLICANTS HEADS OF ARGUMENTS: APPLICATION I.T.O RULES 42, 30 & 47(3)

1. PARTIES

1.1. The “Applicants” in this application are the “First, Second and Third

Respondents” in convention and are cited herein and in this application

as the “Applicants”.

1.2. The “Respondents” in this application are the “Applicants” in convention

and are cited herein and in this application as the “Respondents”.

2. TYPE OF APPLICATION

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2.1. This is application inter alia:

2.1.1. In terms of Rule 30 of this Honourable Court.

2.1.2. In terms of Rule 42 alternatively under common law

2.1.3. In terms of Rule 47(3) of the Rules.

3. RELIEF SOUGHT

3.1. The Applicants humbly seek for orders in the following terms:

3.1.1. Finding and declaring that:

3.1.1.1. The above case No.19506/2017 was not before the Honourable

Madam Justice Kubushi for Judicial Case management but case

No.9211/2017 as per the Court order of the Honourable Madam

Justice Khumalo made on the 06 June 2017 (annexure marked

“SJ9”) albeit made as a result of the Respondents’

misrepresentations.

3.1.1.2. The Respondents’ misrepresentations made to the Honourable

Madam Justice Khumalo on the 06 June 2017, (being that case

No.9211/2017 was being case managed by the Honourable

Madam Justice Kubushi), constituted the offence of perjury and

fraud.

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3.1.2. Declaring that Judicial Case Management of any matter in this

Honourable Court is dealt with and heard in terms of Rule 37A of this

Honourable Court’s Rules since the adoption of the Rule 37A on the 31

July 2019.

3.1.3. Consequently any Orders and/or directives made in any purported

Judicial Case Management before the Honourable Madam Justice

Kubushi under case No.19506/2017 are hereby rescinded and/or set

aside.

3.1.4. Declaring that:

3.1.4.1. Only the party in proceedings or the attorney of record for a

party in the proceedings may request or demand for the

furnishing of security for costs in proceedings and not an

attorney(s) who is/are not attorney(s) of record in the relevant

proceedings.

3.1.4.2. Savage Jooste & Adams Incorporated or its attorneys may not

make an application demanding the furnishing of security for

costs on behalf of the Respondents in the matters under case

numbers 67234/2011, 15660/2012, 75314/2013, 26433/2014,

20924/2015, 62167/2015 and 51679/2014 of this Honourable

Court and 14254/2014 of the Gauteng Local Division,

Johannesburg, because they are not the attorneys of record in

the those matters.

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3.1.4.3. Savage Jooste & Adams Incorporated are not authorised to

represent the Respondents in the matters stated in the

preceding paragraph because they are not the attorneys of

record in those matters and/or the matter under case number

2912/2014 and 20924/2015.

3.1.5. Declaring that the Third, Fourth, Fifth, Sixth and Seventh Respondents

were ipso facto barred in terms of the Applicants’ notice in terms of

Rule 26 (annexure “SJ83”) in the matter under case No.2912/2014

and cannot advance or demand security for costs without lifting the bar

by making an application in terms of Rule 27.

3.1.6. Declaring that the First Respondent was ipso facto barred in terms of

the First Applicant’s notice in terms of Rule 26 (annexure “SJ78”) in

the matter under case No.75314/2013 and cannot advance or demand

security for costs without lifting the bar by making an application in

terms of Rule 27.

3.1.7. Compelling the Respondents to comply with the Applicants’ request

contained in the Applicants letter of 31 July 2020 and the notices given

in paragraphs 365, 377, 455 of the Applicants’ founding affidavit dated

06 July 2020, within 5 (five) days of this order and in the event of

failure to comply, the Applicants are granted leave to apply on urgent

basis for the dismissal of the Respondent’s defence in this application

and/or the Respondent’s claim in the application under the above case

number.

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3.1.8. Finding and declaring that the First Applicant has fully complied with

the Respondents notice in terms of Rule 7(1) dated 04 March 2020

upon delivery of its reply dated 10 February 2021 wherein attached

was the First Applicant’s resolution dated 23 March 2017 authorising

the Second and Third Applicant to act on behalf of the First Applicant

in the proceedings under the above case number.

3.1.9. Directing that the Second and Third Applicants (being “Josephine

Smith” and “Hannah Kitele”) as members of the First Applicant (being

“St. Janes de Chantal Home”) and deponents to the First Applicant’s

affidavits are duly authorised in terms of the resolution marked

annexure “SJ2” of the Applicants’ founding affidavit to represent the

First Applicant in these proceedings

3.1.10. Consequently and in light of all the above stated:

3.1.10.1. Directing that the Respondents’ notices in terms of Rule 30 and

30A dated the 27 July 2020 and 29 January 2021 and/or any

application by the Respondents pursuant to the aforestated

notices are and hereby set aside.

3.1.10.2. In the event the Respondents’ notices in terms of Rule 30 and

30A are set aside, directing and ordering that the whole relief

sought in the Applicants’ notice of motion dated 06 July 2020 is

and hereby granted.

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In the alternative and in the interim to the hearing of the Applicants

application:

3.1.11. Directing that the orders sought in terms of paragraphs 1, 1.1, 1.2,

1.3, 14, 17, 17.1, 17.2, 22, 33, 33.1, 44, 45, 46, 47, 49, 50, 57 and 58

of the Applicants’ notice of motion dated 06 July 2020 are granted as

follows:

“1. Directing and ordering that:

“1.1. The Respondents furnish to the Applicants security for costs in these

proceedings under case number 19506/2017 for an amount to be

determined by this Honourable Court or the Registrar.

“1.2. The Respondents furnish to the Applicants security for costs in all the

pending main matters between the parties, insofar as they relate to these

proceedings for an amount to be determined by this Honourable Court or

the Registrar.

“1.3. In the event the Respondents do not furnish the security as ordered

or determined by the Registrar, within the stipulated time, the Applicants

are given leave to apply on urgent basis and on the same papers,

supplemented insofar as may be necessary, for the dismissal and/or

striking out of the Respondents claim or defences.”

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“14. Finding and declaring that the Respondents contravened Section 305(1)(q)

of the Children’s Act, 2005 for disobeying paragraph 2 of the order dated

29/02/2016 granted under case number 55315/2011 and are in contempt.”

“17. Directing that pending finalisation of the main pending matters between the

parties as regards the properties at 32 and 34 Sunny Way, Kelvin, Gauteng:

“17.1. The Applicants are immediately and forthwith restored undisturbed

occupation of the immovable properties situated at 32 and 34 Sunny Way,

Kelvin, Gauteng pending finalisation of the Respondents rescission

application under case number 26433/2014 and the Respondents

application under case number 19506/2017.

“17.2. In the event the properties stated in the above paragraphs are

restored to the Applicants, the Respondents or any person opposing this

application are ordered to immediately provide alternative accommodation

to any current occupiers that reside through and under the Respondents

or their agents/associates.

“22. Directing that the First Respondent is prohibited from launching or

proceeding with any proceedings, prior to purging the contempt of Court stated in

paragraph 4 of this Honourable Court’s order dated 04 th July 2014 and/or

finalisation of the Respondents rescission application under case number

26433/2014.”

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“33. Directing that the Fourth, Fifth, Sixth, Seventh Respondents and Legal

Practitioners namely Mr. Marius van Staden, Mr. Stephen Christopher

Leinberger, Ms Florette Storm, Ms Tatum Jean Cooper and Liana Keijser are

ordered to produce the documents as requested in the relevant paragraphs of

the Applicants founding affidavit in this application.

33.1. In the event the documents stated above are not produced for

inspection and copies of same delivered, it is prima facie found that

the Respondents committed fraud, perjury and forgery and the

documents filed of record and any transcripts are referred and

submitted to the National Director of Criminal Prosecutions for a

decision on whether or not to prosecute them.”

“44. Directing that the Respondents notice in terms of Rule 7(1) dated and

delivered on the 04th March 2020 is and hereby set aside because of the

Respondents non-compliance with Rule 7(1) read with Rule 27(1), alternatively

the Respondents are ordered to make an application to Court in terms of Rule

27(3).”

“45. Finding and declaring that the Respondents application under case

no.19506/2017 was not subject to Judicial Case Management.

“46. Finding that the Respondents misled and made misrepresentations to this

Honourable Court and to Honourable Judges that the Respondents application

under case no.19506/2017 was subject to Judicial Case Management.

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“47. Directing that any Court orders or directives emanating or granted in any

Case Management process under case no.19506/2017 are and hereby

rescinded and/or set aside.

“49. Finding that the Respondents made misrepresentations to this Honourable

Court on the 06th June 2017, 31st October 2019 and the 11th November 2019, in

matters under case numbers 9211/2017, 75314/2013 and 26433/2014 that led to

the orders being granted referring the matters to case management.”

“50. Directing that the orders stated in paragraph 49 above are and hereby set

aside.”

“57. Directing that in the event the Respondents or any other person opposing

this application, provides any false information and/or documents, the Applicant

serves a copy of this Court order or Judgment and the documents filed of record

to the National Director of Public Prosecution with a request to consider whether

or not to prosecute any such person for the offences of perjury, fraud and forgery

and/or any other offence under the provisions of any laws.”

“58. Directing that in the event the Respondents or their representatives deliver

or delivered any affidavits wherein any reference to or reliance of any evidence

by any such persons is/was made, the Applicants may subpoena such person in

terms of Rule 6(5)(g).

4. ISSUES TO BE DETERMINED

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4.1. Whether or not the Respondents application under case No.19506/2017

was indeed a matter before the Honourable Madam Justice Kubushi for

Judicial case management.

4.2. Whether or not the Respondents made misrepresentations before the

Honourable Madam Justice Khumalo on the 06 June 2017 resulting to an

order referring the Applicants application under case No.9211/2017 for

case management and/or finalisation by the Honourable Deputy Judge

President Mr. Ledwaba and the Honourable Madam Justice Kubushi.

4.3. Whether or not the purported order/directive dated the 05 March 2020 was

indeed granted or issued by the Honourable Madam Justice Kubushi and

if indeed so;

4.4. Whether or not the Honourable Madam Justice Kubushi had the

jurisdiction to deal with the matter under case No.19506/2017 in

Chambers and outside the confines of Rule 37A of the Rules.

4.5. Whether or not the Respondents in the alleged case management before

the Hon. Judge Kubushi are exempt from following the Rules of this

Honourable Court in light of the requirements laid down in Rule 37A(2)(c).

4.6. Whether or not consequently the purported order/directive dated 05 March

2020 should be set aside or rescinded.

4.7. Whether or not the Respondents or their representatives committed fraud

and/or perjury.

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4.8. Whether or not Attorneys who are not the Attorneys of record for a party in

the relevant proceedings may demand or launch an application on behalf

of the party for the furnishing of security for costs in those proceedings.

4.9. Whether or not the Respondents were ipso facto barred in matters as a

consequence of not complying with the Applicants notices to bar in terms

of Rule 26.

4.10. Whether or not the Respondents should be compelled to comply with the

Applicants requests and notices.

4.11. Whether or not the Second and Third Applicants have satisfied this

Honourable Court that they are duly authorised to represent the First

Applicant in these proceedings.

4.12. Whether or not the Respondents notices in terms of Rule 30 and 30A

which are a duplication of an already satisfactorily replied to and/or

abandoned Rule 30 should be set aside.

4.13. Whether or not the Applicants are entitled to the whole relief or remedies

as prayed for in the Applicants’ notice of motion dated 06 July 2020.

4.14. Whether or not the Applicants are entitled to security for costs as a result

of the Respondents’ misrepresentations, abuse of process, irregular,

improper, gross misconduct, contravention of Statutes, unprocedural

steps, non-compliance with Rule and Practice Directives and unlawful

representation.

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4.15. Whether or not the Applicants have made out a case for the relief and

remedies sought in the relevant paragraphs of the notice of motion dated

06 July 2020.

5. SUBMISSIONS

5.1. It is respectfully submitted that:

5.1.1. The Respondents’ application for security for costs launched under

case 19506/2017 was not under Judicial Case Management before the

Honourable Madam Justice Kubushi and/or was improperly before Her

Ladyship for the reasons stated:

5.1.1.1. In paragraph 21 & 22 of the Applicants’ founding affidavit on

section 001 in subsection 2 on pages 32 to 33 on Caselines

read with;

5.1.1.2. The Court order of the Hon. Madam Justice Khumalo of the 06

June 2017 being annexure marked “SJ9” on section A in

subsection 9 on pages A163 & A164 on Caselines.

5.1.1.3. In paragraph 203 to 206 of the Applicants’ founding affidavit on

section 001 in subsection 2 on pages 91 to 92 on Caselines

and;

5.1.1.4. Under the heading “Respondents’ non-compliance with Rule 36,

37 & 37A and Practice Directive no.2 of 2019” of the Applicants

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founding affidavit in paragraphs 207 to 229.7 on section 001 in

subsection 2 on pages 92 to 98 on Caselines, read with;

5.1.1.5. Annexures “SJ59” to “SJ62” on section A in subsections 59 to

62 on pages A309 to A349 on Caselines.

5.1.1.6. In paragraphs 250 to 314 on section 001 in subsection 2 on

pages 103 to 125 on Caselines read with;

5.1.1.7. Annexures “SJ59” to “SJ73” on section A in subsections 59 to

73 on pages A309 to A392 on Caselines.

5.1.1.8. In paragraph 365 on section 001 in subsection 2 on pages 142

to 143 on Caselines.

5.1.1.9. In paragraph 406 on section 001 in subsection 2 on page 155

on Caselines.

5.1.1.10. In paragraph 491 to 495.4 on section 001 in subsection 2 on

pages 179 to 181 on Caselines, read with;

5.1.1.11. Annexure “SJ3” on section A in subsection 3 on page A3 to

A127 on Caselines, and; annexures 126 to 127 on section A in

subsection 124 & 125 on pages A840 to A846 on Caselines and

annexure “SJ9” above.

5.1.1.12. Even if the matter was under case management, the Applicants

rely as authority on paragraph 37 of the Judgment of the

Honourable Madam Justice Basson in the matter:

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Minister of Defence and Military Veterans and Others v

O’brien N.O and Others (76995/2018) (2020) ZAGPPHC 178

(4 May 2020) wherein Her Ladyship states as follows:

“37..............The mere fact that a matter has been placed under

case management is irrelevant in as far as compliance with the

rules is concerned. If regard is had to Rule 37A(2)(c) of the rules

it is clear that case management does not absolve parties of

their duties to comply with the rules:”

5.1.1.13. Further the purported Court order/directive (annexure “SJ69”)

purports to condone, in Chambers the Respondents non-

compliance with the Rules, gross misconduct and contravention

of Statutes.

5.1.1.14. It is respectfully submitted that a Judge in Chambers has no

jurisdiction in terms of Rule 30A and further even a Court has no

discretion to condone non-compliance. In this regard humbly

refer this Hon. Court to the matter of:

“Hellen Suzman Foundation v Judicial Service Commission

2018(4) SA1 (CC) at 31 F-H.”

5.1.1.15. The aforestated is demonstrated in paragraph 295 of the

Applicants founding affidavit on section in subsection 2 on page

116 on Caselines.

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5.1.1.16. This Honourable Courts attention is drawn to the fact that as a

result of the misrepresentations by the Respondents there has

been a delay of almost 4 (four) years.

5.1.1.17. Rescission in terms of Rule 42 and/or common law:

5.1.1.18. It is respectfully submitted that the order/directive was

erroneously sought and/or erroneously granted.

5.1.1.19. An order or judgment may be rescinded or varied under Rule

42(1), which reads:

"The court may, in addition to any other powers it may

have, mero motu or upon the application of any party affected,

rescind or vary:

“(a) An order or judgment erroneously sought or erroneously

granted in the absence of any party affected thereby;

“(b)…………………………………………………………………

“(c) ………………………………………………

5.1.1.20. An order is erroneously granted where the party who obtained it

was not procedurally entitled to it.

5.1.1.21. It does not matter whether the Judge who granted the order was

aware of the procedural error.An order is erroneously granted

where the party who obtained it was not procedurally entitled to

it.

See: 106 Lodhi 2 Properties Investments CC v Bondev

Developments 2007 (6) 87 (SCA) (“Lodhi 2”), paras 24 and
25.

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5.1.1.22. It is submitted that Rule 42(1)(a) deals specifically with those

default judgments or orders which were erroneously sought or

granted in the absence of any party affected thereby, which it is

submitted happens to be the case with regard to the Applicant,

since the Applicant was absent from the chambers of

Honourable Judge Kubushi when she allegedly issued the

unsigned Court order on the O5 March 2020.

5.1.1.23. The essential elements of this type of rescission are therefore:

9.1.1.23.1 That the judgment was erroneously sought or

granted; and,

9.1.1.23.2 That this occurred in the absence of the parties

affected thereby.

See Stephen Pete et al: Civil Procedure, Practical

Guide (supra) at paragraph 2.1.1D on page 295.

5.1.1.24. It is furthermore submitted that the error that is being referred to

in this particular context should be the type of error that resulted

in the judgment being granted, and in this particular instance it

is the Applicants contention that the misrepresentation that it is

case number 19506/2017 as opposed to case number

9211/2017 which was ordered by Honourable Judge Khumalo to

be referred to the Deputy Judge President and Honourable

Judge Kubushi to consider and finalise albeit under false

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submissions by the Respondents representative that the

application formed part of case management is the type of error

that resulted in this Honourable Court granting the orders; had

the Honourable Court known that the application referred to the

Deputy Judge President was in actual fact case number

9211/2017 it would not have granted the orders.

See Erasmus: Superior Court Practice, Rule 42, on pages

B1 – 308A.

5.1.1.25. It is respectfully submitted, the Applicant is entitled to rescission

as soon as she can establish an error in the proceedings, and in

this particular instance the error lies in the fact that no

proceedings between the parties were ever referred or sought to

be referred for case management from the start as per the then

Practice Directive 6.4, Rule 36, 37, and 37A and further

directive No.2. of 2019, the Attorneys who were not Attorneys of

record together with the Attorneys of record and/or the

Respondents knew and was aware of the facts , but instead

chose not to inform the Honourable Court but rather mislead

and misrepresent, thereof, and in so doing the Respondents

and or their alleged representatives failed to disclose

information that was material to proceedings before this Court,

when there was indeed a duty to do so leading to the orders

being erroneously sought and erroneously granted.

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5.1.1.26. It is common cause that when the order for the 05 March 2020

was allegedly issued in the absence of the Applicants and/or

their Representatives, and/or by a Court without jurisdiction as

demonstrated in paragraph 283 to 308 of the Applicants

founding affidavit on section 001 in subsection 2 pages 110 to

123 on Caselines.

5.1.1.27. The Applicants respectfully submits that the purported

orders/directives granted under case management also falls to

be rescinded in terms of the common law fraud.

5.1.1.28. To justify rescission in terms of the common law, judgment can

be set aside on the following grounds:

(a) fraud;

(b) justus error (on rare occasions);

(c) in certain exceptional circumstances when new documents

have been discovered;“

(d) where judgment had been granted by default; and“(e) in the

absence between the parties of a valid agreement to support

the judgment, on the grounds of justa causa.

5.1.1.29. It is respectfully submitted that fraud in order to succeed on a

claim that a judgment be set aside on the ground of fraud it is

necessary for the applicant to allege and prove the following”

(i) that the successful litigant was a party to the fraud;

(ii) that the evidence was in fact incorrect;

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(iii) that it was made fraudulently and with intent to mislead;

and

(iv) that it diverged to such an extent from the true facts that

the court would, if the true facts had been placed before

it, have given a judgment other than that which it was

induced by the incorrect evidence to give.

5.1.2. Notwithstanding the fact that the purported order/directive dated

05 March 2020 is and was not signed by the Hon. Judge Kubushi

who is alleged to have granted it and further that there are three

dates in which the purported order is alleged to have been

granted being:

(a) The 05 March 2020 as the stated dated in the purported

order/directive (annexure “SJ69”) on section A on page A374

and;

(b) On the 17 March 2020 as stated in paragraph 2 & 4 of the

Respondents’ notices in terms of Rule 30 & 30A dated 27/07/2020

respectively and again in paragraphs 2 & 4 of the Respondents’

notices in terms of Rule 30 & 30A dated 29/01/2021 respectively,

to be found in section 003 in subsections 1 to 4 on Caselines. And

(c) On the 25 March 2020 as stated in paragraph 3.7 of the

Respondents’ alleged representative affidavit (being “Mr. Stephen

Christopher Leinberger”), to be found in section 016 subsection 1

page 5 on Caselines; it is respectfully submitted that:

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5.1.2.1. That the successful litigant was a party to the fraud: That the

Respondents and/or their representatives were party to the

fraud and misrepresentations

5.1.2.2. That the evidence was in fact incorrect: in that the Respondents

misrepresented and misled this Hon. Court and Judges that the

applications under case No.19506/2017 and case

No.9211/2017 were under case management.

5.1.2.3. That it was made fraudulently and with intent to mislead: the

allegations were meant for the purpose of circumventing and/or

delaying the pending matters and damages claims hereby

dispossessing the Applicants properties and further gaining

unfair advantage in the pending proceedings and further to

afford Respondents condonation for inter alia non-compliance

and gross misconduct

5.1.2.4. That it deviates to such an extent from the actual facts that the

court would if the actual facts have been placed before it would

have given a judgment other than that which it was induced by

the incorrect evidence before it:, It has been alleged and proved

that the Respondents allegations of case management were

incorrect.

5.1.3. Consequently and in light of all that is stated in the above paragraphs

and annexures relied upon, the purported order/directive dated 05

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March 2020 is of no force and effect and should be set aside and/or

rescinded, and;

5.1.4. It is humbly prayed that the orders sought in paragraphs 1-3 be

granted.

5.2. It is respectfully submitted that the Attorneys acting on behalf of the

Respondents in these proceedings under case No.19506/2017 and

demanding the furnishing of security for costs on their behalf are not the

Attorneys of record in the pending matters between the parties:

5.2.1. The matters in which the Respondents demand the furnishing of

security for costs in matters under case numbers 67234/2011,

15660/2012, 75314/2013, 26433/2014, 20924/2015, 62167/2015 and

51679/2014 of this Honourable Court and case No.14254/2014 of the

Gauteng Local Division, Johannesburg, as evident in the Respondents’

notice of motion marked annexure “SJ3” on section A in subsection 3

on A4 and A5 on Caselines.

5.3. In the above matters the Respondents are represented by “Webber

Wentzel Attorneys pro bono department” a fact that “Savage Jooste &

Adams Incorporated” have conceded as demonstrated in paragraph 117

of the Applicants founding affidavit on section 001 in subsection 2 on page

68 on Caselines, read with;

5.4. Annexures “SJ43” and “SJ44” on section A in subsection 43 & 44

onpages A264 to A269 on Caselines.

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5.5. Further as demonstrated in paragraph 118 of the Applicants founding

affidavit in section 001 in subsection 2 on page 68 on Caselines, and;

5.6. In paragraphs 373 to 375 of the Applicants founding affidaviton section

001 in subsection 2 on pages 147 on Caselines, read with;

5.7. Annexure “SJ55” and “SJ56” on section A in subsection 55 & 56 on pages

A301 and A302 on Caselines.

5.8. It is respectfully submitted that:

5.8.1. The Third, Fourth, Fifth, Sixth and Seventh Respondents are out of

time and are barred from launching an application for the furnishing of

security for costs because they were ipso facto barred in terms of a

Notice to bar delivered in terms of Rule 26 in the proceedings under

case No.2912/2014. The aforestated is demonstrated in paragraph 370

of the Applicants founding affidaviton section 001 in subsection 2 on

page 146 on Caselines, read with;

5.8.2. Annexure “SJ83” on section A in subsection 83 on pages A529 to

A532 on Caselines.

5.8.3. The Respondents can only launch an application upon lifting the bar.

5.9. It is respectfully submitted that:

5.9.1. The First Respondent is out of time and barred from launching an

application for the furnishing of security for costs because he was ipso

facto barred in terms of a Notice to bar delivered in terms of Rule 26 in

the proceedings under case No.75314/2013. The aforestated is

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demonstrated in paragraph 351 of the Applicants founding affidavit on

section 001 in subsection 2 on page 140 on Caselines, read with;

5.9.2. Annexure “SJ78” on section A in subsection 78 on pages A432 to

A433 on Caselines.

5.9.3. The First Respondent can only launch an application upon lifting the

bar.

5.10. It is respectfully submitted that the Respondents were given notice to

produce alleged documents, however failed to do so and consequently the

Respondents should be compelled to produce the documents as

requested in:

5.10.1. Paragraph 365 of the Applicants founding affidavit in section 001 in

subsection 2 on page 142 to 143 on Caselines.

5.10.2. Paragraph 377 of the Applicants founding affidavit in section 001 in

subsection 2 on page 148 to 149 on Caselines

5.10.3. Paragraph 455 of the Applicants founding affidavitin section 001 in

subsection 2 on page 168 to 169 on Caselines.

5.10.4. In the Applicants letter of 31 July 2020 in section 004 on page 1 on

Caselines.

5.10.5. The Respondents in affidavits claim that the Fourth to Seventh

Respondents and/or the individuals that appear in Court to be Legal

Practitioners. It is respectfully submitted that it is a general and basic

principle that “one who alleges or asserts must prove and the onus of

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proof is on that person”. The maxim “Affirmati Non Neganti Incumbit

Probatio” is applicable.

5.11. It is respectfully submitted that:

5.11.1. The First Applicant is not a “corporate entity” as stated in the

Respondents’ response dated 11 February 2021 to the First

Applicant’s reply to Rule 7(1) dated 10 February 2021 and in section

013 on pages 1 to 3 on Caselines.

5.11.2. The First Applicant is a Non-Profit Organisation in terms of the NPO

Act, 1997 and an association of persons established for public benefit

and interests and therefore NOT a corporate entity for profit.

5.11.3. The First Applicant delivered its resolution authorising the Second

and Third Applicants to represent it in these proceedings The Second

and Third Applicants are entitled to represent the First Applicant as

provided for in Section 38 and Section 8 of the Constitution of the

Republic and may appoint a Legal Practitioner if need be as

demonstrated in paragraph 241 on section 001 in subsection 2 on

page 101 on Caselines.

Section 38 of the Constitution states as follows:

“38. Anyone listed in this section has the right to approach a competent

Court, alleging that a right in the bill of rights has been infringed or

threatened, and the Court, may grant appropriate relief, including a

declaration of rights. The persons who may approach a Court are:-

(a) Anyone acting in their own interests

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(b) Anyone acting on behalf of another person who cannot act in their

own name

(c) Anyone acting as a member of, or in the interest of, a group or

class of persons

(d) Anyone acting in the public interest

(e) An association acting in the interests of its members”

5.11.4. In the above regard inter alia the following Applicants’ rights have

been infringed and/or threatened:

5.11.4.1. The right to approach or access Courts as enshrined in

Section 34 of the Constitution.

5.11.4.2. The rights in Section 25 and 26 of the Constitution as regards

Applicants and children’s properties and housing situated at 32 and 34

Sunny Way, Kelvin and 61 West Road

5.11.4.3. The rights in Section 28 of the Constitution as regards the

removed children.

5.11.4.4. The rights in Section 12 & 35 of the Constitution as regards

arrests, detention and incarceration arbitrarily and without just cause

and without due processes.

5.11.4.5. The rights in Section 29 of the Constitution as regards

children’s education in that monies intended for children’s education

has to be diverted to housing when in fact housing already exists and

was acquired for the Applicants and the children in their care.

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5.11.4.6. The rights in Section 38 of the Constitution as regards the

First Applicant’s right to be represented by the Second and Third

Applicants who are its members.

5.11.5. The First Applicant has complied with the Respondents notice in

terms of Rule 7 as evident in the Applicants reply in section 009 on

page 1 to 5 on Caselines, read with;

5.11.6. The First Applicants resolution on annexure “SJ2” on section A

Subsection 2 on page A2 on Caselines. Alternatively:

5.11.7. An order is granted in terms of prayer 44 of the Applicants notice of

motion on section 001 in subsection 1 on page 13 & 14 on Caselines

as a result of;

5.11.7.1. The Respondents notice in terms of Rule 7(1) that was

delivered out of time as demonstrated in paragraph 230 to 243

in section 001 in subsection 2 on pages 98 to 102 on Caselines.

5.11.8. It is respectfully submitted that:

5.11.8.1. In light of all the above stated and the response contained in the

Applicants reply dated 31 July 2020 in section 005 in subsection

1 on pages 1 to 10 on Caselines, and;

5.11.8.2. The Applicants notice in terms of Rule 30 dated 10 February

2021 in section 010 on page 1 to 16 on Caselines, and;

5.11.8.3. The Respondents insufficient and inadequate reply contained in

the email letter in section 013 on page 1 to 3 on Caselines; it is

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respectfully submitted that the Respondents notices in terms of

Rule 30 ought to be set aside as follows:

5.11.8.3.1. The Respondents notices in terms of Rule 30 & 30A

dated 27 July 2020 in section 003 in subsection 1 & 2 on

pages 1 to 10 on Caselines.

5.11.8.3.2. The Respondents notices in terms of Rule 30 & 30A

dated 29 January 2021 in section 003 in subsection 3& 4 on

pages 11 to 24 on Caselines.

5.12. It is respectfully submitted that the Respondents failed to deliver

answering affidavits and are out of time to do so.

5.12.1. The allegations contained in the Applicants founding affidavit and

its annexures have not been rebutted by the Respondents and thus

are uncontroverted.

5.12.2. If the Respondent fails to admit or deny, or confess and avoid, the

allegations in the Applicants affidavit, the Court should for the

purposes of this application accept that the Applicants’ allegations are

correct. In this regard see the following authorities:

5.12.3. See:

5.12.3.1. Moosa v Knox 1949(3) SA 327 (N) at 331, and;

5.12.3.2. United Methodist Church of SA v Sokufundumala 1989(4)

SA 1055(O) at 1059A, and;

5.12.3.3. Ebrahim v Georgoulas 1992 (2) SA 151 (B) at 153D

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5.12.3.4. In Hasselbacher Papier Import and Export (Body Corporate)

and Another v MV Stavroula 1987(1) SA 75 ( C) it was found

that:“it is proper to put the failure to deny into the scale before

one decides that a prima facie case has been established. To

hold otherwise would have the effect of making the inference to

be drawn from the failure redundant. Burger J stated at p 79-80

that:

“The respondent's failure to reply does not by itself prove the

applicants' case; this fact must obviously be taken with the

evidence provided by the applicants together with such

considerations as to whether the relevant information is or is not

readily available to the applicants or the respondent. In the

Galante case cited by Jansen JA supra the requirement was

that, if there are two reasonable alternatives, the adverse

inference can then be drawn in favour of the plaintiff. In the

present case one could hardly speak of two alternatives unless

one regards the absence of control as an alternative; possibly

one should rather say that, if the applicant has shown that

according to all the information available to him it is a

reasonable possibility and that there are no facts to the contrary,

then the Court is entitled to hold that a prima facie case has

been established if the respondent has failed to place a denial

on record when it could easily do so. As was aptly pointed out

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by Wigmore in the passage referred to above, to hold otherwise

would tend to obscure the truth and create an artificial situation.

In fact a respondent would adopt the attitude: 'It may be correct

what you say, but you can’t prove it. ’

5.13. It is respectfully submitted that the Respondents main application is

unsustainable, untenable, fatally defective, non-compliant, irregular,

improper, irregularly consolidated, vexatious, reckless, frivolous,

unprocedural and an abuse of process.

5.14. The Rule 47(3) application for security for costs was launched by the

Respondents without the delivery of the prerequisite Rule 47(1) setting

forth the grounds for such a request/demand.

(See para 175 to 181 of FA on section 001 in subsection 2 on pages 85 &

86)

5.15. Rule 47(1) is sine qua non to an application in terms of Rule 47(3) and for

this reason the Respondents failed to comply with the Rules prior to

launching the application.

(See: Rule 47(1) & Rule 47(3) of the URC)

(See para28 of FA wherein the relevant Rule is cited in section 001 in

subsection 2 on pages 35 & 36 on Caselines)

5.16. The Rule 47(3) application in all pending matters between the parties is

unsustainable because the Respondents’ application should have been

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preceded by a notice in terms of Rule 47(1) in each and every pending

matter wherein the furnishing of security for costs was being sought by the

Respondents.

5.17. The Respondents failed to deliver the prerequisite notice in terms 47(1) in

all or any of the pending matters prior to the launching their application in

terms Rule 47(3).

5.18. In circumstances the furnishing of security for costs was being sought, it

was mandatory for the Respondents to deliver separate notices in terms of

Rule 47(1) in each and every pending matter wherein such security for

costs was being sought.

5.19. The Respondents were requested by the Applicants in terms of Rule 30

inter alia to seek condonation for their non-compliance however failed or

refused to do so.

(See para195 &196 of FA on sec.001 in subsec.2 on page 89 on

Caselines)
(See Rule 30 notices: annexures “SJ59”, “SJ60” and “SJ61”on sec. A in
subsec. 59 to 61 on pages A309 to A347)

5.20. It is respectfully submitted that the Courts have held that an abuse of

process occurs when the provisions of the Uniform Rules of Court are

used to achieve an outcome that is tangential to the pursuit of the truth.

(See: Ramsamy NO & Others v Maarman NO & Another 2002(6) SA

159(c) at 1721).

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5.21. In Beinash v Wixley 1997 (3) SA 721 (SCA) at 734F-G, it was said

“.............it can be said in general terms however that an abuse of process

takes place where the procedures permitted by the Rules of court to

facilitate the pursuit of the truth are used for a purpose extraneous to that

objective”.

5.22. In Hudson v Hudson 1927 AD 259 at 268, De Villiers JA said, “When

therefore the Court finds an attempt made to use for ulterior purposes

machinery devised for the better administration of justice, it is the duty of a

Court to prevent such abuse, But it is a power which has to be exercised

with great caution, and only in clear case”. See also Brummer v Gorfil

Brothers Investments Pty Ltd 1999(3)SA389(SCA) at 4141-J & 416B-F.

5.23. In Phillips v Botha 1999(2) SA 555 (SCA) at 565 E-F, the SCA described

the following as the definition of civil process “the term “abuse of process”

connotes that- the process is employed for some purpose other than the

attainment of the claim in the action, if the proceedings are merely a

stalking horse to coerce the defendant in some way entirely outside the

ambit of a legal claim upon which a Court is asked to adjudicate, they are

regarded as an abuse for this purpose”.

5.24. It is respectfully submitted that in terms of common law, mere inability by

an incola to satisfy a potential costs order is sufficient to justify an order for

security, something more is required. In Ramsamy NO v Maarman NO

2002(6) SA 159 (C) at 1721J-173A as Thring J put it “What this

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“something” is has been described in a number of decisions. Thus in

Ecker v Dean....it was said... that the basis of granting an order for

security was that the action was “reckless and vexatious”.

5.25. In Ecker v Dean 1937 AD 254 at 259, Curlewis CJ stated:

“In Western Assurance Co. V Caldwell Trustee (1918 AD 262) this Court laid

down that a Court of law had inherent jurisdiction to stop or prevent a vexatious

action as being an abuse of the process of the Court, one of the ways of doing so

is by ordering the vexatious litigant to give security for the costs of the other side,

and I know of no reason why the Court below should not have (exercised) such

an inherent jurisdiction.”

5.26. It is humbly submitted that the Respondents application is vexatious,

reckless and amounts to an abuse of process because:

5.26.1. The Respondents’ application was launched without reasonable

grounds and in retaliation and further to circumvent the Applicants

application in terms of Rule 6(5)(g) and Rule 35(13) under case

number 9211/2017.

(See para10 of FA on sec.001 in subsec.2 on page 27)

5.26.2. The Respondents application was launched advertently for the

purpose of delaying, annoying and circumventing the pending matters

between the parties resulting in the application being an abuse of

process.

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5.26.3. In Fisheries Development Corporation of SA Ltd v. Jorgensen&

Another; Fisheries Development Corporation of SA Ltd v AWJ

Investments Pty Ltd & Others 1979(3)SA1331at 1339 E-F, Nicholas

J stated as follows: “In its legal sense vexatious means “frivolous,

improper, instituted without sufficient grounds, to serve solely as an

annoyance to the defendant, vexatious proceedings would also no

doubt include proceedings which although properly instituted, are

continued with the sole purpose of causing annoyance to the

defendant, abuse connotes a mis-use, an improper use, a use mala

fide, a use for an ulterior motive”

5.26.4. It is respectfully submitted that the Courts have defined

proceedings as being vexatious if they are obviously unsustainable. In

African Farms & Townships Ltd v. Cape Town Municipality

1963(2) SA 555(A) at 565 D-E, Holmes JA observed: “An action is

vexatious and an abuse of the process of Court, inter alia if it is

obviously unsustainable. This must appear as a certainty, and not

merely on preponderance of probability.”

5.26.5. Rule 47(1) being sine qua non to an application in terms of Rule

47(3), the Respondents’ application is unsustainable, defective and

untenable.

5.27. Notwithstanding that the Respondents are not men of straw and are incola

albeit proceeding in forma pauperis,

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5.27.1. In Mears v Brooks Executor & Maars Trustee 1906 TS 546 at

550 it was held that a man of straw litigating in a nominal capacity and

the Court is satisfied that the application is vexatious or abusive, such

a person will be ordered to furnish security for costs. (See also

Pillemer v Israelstam and Sharton 1911 WLD 158.

5.28. In Belmont House Pty Ltd v. Core & Another NNO 2011(6)SA 173

WCC at 178E-F, it was held that “proceedings will be stayed, when they

are vexatious or frivolous or when their continuance, on all circumstances

of the case, is, or may prove to be, an injustice or serious embarrassment

to one or other of the parties but not merely to avoid injustice and

inequity”.

5.29. In Nielson v Rautenbauch NO & Others 2014 (3) SA 17 (GNP), it was

held that the Courts are vested with inherent jurisdiction to curtail

vexatious, reckless and abusive proceedings and may order an incola to

furnish security for costs in order to achieve such an end.

5.30. The Respondents removed matters from the Gauteng Local Division,

Johannesburg to this Division without a Court order as required in terms

Section 27 of the Superior Courts Act, 2013 thereby contravening Section

27(1) of the said Act.

(See Section 27(1) of Superior Courts Act, 2013 in para 74 on sec.001 in

subsec.2 on pages 50-51)
(See: para 72 to 75 of FA on sec.001 in subsec.2 on page 50 to 55:Case
No.14254/2014 of GLD removed to case no.19506/2017 of GD)

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(See para 421 of FA on sec.001 in subsec.2 page 159: Case

No.4730/2010 of GLD removed to case No. 26433/2014 of GD)

5.31. The Respondents consolidated the pending matters between the parties

without an order in terms of Rule 11.

(See para182 to 188 of FA on sec.001 in subsec.2 on pages 87 to 88on

Caselines)
(See Rule 11 at page 185 on sec. 001 in subsec.2 on page 87 on
Caselines)

5.32. The Respondents in their application further seek relief in terms of Section

2 of the Vexatious Act, 1956 in circumstances that no matters have been

finalised between the parties to warrant such application thereby

contravening the said Act. It is respectfully submitted that an application in

terms of the aforesaid Act is an appeal in nature in terms of Section 2(2) of

the Act and can only be made in circumstances a party persistently

institutes proceedings without reasonable grounds.

(See para 78 to 91 of FA on sec.001 in subsec.2 on page 57 to 60)

(See Section 2(1) of Vexatious Act, 1956 at para79 of FA in sec.001 in
subsec.2 on page 57)
(See Section 2(2) of Vexatious Act, 1956 at para 83 of FA in sec.001 in
subsec.2 on pg 58 on Caselines; wherein proceedings i.t.o the Act are
deemed to be Civil proceedings in terms of Section 3(c) of the Appellate
Division Further Jurisdiction Act, 1911).

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5.33. The Respondents are represented in the main pending matters between

the parties on pro-bono basis and therefore not incurring any costs and

can only recover costs if awarded in terms of Rule 40(7).

(See para 61 to 70.1 of FA on sec.001 in subsec.2 on pages 45 to 49 on

Caselines)
(See para 108 to 165 of FA on sec.001 in subsec.2 on pages 65 to 80 on
Caselines)
(See Rule 40(1), 40(2), 40(5) & 40(6) in para107 to 108 of the FA on
sec.001 in subsec.2 on pages 63 to 65 on Caselines)

5.34. The Applicants seek for an order in terms of Rule 40(6) depauperising and

debarring the Respondents from proceeding in forma pauperis.

(See para 108 to 165 of FA in sec.001 in subsec.2 on pages 65 to 80 on

Caselines)

5.35. The Respondents failed to comply with the requirements of Rule 16(2) and

16(4) alternatively Rule 40(5) and further failed to follow the required

procedure laid down in terms of Rule 40(1) and 40(2).

(See para 92 to 107 on sec.001 in subsec. 2 on pages 60 to 63 on Case

lines)
(See Rules 16(2), 16(4) & 40(1), 40(2), 40(5), 40(6) in para107 of FA in
sec.001 in subsec.2 on pages 63 on Caselines)

5.36. The Respondents are not indigents or men of straw and cannot proceed in

forma pauperis in any of the pending proceedings between the parties.

(See para 110 to 165 of FA on sec.001 in subsec.2 on pages 66 to 80 on

Caselines)

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5.37. The First Respondent under case No.75314/2013 has outstanding and

owed legal taxed costs that to date remain unpaid.

(See para 41 to 49 of FA on sec.001 in subsec.2 on pages 39 to 41 on

Caselines)
(See Allocatur: Annexure “SJ13” on sec. A in subsec. 13 on page A174 to
A181 on Caselines)

5.38. The First Respondent under case No.26433/2014 was prohibited from

launching or proceeding with any matter in any Court pending the purging

of contempt in terms of a Court Order dated the 04 July 2014.

(See para 50 to 60.4 of FA on sec.001 in subsec.2 on pages 41 to 45 on

Caselines)
(See Court order: Annexure “SJ19”on sec. A in subsec. 19 on page A193
to A194 on Caselines)

5.39. The Respondents are in contempt of an Order of this Hon. Court granted

under case No.55315/2011 directing that they grant contact to the

Applicants of the removed children from the Applicants’ care.

(See Court order: Annexure “SJ74”on sec. A on subsec. 74 on page

A393 to A395)
(See para 497.13 of FA on sec.001 in subsec.2 on page 188 on
Caselines)
(See Section 305(1)(q) in para 497.14 of FA on sec.001 in subsec.2 on
page 188 on Caselines)

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5.40. The Respondents unlawfully offered the properties at 32 and 34 Sunny

Way for auction sale in circumstances the ownership of the properties was

lis pendens before this Hon. Court under case 67234/2011 which

necessitated an Interdict order that was granted under case number

62167/2015. The Applicants are prejudiced and continue incurring

unnecessary costs in extending the Rule Nisi which has been extended

more than 15 (fifteen) times. For this reason the Applicants seek a final

order that the interdict be made final pending finalisation of the matters.

(See Interim Court orders:- Rule Nisi: Annexures “SJ106” to “SJ121” on

sec. A of subsec. 105 to 119 on pages A813 to A828 on Caselines)
(See para 460 to 482 of FA on sec.001 in subsec.2 on pages 170 to 178
on Caselines)

5.41. The First and Second Respondents are allegedly legally represented by

the Fourth to Seventh Respondents in the main pending matters. The

Second and Third Respondents are nominal parties with no real interest in

the proceedings.

5.42. It is not clear whether or not the Fourth to Seventh Respondents are

indeed Legal Practitioners as alleged or are individuals masquerading as

such or are individuals masquerading as the real Legal Practitioners by

those names and therefore nominal parties with no real interest in the

proceedings.

(See para 13.12 of FA on sec.001 in subsec.2 on page 30 on Caselines)

(See para 63 of FA on sec.001 in subsec.2 on pages 47 on Caselines)

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5.43. Notwithstanding all the above stated the First Respondent (who is the real

litigant in the disputes) is presently in the main application demanding

security for costs through Attorneys who are not Attorneys of record (being

“Savage Jooste & Adams Incorporated”) in the pending matters between

the parties because in all the pending matters the Respondents are

represented on pro-bono basis by “Webber Wentzel Attorneys”.

WHEREFORE the Applicants humbly pray that the orders sought be granted.

DATED AT PRETORIA ON THIS 08TH DAY OF MARCH 2021

SECOND APPLICANT THIRD APPLICANT

JOSEPHINE SMITH HANNAH KITELE

E-mail: Smithwjosephine@gmail.com kitelehannah@yahoo.co.uk
Tel: (011) 023 9150 Tel: 072 942 7402

3.02-41