An Early Morning Call
On 2nd August 2021 we had an early morning call from a neighbour on the eco estate: there’s someone outside your front door. Well everybody on the estate knows we cannot and do not live in the house, so why would there be somebody at the front door? And what a coincidence that at the very moment this “someone” was at our door a neighbour happened to be looking in that direction. It turned out that a Sheriff of the High Court was at our front door to serve papers initiating proceedings. Was this according to the Uniform Rules of Court? How lucky for us that the neighbour saw Mr Sheriff. How unlucky for the applicant and attorney.
We spoke to the sheriff. He told us he was serving papers in the urgent matter to be heard next week.
Another urgent matter from the same applicant! Really?
Urgent Notices of Motion
There have been 4 urgent notices regarding our house.
- In June 2020 the developer raised an urgent notice of motion to request more time to perform remedial work to the house. This was already 3 years after the house should have been complete.
- Then in November 2020 the developer served the municipality and NHBRC with an urgent notice over plans for our house.
- Later that same month we received an urgent notice to remove the arbitrator and certain claims from arbitration.
- And now this.
We also have a couple of non-urgent notices of motion from this same applicant. See our post on Vexatious and Frivolous Litigation.
Rules of Court for Delivering Services
Did the Sheriff serve the papers correctly and according to the Uniform Rules of Court? Is it legal for a Sheriff of the High Court to leave papers and not have to get a signature from a recipient?
Uniform Rules of Court
Rule 4. Service
Rule 4 of the Uniform Rules of Court regarding Service states:
any document initiating application proceedings shall be effected by the sheriff in one or other of the following manners:
(i) By delivering a copy thereof to the said person personally: …;
(ii) by leaving a copy thereof at the place of residence or business of the said person, …;
(iii) by delivering a copy thereof at the place of employment of the said person, …;
(iv) if the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen;
And
[Rule 4 (1) (a) amended by GN R2410 of 30 September 1991.]
(aA) Where the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings.
That is very clear.
The Applicant and her attorney have our domicilium citandi et executandi as our home in Johannesburg. With all the notices of motion, they know we have legal representation in the Western Cape. So, why did they serve papers initiating proceedings to an empty house? Why did they not serve the papers on our legal representative? In the past they have served papers to our home (when we represented ourselves) and to our legal representative and electronically.
So Why Serve Papers Initiating Proceedings to an Empty House?
The only plausible reason for the applicant and her attorney to deliver papers to an empty house is that they were hoping we would not receive the papers.
- They wanted to have the matter heard unopposed in court.
- If they had succeeded, we would pay the costs of the application.
- They would get a court order instructing us to remove our website On Rocky Ground from the internet.
There is no other explanation for this mischief. But this time, by sheer luck, their mischief was foiled.
The Sheriff of the High Court
Was the sheriff of the high court at fault?
No he wasn’t. He works under direct instruction from the attorney initiating the proceedings.
As I like to put tunes to words or words to tunes, the phrase Mr Sheriff reminded me of the song Mr Pleasant. In 1967 the Kinks had a hit with “Mr Pleasant”… press here to listen to the song on YouTube. Now substitute Mr Pleasant with Mr Sheriff – the words are not applicable but at least one can sing about Mr Sheriff and change the lyrics to suit the occasion and have some fun!
Remove The Website
The Applicant objected to certain statements in our posts and said they were defamatory. They objected to some photos as well, but “a picture tells a 1,000 words” and our photos show the grim reality.
According to law, defamation is only defamation if a statement is false.
“Defamatory” Statements
“In recent times the developer tried fraudulently and unethically to re-submit plans In their name, claiming to be the owners… “
It is unethical for the developer to re-submit plans in their own name knowing transfer of ownership took place some 2 years earlier. It is also fraudulent.
The builder “did not build our house according to the approved building plans and they will go to any length not to simply fix it.
The sad truth of the matter is that the builder did not build our house according to the approved plans. One cannot change that fact.
In a recent communication the developer claims that they built their show house. Well that opens another can of worms! How did they build their show house using our money when we had a signed building contract in play?
A sorry state of affairs when the developer is a seasoned vexatious litigant who prefers to waste court time rather than to repair faulty.. “
The Applicant must have spent many thousands of rands on litigation. We have spent hundreds of thousands defending ourselves.
- 8 notices to date over our house if we include the matters against the municipality and NHBRC, and an amendment and an appeal.
- That’s a lot in anyone’s language.
- Why not just fix the house?
- Why not go to arbitration to get the matter finalised?
“… In the courts they have managed to xxxx more than one judge. How they do It we don’t know… ”
We know one judge was told that the arbitrator had written a letter confessing he was not qualified to arbitrate on certain matters.
- There was no such letter.
- Who came up with that idea? The advocate? The attorney? Who knows?
The Applicant claimed that
… the defamatory statements are untrue, vulgar, unsavoury and degrading and are causing injury to the Applicant’s goodwill
What is True Is True
Unfortunately the statements are true. They may seem unsavoury and degrading but I cannot change or sweeten the truth. It is what it is.
- If the builder had been competent we would be living in our house. After all the house was fully paid for in May 2017.
- If the conveyancer misappropriated trust funds? Take heed of this warning – misappropriation happens. Be aware of the dangers of handing over your life savings.
- And if the developer has behaved unethically? What then?
I wonder how the builder and developer would feel if they were in our shoes? What would they do?
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