The family of retired SA Air Force chief Lieutenant-General Fabian Msimang is staring at the possibility of being evicted from their Waterkloof Ridge, Tshwane home. His father, ANC treasurer-general Mendi Msimang, and stepmother, Dr Manto Tshabalala-Msimang, now both deceased, had also lived in the home. Picture: Oupa Mokoena/Independent Newspapers
LATE Struggle veteran and ex-ANC treasurer-general Mendi Msimang’s family is edging closer to being evicted after their attempts to appeal a North Gauteng High Court order to vacate their Waterkloof Ridge, Tshwane home failed.
The family, through his son, retired SA Air Force (SAAF) chief Fabian Msimang, who is the executor of his father’s estate, has been fighting the bid by top businessman Martin Kingston, who owns 55% of the property, to evict the Msimangs from the house and sell it.
Msimang sr owned the remaining 45%.
Kingston, who is Business for South Africa chairperson and former Rothschild & Co SA executive chairperson, was married to Msimang snr’s wife and erstwhile health minister Dr Manto Tshabalala-Msimang's daughter, Pulane Kingston.
In his application for leave to appeal, Fabian challenged Judge Elmarie van der Schyff’s November 27, 2023 order that he (Fabian Msimang) and other unlawful occupiers be evicted from the property and vacate it by the end of February this year, unless an agreement in writing was reached with Kingston on another date.
Fabian had stated that he moved from his own house to the property in dispute in November 2018 to take care of Msimang sr after he fell ill, and that he occupied the house with his father’s tacit or express consent. Msimang Sr died the following month.
In the judgment, Judge van der Schyff also found that the Msimang family would not be left homeless if they were forced to vacate the property, as Fabian had not provided the high court with information precluding a finding that an eviction was just and equitable, as he had indicated that he had another property with a higher financial value than the one in dispute.
”In the event that the first and second respondent (Fabian and the unlawful occupiers) fail to vacate the property by February 29, 2024, and the parties did not come to an alternative agreement captured in writing, the Sheriff of the High Court, assisted by the SA Police Service if necessary, is authorised to evict the first and second respondents from the property,” reads the judgment.
In addition, Judge van der Schyff directed that Fabian, in his capacity as the executor of his father’s estate, must take all steps necessary, and sign all documents required for the property sale, without a reserve price, by Aucor Auctioneers through public auction, on terms and conditions applicable to the sale of residential properties by public auction.
Kingston will receive 55% of the proceeds, while Msimang sr’s estate’s share will be 45%, less the auctioneer's commission.
Judge van der Schyff’s judgment said that if the executor of the estate failed and/or refused to sign all documents required, the sheriff was authorised and directed to sign all documents required for the property sale, without a reserve price, by public auction by Aucor Auctioneers.
Fabian filed his application for leave to appeal late and blamed being involved in various litigious matters as the executor of his late father's estate and as a result suffered litigation fatigue.
He told the high court that he was represented in the eviction application by attorneys who had not set forth the facts as they were. Had leave to appeal been granted, there would have been an application to place the new evidence before the court.
Fabian instructed a new attorney to represent him in the application for leave to appeal and indicated that he was erroneously under the impression that he could arbitrate the matter and come to a settlement agreement.
Additionally, from November last year, there were various attempts between the parties and elders to settle the agreement and find an amicable resolution. He realised only on February 19 that the matter would not be settled.
Fabian added that he was debilitated by the prospect of being evicted from his family home and did not think clearly to act nor was he advised by his previous attorney of record that he could appeal the November judgment.
However, Judge van der Schyff was unconvinced, finding that Fabian had failed to provide a reasonable explanation for the entire delay period.
”Mr Msimang claims that he is a lay person, not (well-acquainted) with the rules and court processes. Mr Msimang is, however, not illiterate. Before retirement, he was the chief of the SAAF. He is, on his own version, involved in several litigious matters,” the judge said.
“One would not expect him to be familiar with all legal processes, but the notion that a court order erroneously granted may be appealed is not limited to the knowledge of those who have legal training. The explanation for the delay is provided in broad general terms and is not, comprehensive or reasonable.”
Judge van der Schyff said she failed to understand the logic behind Fabiang’s reasoning that Kingston did not have the necessary locus standi (standing) to apply for the Msimangs’ eviction without his consent to institute the application.
Fabian’s ground of appeal was that he and his family were lawful occupiers and could not be evicted, but the judge said his status as executor of his father’s estate did not clothe him with the entitlement to occupy the property.
His application for leave to appeal was struck from the roll on March 26. His application for condonation of the late filing of the notice of application for leave to appeal the November 27, 2023 judgment was also dismissed.
loyiso.sidimba@inl.co.za
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