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[2016] ZAWCHC 91
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Bella Rosa Investment Holdings v Silver Falcon Trading 84 CC (18681/2015) [2016] ZAWCHC 91 (28 July 2016)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 18681/2015
Not
reportable
Not
of interest to other judges
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
28 July 2016
Judgment
delivered: 28 July 2016
In the
matters between:
BELLA
ROSA INVESTMENT HOLDINGS (PTY)
LTD
Applicant
(Respondent
in application for leave to appeal)
and
SILVER
FALCON TRADING 84
CC
Respondent
(Applicant
in application for leave to appeal)
JUDGMENT
BINNS-WARD
J:
[1] The
respondent in the principal case has applied for leave to appeal
against the judgment of Ndita J ordering its eviction from
the leased
premises and directing that that the lessor’s tacit hypothec of
the applicant in the principal case ‘be
affected (
sic
)
and confirmed’.
[2] The
principal case was entertained by the learned judge as an urgent
application in the Third Division. As often happens
in the
urgent court, an order was made without reasons being furnished.
The order did not expressly provide, as is customary
in such
circumstances, that reasons would be furnished upon application by
either party in writing. Nevertheless, such a
provision fell to
be implied in my view. It is well established as a matter of
constitutional principle that litigants are
entitled to reasons from
a court for its judgment.
[3] As
it happened, the respondent did apply to the learned judge for
reasons; albeit that the application was apparently submitted
outside
the period provided for such requests in terms of rule 49(1)(c) of
the Uniform Rules. Notwithstanding its lateness,
I am prepared,
in the exercise of the courts inherent discretion in respect of the
regulation of its procedures and practices,
to treat the request for
reasons as having been made effectively.
[4] The
judge subsequently became indisposed due to ill health before reasons
were furnished, and despite the passage of several
months she has
failed to resume office.
[5] The
application for leave to appeal was therefore enrolled at the
instance of the applicant in the principal case for hearing
before
another judge and allocated by the Judge President for determination
by me.
[6] The
respondent’s counsel took a point
in limine
that the
application was, to use counsel’s words, ‘premature’,
in the absence of reasons from Ndita J.
Mr
Woodland
submitted that, in the absence of the judge’s reasons, the
application for leave to appeal could not competently be entertained
because one was not able to identify the basis upon which she had
decided the case. As I understood the argument, an absence
of
reasons from the judge presented an absolute bar against the further
disposal of the matter. The only way forward, suggested
Mr
Woodland
, if one were not to await the judge’s eventual
recovery, was to have the principal application heard and determined
afresh.
[7] The
respondent’s counsel sought support for their argument in this
respect from the judgment of Corbett JA in
Botes and Another
v Nedbank Ltd
1983 (3) SA 27
(A) and that of the Constitutional
Court in
Strategic Liquor Services v Mvumbi NO and Others
2010
(2) SA 92
(CC). Neither of those judgments is on point in my
respectful view. Neither of them deals with the position when
the
judge who heard and decided the matter has become prevented by
force of circumstances from being able to give reasons. The
judgments merely go to emphasise the importance of the principle that
parties are ordinarily and usually entitled to reasons for
a
judgment. Indeed, at paragraph 13 of the Constitutional Court’s
judgment, the qualification attached by the employment
of the words
‘
ordinarily
’ and ‘
usually
’ is
expressly articulated. It is also apparent that the absence of
reasons, either for the judgment taken on appeal,
or the judgment
granting leave for it to go on appeal, had not prevented the
Appellate Division from substantively disposing of
the appeal in the
Botes
matter. It is evident from the report of the
Botes
case that the appeal in that matter had been dismissed in the leading
judgment of Howard AJA, which was not reported. The
reported
judgment of Corbett JA was supplementary in character; given not on
the merits of the case, but on the aspect of principle
arising out of
the lamentable failure of the court a quo in that matter to have
furnished reasons.
[8] The
test in applications for leave to appeal is evident from the
provisions of
s 17(1)
of the
Superior Courts Act 10 of 2013
.
In the respects relevant for current purposes they essentially
restate the common law. There must be a reasonable
prospect
that another court might on appeal determine the matter differently
in a substantive sense, and the matter must appear
to be a live
matter in the sense that its determination on appeal should not
appear to be in respect of a matter that had become
moot. With
benefit of insight into the papers before Ndita J, there is
nothing that would disqualify me from being able
to make those
determinations. Indeed,
s 17
expressly provides for the
determination of applications for leave to appeal by a different
judge if the judge whose judgment is
impugned is not available to
hear the application.
[9] In
my view there is no prospect that the application for leave to appeal
against the eviction order would succeed. The
applicant had
sought the ejectment order on the basis of an alleged breach by the
respondent of its rental payment obligations.
The respondent
disputed the allegations, but treated the institution of proceedings
for its ejectment as a repudiation of the contract,
which it
accepted. It is clear then that on any approach the respondent
was not entitled to remain in occupation of the premises
and the
applicant was entitled to its immediate eviction. Mr
Woodland
submitted that the acceptance of the repudiation had been
conditional. I do not consider that that content ion is
supported
on the papers. The repudiation was subject to the
reservation by the respondent of its rights. The rights that
the
respondent would have consequent upon its acceptance of the
alleged repudiation by the applicant are determined by law, and not
by conditions which the respondent might have purported to (but did
not) attach. Those rights did not include a right to
remain in
the premises.
[10]
The fact that the ejectment order may in the end have been supported
by the respondent’s allegations rather than those
by the
applicant in its founding papers, did not result in the judge’s
order being substantively incompetent. It was
a consideration
that might have exercised the learned judge when it came to the
formulation of a costs order, but it is only exceptionally
that an
appeal will be entertained on a question of costs only.
[11] I
therefore conclude that the proposed appeal against paragraph 4 of
the learned judge’s order, namely for the eviction
of the
respondent enjoys no prospects of success.
[12] As
to order ‘effecting and confirming’ the applicant’s
hypothec, it is plain that the respondent had disputed
its relevant
indebtedness. The operation of the hypothec could only be
confirmed in respect of an established debt.
As indebtedness is
often a disputed issue in cases in which the lessor seeks to enforce
its common law hypothec, the usual procedure
to deal with the
practical difficulties to which this gives rise in the enforcement of
the hypothec is for the lessor to apply
for an interdict against the
disposal by the lessee of the property subject to the hypothec
pending the determination of the existence
of the debt to which it
allegedly pertains. The applicant did not seek such an
interdict in the current case. In the
context of the dispute
concerning the debt I am of the view that there is a reasonable
prospect that another court might hold that
the order made in
paragraph 3 of the order granted by Ndita J should not have been
made.
[13]
The order was interdictory in character. Issues of mootness
fall to be assessed on the position that obtained when the
matter
came before the judge. I think it would be appropriate in the
circumstances to grant leave to appeal against paragraph
3 of Ndita
J’s order.
[14]
Practical issues arise out of the execution of the ejectment order
when the matter of the hypothec remains unresolved pending
the
determination of an appeal. I consider that this should be
addressed by attaching an appropriate condition to the order
granting
leave to appeal.
Section 17(5)
of the
Superior Courts Act
provides
for the entrenchment of the common law power that courts
enjoyed to attach such conditions. The respondent tendered
security
in the amount of R125 000, being the assessed value of
the property subject to the hypothec. In the application for
leave to appeal the respondent complains that the hypothec should not
have been confirmed by Ndita J in the face of that tender.
It
seems to me that it would do no injustice to the respondent in the
circumstances if the appeal against paragraph 3 of the order
it
wishes to prosecute were to made subject to the condition that it
should furnish the applicant’s attorneys with security
in cash
or in the form of an appropriate guarantee from a registered bank in
the sum of R125 000 in favour of the applicant
in the principal
case to be payable in the event of its appeal not succeeding,
alternatively, in the event of the appeal not being
conscientiously
prosecuted in accordance with the applicable rules.
[15]
The outcome of the appeal might foreseeably affect the appropriate
costs order at first instance and therefore leave to appeal
will also
be granted against paragraph 6 of the order made by Ndita J.
[16]
The provisions of paragraph 2 of the order made by Ndita J are merely
a restatement of the provisions of the lease and are
of no meaningful
effect in the ultimate determination of the real issues in dispute
between the parties.
[17]
Paragraph 5 of the order was supplementary to the terms of paragraph
4, and falls to be treated consistently with the determination
of the
application for leave to appeal against that paragraph..
[18] In
the context of the dichotomous outcome of the application for leave
to appeal, I consider that it would be just to direct
that the
respondent in the principal case should pay half of the applicant’s
costs in the matter and that the remaining half
should be costs in
the appeal, provided that if the appeal is not prosecuted they shall
be paid by the respondent.
[19] (I
wish to make it clear that nothing in this judgment in the
application for leave to appeal should be understood to in any
way
derogate from the right of the applicant in the principal case to
apply separately, if so advised, for interdictory relief
to protect
its position in respect of its hypothec pending the determination of
the appeal.)
[20]
The following order is made:
1. Subject to it providing the applicant in the
principal case with security in the sum of R125 000 in respect
of the movable
property on the leased premises that is subject to the
applicant’s landlord’s hypothec, and the further
provisions
of this order, the respondent in the principal case is
granted leave to appeal to the Full Court of the Western Cape
Division of
the High Court against paragraphs 3 and 6 of the order
made by Ndita J on 30 October 2015.
2. The security to be provided in terms of paragraph 1,
above shall be provided before the removal by the respondent of any
moveable
property from the leased premises, or before noon on Monday
1 August 2016, whichever occurs first, and shall be in the form of
cash payable to the attorneys of record of applicant in the principal
case, to be held in trust pending the determination of the
appeal, or
by way of a guarantee in favour of the applicant in the principal
case by a registered bank, and shall be payable to
the applicant in
the principal case upon the dismissal of the appeal, or upon the
failure by the respondent to conscientiously
prosecute the appeal in
accordance with the applicable rules of court.
3. The application for leave to appeal is otherwise
dismissed.
4. The respondent in the principal case shall pay 50 per
cent of the applicant’s costs of suit in the application for
leave
to appeal. The remaining 50 per cent shall be costs in
the appeal, or in the event that the appeal is not prosecuted, paid
by the respondent.
_____________________
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
Counsel
for applicant in the principal case:
A. Ferreira
Attorneys
for applicant in the principal case:
Van Wyk Fouché Inc
Counsel
for respondent in the principal case:
GW Woodland SC
A.
Brink
Attorneys
for respondent in the principal case:
Theron and Partners
Stellenbosch