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[2018] ZAWCHC 169
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Luanga v Perthpark Properties Ltd (A99/2018) [2018] ZAWCHC 169; 2019 (3) SA 214 (WCC) (20 September 2018)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NO: A99/2018
In
the matter between:
NOELLA
KABUNDA LUANGA
Appellant
and
PERTHPARK
PROPERTIES LTD
Respondent
Coram:
Papier J et Davis AJ
Heard:
8 June 2018, 31 August 2018
JUDGMENT
DELIVERED ON 20 SEPTEMBER 2018
DAVIS,
AJ
Introduction
1.
This
is an appeal against an eviction order in respect of residential
property occupied in terms of a written lease. The appeal
turns on
the proper interpretation of s 5(5) of the Rental Housing Act 50 of
1999 (“the Act”), which reads as follows:
“
If
on the expiration of the lease the tenant remains in the dwelling
with the express or tacit consent of the landlord, the parties
are
deemed, in the absence of a further written lease, to have entered
into a periodic lease, on the same terms and conditions
as the
expired lease,
except
that at least one month’s written notice must be given of the
intention by either party to terminate the lease
.”
[Emphasis
added]
2.
The
question which arises is whether the notice period of one month
referred to in s 5(5) of the Act must be understood as expiring
at
the end of a month, i.e., what is the meaning of one month’s
notice in the context of s 5(5) of the Act.
3.
The
Wynberg Magistrates’ Court granted an order on 6 December 2017
under case number 9330/17, in terms whereof the appellant,
and all
those occupying through her, were ordered to vacate the residential
property being Apartment 511, 42 Broad Road, Wynberg
(“the
premises”) on or before 13 January 2018.
4.
The
respondent was the applicant and the appellant the second respondent
in the eviction application. The first respondent in the
eviction
application was one Ngoyi, who was a co-signatory with the appellant
to a lease in respect of the premises but did not
reside there. The
City of Cape Town was cited as third respondent, and all persons
occupying the premises through the appellant
were cited as fourth
respondent.
5.
Only
the appellant opposed the eviction application, but it is clear from
the papers that she represented the interests of her household
who
resided in the premises with her, being her husband and three minor
children, as well as her mother and three adult brothers.
The
facts
6.
On 19
April 2016 the respondent (“the lessor”) concluded a
written lease agreement with the appellant and Ngoyi (“the
lessees”) in terms whereof the lessor leased the premises to
the lessees for a period of twelve months, commencing on 1 March
2016
and expiring on 28 February 2017.
7.
Clause
9 of the lease stipulated that:
“
If
the lease is not cancelled by either the Lessor or the Lessee before
the Lease expires, the lease will automatically continue
on a month
to month basis and may be cancelled by either party on at least 20
(twenty) business days’ notice to the other
party.”
8.
On 19
July 2016 the lessor notified the lessees in writing that all the
apartments in the Broad Road Medicentre building, including
the
premises, were being sold, that current leases would not be renewed,
and that notices to vacate the apartments would be sent
in due
course. In terms of that letter the lessees were also given the
option to purchase the property, and the appellant expressed
some
interest in buying the premises, but nothing came of it.
9.
After
the lease expired on 28 February 2017 the appellant remained in
occupation of the premises.
10.
On 4
May 2017 the lessor’s attorneys delivered a letter to the
lessees in terms whereof they were informed, with reference
to clause
9 of the lease (quoted above) that the lease was immediately
cancelled and that they were required to vacate the property
by no
later than 5 June 2017.
11.
The
appellant failed to vacate the property, however, and the lessor
applied to the Wynberg Magistrates’ Court in September
2017 for
an order evicting the lessees and all other occupants of the
property. The application was brought in terms of section
4 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (“PIE”).
12.
The
appellant opposed the eviction application and was represented in the
proceedings by Mr Gavin Langenhoven, who also appeared
for the
appellant in the appeal.
13.
In
the court a quo Mr Langenhoven challenged the validity of the notice
to cancel the lease dated 4 May 2017. It was further
contended
that there was insufficient information before the court for the
Magistrate to conduct a proper enquiry into all relevant
circumstances for the purposes of ss 4(6) and (7) of PIE.
14.
The
Magistrate however held that the lease had been duly cancelled, and
was satisfied that it would be just and equitable in the
circumstances to grant an eviction order.
The
issues in the appeal
15.
The
first issue is whether or not the notice of termination of the lease
dated 4 May 2017 duly complied with s 5(5) of the Rental
Act, as read
with the common law requirement that notice of termination of a
monthly lease must run concurrently with a period
of the lease and
expire at the end of a month. It was submitted that because the
notice ran for a broken period and did not expire
at the end of a
month, it was invalid and devoid of legal force and effect, with the
result that the appellant’s right of
occupation of the property
had not validly been terminated.
16.
An
unlawful occupier for purposes of PIE is one who occupies the land
without the express or tacit consent of the owner or person
in
charge,
or
without any other right in law to occupy such land
.
[1]
Therefore if the notice of termination of the lease was invalid, that
would afford the appellant a complete defence to the eviction
application, for it is trite that the onus rests on a landlord to
prove a lawful termination of a lease (see
Chetty
v Naidoo
1974
(3) SA 13
(A) at 20 C - H;
ACSA
v Airports Bookshops (Pty) Ltd
[2016]
4 All SA 665
(SCA)).
17.
The
second issue is whether or not there was sufficient information
before the Magistrate to allow for a proper enquiry into all
the
relevant circumstances as required in ss 4(6) and (7) of PIE, and
accordingly whether or not he erred in granting an eviction
order in
the absence of sufficient information.
The
interpretation of “one month’s notice” in
s 5(5)
of
the
Rental Housing Act
18.
The
provisions of s 5(5) of the Act with regard to termination of a
periodic lease are peremptory: at least one month’s written
notice
must
be given of the intention
by
either party
to terminate the lease. It is clear from the wording of s 5(5) that
the provisions of the lease cannot override the notice requirements
laid down in that subsection. Therefore the lessor could not rely on
the notice provisions in clause 9, which requires 20 business
days’
notice, to justify a departure from the notice requirements laid down
in s 5(5) of the Rental Act.
19.
Section
5(5) of the Rental Act requires at least one month’s notice of
intention to terminate the lease. Section 2(vii) of
the
Interpretation Act 33 of 1957 defines the term “month” as
a “calendar month”.
20.
In
Subbulutchmi
v Minister of Police and Another
1980
(3) SA (D&CLD) the Court was called on to interpret of s 32(1) of
the Police Act 7 of 1958, which required that written
notice of any
civil action against the State be given “
one
month at least before the commencement thereof
.”
James JP observed that:
“
According
to the Interpretation Act 33 of 1957 a month means a calendar month.
In
the absence of any clear indication to the contrary to be found in
the words used in any particular legislation
a calendar month running from an arbitrary date expires with the day
in the succeeding month immediately preceding the day corresponding
to the date upon which the period starts. Thus, if a calendar month
commences on the 10
th
of one month, it will expire at the end of the 9
th
day of the succeeding month. … This is in accordance with the
ordinary civilian method of calculating periods of time in
which the
first day is excluded and the last day included.”
[Emphasis
added]
21.
There
is no definition of month or calendar month in the Act. Nor is there
any express indication that a calendar month is to be
calculated
otherwise than in accordance with the civilian method, which would
mean that a month’s notice need not necessarily
run from the
beginning of a month to the end of a month.
22.
However,
one needs to examine the relevant common law, since there is a
well-established presumption that the legislature does not
intend to
alter the common law unless such intention appears clearly from the
language of the statute. Where a statute does not
explicitly provide
for the repeal or modification of the common law, it must be assumed
that the relevant common law remains intact.
Thus legislation must be
construed in the light of the common law. (See, in these regards, J R
de Ville
Constitutional
and Statutory Interpretation
§
2.2.1, pp 171 - 172.)
23.
There
is a long line of cases dealing with the period of notice required to
terminate a monthly lease, starting with
Fulton
v Nunn
1904
TS 123.
In that case Innes CJ observed in regard to a month to month
lease that:
“
It
was clearly a tenancy terminable on reasonable notice, but running
from month to month, not for broken periods. I should have
thought
there was no authority required for the proposition that when a house
is taken from month to month it is taken by the month,
and not for
any broken portion of the month. … The question is simple.
The
notice must run concurrently with some term of the lease, and must
expire at the end of that term
…
”
[2]
[Emphasis
added]
24.
The
learned Chief Justice went on to refer to Voet, who states that where
a lessor is entitled to put an end to a lease, he should
give a
reasonable notice to vacate at the end of a current term of the
tenancy. He concluded as follows:
“…
I
think the same principle should be adopted in the case of notice by a
lessee.
Reasonable
notice in the case of a monthly lease should be so given as to expire
at the end of a month unless there is custom or
agreement to the
contrary
.
It seems to me that no custom is required to support this principle;
but proof of a contrary custom would be necessary to overrule
it.”
[3]
[Emphasis
added]
25.
A
year later in
Pemberton
N.O. v Kessel
1905
TS 174
, Innes CJ extended the principle laid down in
Fulton
v Nunn (supra)
to
contracts of hire:
“
I
think it is impossible to distinguish this case from Fulton v Nunn…I
think the same principle should be applied.
When
the hiring
is not for menial or domestic service, and
is
for an indefinite period from month to month
,
it appears to me that, in the absence of custom to the contrary,
it
should only terminate at the end of one of the monthly periods
,
and that
the
reasonable notice should be so given as to run to the end of a month
… Reasonable notice, it is admitted, is a month’s
notice. It follows that if it is to run with the monthly period
it
must be given at the end of the preceding month …”
[4]
[Emphasis added]
26.
The
principles laid down in
Fulton
v Nunn (supra)
and
Pemberton
N.O. v Kessel (supra)
were
affirmed by the Appellate Division in the case of
Tiopaizi
v Bulawayo Municipality
1923
AD 317
, in which Innes CJ said the following:
“
In
Fulton v Nunn
1904 TS 123
the rule of Roman-Dutch law regulating the
lease of a house, which required due notice to extend to the end of
one of the customary
terms, was applied to monthly leases in South
Africa.
And
it was held that the necessary reasonable notice should, in the
absence of custom or agreement to the contrary, expire at the
close
of a monthly period
.
That principle was extended to contracts of service in Pemberton N.O.
v Kessell
1905 TS 174
and it has been repeatedly applied by South
African Courts. (Paruk v Hayne & Co
27 NLR 380
; Sitterding v
Hermon Lime Co
1921 CPD 439).
Indeed
it is not challenged by the present appellant and may be regarded as
established
.”
[Emphasis
added.]
27.
This
principle was also affirmed in the more recent case of
Stocks
and Stocks Holdings Ltd and Another v Mphelo
1996
(2) SA 864
(TPD), in which the Court was dealing with termination of
an employment contract which included a provision stating that the
contract
would continue for an indefinite period and be subject to
termination on one calendar month’s written notice by either
party.
Notice of termination of employment had been given on 13
October 1995 purporting to be effective on 15 November 1995, and the
question
was whether the notice period had to be computed according
to the civil method of computation or whether it had to expire at the
end of a calendar month.
28.
Botha
J distinguished various cases, not involving contracts of lease or
employment, in which it was held that time periods, including
time
periods expressed in months, had to be calculated according to the
civil method of computation.
[5]
But he held in regard to contracts of employment that:
“
The
rationale for the rule in Fulton v Nunn and Pemberton N O v Kessell
is still good in our time. Leases and service contracts
are commonly
entered into with effect from the beginning of a calendar month.
Vacancies arise at the end of a month. In that way
the practice of
filling them at the beginning of the month is perpetuated. It is
therefore clear that the period of notice had
to expire at the end of
November.”
[6]
29.
Thus
it may be regarded as well-established at common law that indefinite
period contracts of lease and employment from month to
month can only
be terminated by way of one month’s notice expiring at the end
of a month.
30.
The
Act must be interpreted in the light of the common law. There is no
indication in the wording of s 5(5) that the Legislature
intended to
alter the common law rule that notice to terminate a monthly lease
must expire at the end of a month. This rule is
in line with
Constitutional values as it affords protection to both landlord and
tenant, since it is easier to find replacement
tenants and
accommodation respectively from the beginning of the month as opposed
to an arbitrary date in the middle of the month.
It also serves to
create desirable legal certainty.
31.
Therefore
the words “one month’s notice” in section 5(5) of
the Rental Act must, to my mind, be interpreted to
mean one calendar
month running from the first day of the month and expiring on the
last day of the month, as was held in
Tiopaizi
v Bulawayo Municipality (supra).
It
follows that the notice of 4 May 2017 did not comply with the
requirements of s 5(5) of the Rental Act, and was accordingly invalid
and of no force and effect. Instead of requiring the lessees to
vacate the property on 5 June 2017, the lessees should have been
afforded until 30 June 2017 to vacate.
32.
The
short notice cannot be cured by interpreting the notice as only
taking effect from the 30 June 2017, since it was invalid
ab
initio
for failure to comply with a mandatory statutory provision (see
Kingdom
Caterers (KZN) (Pty) Ltd v The Bids Appeal Tribunal and Others
[2007]
ZAKZHC 54
(11 October 2007)). The purpose of a notice of termination
in terms of s 5(5) is to establish with certainty when the rights and
obligations under the lease come to an end. If the notice stipulates
a termination date which is not in accordance with the prescripts
of
the section, it cannot achieve that purpose.
33.
Nor
was the Magistrate correct to regard it as relevant that the
appellant was in fact afforded more than one month’s notice
to
vacate since the respondent only launched eviction proceedings three
months later on 16 August 2017. That fact had no bearing
on the legal
question of whether or not the notice of termination duly complied
with the requirements of s 5(5).
34.
Since
the notice of termination of the lease was invalid for failure to
comply with s 5(5) of the Act, the lessor failed to discharge
the
onus resting on it of proving a valid termination of the lease. The
appellant had therefore not been shown to be in unlawful
occupation
of the premises, and the magistrate accordingly erred when he granted
an eviction order.
The
duty on legal practitioners representing respondents in eviction
matters
35.
The
conclusion that the notice of termination of the lease was invalid
renders it unnecessary to deal with Mr Langenhoven’s
contention
that the magistrate did not properly discharge his duty under s 4 of
PIE to consider all relevant circumstances because
he did not have
all the necessary information before him.
36.
However
it is regrettably necessary to comment on the unhelpful manner in
which Mr Langenhoven presented his client’s case
in the court
a
quo
,
and his apparent misconception of his duty as an officer of the court
in eviction matters, more particularly in the context of
ss 4(6) an
(7) of PIE which requires a court to take into account all relevant
circumstances and make a just and equitable determination.
37.
The
answering affidavit prepared by Mr Langenhoven on behalf of the
appellant in the eviction application is a study in bald assertions
and failure to engage on relevant issues. Relevant details which one
would reasonably expect the appellant to know were not placed
before
the court. One is told, for instance, that the appellant is
unemployed. However, not a word is said about her husband, save
that
he is a pastor and that he resides with her at the premises. No
details are furnished regarding the church with which her
husband is
associated, whether or not he receives financial support from the
church, and if so the extent of his income. No explanation
is put up
as to how the appellant, despite her lack of employment, managed to
pay the rental on the premises before she stopped
paying and fell
into arrears. The appellant admits that at a certain point she
temporarily ceased residing at the premises but
baldly state, without
explanation, that she currently resides in the premises. No
explanation is furnished for the appellant’s
failure to
disclose obviously relevant information, which should fall within her
knowledge and which is vital to an assessment
of her
bona
fides
.
38.
One
is also told in the answering affidavit that the appellant’s
three adult brothers reside in the premises. One is not told
their
ages and state of health, whether or not they are employed, and if
so, the extent of their income and whether or not they
contribute
towards the rental. Given the close familial relationship between
these occupants and the appellant, one would expect
her to have at
least some knowledge of their employment and financial circumstances.
At the very least she could be expected to
disclose the basis on
which they share the premises with the appellant, i.e. whether and to
what extent they contribute towards
the rental, and if not, why not.
Again, no explanation is furnished for the appellant’s silence
on these material matters
which should lie within her knowledge.
39.
The
terse statement is made in the papers that the appellant and her
family would be rendered homeless and “
effectively
on the streets”
in
the event of an eviction order, because it is alleged that none of
the occupants of the premises can afford to pay a deposit
at new
premises. In the absence of any details about the employment status
and income of the appellant’s husband and three
adult brothers,
it is difficult to attach any weight to these bald assertions.
40.
This
Court was disturbed by the failure of the appellant, who had had the
benefit of legal representation, to provide obviously
relevant
details of the ages, employment status and incomes of the occupants
of the property. These were details which Mr Langenhoven
should have
been able to ascertain with relative ease, and his unexplained
failure to do so gave rise to serious questions. Mr
Langenhoven was
therefore directed by this Court to file an affidavit explaining the
reason for the absence of these details in
the appellant’s
answering affidavit. It was considered only fair to give him an
opportunity to ventilate any difficulties
he might have had in
procuring the necessary information.
41.
It is
disappointing that Mr Langenhoven did not see fit to answer directly
the question actually posed by this Court, which was
a simple,
factual question. Mr Langenhoven instead recast the question posed by
this Court as requiring an explanation as to
why
he believed that it was not necessary for him, as the appellant’s
representative, to place before court the relevant circumstances
of
all the occupants of the premises
.
42.
One
gathers from his response that Mr Langenhoven did not see it as his
responsibility to place before the court facts relating
to the other
occupants of the premises because a) they were not his clients and b)
the applicant bore the onus to place sufficient
relevant information
before the court to justify an order and c) it was the court’s
responsibility to satisfy itself that
it had sufficient information
before it, failing which it could not grant an eviction order.
43.
The
first answer, namely that Mr Langenhoven only represented the
appellant and that it was not incumbent upon him to obtain details
of
the other occupants of the premises as he had no mandate to act for
them and that doing so would increase the appellant’s
costs,
does not bear up under scrutiny in the particular circumstances of
this case. This was not a case involving a large number
of unrelated
persons with disparate needs and interests. This was essentially one
extended family unit or household comprised of
6 adults and 3
children living in one flat. It was therefore disingenuous for Mr
Langenhoven to hide behind a limited mandate and
to suggest that it
was not feasible for him to acquire information about the other
adults occupying the premises. The information
pertaining to the
other occupants of the property – including the appellant’s
husband – was inextricably bound
up with
the
case which the appellant herself advanced
,
namely that she and her (extended) family would be left homeless on
the streets if an eviction order were granted.
44.
To my
mind it is incumbent upon a respondent in eviction proceedings who is
legally represented and who avers that an eviction order
will render
her and her family homeless, to explain to the court why that is so.
Where a respondent facing an eviction application
has the benefit of
legal representation, she and her legal representative must engage
fully on the relevant issues. Facts must
be put up to demonstrate
that there is indeed a risk of homelessness, and that the assertion
is made in good faith. Details regarding
the employment status and
income of adult members of the household are obviously relevant to
substantiate the assertion of a risk
of homelessness, and must be
provided. And if there is good reason for why the information cannot
be furnished, that should be
disclosed in the affidavit.
45.
Respondents
in eviction proceedings who have the benefit of legal representation
cannot be permitted to content themselves with
bald, unsubstantiated
averments of homelessness. They must be made to understand that if
they do, they run the risk that the court
may infer that the
assertions regarding inability to afford alternative accommodation
and the risk of homelessness are not genuine
and
bona
fide
,
and may be rejected merely on the papers (see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 620
(A) at 635 C;
cf
Wightman
t/a J W Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) paras 12 and 13).
46.
As to
Mr Langenhoven’s second answer, namely that the lessor, as
applicant, bore the onus of placing sufficient information
before the
court to justify an eviction order, that is undoubtedly correct. An
applicant for an eviction order bears the onus of
placing before the
court information which, if unchallenged, is sufficient to satisfy
the court that it would be just and equitable
to grant an eviction
order (see
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012
(6) SA 294
(SCA) paras 30 and 34). The extent of information
required will differ from case to case, depending on the particular
circumstances.
Particularly where eviction applications are
unopposed, it is vital that the applicant adduce sufficient
information in the founding
affidavit to enable the court to
discharge its duty to enquire into the relevant circumstances for
purposes of the enquiry into
justice and equity.
47.
But
where an eviction application is opposed and the respondent is
legally represented, the legal practitioner representing the
respondent is under a positive duty, as an officer of the court, to
ascertain the relevant facts and place them before the court.
As the
Constitutional Court recently affirmed in
Occupiers,
Berea v De Wet NO and Another
2017
(5) SA 346
(CC) at para 47, the obligation to provide the information
relevant to the justice and equity enquiry envisaged in s 4 of PIE
rests
first and foremost on the parties to the proceedings, and
attorneys and advocates, as officers of the court, must furnish the
court
with all relevant information in their possession in order for
the court to properly interrogate the justice and equity of ordering
an eviction.
48.
There
is therefore a duty on legal representatives in eviction proceedings,
as officers of the court, not only to advise their clients
of the
obligation to make full disclosure of all relevant personal
circumstances, but to actively seek and assist their clients
to
present the necessary information. Legal practitioners representing
respondents in eviction applications cannot hide behind
the onus to
justify bald, unsubstantiated averments regarding unemployment,
impecuniosity and the risk of homelessness. Nor
can an officer
of the court deliberately withhold relevant information in order to
benefit his or her client by causing the eviction
proceedings to be
delayed because the court does not have sufficient information before
it. Even less so can he or she studiously
avoid acquiring relevant
information in order to avoid the obligation to disclose it to the
court. Where the affidavits are silent
on matters which the
respondent should be able to address with relative ease, a
satisfactory explanation should be provided for
the omission. In the
absence thereof, a court may well be justified in drawing the
inference that a bald assertion of impecuniosity
or homelessness is
not genuine and credible.
49.
As to
Mr Langenhoven’s third answer, that it is the responsibility of
the
court
to ensure that it has sufficient information before it to discharge
its duty to consider all relevant circumstances, that is undoubtedly
correct. The court is required and expected to take a proactive role
in ensuring that it has all the necessary information before
it. But
the Constitutional Court made it clear in
Occupiers,
Berea v De Wet NO and Another
2017
(5) SA 346
(CC) at para 47 that courts are entitled to look for
assistance to the attorneys and advocates for the parties, who have a
duty
as officers of the court. Courts must be astute not to allow
eviction proceedings to be delayed through the deliberate failure to
furnish relevant information which falls within the peculiar
knowledge of a respondent, and which can reasonably be expected to
form part of the answering affidavits where the respondent is legally
represented.
50.
Courts
need to be able to rely on the integrity and assistance of the
parties’ legal representatives for the purpose of discharging
their duties in terms of PIE. The just and equitable determination of
eviction matters envisaged in s 4 of PIE cannot be permitted
to be
thwarted by the deliberate withholding of relevant information for
tactical reasons. It is unthinkable that legal practitioners
should
be able, by withholding relevant information or failing to acquire
readily accessible information, to engineer delays in
eviction
matters because the court is forced to call for further information,
or to set up points to be taken on appeal, as was
done in this case.
51.
Given
the many questions which cried out for answer in the answering
affidavit, and the appellant’s bald, unsubstantiated
averments
regarding homelessness coupled with the absence of any explanation
for her failure to disclose relevant information about
the extended
family’s financial situation, it seems to me that this was a
case where the magistrate was entitled to regard
the appellant’s
averments regarding homelessness as unfounded and to conclude, as he
did, that it would be just and equitable
in all the circumstances to
grant an eviction order.
52.
For
these reasons I would not have upheld the appeal in respect of the
second issue.
Condonation
and costs
53.
The
appellant’s heads of argument were filed nine court days late
on 1 June 2018. The appeal was set down for hearing on 8
June 2018.
No application for condonation was delivered with the heads of
argument. Instead, Mr Langenhoven informally requested
condonation in
his heads of argument. A tender was made for payment by the appellant
of any wasted costs occasioned by the late
filing of the heads, which
rang hollow in the light of Mr Langenhoven’s explanation that
the reason for the delay in filing
the heads of argument was the
appellant’s alleged impecuniosity.
54.
The
respondent took the point in its heads of argument delivered on 6
June 2018, that there had been non-compliance with Uniform
Rule
50(9). It was contended that, in the absence of a reasonable
explanation advanced on oath for the default, condonation ought
not
to be granted and that the appeal ought to be struck from the roll
with costs.
55.
On
the morning of 8 June 2018, just before the appeal was due to be
heard, Mr Langenhoven delivered a formal application for condonation
of the late filing of the appellant’s heads of argument. A
tender was once again made, on behalf of the appellant, to pay
any
wasted costs arising out of the appeal.
56.
In
the first instance, it was improper for Mr Langenhoven to request
condonation in the heads of argument. Condonation is not to
be had
for the asking; it is not a mere formality.
[7]
Secondly, it was discourteous to wait until the morning of the appeal
to deliver an application for condonation which should
have
accompanied the appellant’s late heads of argument.
57.
It
also has to be said that the tender made by Mr Langenhoven that the
appellant would pay the respondent’s wasted costs was
cynical
in the extreme given that the appellant, on her version, is
unemployed, has no source of income, and evidently owes the
respondent in excess of R 200 000.00 in respect of unpaid
rental.
58.
In
the event the matter had to be postponed as the respondent was not
ready to proceed with the appeal. It sought an opportunity
to deliver
an affidavit opposing the condonation application, and it also
required time to prepare its heads of argument on the
merits, which
had been delayed by the appellant’s late filing of its heads.
59.
Given
the strong merits of the appeal based on the invalidity of the notice
of termination of the lease, it seems to me that the
interests of
justice require that condonation be granted and the appeal dealt with
on its merits.
60.
The
appeal succeeds on the first issue. In the exercise of my discretion
as to costs, I do not consider that it would be appropriate
to award
the appellant the whole of her costs in the appeal, since a
significant portion of the costs were occasioned in respect
of the
second issue, which failed. In addition, this Court wishes to mark
its disapproval of Mr Langenhoven’s cynical conduct
in pursuing
a point of appeal based on his own failure to place relevant
information before the court. It seems to me that it would
be
appropriate to limit the costs which the appellant may recover from
the respondent to half the costs of the appeal, save in
respect of
the cost of the record which she should be entitled to recover in
full.
61.
To my
mind it would also be appropriate to prevent Mr Langenhoven from
recovering any costs from the appellant in respect of the
preparation
of his affidavit dated 14 August 2018, in which he was asked to
explain himself as an officer of the court, and his
supplementary
heads of argument dated 28 August 2018, which arose therefrom. The
appellant should not have to bear these costs
which arose as a result
of Mr Langenhoven’s conduct.
Conclusion
62.
In
the circumstances I would make the following order:
1.
The
appeal is upheld.
2.
The
order granted on 12 December 2017 under case number 9330/2017 in the
Wynberg Magistrates’ Court is set aside and replaced
with the
following order:
The
eviction application is dismissed, with costs.
3.
The
appellant shall pay the respondent’s wasted costs of the day on
8 June 2018.
4.
The
respondent shall pay the appellant’s costs of the appeal, which
costs shall be limited to half of the costs of the appeal,
save in
respect of the cost of the record which the appellant shall be
entitled to recover in full, and which shall exclude any
costs for
the appearance on 8 June 2018.
5.
The
appellant’s attorney may not recover from the appellant or the
respondent any costs for preparing his affidavit dated
14 August 2018
and his supplementary heads of argument dated 28 August 2018.
D M DAVIS
Acting
Judge of the High Court
I
agree and it is so ordered.
T D PAPIER
Judge of the High Court
For
the appellant: Mr Gavin Langenhoven of Langenhoven Attorneys Inc
For
the respondent: Adv Paul Eia instructed by Ms F Darries, Toefy
Attorneys
[1]
An “
unlawful
occupier” is defined in the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998
as “
a
person who occupies land without he express or tacit consent of the
owner or person in charge, or without any other right in
law to
occupy such land ….”
[2]
Fulton v Nunn
1904 TS 123
at
125.
[3]
Ibid
at
126.
[4]
Pemberton N.O.
v Kessell
1905
TS 174
at 178.
[5]
Stocks
and Stocks Holdings Ltd and Another v Mphelo
1996
(2) SA 864
(TPD) at 868 A – B.
[6]
Ibid
at
869 B.
[7]
General
Accident Insurance Co South Africa Ltd v Zampelli
1988
(4) SA 407
(C) at 410 I.