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[2015] ZAGPJHC 233
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Erstwhile Tenants of Williston Court and Another v Lewray Investments (Pty) Ltd and Another (17119/15) [2015] ZAGPJHC 233; 2016 (6) SA 466 (GJ) (10 September 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE NO: 17119/15
DATE: 10 SEPTEMBER 2015
In the matter between
THE ERSTWHILE TENANTS OF
WILLISTON
COURT
............................................................................................
FIRST
APPLICANT
THE FIRST GROUP OF TENANTS
GIVEN
NOTICE
...............................................................................................
SECOND
APPLICANT
And
LEWRAY INVESTMENTS (PTY)
LTD
..........................................................
FIRST
RESPONDENT
URBAN TASK FORCE
CC
.........................................................................
SECOND
RESPONDENT
Case summary: Interpretation –
Section 18
of the
Superior Courts Act 10 of 2013
– subsection
18(1) provides for the automatic suspension of the operation and
execution of a decision which is the subject
of an application for
leave to appeal or of an appeal – no provision is made for the
automatic suspension of the operation
and execution of a decision
which is the subject of an application to rescind, correct, review or
vary an order of court - had
it been the intention of the legislature
to also automatically suspend the operation and execution of such
decision, then such
decision would have been expressly included in
subsection 18(1).
J U D G M E N T
MEYER J:
[1] This is an urgent application for
relief by way of the mandament van spolie. The applicants occupied
the property situate
at [W……..] [C……]
corner [C……] [R……] and [L…..]
[B…..] [A……],
[P…….], Johannesburg
(the property). They were evicted from the property by execution of
an interim eviction order
of this court. They contend that the
execution of the order amounted to an unlawful deprivation of their
possession of the property
and they accordingly seek relief to the
effect that their possession be restored.
[2] The respondents launched an
application for the eviction of the applicants from the property in
this court on 8 May 2015. In
part A of the notice of motion, they
sought that the applicants be evicted from the property pending the
finalisation of part B
of the notice of motion in which a final
eviction order is sought. The proceedings were instituted in terms
of
s 5(1)
of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (the PIE Act) in terms wereof ‘...
the owner or person in charge of land may institute urgent
proceedings for the eviction of an unlawful occupier of that land
pending
the outcome of proceedings for a final order.’ The
application was opposed by the applicants. On 14 July 2015 Modiba AJ
granted the interim eviction order of the applicants as sought in
part A of the notice of motion. The hearing of part B of the
application has not yet taken place.
[3] The respondents’ attorneys,
Vermaak & Partners Inc, by letter dated 17 July 2015, informed
the applicants’ attorneys,
Malangeni Attorneys, that-
‘... all the occupiers will be
evicted in terms of the interim order of the honourable Mr Justice
Modiba.’
[4] The applicants then launched an
application on 21 July 2015 in this court in which they seek the
rescission of the interim eviction
order in terms of rule 42(1)(b) of
the Uniform Rules of Court, which provides that ‘[t]he court
may, in addition to any other
powers it may have, mero motu or upon
the application of any party affected, rescind or vary ... an order
or judgment in which
there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity, error or
omission’. The
application for rescission is opposed by the
respondents. It has not yet been enrolled for hearing.
[5] By letter dated 22 July 2015, the
respondents’ attorneys advised the applicants’ attorneys
as follows:
‘Please note further that in
filing a spurious rescission application, you and your counsel
attempted the exact same strategy
in the matter of Tenitor Properties
(Pty) Ltd under case number 2015/06579, which application was
dismissed with costs by the honourable
Mr Justice Spilg on Monday,
the 13th July 2015. Should you persist with this transparent
strategy and bring an application to
suspend execution of our
client’s court order in full knowledge of the above and the
ruling of the Honourable Mr Justice
Spilg, we are instructed to seek
a costs order against you and your counsel de bonis propriis.
...
The order was served by the Sheriff of
the Court on Wednesday, the 15th July 2015 and your clients had 7
(seven) days from that
date to vacate the property. They have not
done so and they will be evicted within the next few days.’
[6] Again, by letter dated 29 July
2015, the respondents’ attorneys advised the applicants’
attorneys as follows:
‘We must also reiterate that we
have advised you of our position, and that of our client, that there
is no impediment to the
enforcement of our client’s order and
that execution of the order will now take place. If, having been
forewarned well in
advance that execution will proceed, your clients
make use of the normal inner city strategy and apply during or after
the eviction
for a stay thereof and/or reinstatement to the property,
we will make this correspondence as well as earlier correspondence
available
to the honourable Court in destruction of your client’s
purported urgency. Any urgency at that stage will be of their own
making and we will, in addition, seek a costs order against you and
your counsel de bonis propriis.’
[7] The Sheriff carried out the
eviction of the applicants on
12 August 2015. While the interim
eviction order was executed by the Sherriff, the applicants attempted
to bring an urgent application
in this court before Mabesele J
without papers in order to stay their eviction. Mabesele J refused to
hear the application without
papers. The applicants did not proceed
with the application.
[8] The present urgent application for
relief by way of the mandament van spolie was issued and served on
the respondents’
attorneys on 2 September 2015 at 16:18. It
was set down for hearing in this urgent court on Tuesday 8 September
2015 at 10:00.
In terms of the notice of motion the respondents were
afforded less than two days to file their answering affidavits.
[9] The relief sought in this
application raises two questions: whether there is a substantive
rule of law that an application
to rescind an order or judgment
automatically suspends its operation pending the decision of such
application and the proper interpretation
of
s 18
of the
Superior
Courts Act 10 of 2013
, which Act commenced on 23 August 2013.
[10] Prior to its repeal on 22 May
2015, rule 49(11) of the Uniform Rules of Court provided as follows:
‘Where an appeal has been noted
or an application for leave to appeal against or to rescind, correct,
review or vary an order
of a court has been made, the operation and
execution of the order in question shall be suspended, pending the
decision of such
appeal or application, unless the court which gave
such order, on the application of a party, otherwise directs.’
[11] In United Reflective Converters
(Pty) Ltd v Levine
1988 (4) SA 460
(W), at 463J-464B, Roux J held
that there is no substantive rule of law that an application to vary
or rescind an order or judgment
automatically suspends its operation
and that insofar as rule 49(11) purports to create a substantive rule
to such effect, the
rule is invalid. But in Khoza v Body Corporate
of Ella Court
2014 (2) SA 112
(GSJ), at 117H-I, Notshe AJ held that
at common law there is a substantive rule suspending the operation of
an order or judgment
upon the noting of an application for
rescission. Khoza was followed by Vally J in Peniel Development
[Pty] Ltd and another v
Pieterson and others
2014 (2) SA 503
(GJ).
[12] Notshe AJ in Khoza (paras 26-28)
further held that even if there were no substantive common-law rule
which suspends the operation
of an order or judgment upon an
application for rescission the common law would be severely lacking
in that regard and the court
should develop the substantive rule. In
this regard Notshe AJ said (para 28):
‘An applicant for a rescission of
an order would be irreparably prejudiced if the order were allowed to
operate despite the
application. This is no different from a
situation where a notice of application for leave to appeal is
delivered. In the circumstances,
the rule that applies to the noting
of appeals would be extended to noting of the rescission application
as well.’
[13] Similarly, Vally J in Peniel (para
12) said the following:
‘There is no reason why this rule
developed in the common law should not be extended to applications
for rescission of judgments.
And, if I am wrong in my judgment that
the Chief Justice had not exceeded his powers by so doing – as
the Court in United
Reflective Converters found – then there
was nothing in law that prevented that court from extending the
common-law rule
to applications for the rescission of a judgment and
order. In my judgment, given the power of this court to develop the
common
law, it is imperative that the court does so, if the need
arises. After all, the rule relating to appeals is only part of the
common law because Voet pronounced it to be. There is no reason why
the Court in United Reflective Converters should not have pronounced
its extension in relation to rescission applications.’
[14] The conclusion reached by Vally J
in Peniel was influenced by the protection which rule 49(11) prior to
its repeal afforded
a party in whose favour the judgment or order was
given. In this regard Vally J said the following (para 15):
‘Of course, the party in whose
favour the judgment has been given is entitled to seek an order
allowing it to execute the
judgment, given that there is a pending
rescission application. This is allowed in terms of
rule 49(11), and the circumstances
under which it would be allowed to do so have been spelled out in
South Cape Corporation [South
Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at
545C-546H]. In fact, in the present case, such an application is
before court in the form of a counter application.’
[15] I must admit that I find the
comment of the learned authors of Erasmus Superior Court Practice at
B1-369 that the correctness
of the Khoza judgment ‘is not
beyond doubt’, at least on the face of it, valid. Neither
Khoza nor Peniel refers to
any authority in support of a substantive
rule of law that an application to vary or rescind an order or
judgment automatically
suspends its operation. Furthermore, the
provisions of rule 45A of the Uniform Rules of Court, which provide
that ‘the court
may suspend the execution of any order for such
period as it may deem fit’, were not considered.
[16] The view I take of the matter, and
particularly on the interpretation of
s 18
of the
Superior Courts
Act, however
, makes it unnecessary for me to reconsider the
correctness of the decision in United Reflective Converters or to
consider the correctness
of the decisions in Khoza and in Peniel.
Also, this being one of about 40 urgent applications that serves
before me in a very
busy urgent court this week (where matters are
mostly heard without the benefit of heads of argument and judgments
and orders given
under tremendous time constraints), I do not
consider this to be the appropriate occasion to consider which of
these decisions
are clearly wrong.
[17]
Section 18(1)
of the
Superior
Courts Act provides
that ‘[s]ubject to subsections (2) and (3),
and unless the court under exceptional circumstances orders
otherwise, the operation
and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is
suspended pending the
decision of the application or appeal.’
Subsection (2) deals with the suspension of an interlocutory order
not having the
effect of a final judgment pending the decision of an
application for leave to appeal or an appeal. And subsection (3)
provides
that ‘[a] court may only order otherwise as
contemplated in subsection (1) or (2), if the party who applied to
the court
to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the
court does
not so order and that the other party will not suffer
irreparable harm if the court so orders.’ Subsection (4)
affords the
aggrieved party an automatic right of an urgent appeal to
the next highest court in cases where a court ordered otherwise as
contemplated
in subsection (1).
[18] The provisions of
s 18
of the
Superior Courts Act must
be interpreted in accordance with the
established principles of interpretation. (See Natal Joint Municipal
Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) para 18;
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) Bpk
2014 (2) SA 494
(SCA) para 12.) Contextually read, I am
of the view that had it been the intention of the legislature for the
operation and execution
of a decision which is the subject of an
application for rescission also to be automatically suspended, then
such decision would
have been expressly included in
section 18(1).
The legislature would have expressed its intention to include such
decision in clear and unambiguous language.
[19] The contrary interpretation would
result in the absurdity that the filing of any unmeritorious
application for rescission could
foil the operation and execution of
a decision which is the subject of such application. Moreover, it
would result in the absurdity
that the operation and execution of a
decision which is the subject of an application for leave to appeal
or of an appeal may by
order of court as contemplated in
s 18
be
carried into effect, but not a decision which is the subject of an
application for rescission. But a person against whom the
decision
which is the subject of an application for rescission was given can
always approach a court under
rule 45A
to suspend its execution
pending the finalisation of an application for rescission. I see no
reason in principle or in logic why
an applicant for rescission
should be placed in a better position than an applicant for leave to
appeal or an appellant as far
as the operation and execution of court
orders is concerned. The glaring absurdities that could result in
hardship to the party
in whose favour a decision that forms the
subject of an application for rescission was given could never have
been contemplated
by the Legislature. (See Klein v Minister of Trade
and Industry and another
2007 (1) SA 218
(T);
[2007] 1 All SA 257
(T)
para 34.)
[20] The
Superior Courts Act commenced
on 23 August 2013. Its
s 18
only provides for the automatic
suspension of the operation and execution of a decision pending an
application for leave to appeal
or an appeal. No other provision of
the
Superior Courts Act provides
for the automatic suspension of the
operation and execution of a decision which is the subject of an
application to rescind, correct,
review or vary an order of court.
There is also nothing which indicates an intention on the part of the
legislature to broaden
the automatic suspension of the operation and
execution of decisions beyond those included in
s 18.
A court can
always be approached under
rule 45A
to suspend the operation and
execution of orders not included in
s 18.
But their operation and
execution are not automatically suspended.
[21] I conclude, therefore, that the
eviction of the applicants by execution of the interim eviction order
of this court did not
amount to an unlawful deprivation of their
possession of the property and they are thus not entitled to relief
by way of the mandament
van spolie.
[22] In the result the following order
is made:
The application is dismissed with
costs.
P.A. MEYER
JUDGE OF THE HIGH COURT
Date of hearing: 8-9 September 2015
Date of judgment: 10 September 2015
Counsel for applicants: Adv B
Ngqwangele
Instructed by: Malangeni Attorneys
Counsel for respondents: Adv C Van
der Merwe
Instructed by: Vermaak &
Partners Inc