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[2017] ZAGPJHC 136
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Impress Services v Freddy and Others (39913/2016) [2017] ZAGPJHC 136 (31 May 2017)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE NUMBER:
39913/2016
Not
reportable
Not
of interest to other judges
Revised.
31/5/2017
In
the matter between:
IMPRESS
SERVICES
Applicant
AND
BUSO
FREDDY
1
ST
Respondent
RADEBE
FREDDY
2
ND
Respondent
RADEBE
NOMBUSO
3
RD
Respondent
MZINYATHI
MDUDUZI
4
TH
Respondent
XORILE
QUEEN
5
TH
Respondent
MPANGE
ZITHULELE
6
TH
Respondent
MPANGE
SIBONGISENI
7
TH
Respondent
NHLAPO
MARIA
8
TH
Respondent
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
On
29 March 2017, this court granted the applicant leave to implement
the order which was made on 6 December 2016 despite the leave
to
appeal by respondent. The reasons for the outcome of the application
in terms of s 18 of the Superior Courts Act,
[1]
(SCRT) are set out in this judgment.
[2]
The
application was made following leave to appeal which the respondent
had instituted against the order of Wright J which was made
on 6
December 2016. The order evicted the respondents from the property
known as ERF […], Selection Park, Springs, Gauteng
also known
as No […] N. Road, Selection Park, Springs, Gauteng (the
property).
[3]
The
grounds for leave to appeal are not relevant for the purpose of this
judgment.
[4]
After
hearing the matter, this court granted leave to operationalize the
order made by Wright J pending the outcome of leave to
appeal. The
terms of the order are set out at the end of this judgment.
The
background facts
[5]
The
brief background to this matter is, as stated above that on 6
December 2016 Wright J made the order directing the eviction of
the
respondents from the property of the applicant.
[6]
On
13 December 2016, the respondents instituted proceedings to have that
order rescinded. That application was dismissed by Wepener
J on 13
December 2016.
[7]
On
11 January 2017, the respondents filed leave to appeal against the
order of Wepener J which is still pending.
The
legal principles
[8]
An
application of this nature was before 2013 governed by Rule 49 of the
Uniform Rules of the High Court (the Rules). In terms of
that Rule
the court had the discretion in determining whether an order could be
implemented despite a pending leave to appeal or
appeal. The position
is now governed by s 18 of the SCRT, which reads as follows:
“
18.
Suspension of decision pending appeal.—
(i)
Subject
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.
(2)
Subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision
that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for leave to appeal
or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3)
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.
(4)
If
a court orders otherwise, as contemplated in subsection (1)—
(i)
The
court must immediately record its reasons for doing so;
(ii)
The
aggrieved party has an automatic right of appeal to the next highest
court;
(iii)
The
court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv)
Such
order will be automatically suspended, pending the outcome of such
appeal.
(5)
For
the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.”
[9]
The
test to apply when considering whether to grant leave to
operationalize an order pending leave to appeal is set out in
Incubeta
Holdings and Another v Ellis John Roland and Another
,
[2]
by Sutherland J in the following terms:
“
1.
The test is twofold; the requirements are:
1.1.
First
, whether or not ‘exceptional circumstances ‘exist, and
1.2.
Second,
proof on a balance of probabilities by the applicant of-
1.2.1. The
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order, and,
1.2.2.
The
absence of irreparable harm to the respondent/loser, who seeks leave
to appeal.”
[10]
Valli
J applied the test in
Mokgatla
and Others v South African Municipal Workers Union and Others
,
[3]
where members of the union had successfully challenged their
suspension by the union. Thereafter the union initiated appeal
process.
It was for that reason that the applicants
applied to have the judgment implemented. They contended that they
would
suffer prejudice and irreparable harm if they were to wait for
the completion of the appeal process. In applying the above test,
the
learned Judge said:
“
12.
In conclusion, the first respondent does not, in my view, suffer
irreparable harm should the order be made operational. Whatever
harm
it suffers, or is in danger of suffering, can be remedied, or
prevented.
13. On a more
general note, I hold that if a victorious party suffers irreparable
harm because of a pending appeal, as has happened
in this case with
applicants 6 and 7, then the very foundation of our social contract,
the rule of law, will be seriously compromised.
It bears the risk of
people losing faith in the law and in the courts. Such a consequence
is not to be treated lightly.”
[11]
In
explaining the concept “exceptional circumstances,”
referred to in s 18 of the SCRT the learned Judge relied on what
was
said in
M
v Ais Memos
,
[4]
where the court said:
“
17
What constitutes “exceptional circumstances has been addressed
by Thring J in
M
v Ais Mamas
2002 (6) SA 150
(C), where a summation of the meaning of the phrase
is given as follows at 156I – 157C:
“
What
does emerge from an examination of the authorities, however, seems to
be the following:
“
1.
What is ordinarily contemplated by the words 'exceptional
circumstances' is something out of the ordinary and of an unusual
nature; something which is excepted in the sense that the general
rule does not apply to it; something uncommon, rare or different;
'besonder', 'seldsaam', 'uitsonderlik', or 'in hoë mate
ongewoon'.
2. To be
exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3. Whether or not
exceptional circumstances exist is not a decision which depends upon
the exercise of a judicial discretion: their
existence or otherwise
is a matter of fact which the Court must decide accordingly.
4. Depending on
the context in which it is used, the word 'exceptional' has two
shades of meaning: the primary meaning is unusual
or different; the
secondary meaning is markedly unusual or especially different.
5. Where, in a
statute, it is directed that a fixed rule shall be departed from only
under exceptional circumstances, effect will,
generally speaking,
best be given to the intention of the Legislature by applying a
strict rather than a liberal meaning to the
phrase, and by carefully
examining any circumstances relied on as allegedly being
exceptional.”
18 Significantly,
although it is accepted in that Judgment that what is cognisable as
‘exceptional circumstances’ may
be indefinable and
difficult to articulate, the conclusion that such circumstances exist
in a given case, is not a product of a
discretion, but a finding of
fact.”
Analysis/
Evaluation
[12]
In
the present matter, it would appear Mr Buso (Buso) is the leader and
spokesperson for the respondents. He did not attend the
court on the
day of the hearing. Mr Mzinyathi and Ms Maria Ntlapo addressed the
court about their role in the matter. They both
stated that they did
not know why they were in court because they are tenants who have
paid their entire monthly rental to Buso.
[13]
The
respondents instituted the leave to appeal the order of Wepener J
during December 2016. It is apparent from the papers before
this
court that the respondents have not taken any further step since then
to progress the matter to the next level. In other words,
they have
not done anything to bring the matter to finality.
[14]
On
19 December 2016, the transcription company iAfrica send an email to
the respondents quoting them the costs of transcribing the
judgment.
There is no indication as to what the respondents have done in that
regard. There is also no indication as what the respondents
intend
doing to bring the matter to finality. There can be no doubt that
this is prejudicial to the applicant which is now faced
with the
uncertainty and is constrained in arranging its affairs concerning
the property.
[15]
Although
they contend that they would be rendered homeless if the eviction was
to be implemented, the respondents did not place
before this court
the facts that would support that proposition. They have in this
regard failed to take the court in their confidence
and placed before
it facts that would indicate how the eviction would render them
homeless. In the case of Buso and Mpange the
applicants have provided
the address which suggests that that is their family home. They have
not provided any evidence as to why
they would not be able to return
to their home if evicted.
[16]
In
response to the allegation that they still have homes to go back to,
if evicted despite the pending the leave to appeal, the
respondents
have contended that that is irrelevant.
[17]
The
information regarding the previous homes of the respondents is, in my
view, relevant and important to the determination of whether
they
would be prejudiced if leave to implement the order was granted
despite the pending leave to appeal.
[18]
The
other consideration that weighed in favour of granting leave to
implement the order is that Buso and Mpange are involved in
another
eviction mater that is pending before this court. In those
proceedings they claim to be occupiers of the farm in question.
[19]
It
is also important to note that the respondents have indicated that
they are willing to vacate the property in question provided
that the
municipality provides them with alternative temporary accommodation.
The question that then arises is whether the respondents
have made
out a case to show that they qualify for such a right. They have, in
my view, not made out such a case; instead, the
facts before this
court indicate to the contrary that they can afford alternative
accommodation on their own as they are not indigent.
[20]
In
the other eviction matter, which was pending at the time of the
hearing of this one, Buso and Mange stated that they are owners
of
certain luxury assets such as laptops, desktops, scanners, microwave,
photocopiers, fridges and digital cameras.
[21]
The
other point to note is that the respondents on their own version say
that they cannot afford to pay. In the meantime, they continue
consuming water and electricity in the property without paying for
those services. The water is also running on the property, either
because of a broken tap or pipe. The applicant has apparently not
reported the same to the municipality or done anything to address
the
problem. The applicant is thus running a water and electricity bill
that is escalating daily. In this context there can be
no doubt that
the applicants are suffering irreparable harm. They will not be in
position to claim damages against the respondent.
[22]
In
these circumstances I find that the applicant will suffer prejudice
and irreparable harm if the order of Wright J was not made
operational pending the outcome of the appeal process. Having regard
to the lapse of time since the filing of the leave to appeal,
the
bona
fides
of the respondent in instituting that process is questionable.
[23]
In
light of the above, I am of the view that the applicant has made out
a case for exceptional circumstances as envisaged in s 18
of the
SCRT.
[24]
It
was for the above reasons that the following order was made:
“
1.
The application is heard urgently and that the Court dispenses with
the forms and rules relating to service and non-compliance
with the
rules are condoned in terms of the provisions of Rule 6(12).
2. The Order issue
by Honourable Justice Wright on 6 December 2016 is to be set into
motion and that the Sheriff of the Honourable
Court is to evict the
Respondents from the premises known as ERF […], Selection
Park, Springs, Gauteng and also known as
No […] N. Road,
Selection Park, Springs, Gauteng, if the Respondents do not
voluntarily vacate the property within 48 hours
of this order being
granted.
3. The Respondents
are to pay the costs of this application which costs are taxable and
payable immediately.”
_________________________
E
Molahlehi
Judge
of the High Court:
Johannesburg.
APPEARANCES:
For
the applicant: Martini Patlansky Attorneys
For
the respondent: In person
Heard
on: 29 March 2017
Delivered
on: 29 March 2017
[1]
Act number
10 of 2013
[2]
2014 (3) SA
189 (GJ)
[3]
Unreported
judgment under case number 21815/14.
[4]
2002 (6) SA
150
(C).