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[2020] ZAGPJHC 183
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Anchorprops 31 (Pty) Ltd and Another v Levin (3104/2020) [2020] ZAGPJHC 183 (28 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO. 3104/2020
In
the matter between:
ANCHORPROPS
31 (PTY)
LTD
First Appellant
FLEMMING
JENSEN
Second Appellant
and
GRANT BENJAMIN
LEVIN
Respondent
JUDGMENT
LOUW
AJ
INTRODUCTION
[1]
This is an appeal against the orders which the magistrate’s
court of Randburg (presided over by Magistrate Persence) made
in
application proceedings on the 29
th
of August 2019
evicting the second respondent from certain premises and ordering
that the first respondent pay the applicant’s
costs.
[2]
The applicant in the magistrate’s court was Mr Grant Levin. The
first respondent was Anchorprops 31 (Pty) Ltd and the
second
respondent was Mr Flemming Jensen. I refer to them by their names.
Anchorprops and Mr Jensen are the appellants and
Mr Levin is
the respondent herein. The premises in question consist of a
residential property located at 31 Shandon Way, Parkmore.
I refer to
it as “the property”.
[3]
Mr Levin brought the application in the form required by section 4 of
the Prevention of Illegal Eviction from and Unlawful Occupation
of
Land Act 19 of 1998, “the PIE Act”.
[4]
This judgment is handed down during Alert Level 4 of the national
lockdown to combat the COVID 19 pandemic. Alert Level 4 commenced
on
1 May 2020 and is regulated by the regulations published under
Government Notice No. 480 on 29 April 2020 in terms of
section 27(2)
of the
Disaster Management Act 57 of 2002
. The regulations are of
consequence for two reasons. The first is that the matter was
enrolled for hearing during the currency
of Alert Level 4 and there
was accordingly no oral hearing in compliance with paragraph 16 of
the Judge President’s Consolidated
Directive, read with
section
19(a)
of the
Superior Courts Act, 10 of 2013
. The appeal is
consequently determined on the record and the written submissions of
the parties’ legal representatives. The
second is that the
regulations
[1]
impact on the
remedy of eviction.
Regulation 19
prohibits the execution of
evictions and suspends any order of eviction until the last day of
Alert Level 4, unless the court determines
that it is not just and
equitable to suspend the order. This last aspect was not considered
in the argument presented on Mr Levin’s
behalf, although
submissions were made on Mr Jensen’s behalf in his counsel’s
practice note. Nevertheless, the requirements
of justice and equity
contemplated in
regulation 19
overlap with the requirements of
justice and equity under section 4(7), (8) and (9) of the PIE Act. I
address this issue further
where I deal with the remedy question.
[5]
The legal representatives of the parties prepared and presented
extensive and incisive written argument for which they have
to be
commended.
[6]
The core facts – which are expanded on below – may for
introductory purposes and to isolate and name the disputes
be
summarised as follows: Mr Levin leased the property to Anchorprops in
terms of a written lease. Mr Jensen, a director
of Anchorprops,
physically occupied the property during the currency of the lease and
held over after its termination. Mr
Jensen justified his
continued occupation by an oral agreement which he alleged that he
and Mr Levin had entered into after the
termination of the written
lease. Mr Jensen asserts that it is still in force. (I refer to
it as “the oral lease”
to distinguish it from “the
written lease” which refers to the agreement between
Anchorprops and Mr Levin.)
[7]
Three discrete questions arose from the affidavits. The first was Mr
Jensen’s contention that the matter could not be
determined on
application because of a factual dispute between him and Mr Levin,
the dispute being his assertion of the oral agreement,
which Mr Levin
denied. In what follows I refer to this as “the procedural
question”. The second question followed from
Mr Jensen’s
argument that the oral agreement justified his occupation of the
property and thus gave him a defence on the
merits. The question that
arose in this regard was whether the oral agreement had been
established. I refer to this as “the
merits question”.
The third concerned the requirements of the PIE Act to determine
whether eviction as remedy would
be just and equitable in the
circumstances of the case. Allegations for and against the
proposition were made in the three sets
of affidavits. I refer to
this as “the remedy question”. The magistrate re-stated
the facts and made the orders that
I referred to in the first
paragraph above but the magistrate did not analyse the three core
questions. I intend to make a few
remarks about the judgment. Before
doing so and before turning to the three questions, I propose to give
a more comprehensive overview
of the facts and the legal proceedings
that have preceded the appeal.
THE
FACTS
[8]
As I have already remarked, Mr Levin is the registered owner of the
residential property in issue. He lets the property out
on commercial
terms and it is consequently an income producing investment for him.
During December 2016 Mr Levin leased the property
to Anchorprops. The
lease was in writing and contained all the terms normally expected to
be in a commercial transaction of this
type. The lease was for a term
of 12 months but could be extended. The rental was R29 000-00
per month. Mr Jensen, who described
himself as “a non-executive
director” of Anchorprops, occupied the property. The
lease was extended twice, first
to 30 June 2018 and then to
31 December 2018.
[9]
By October 2018 Anchorprops had fallen into arrears with its rental
obligations. Mr Levin eventually cancelled the written
lease
for this reason. He also demanded that Mr Jensen vacate the
property and he claimed the arrear rentals from Anchorprops
and Mr
Jensen. Neither Anchorprops nor Mr Jensen complied with the
demands. If not cancelled, the written lease expired by
effluxion of
time in December 2018 and from January 2019 onwards it was immaterial
for purposes of this case whether the written
lease had been
cancelled or terminated by effluxion of time because it is common
cause that the written lease did not justify Mr
Jensen’s
occupation.
[10]
In May 2019 Mr Levin initiated the eviction proceedings and delivered
a founding affidavit complying with the PIE Act and setting
out
fulfilment of the requirements for the relief sought viz. ownership
or control by the applicant, unlawful occupation by the
respondent
and that the remedy is just and equitable.
[11]
It thus fell on Mr Jensen to deny ownership(or control) or occupation
or to engage on the remedy question. He could also raise
a ground
legally to justify his occupation. Mr Jensen admitted the ownership
and occupation allegations and joined issue on the
remedy question.
He also attempted to justify his occupation in the answering
affidavit by relying on the oral lease. According
to him the lease
had been entered into in or around February 2019, is of undetermined
duration and is still in place. It can be
cancelled only upon
reasonable notice which has not happened. The rental is
R29 000-00 per month, payable in advance
every quarter. In
support of the oral lease Mr Jensen referred to an amount of
R100 000-00 that had been paid to Mr
Levin during March 2019
which Mr Jensen alleged was the rental payment for the first quarter
under the oral lease and thus constituted
performance of the oral
lease.
[12]
In his replying affidavit Mr Levin emphatically denied that the oral
lease had been entered into at all. He acknowledged
the
R100 000-00 payment but asserted that it was on account of the
Anchorprops unpaid rentals under the written lease and
not rental
under a new lease. Most importantly, Mr Levin also attached a string
of electronic messages (“the WhatsApp messages”)
that
were exchanged between him and Mr Jensen from about August 2018 to
April 2019, thus straddling the period within which the
oral
agreement was entered into according to Mr Jensen. These manifestly
did not prove any oral agreement.
[13]
Mr Levin did not seek a contractual remedy in the application.
He merely sought Mr Jensen’s eviction. Somewhat
incongruously,
he sought costs against both Mr Jensen and Anchorprops. There
was no legal basis for a costs order against
Anchorprops. It
could perhaps be argued that Anchorprops was not a necessary party to
the proceedings. But then again, Anchorprops
was as a matter of fact
joined as a party and it opposed the application.
[14]
I return to the WhatsApp messages and the costs issue later in the
judgment. I should point out that Mr Jensen also raised
other points
in his answering affidavit. One of these was that the court did
not have jurisdiction because he is a citizen
of Denmark. He
did not persist with these points.
[15]
After argument the magistrate delivered an oral judgment which is
recorded as follows:
“
The court finds it
just and equitable in terms of section 4 that the second respondent
and all those occupying through him are to
vacate the premises
situated at 31 Shandon Way, Parkmore, Sandton on or before the 30
th
of September 2019, failing which the sheriff is authorised to effect
such eviction on the 1
st
of October 2019, the second respondent is to pay the costs on a
party-and-party scale.”
[16]
The oral judgment obviously contained no reason for the orders made.
Mr Jensen and Anchorprops then sought written reasons,
as they were
entitled to do, and the magistrate obliged. The following
written reasons were provided:
“
Introduction
The applicant brought an
application in terms of section 4 of the Prevention of Illegal
Eviction from and unlawful occupation of
Land Act 19 of 1998 to evict
the second respondent and any person occupying through him from the
property situated at 31 Sanden
way, Parkmore, Sandton.
Facts found proven
1. The applicant is the registered
owner of the abovementioned property.
2. The application terminated the
lease agreement on 15 October 2018 and informs the second
respondent to vacate the property
on 31 October 2018
3. The lease agreement between the
parties expired on 31 December 2018.
4. The second respondent’s
argument was that the oral lease agreement was concluded between the
parties. The applicant
argued on this point and stated that
even if there was such an oral agreement, the second respondent was
in breach of it as the
second respondent made no rental payments.
Reasons for judgment
5. The court found that the second
respondent is in unlawful occupation and that constitutes the
eviction.
The personal circumstances of the
second respondent were taken into consideration as well as the
prejudice the applicant is suffering
due to the high amount of arrear
rent.
For that reason the court found in
terms of section 4(8) of Act 19 of 1998 it just and equitable to
evict the second respondent
and all those occupying through him from
the afore said property.”
[17]
Mr Jensen and Anchorprops appealed against all the orders made. This
appeal is thus against both the eviction order and the
costs order.
THE
JUDGMENT
[18]
It is trite that what is generally called a judgment consists of two
parts. The first is the recordal of the court’s
reasons
for the order made and the second is the executive part of the
judgment, i.e. the order itself. Whilst the orders
that the
magistrate made were clear and unambiguous, the judgment lacked
reasoning. The written reasons simply stated proven
facts and
under the heading “reasons for judgment” the magistrate
stated conclusions of fact and law.
[19]
The composite judgment (the oral judgment and written reasons) does
not meet the requirements that are set in our law for judgments.
At the risk of stating the obvious, a judgment should proceed from a
concise recapitulation of the case which should include a
summary of
the facts, the relevant legal principles, the contentions made by the
parties and any other specific feature of the
case. The
ultimate purpose of any judgment is to explain the order that is
made. An order is a judicial creation.
Between the
statement of the case and the order and linking them should be the
court’s reasoning. Reasons are of paramount
importance
because they explain why the court made the order which it did.
Every court is accountable for the orders that
it makes and the only
method of accounting is to give reasons. In our adversarial
legal system the court owes a special duty
to the losing party to
provide the reasons why he, she or it lost, often an unexpected and
unwelcome outcome which invariably causes
anguish.
[20]
In
Mphahlele
v First National Bank of SA Ltd
[2]
Goldstone J made the following remarks about the role and function of
a judgment in the common law tradition:
“
There is no
express constitutional provision which requires Judges
[3]
to furnish reasons for their decisions. Nonetheless, in terms
of s1 of the Constitution, the rule of law is one of the founding
values of our democratic state, and the Judiciary is bound by it.
The rule of law undoubtedly requires Judges not to act
arbitrarily
and to be accountable. The manner in which they ordinarily
account for their decisions is by furnishing reasons.
This
serves a number of purposes. It explains to the parties, and to
the public at large which has an interest in courts
being open and
transparent, why a case is decided as it is. It is a discipline
which curbs arbitrary judicial decisions.
Then, too, it is
essential for the appeal process, enabling the losing party to take
an informed decision as to whether or not
to appeal or, where
necessary, seek leave to appeal. It assists the appeal Court to
decide whether or not the order of the
lower court is correct.
And finally, it provides guidance to the public in respect of similar
matters. It may well
be, too, that where a decision is subject
to appeal it would be a violation of the constitutional right of
access to courts if
reasons for such a decision were to be withheld
by a judicial officer.”
[21]
Similar observations were made by the Supreme Court of Canada in
R
v Shephard
[4]
,
observing that justice cannot be seen to be done if judges fail to
articulate the reasons for their orders. An order without
reasons may lead to the failure of justice which could lead to the
whole process being set aside.
[22]
Against this background I now turn to the three questions identified
in paragraph [7].
THE
PROCEDURAL QUESTION
[23]
Mr Levin brought the eviction proceedings on application.
Speaking generally, application proceedings are inadequate
to the
task of determining factual disputes. Where a dispute arises in
application proceedings on a central issue, the dispute
cannot be
determined in the application and the application itself may be
dismissed or struck from the roll or in certain
cases the alleged
fact may be referred for evidence or the whole matter may be sent to
trial.
[24]
The general rule is subject to two exceptions. The first is where the
dispute does not concern a central issue in the case
but a peripheral
matter so that even if the respondent’s version on the disputed
issue is accepted, the relief sought can
still be granted. In
such a case the fact of the dispute does not derail the proceedings.
This is the territory of
the venerable Plascon-Evans rule. This
exception obviously does not apply in the present matter because the
issue raised
by Mr Jensen (his reliance on the oral agreement) is
central and not peripheral to the dispute. If Mr Jensen’s
version
is accepted, Mr Levin must fail.
[25]
The second exception is actually not an exception but is rather the
initial determination whether there is a factual dispute
at all. Not
all assertions are assertions of fact. To put it differently, not all
alleged facts are facts. If the fact alleged
is not an actual fact,
even if it concerns a central issue, and it is concluded that the
raising of the fact is a device, a diversion,
to stymie justice, the
court will ignore it and decide the application without it. A
respondent can thus not rely on a non
- or imaginary fact.
Application proceedings are only derailed where the fact raised is
real, genuine and bona fide.
[5]
If the court concludes that a factual dispute is not real, genuine
and bona fide, the court may adopt a robust approach and
ignore the
chimera. It must, however, be stressed that adopting a robust
approach, i.e. deciding that an alleged fact is not a
fact at all,
requires caution. The field of application of the robust
approach is limited to the rare case where the allegations
that are
made by the side attempting to derail the application are so clearly
false or intrinsically improbable that a court may
safely conclude
that an oral hearing would not diminish the balance of
probabilities.
[6]
[26]
In my view the present matter falls under the second exception.
I am of the view that Mr Jensen’s reliance on the
oral lease
can be rejected on affidavit. (This is probably what the magistrate
did.) In short Mr Jensen’s version about the
oral agreement is
so improbable that I do not believe that there are any prospects that
it could be established by oral evidence.
In the first place there is
only a single consideration in favour of the oral agreement namely Mr
Jensen’s own say-so in
his answering affidavit. Weighing
against accepting his version of the oral agreement are some weighty
considerations.
The first is that Mr Jensen’s statement
on oath is directly contradicted by Mr Levin’s statement, also
on oath, denying
the oral agreement. There is no objective
evidence to support the oral agreement. Although Mr Jensen
stated the essentials
of an agreement of lease, he did so in vague
terms. He could for instance not provide a date on which the
agreement would
have been entered into. One would have expected
such a momentous matter as the oral lease to be referred to in
contemporaneous
exchanges. The rental (R29 000-00 a month, for
three months being the first quarter of the duration of the alleged
lease)
appears to be reverse-engineered from the R100 000-00
which was admittedly paid to Mr Levin at the time, or based on the
rental
in the original lease between Mr Levin and Anchorprops.
However, the R13 000-00 difference between what would have been
the
rental and the amount paid is not explained. Although, as
remarked above, a court should be wary to deal with probabilities
when considering the question whether an allegation of fact
constitutes a fact or is a fiction, the probabilities against the
oral lease are overwhelming. It is, first of all, highly
unlikely that Mr Levin would have entered into an oral agreement
at
that time in the terms alleged by Mr Jensen. Mr Levin
previously had a comprehensive written lease containing all the
usual
commercial terms of leases with Anchorprops and Anchorprops had
failed to comply with its obligations and then failed to
vacate the
property (by Mr Jensen’s departure) when it should have done
so. When the oral lease was allegedly entered
into Anchorprops
still owed arrear rental under the written lease. Mr Levin was
brazenly holding over. He was acting unlawfully.
Mr Levin, moreover,
conducted a leasing business with respect to the property. He
required an income from the property. It
would make no business
sense for Mr Levin to allow Mr Jensen to occupy the property until
“reasonable notice” would
be given to vacate the
property. The upshot of the oral lease would be that Mr Jensen
could remain indefinitely in the property
by challenging any notice
given to him to vacate the property as “unreasonable”.
Mr Levin would become the commercial
captive of Mr Jensen. In short:
It is highly unlikely that Mr Levin would enter into an imprecise,
non-businesslike, one-sided
arrangement with someone who had
demonstrated a propensity for wrongful conduct, viz. the holding over
and non-payment of the rental.
[27]
The exchange of WhatsApp messages, however, clinches the matter.
The messages do not allow for any oral agreement of
the ilk alleged
by Mr Jensen. The WhatsApp messages show only two things namely
that Mr Levin continuously demanded payment
of the arrear rentals and
that Mr Jensen avoided making payment. In fact, Mr Levin was
reduced to begging Mr Jensen to make
the arrear payments and
disclosing his own financial embarrassment following on the failure
to pay the rental. The WhatsApp messages
show Mr Jensen making one
promise to make payment after the other. Mr Jensen told Mr
Levin of various events that he promised
would place him in funds,
but the promises never materialised. Taken together, they appear to
be a series of misrepresentations
that were calculated to stave off
the inevitable eviction.
[28]
To my mind this is one of the rare cases where a court should, with
certainty, conclude on the affidavits that a deponent’s
allegation of a disputed fact is not real, genuine and bona fide.
The dispute was raised to derail the course of justice.
The matter
could thus be determined on application.
THE
MERITS QUESTION
[29]
The merits question was whether the oral agreement had been
established. One would normally at this point analyse the
burden of proof and then subject the facts contained in the
affidavits to a critical appraisal to determine whether the oral
agreement
as disputed fact had been established. But it is not
necessary here.
[30]
By rejecting the argument that the reference to the oral agreement
raised a real, genuine and bona fide factual dispute, it
must follow
that the oral lease has not been established, no matter who had the
burden of proof. If the allegation of the
oral lease falls to
be rejected, then any defence based on the oral lease must perforce
fail.
[31]
In summary the position on the merits is that Mr Levin alleged that
he was the owner of the property and that Mr Jensen was
in unlawful
occupation thereof at the time that the application was launched, Mr
Jensen did not dispute the allegations of ownership
and occupation
but sought to establish lawfulness by reliance on the oral lease.
For the reasons set out above there could
not have been an oral lease
and therefore there is no defence to Mr Levin’s claim on the
merits. The only question
that remains is whether the court
below was correct in finding that it was just and equitable to evict
Mr Jensen and what the date
would be on which the order should have
been effective.
THE
REMEDY QUESTION
[32]
Section 4(7) of the PIE Act provides that if an unlawful occupier has
occupied the property for more than six months at the
time when the
proceedings are initiated, a court may grant an order for eviction
only if it is of the opinion that it is just and
equitable to do so.
The court must, in considering the justice and equity of the
eviction, consider all the relevant circumstances.
There is no closed
list of circumstances. The sub-section in sum cautions the court to
be aware of the equities and justice where
the occupier in question
is a vulnerable person.
[33]
Section 4(8) provides that if the court is satisfied that all the
requirements of the section have been complied with and that
no valid
defence has been raised by the unlawful occupier, the court must
grant an order for the eviction of the occupier and the
court must
determine a just and equitable date on which the unlawful occupier
must vacate the land and the date on which an eviction
order may be
carried out if the occupier has not vacated the land on the date
determined. Section 9 enjoins the court to
have regard to all
relevant factors including the period the unlawful occupier and his
or her family have resided on the land in
question in determining a
just and equitable date for the eviction.
[34]
There are thus multiple sets of just and equitable considerations
that have to be taken into account. The first group
has to do
with the question whether an eviction order should be issued at all.
The second group follows upon that and concerns
the date on which the
property has to be vacated and the order enforced.
[35]
Mr Jensen contends that he is a vulnerable person for three reasons.
One, age: Mr Jensen is 76 years old. Two, health: Mr Jensen
said that
he is ailing. Three, lack of resources: Mr Jensen said that he is
currently unemployed.
[36]
Mr Jensen’s case is that he will be rendered homeless if he is
evicted from the premises. Mr Jensen’s age is not
disputed. He
is indeed of mature years. But whether he is vulnerable because of
his advanced age is not clear from the papers.
Mr Jensen merely
asserted the health and employment points in his answering affidavit
without providing any particulars and Mr
Jensen did not take the
court into his confidence by giving any details of his situation in
life. There are many questions about
his circumstances that he could
have explained to give substance to his statement that he has nowhere
else to go to. He is a Danish
citizen and the Danish social services
are notoriously well-funded. Mr Jensen could perhaps have explained
why he would not benefit
from the system to which he seems to be
entitled. He did not explain whether he is in receipt of a pension or
annuities paid by
a retirement fund or returns paid by investments.
He also does not take the court into his confidence as to the source
of the R100 000
he previously paid to Mr Levin, and regarding
his ability to procure funding for a less costly residence in less
affluent circumstances.
His bold laments that he is destitute, will
be homeless, is workless and is ailing ring hollow against the fact
that he rented
expensive accommodation for himself through a company
of which he was a director. A party expecting a court to interfere
with the
cornerstone right of ownership should do more than make bold
assertions such as these. The WhatsApp messages are also relevant in
this context. They reflect a propensity to make and break
promises.
[37]
Justice and equity moreover require that Mr Levin’s interests
be considered. The WhatsApp messages reflect that
Mr Levin
literally pleaded with Mr Jensen to make payment of the arrear
rentals. Mr Levin repeatedly made it clear that he
required
payment of the arrears to maintain his family. It would seem
that the income produced by the property is necessary
for Mr Levin’s
own economic survival. He does not appear to be an exploitative
landlord who preys on the meek and mild
but an ordinary person who is
reliant upon the income from an investment property.
[38]
Mr Jensen is effectively in the category of lessees who hold over.
He was not forced by the inequities of our society
to take occupation
because he could not survive otherwise. He leased (through
Anchorprops) an expensive property for which
he has stopped paying
and for which he refuses to pay. He is not a victim of
circumstances beyond his control but the author
of his own
misfortune.
[39]
For these reasons I conclude that justice and equity demand that he
be evicted.
CONCLUDING
REMARKS
[40]
I remarked above that this appeal is being disposed of during Alert
Level 4 of the national lockdown. Regulation 19 suspends
any eviction
order until the end of Level 4. But there is no indication that
evictions will be allowed during later alert levels.
However, an
eviction order may be executed if the court finds that it is just and
equitable to order an immediate eviction during
the lockdown. I can
see no reason for an order that the general suspension of eviction
orders should not apply here, nor were any
submissions made on Mr
Levin’s behalf that that was the case. The point of departure
of the lockdown is that everyone should
stay at home. Although he
illegally occupies the property, it is Mr Jensen’s home at this
time. He does fall within a risk
group due to his age. The economic
consequences of the lockdown are the same for all landlords. I can
see no feature in this case
that distinguishes it from the probably
thousands of eviction matters that are sitting in the in the wings
awaiting a governmental
decision that evictions may again be carried
out. The order that l propose is that Mr Jensen be allowed to remain
in the property
until such time as the rules pertaining to the
national lockdown allow for eviction orders to be executed, plus two
weeks or 14
days thereafter. No one knows when the lockdown rules
will be amended in this manner and I believe that it is reasonable to
afford
Mr Jensen two weeks thereafter to vacate the property by his
own volition. Should Mr Jensen not vacate the property within the two
week period, the order may be carried out two weeks later, that is,
28 days or four weeks after the amendment of the lockdown rules
to
allow for the execution of eviction orders. In my view it is just and
equitable for Mr Jensen to take his departure in a dignified
manner
from Mr Levin’s property within that time.
[41]
The appeal process was less than perfect in two respects, the
particulars of which are not controversial, namely that the
appellants did not comply with a prescribed time bar and that some of
the documentation was incomplete. The imperfections are set
out in an
affidavit by Mr Jensen’s attorney. There is no need to
deal any further with these issues because I am satisfied
that the
required condonation should be granted and that the costs of the
condonation application be costs in the appeal.
[42]
Although the magistrate’s judgment is open to criticism, it
cannot be said to be wrong on the main question whether the
oral
agreement has been established and the appeal on the merits must
therefore fail. A fresh order has to be made in terms of
section 4(8)
of the PIE Act.
[43]
The costs award which should be made in the appeal is debateable. To
recap: the magistrate’s order evicted Mr Jensen
but required
Anchorprops to pay the costs. No reason is provided in the judgment
why the normal rule of costs following the event
should not have
applied. Mr Jensen lost and he should have been ordered to pay the
costs. On the other hand, both Mr Levin and
Anchorprops were joined,
both opposed the application, both are appellants and both appeal the
merits and the costs order.
Although it was probably
conceptually wrong for the court to evict Mr Jensen but require
Anchorprops to make the payment of the
costs and for Mr Levin to have
joined Anchorprops in the first place, a more just and equitable
costs order than the order which
the magistrate made would be to
order costs against both appellants as claimed in the notice of
motion.
ORDERS
[44]
In the result I would make the following orders:
1. The appellants are
granted the relief sought in the condonation application dated 19
December 2019 with the costs of the condonation
application
being costs in the appeal;
2. the costs order made
by the magistrate is set aside and is replaced with the following
order: “The first and second respondents
are ordered to pay the
applicant’s costs jointly and severally on the party and party
scale”;
3. the appeal against the
eviction order is dismissed with costs;
4. the second appellant
is ordered to vacate the premises situated at 31 Shandon Way,
Parkmore, Sandown, Johannesburg no later
than 14 (fourteen) days from
the date on which eviction orders may again be carried out during in
terms of the regulations under
the Disaster Management Act 57 of 2002
(“the regulations”) or the regulations cease to apply,
whichever occurs first;
5. if the second
appellant fails to vacate the premises as set out in paragraph 4
above, the sheriff is authorised to evict him
28 (twenty eight) days
after the date on which eviction orders may again be carried out,
either in terms of the regulations or
after they have ceased to
apply, whichever occurs first.
___________________________
PF
LOUW AJ
I
agree.
___________________________
S
YACOOB J
It
is so ordered.
[1]
Regulations
issued in terms of
section 27(2)
of the
Disaster Management Act, 57
of 2002
, published on 29 April 2020
[2]
[1999] ZACC 1
;
1999 2 SA 667
(CC) at para
[12]
. See also
Tredoux
v Kellerman
2010 1 SA 160
(C) at para [4],
Road
Accident Fund v Marunga
2003 5 SA 164
(SCA) and the contribution of M Corbett in
1998
SALJ
116
under the heading “The duty to give reasons” at
117-118.
[3]
Which, of course, also applies also to magistrates.
[4]
2002 SCC 26
;
[2002] 1
SCR 869
and see the common law authorities summarized therein.
[5]
See
Whiteman
t/a JW Construction v Headfour (Pty) Ltd
2008
3
SA 371
(SCA). See the remark of Wallis JA in
Media
24 Box (Pty) Ltd v Oxford University Press SA (Pty) Ltd
2017 2 SA 1
(SCA) at 18A that findings to the effect that facts are
implausible, far-fetched or so clearly untenable that they could
safely
be rejected on the papers occurs infrequently. This is
so because the courts are aware that evidence and cross-examination
may alter its views of the facts and the plausibility of evidence.
See also the comments in
Cape
Town City v South African National Roads Agency Ltd
2015 6 SA 535 (WCC) at 608F regarding the classification in
South
African Veterinary Council v Szamanski
2003 4 SA 42
(SCA) para [24]. In my view the present is one of the
rarities where the positive allegation made by Mr Jensen can safely
be
discarded.
[6]
See, for example,
Fakie v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 4 SA 326
(SCA) para [55] and further.