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[2020] ZAGPJHC 435
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Zwiegers v Bethlehem and Others (43334/2018) [2020] ZAGPJHC 435 (4 September 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
43334/2018
REPORTABLE:
NO / YES
OF
INTEREST TO OTHER JUDGES: NO / YES
REVISED.
In
the matter between:
ZWIEGERS,
WILLEM BAREND JOHANNES
Applicant
and
BETHLEHEM,
LAEL
IRENE
First
Respondent
COHEN,
NINA
Second
Respondent
LEWIS,
DAVID
HARRIS
Third
Respondent
MORRIS,
BRETT
ANTONY
Fourth
Respondent
WYNCHANK,
DORA SOULEIKA REBECCA MASCHA
Fifth
Respondent
JUDGMENT
(Application
for leave to appeal)
Lapan
AJ:
INTRODUCTION
[1]
On 7 May 2020, the judgment and order of this court were handed down
in the application
for the eviction of the applicant from property
acquired by the respondents at a sale in execution (the main
application).
[2]
On 1 July 2020, the applicant brought this application for leave to
appeal which application
ought to have been brought by no later than
28 May 2020. The applicant seeks condonation for the 5 (five) week
delay in bringing
this application.
[3]
The respondents bring an application to vary the order granted on 7
May 2020, in relation
to the eviction date, in view of the
regulations made pursuant to the
Disaster Management Act, 57 of 2002
,
which take account of the ongoing COVID-19 national lockdown which
commenced on 26 March 2020. The applicant does not oppose the
application to vary the order.
CONDONATION
APPLICATION
[4]
The applicant admits to receiving a copy of the judgment on 7 May
2020.
[5]
The applicant states that he is 60 years old, asthmatic and that it
took him some
time to “
digest the judgment”
. He
also states that he could not access the documents because of the
national lockdown which also made it impossible to obtain
assistance
from his legal representatives. He also alleges that most of his
documents were obtained by mid-June and his legal representatives
were instructed thereafter although the lockdown still made it
difficult to finalise this application.
[6]
Condonation is not for the mere asking and sufficient cause must be
shown, having
regard to the various factors to be considered, to
determine whether it would be in the interests of justice to grant
condonation.
[1]
[7]
The applicant relies extensively on the national lockdown as having
precluded him
from gaining access to his files and to his legal
representatives yet he provides no details as to what efforts were
made in this
regard and to what extent his age and medical condition
impeded his ability to attend to this application.
[8]
Alert level 4 of the national lockdown commenced on 1 May 2020 and,
based on the directions
issued in terms of
regulation 4(2)
of the
regulations made under the
Disaster Management Act, published
in
Government Notice 489 in Government Gazette No. 43268 of 4 May 2020,
legal practitioners were permitted to provide specific
services as
listed in Annexure 1 thereof. Attending on applications for leave to
appeal is listed as a permitted service.
[9]
The applicant fails to explain why he could not brief his legal
representatives to
provide this service timeously after receiving a
copy of the judgment. The explanation for the delay is not
reasonable.
[10]
Notwithstanding the aforesaid, the delay is not extensive in the
circumstances of this matter
and having regard to the fact that the
eviction could, in any event, not proceed on 30 June 2020, due to
changes in the regulations
made pursuant to the lockdown which took
effect after the judgment was handed down. The main application is
important to both sides
and finality is required in regard to the
eviction proceedings.
[11]
For the above reasons, it is considered to be in the interests of
justice to condone the late
filing of this application.
GROUNDS OF APPEAL
[12]
The grounds of appeal may be summarised as follows:
[12.1]
the sheriff lacked the authority to sell the property to
the
respondents due to the prior sale of the property by the previous
owner, Ms Guedes, to the applicant;
[12.2]
the pending litigation in which the applicant is seeking
to enforce
the prior sale concluded with Guedes renders the matter
lis
pendens
and precludes eviction pending the outcome of that
litigation;
[12.3]
the applicant is exercising an improvement lien over the
property,
having taken possession of the property pursuant to the sale
agreement concluded with Guedes and, in terms thereof, completing
the
building on the property and thereby incurring expenses in excess of
R1,6 million;
[12.4]
since the applicant had at all times remained in possession
of the
property, the sale in execution did not defeat the lien; and
[12.5]
to the extent that this court held that an attachment and
sale in
execution defeats a lien, then the judgment conflicts with two
earlier judgments which determined that a lien is not defeated
by an
attachment and a sale in execution of the property.
[13]
These grounds are considered
ad seriatim
below.
The sheriff’s
authority to sell the property and the defence of lis alibi pendens
[14]
The applicant alleged that he concluded a valid sale agreement with
Guedes and that, in terms
of section 22 of the Alienation of Land
Act, 68 of 2001 (the Act), he was entitled to take transfer of the
property but that the
sheriff had refused to sign the necessary
transfer documents. The matter is alleged to be
lis pendens.
[15]
The applicant does not challenge my judgment in relation to the
application of the doctrine of
res litigiosa
. This principle
permits successive sales of the property subject to the right of the
first purchaser to re-acquire the property
upon succeeding in pending
litigation concerning the right of ownership of the property.
[16]
Therefore, the applicant’s reliance on the defence of
lis
pendens
is misplaced as the successive sale of the property to
the respondents is not precluded due to the application of the
doctrine
of
res litigiosa
.
[17]
The applicant contends that the sheriff lacked authority to sell the
property to the respondents
since section 22 of the Act obliged the
sheriff to transfer the property to him. This contention ignores the
order made by the
honourable Acting Justice Brenner, on 21 June 2017,
pursuant to the applicant’s first urgent application to
interdict the
sale in execution and in which application the
applicant relied on his right to take transfer of the property in
terms of section
22 of the Act (Brenner order).
[18]
As held in paragraphs 13 and 14 of my judgment, the Brenner order
authorised the sheriff to sell
the property if the applicant failed
to make arrangements, in terms of section 22 of the Act, to pay the
amounts owing to the mortgagees.
Since the applicant failed to make
such payment arrangements timeously, the sale in execution took place
as provided for in the
Brenner order.
The improvement lien
[19]
The applicant asserted an improvement lien, for the first time, in
the main application. As held
in paragraphs 32 to 36 of my judgment,
the applicant had, at all times, required the sheriff to effect
transfer of the property
to him, in terms of section 22 of the Act,
based on the sale agreement concluded between him and Guedes. He did
not lay claim to
a lien over the property.
[20]
In this application, the applicant points out that he took possession
of the property pursuant
to the sale agreement concluded with Guedes,
yet he does not dispute that he failed to make the sheriff aware of
his right of retention
over the property as explained in paragraphs
32 to 36 of my judgment.
[21]
As held in paragraph 78 of my judgment, the respondents paid the
realisable value obtainable
for the property at the sale in
execution. The applicant may well have a contractual claim, or an
enrichment claim, against Guedes
for the improvements made to the
property but this does impugn the respondents’ right to be in
possession of the property.
Conflicting judgments
[22]
The applicant contends that, if my judgment is interpreted to mean
that an attachment and sale
in execution defeats a lien, then it is
in conflict with two earlier judgments. However, upon careful
analysis of these earlier
judgments, it is clear that there is no
such conflict.
[23]
In paragraphs 30 to 32 of my judgment, the reliance on
Testa
is
in support of the proposition that the sheriff is permitted to
transfer ownership and possession of the property but that
dispossession
does not occur merely upon the attachment of the
property.
[2]
[24]
The applicant claims that the decision in
Levy
v Tyler
[3]
is in conflict with my judgment. In
Levy
,
it was held that, at the time of purchasing property at a sale in
execution, the plaintiff knew that the defendant claimed possession
of the property pursuant to a builder’s lien. In the
circumstances, the court held that the plaintiff was bound by the
lien
to the same extent as the previous owner had been. This case
supports the view that where the possessor makes the sheriff and the
prospective buyer aware of his lien, the property is sold subject to
the lien.
[25]
In the present matter, the applicant consistently claimed the right
to take transfer of the property
in terms of section 22 of the Act
without laying claim to a lien. Even in this application for leave to
appeal, the applicant asserts
his right to take transfer of the
property which was denied him because of the sheriff’s refusal
to sign the necessary transfer
documents. The failure to assert a
lien at the time of the attachment and sale in execution is
dispositive of the applicant’s
claim to retain possession of
the property.
[26]
Another decision relied on by the applicant, as being a conflicting
judgment, is
Cooper
& Hewson v Johnstone & Co
[4]
.
In this case, the appellants’ attorney gave notice to the
persons present at a sale in execution, and to the respondent
(the
prospective buyer), that the appellants had possession of, and would
be retaining, the property until paid for work done on
certain
buildings. The court held that, although the appellant may well have
been required to lay claim to the lien with the Master,
the appellant
had possession of the building and exercised a right of retention in
terms of the special right allowed him by law.
[27]
The above judgment is not in conflict with my judgment and is, based
on the facts, consistent
with the judgment in
Levy
that the
applicant must assert his right of retention at the time of the sale
in execution.
[28]
Rule 45(9) of the uniform rules of court requires that the attachment
of property subject to
a lien be dealt with by the sheriff
mutatis
mutandis
in accordance with rule 45(8)(b) which requires the
sheriff,
inter alia
, to give notice to all interested parties
of the attachment. Thus, if no lien is asserted, the property is sold
without a lien
and the possessor is not entitled to retain possession
of the property.
THE TEST FOR GRANTING
LEAVE TO APPEAL
[29]
Section 17(1)(a) requires that leave to appeal
only
be given
where the judge is of the opinion that (i) the appeal
would
have a reasonable prospect of success; or (ii) there is some other
compelling reason why the appeal should be heard including
conflicting judgments [underlining added].
[30]
It has been held that the test for granting leave to appeal is now
more stringent compared to
the test in the (repealed) Supreme Court
Act, 59 of 1959, having regard to the use of the word “only”
in section 17(1)(a).
Furthermore, the use of the word “
would
”
in section 17(1)(a) “
indicates
a measure of certainty that another court will differ from the court
whose judgment is sought to be appealed against”.
[5]
[31]
In the present matter, it cannot be said, with a measure of
certainty, that the appeal would
have a reasonable prospect of
success.
[32]
The test of reasonable prospects of success on appeal is a
dispassionate decision, based on the
facts and the law, that the
appeal court could reasonably arrive at a conclusion different to
that of the court
a
quo
.
In this regard, it has been held that there must be a “
sound,
rational basis for concluding that there are prospects of success on
appeal.”
[6]
[33]
Having considered the grounds of appeal, and having regard to the
other findings in my judgment
which are not sought to be challenged
and which would present insurmountable obstacles to succeeding on
appeal, there is no sound,
rational basis for concluding that there
are prospects of success on appeal.
[34]
There is also no compelling reason for granting leave to appeal as
the earlier judgments relied
on by the applicant as being in conflict
with my judgment are in fact, upon careful analysis, consistent with
my judgment.
[35]
Since the application for leave to appeal does not satisfy the test
formulated in
sections 17(1)(a)(i)
and (ii) of the
Superior Courts
Act, 10 of 2013
, this application for leave to appeal ought to be
dismissed with costs, including the wasted costs occasioned by the
postponement
of the hearing on 28 August 2020.
APPLICATION FOR
VARIATION OF THE ORDER
[36]
The respondents seek leave to vary the order in terms of rule 42(1).
The order had made provision
for the eviction to take place on or
before 30 June 2020 and, in the event that the lockdown precludes
eviction on or before the
aforesaid date, then the date is revised to
be a date which is 30 days after the lockdown restrictions have been
lifted.
[37]
In terms of regulation 19 of the regulations made pursuant to
section
27(2)
of the
Disaster Management Act, 57 of 2002
, evictions shall be
stayed and suspended during Alert Level 4 unless the court decides
that it is not just and equitable to stay
and suspend the order until
the last day of the Alert level 4 period. This regulation applied
from 1 May 2020.
[38]
In terms of
regulation 36
of the regulations made pursuant to
section
27(2)
of the
Disaster Management Act, 57 of 2002
, evictions may be
stayed and suspended until the last day of Alert Level 3 unless the
court decides that it is not just and equitable
to stay and suspend
the order as aforesaid. This regulation applied from 1 June 2020
unless otherwise indicated.
[39]
Since the applicant was required to vacate the property on or before
30 June 2020, in terms of
the order granted on 7 May 2020, the
eviction fell within the Alert Level 3 period which applied from 1
June 2020.
[40]
In terms of
regulation 53
of the regulations made pursuant to
section
27(2)
of the
Disaster Management Act, 57 of 2002
, a court may suspend
or stay any order for eviction until after the lapse or termination
of the national state of disaster unless
the court is of the opinion
that it is not just or equitable to suspend or stay the order having
regard to various factors listed
in the regulation, in addition to
any other relevant consideration. This regulation applies during
Alert Level 2 which took effect
on 18 August 2020 and which remains
in force at the date hereof.
[41]
For the reasons set out below, this court is of the opinion that, in
the circumstances of this
matter, it would not be just and equitable
to stay or suspend the eviction of the applicant from the
respondents’ property.
[42]
The respondents, as the persons in charge of the property, gave
notice to the applicant, on 31
July 2018, to vacate the property on
or before 31 August 2018. To date, the applicant has refused to do
so.
[43]
The applicant has been in occupation of the property since 1 April
2016 and has consistently
failed to pay the municipal charges levied
in respect of the property including the charges for the consumption
of water and electricity.
Furthermore, the respondents are required
to service the mortgage bond registered over the property but without
deriving any benefit
as owners of the property. These factors clearly
indicate that the respondents are prejudiced by the applicant’s
continued
occupation of the property. The applicant has consistently
failed to indicate what prejudice, if any, he would suffer if he is
evicted from the property.
[44]
In the circumstances, it is just and equitable to vary the order for
the eviction of the applicant
from the property, giving the applicant
at least 4 (four) weeks within which to vacate the property.
[45]
The following order is made:
1.
Prayer 2 of the order granted on 7 May 2020 is deleted and replaced
with a new prayer 2 to
read as follows:
“
The
first respondent and all those who occupy the property by, through or
under him, are ordered to vacate the property on or before
2
October 2020
.”
2.
The applicant is directed to pay the costs of this application
including the wasted costs
occasioned by the postponement of the
hearing on 28 August 2020.
___________
AJ
LAPAN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT:
Mr
W Boonzaier
APPLICANT’S
ATTORNEYS:
Mashabane and Associates Inc
COUNSEL
FOR THE
RESPONDENTS:
Mr C van
der Merwe
RESPONDENTS’
ATTORNEYS:
Vermaak and Partners Inc
DATE
OF HEARING:
1
September 2020
DATE
OF JUDGMENT:
4
September 2020
1]
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68
(CC) para [23].
[2]
Builder’s
Depot CC v Testa
2011
(4) SA 486 (GJ)
[3]
1933
CPD 377
[4]
(1899)
6 OFF Rep 130
[5]
S
v Notshokovu
[2016]
ZASCA 112
, para 2,
South
African Breweries (Pty) Ltd v The Commissioner of the South African
Revenue Services
[2017] ZAGPPHC340, para 5.
Acting
National Director of Public Prosecutions v Democratic Alliance
2016 JDR 1211 (GP) para 25.
[6]
S
v Smith
2012
(1) SACR 567
(SCA) para 7.