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[2023] ZAGPJHC 419
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Khwela and Others v Imalenai and Others (48512/ 2021) [2023] ZAGPJHC 419 (4 May 2023)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case No.48512/ 2021
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In
the matter between:
STANELY
KHUTA KHWELA
1
st
Applicant/Appellant
MARIA
KHWELA
2
nd
Applicant/Appellant
BUYSILE
MAUREEN MASUKU
3
rd
Applicant/Appellant
and
JULIUS
IMALENAI
1
st
Respondent
THERESA
O EGHONOGHON
2
nd
Respondent
CITY
OF JOHANNESURG
3
rd
Respondent
Neutral
citation:
Stanley Khuta Khwela &
Another v Julius Imalenai & Others
(Case
No. 48512/2021) [2023] ZAGPJHC 419 (04 May 2023)
JUDGMENT LEAVE TO
APPEAL
MAHOMED,
AJ
The applicants seek leave
to appeal a judgment I handed down on 26 October 2022, in which I
found it was just and equitable that
they be evicted from the
property they unlawfully occupied and within 14 days of the order.
I noted the grounds of
appeal and the respondent’s notice for security for costs
[1]
.
I noted the 1
st
applicant’s and Advocate Muza’s submissions for the
respondent. I granted an application for condonation for
the
late filing of this application, it being in the interest of justice
that a party be heard, and it was not an inordinate delay.
Furthermore, the respondents do not suffer prejudice, in that I noted
that the applicants have complied with the order.
1.
The applicants vacated the premises as ordered
and Advocate Muza confirmed that his client has taken occupation of
his home and
has in fact effected renovations to the property.
2.
Mr
Muza alerted the court to his clients notice for the filing of
security for costs, where the taxed costs still outstanding and
due
by the applicants, is in the amount of R245 462.29 under case
number 2016/24341.
3.
The 1
st
applicant submitted that he vacated the premises and is leasing a
home in the same area, however he struggles to pay the rental.
4.
The first applicant confirmed that he is unable
to pay the security for costs as per the notice, which was served on
him in April
2023. In response to the court’s question,
as to whether he could dispute the amount, he proffered that the
costs should
be in the region of R40 000, despite this being his
fifteenth appearance in court in this dispute.
5.
Advocate Muza agreed with the court that the
dispute is no longer extant before this court.
Section 17(1) provides
:
Leave to appeal may only be given
where the judge or judges concerned are of the opinion that –
(a)
…
(b)
the
decision sought on appeal does not fall within the ambit of
section
16(2)
(a)
and
1.25
cm; margin-bottom: 0cm; line-height: 150%">
s16(2) (a)(i) of the
Superior Courts
Act 10 of 2013
, provides:
“
When at the hearing of an
appeal the issues are of such a nature that the decision sought will
have no practical effect or result,
the appeal may be dismissed on
this ground alone
.”
7.
The applicants have complied with the order and
therefor there is no dispute between the parties on the issue.
8.
The applicants will not afford to file security
as per the notice and this is a critical requirement for any matter
that is taken
on appeal.
9.
This application for leave fails and is refused.
Accordingly, I make the
following order:
1.
The application for leave is dismissed.
2.
The applicants shall pay the respondents costs,
on a party to party scale.
MAHOMED AJ
Date
of hearing: 3 May 2023
Date
of judgment: 4 May 2023
Appearances:
For
Applicant:
Mr
Stanley Khuta Khwela
Self-represented
For
Respondent:
Adv
Muza
Instructed
by
Nandi
Bulabula Inc
Tel:
012 342 6456
[1]
Caselines 046