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[2010] ZAGPPHC 297
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Pitje and Another v Van Der Merwe and Others (25095/2009) [2010] ZAGPPHC 297 (15 January 2010)
IN THE NORTH GAUTENG
HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 25095/2009
In the matter between
SM
PITJE
First Applicant
N
PITJE
Second Applicant
And
GT
VAN DER
MERWE
First Respondent
AJP
ELS
Second Respondent
SHERIFF
PRETORIA
EAST
Third Respondent
JUDGMENT
1
This is an urgent application to vary an
interlocutory order made by Webster J on 4 December 2009
2
The first applicant's case was argued with
considerable ability by the first respondent himself The second
applicant was represented
by
counsel, as
were the first and second respondents The third respondent abides the
decision of the court.
3
The essence of the applicants' case is that
the legal system has failed them in that on at least two occasions
judges of this court
have made orders against them pursuant to
proceedings that were, on the applicants' version grossly irregular.
4
In order to enable the judge who is
required to deal with this matter in due course to understand the
course of events about which
the applicants complain, I shall set out
briefly how the litigation developed As the various interlocutory
applications all bear
the same case number. ie 25095/2009.1 shall
have to identify them by reference to the judges who heard them What
I say below is
not a completely comprehensive history; I refer only
to those applications and the occasions they were called in court to
which
I was referred In argument as being of significance to the case
which the applicants wish to make and which the respondents seek
to
rebut
5
On 30 October 2009, Pottenll AJ granted an
order (the eviction order”) for the eviction of the present
applicants upon the
motion of the present first and second
respondents
6
On 20 November 2009, the applicants gave
notice of an application for leave to appeal against the eviction
order.
7
On 25 November 2009. the respondents gave
notice of an application ( "the rule 49(11) application")
for an order that
the eviction order be not suspended pending any
appeal proceedings The notice of motion in the rule 49(11)
application stated that
the relief under the rule 49(11) application
would be sought “simultaneously with the hearing of the
application for leave
to appeal"
8
The applicants say that the application for
leave to appeal was enrolled for hearing on 2 December 2009 pursuant
to an email received
from Potterill J's registrar on 1 December 2009
and that in a telephone conversation with Potterill J. the first
applicant informed
the learned judge that the applicants would not be
proceeding with the application for leave to appeal on 2 December
2009.
9
What transpired at the hearing on 2
December 2009 is at present controversial Suffice it to say that the
application for leave to
appeal did not proceed on that date but
Potterill J heard and granted the Rule 49(11) application. It appears
that the application
for leave to appeal was postponed sine die on 3
December 2009 and has not since been re-enrolled.
10
On 3 December 2009, the applicants launched
an application ('the suspension application') for orders to
10.1
suspend the execution orders made by
Pottenll J on 2 December 2009 pending the finalisation of a
rescission application directed
at rescinding the rule 49(11) relief
granted by Pottenll J on 2 December 2009: and
10.2
interdict the respondents from enforcing
the rule 49(11) order granted by Pottenll J on 2 Decem ber 2009
11
It is common cause that the applicants were
not represented at the hearing before Pottenll J on 2 December 2009.
12
One of the applicants contentions is that
because the rule 49(11) application was not set down for a specific
date but rather to
be heard simultaneously with the application for
leave to appeal and because the application for leave to appeal was
not heard.
Potterill J had no jurisdiction (in the sense of
regsbevoegdheid)
to hear the rule 49(11) application on 2 December
2009 Further contentions are that the first applicant only came into
court to
confirm that the application for leave to appeal was indeed
not proceeding and found that argument on the rule 49(11) application
was in progress, that the second applicant was
not in court at
all on 2 December 2009. All these contentions are hotly disputed by
the respondents.
13
On 3 December 2009, the applicants launched an urgent
application ('the rescission application") to rescind the rule
49(11)
order, strike the application for rule 49(11) relief from the
roll and suspend the operation of the eviction order The applicants
have set the rescission application down for hearing on 1 February
2010.
14
On 4 December 2009. the suspension application came before
Webster J Once again, what occurred during that hearing is
controversial
but it is common cause that Webster J dismissed the
suspension application
15
On 5 December 2009. the applicants launched an application
("the variation application”) to vary the order made by
Webster
J on 4 December 2009 in which Webster J dismissed the
suspension application by replacing the order made by Webster J with
one
which would:
15.1 suspend the
execution order made by Potterill J on 2 December 2009 pursuant to
the rule 49(11) application,
15.2 interdict the
respondents from enforcing the execution order made by Pottenll J
pursuant on 2 December 2009 pursuant
to the rule 49(11) application.
15.3
direct the
respondents to return to the applicant the premises from which they
were evicted
16
The variation application came before
Sapire AJ on 24 December 2009 Sapire AJ declined to enroll the matter
and, according to the
note on the court file, directed that the
matter be removed from the roll due to lack of urgency The note reads
further The Notice
of Motion is defective".
17
On 1 January 2010. the variation
application came before Makgoka J Makgoka J directed that the matter
be removed from his roll.
18
On 12 January 2010, the variation
application, with what is described as a 'notice of motion as
amended' came before me. The question
of urgency was fully argued.
The merits could not be fully argued because there was insufficient
clarity about what occurred before
Potterill J. Webster J, Makgoka J
and Sapire AJ
19 As I have stated
above, the variation application cannot be heard until the relevant
transcripts have been obtained. The transcripts
in question relate to
the proceedings before
19.1
Pottenll J on 2 December 2009,
19 2 Webster J on 4
December 2009,
19.3
Sapire AJ on 24 December 2009; and
19.4 Makgoka J on 1
January 2010.
20
The parties were agreed that I was not
precluded by the ruling of Sapire AJ that the matter was not urgent
from forming my own view
and exercising my own discretion in regard
to urgency
21
I must decide the issue of urgency on the
assumption that there is substance in the version presented by the
applicants. On this
basis, I find the application to be urgent on the
strength of one of the impugned orders, on 3 December 2009 a previous
order for
eviction was ruled under rule 49(11) to be effective
immediately despite a pending application for leave to appeal and the
applicants
were evicted from certain residential premises If the
applicants are ultimately successful, it may well be that they will
be entitled
to be restored to their possession which they lost by
reason of the order of court. I do not think that it can be said that
in
those circumstances the applicants will receive adequate redress
at a hearing in due course, such as to deny them an urgent hearing,
because they will have an action for damages.
22
It is further of the utmost importance that
in principle, where the conduct of the officers of this court is
called into question
a court rule on the allegations as soon as
possible In that way. the integrity of the court is best served Such
allegations should
not be allowed to linger. It should never be able
to be said that judges will protect their colleagues rather than
uphold the law.
23
It must not be understood from what I have
just said that I have come to a conclusion on the allegations made by
the applicants.
On the contrary, I have not Indeed, I do not think
that a court should pronounce on these allegations on the papers as
they now
stand This is because the applicants have relied on
impression and recollection in their attempts to establish the
allegations.
They have not, as counsel for the respondents correctly
submitted they should have, presented transcripts of the proceedings
about
which they complain.
24
There is in principle no reason why what
actually was said in this court should be controversial All the
proceedings under attack
by the applicants were recorded
electronically Transcripts are the best way of determining what was
said.
25
It may be (I express no opinion in this
regard) that a court of equal jurisdiction will have the power to
revisit the orders made
by Potterill J and Webster J respectively on
the principles set out In
Bell
v Bell
1908 TS 887.
Whether such a
court would find it appropriate to exercise such a power, if it
exists, is another question - one on which I express
no opinion.
26
I accordingly do not intend to close the
door on the applicants because they did not produce the best evidence
available I shall
give them an opportunity to do so. It should be
clear from what I have said that the application should not be set
down again until
the transcripts have been obtained and the parties
have had an opportunity to deal with them in further affidavits The
same applies
to the rescission application which the applicants have
set down for hearing on 1 February 2010. This will be reflected in
the
order I intend to make It would seem to be convenient if the
rescission application could be heard together with the variation
application as the two applications cover much common ground I make
no finding on this question either.
27
I make the following order:
27 1 The present
application ("the variation application") is declared to be
urgent for the purposes of rule 6(12).
enrolled and postponed sine
die.
27 2 The applicants
must deliver copies of transcripts, certified as correct, of the
proceedings between the parties or any
of them before
27.2
Pottenll J on 2 December 2009;
27.2.2
Webster J on 4 December 2009;
27.2.3
Sapire AJ on 24 December 2009; and
27 2 4
Makgoka J on 1 January 2010
27.3
The parties may deliver further affidavits dealing with matters
arising from the transcripts. the applicants within one
week of
the deliver
of
the transcripts and the respondents within two
weeks of the delivery of the transcripts
27 4
Neither the variation application nor the rescission application
may be re-enrolled for hearing before the
transcripts have been delivered and either the further affidavits
have been delivered
or the time provided In this order for the
delivery of such affidavits has expired
27.5
The costs incurred before me are reserved for later determination.
NB Tuchten Acting judge
of the High Court 15 January 2010