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[2010] ZAGPPHC 626
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Pitjie and Another v Van Der Merwe and Others (25095/09) [2010] ZAGPPHC 626 (10 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
25095/2009
In the matter
between:
S.M.
PITJE
...................................................................................................................................
First
Applicant
N.
PITJE
..................................................................................................................................
Second
Applicant
and
G.T.
VAN DER
MERWE
........................................................................................................
First
Respondent
A.P.J.
ELS
.............................................................................................................................
Second
Respondent
SHERIFF
PRETORIA-EAST
...............................................................................................
Third
Respondent
JUDGMENT
MAKGOKA.
J
:
[1] This judgment
has taken inordinately long to deliver. A combination of factors,
some beyond my control, has led to this state
of affairs. I record my
sincere apology to all the parties for any resultant inconvenience
and hardship.
[2] In this
application, the first and second applicants (the applicants) seek,
on an urgent basis, variation of an order granted
by Webster J on 4
December 2009 to the following effect, as stated in the amended
notice of motion:
“
2.
That the judgment and order made by the Honourable Mr Justice Webster
on the 4
th
December 2009 be varied to read as follows:
2.1
That it is hereby
declared that the execution order granted by Acting Justice Potterill
on the 2
nd
December 2009 is suspended, pending the finalization of the
rescission application launched by the Applicants on the 3
rd
December 2009:
2.2 That the
Respondents are hereby interdicted and restrained from executing on
the order made Acting Justice Potterill on the
2
nd
December 2009 in any manner whatsoever, pending the finalization of
the rescission application launched by the Applicant on the
3
rd
December 2009:
2.3 That
Respondents are hereby directed to immediately return the premises
situated at 22 Verbenia Street, Lynnwood Ridge, Pretoria,
Gauteng
Province to the Applicants. ”
2.4 That the
Respondent are hereby directed to pay the costs of the application,
jointly and severally, the one paying the other
to be absolved on the
attorney and client scale.
[3] The relief
sought by the applicants is opposed by the first and second
respondents (the respondents). The third respondent has
not filed any
papers.
[4] The applicants
are husband and wife. On 12 January 2004 Standard Bank of South
Africa Ltd foreclosed the applicants’ mortgaged
property
situated at 22 Verbenia Street, Lynwood Ridge, Pretoria (the
property) and obtained judgment against the first applicant.
The
first and second respondents purchased the said property at a
subsequent sale in execution. The property was registered in
the
names of the respondents on 7 March 2008. On 30 October 2009
Potterill J (as she then was) granted the respondents an order
evicting the applicants from the property.
POINTS IN
LIMINE
[5]
The respondents have raised two points
in
limine.
The
first relates to the competence of the first applicant to institute
these proceedings. The second concerns urgency. With regard
to the
first point, it is indeed so that the first applicant has been
declared a vexatious litigant by this court. This status
was raised
as a point
in
limine
,
to the effect that he had not received permission of this court to
institute the present proceedings.
[6] It appears that
the first applicant was granted permission on 19 November 2009 by
Shongwe DJP (as he then was). The said order
read as follows:
“
1
That the first applicant is hereby permitted to apply for leave to
appeal the judgment and order made by the Honourable Acting
Justice
Potterill on 30
th
October 2009 in the above matter.
2.
That the first applicant is hereby permitted to apply for the
reinstatement of his counter-application which was struck from
the
roll by the Honourable Acting Justice Potterill on the
29
th
October
2009 in the above matter.
3. That the costs of
this application be costs in the cause.”
[7] In my view, a
proper construction of the effect of the said order is that the first
applicant retains the permission to engage
in the application until
finality on the substantive issue between the parties, namely the
eviction of the applicants from the
property. Inherent in that, in my
view, is the competence of the first applicant to institute
interlocutory proceedings ancillary
thereto, of which this is but
one. I therefore find that there is no merit in this argument.
[8] I now turn to
the issue of urgency. In this regard, I can do no more than agree
with Tuchten AJ (as he then was) when the matter
came before him on
12 January 2010. At par 21 of his judgment, the learned Judge stated
the following:
“
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.”
[9] I completely and
respectively align myself with these sentiments and hold accordingly,
that this matter is still urgent.
FACTUAL
BACKGROUND AFTER THE EVICTION ORDER
[10] On 6 November
2009 the applicants requested Potterill J to furnish written reasons
for, among others, her order made on 30
October 2009.
[11] On 20 November
2009 the applicants filed an application for leave to appeal the
order of Potterill J of 30 October 2009.
[12] On 25 November
2009 the respondents filed an application in terms of rule 49 (11) of
the Uniform Rules of Court, (the uniform
rules) to be heard
simultaneously with the application for leave to appeal, for an order
that pending any appeal proceedings, the
order evicting the
applicants, not be suspended.
[13] On 1 December
2009, the office of Potterill J informed the applicants' attorneys
via e-mail, that both the application for
leave to appeal, as well as
the respondents' rule 49 (11) application would be heard the
following morning, 2 December 2009 at
9H30.
[14] It appears that
during the late afternoon of 1 December 2009 there was communication
between the first applicant and Potterill
J about the applications to
be heard on 2 December 2009, in particular whether they would proceed
or not. The first applicant’s
understanding appears to have
been that the two applications would be removed from the roll on 2
December 2009.
[15]
On 2 December 2009 counsel for the respondents appeared before
Potterill J. From the transcribed record of proceedings, Potterill
J
expressed a view that there was short notice to the applicants.
Counsel agreed, but only with reference to the application for
leave
to appeal. Counsel, while agreeing that the application for leave to
appeal should be postponed
sine
die,
however
persisted that the respondents’ rule 49 (11) application be
proceeded with, which indeed proceeded.
[16] During the
course of counsel’s address to Potterill J on the merits of the
respondents' rule 49 (11) application, the
first applicant walked
into court. Potterill J enquired from the first applicant as to
whether he was ready to argue the matter.
The first applicant
explained the purpose of his presence in court as being to ensure
that what had been conveyed to him by Potterill
J the previous day,
namely that the two applications were to be removed from the roll,
indeed occured. Potterill J then informed
the first applicant that
only the application for leave to appeal was to be postponed. The
first applicant was then invited to
address the court on the merits
of the respondent’s rule 49 (11) application.
[17] The first
applicant conveyed to Potterill J that he was not ready to make
submissions, firstly, because an opposing affidavit
had not been
prepared on behalf of the applicants and secondly that he needed
counsel to oppose the application. At the end of
the day, Potterill J
granted an order in the following terms:
1. That the
application for leave to appeal removed from the roll, (sic)
2. That the
application in terms of Rule 49 (11) granted, (sic)
3. That it be
directed that the order of this Court dated 30 October 2009 will not
be suspended pending:
3.1 an application
for leave to appeal to his Court and/or;
3.2 an application
for leave to appeal to the Supreme Court of appeal; and/or;
3.3 an application
for leave to appeal to the Constitutional Court;
3.4 any possible
appeal, flowing from the proceedings referred to in prayer (sic) 3.1
to 3.4 above;
4. That the
respondents, jointly and severally, is (sic) to pay the costs of this
application.
[18] 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, which application
was set down for 1
February 2010.
[19] On the same
day, 3 December 2009, the applicants launched another application,
also on an urgent basis, seeking the suspension
of the effect of
PotteriH’s J order made on 2 December 2009, pending
finalization of a rescission application (the suspension
application).
[20] The suspension
application came before Webster J on 4 December 2009, who dismissed
the application. Both parties were represented
by senior counsel. The
applicants in their papers allege that Webster J was misled to
believe that the first applicant was present
in court and argued the
merits of the rule 49 (11) application on 2 December 2009 before
Potterill J. Perhaps this was strongly
stated. What counsel for the
respondent conveyed to the court in this regard is recorded as
follows (transcribed record, p 272,
lines 8-18).
“
M’Lord,
may I just bring this to Your Lordship's attention. M’Lord, the
respondents in this application, that is Gert
Thomas van der Merwe
and Andries Deetlef Jacobus Els - Mr. Van der Merwe is an attorney,
an admitted attorney of this Court from
the (sic) Limpopo, Van der
Merwe and Associates. The 2
nd
respondent, he is sitting here behind me, is an esteemed member of
this Bar. He is an advocate of the Pretoria Bar. They confirm,
both
and both of them are prepared, if necessary M’Lord, to come and
testify under oath now that Mr Pitje was not only present
on 2
December but in fact argued, made submissions in this matter and they
are here to come and confirm that, both of them under
oath and that
is one of the reasons...”
[21] Unfortunately
Webster J's judgment is not part of the transcribed record. What
appears to have swayed the learned judge to
dismiss the suspension
application though, was the assertion by counsel for the respondents
that the first applicant was not only
present, but argued the rule 49
(11). On p 270 the learned judge enquired from the applicant’s
counsel whether the order
sought to be rescinded, viz the rule 49
(11) order, was granted by default. After counsel had conveyed to the
court the circumstances
leading to the hearing on 2 December 2009,
the following exchange appears on p 271, lines 3-9:
“
Court:
So they did not go to court the next day.
Mr. Geach: They did
not, as I understand they did not appear to argue the application for
leave to appeal although I am told, I
was not there, but I am told
that Mr. Pitje was present, but he did not appear to argue his leave
for appeal...
Court: So it was not
by default? If Mr. Pitje was present then it was not by default.
Mr. Geach: M’Lord,
I can take it no further but so say in paragraph 5 affidavit before
Your Lordship such order was effectively
granted in our absence. As I
understand it M’Lord, and my instructions are Mr. Pitje did not
appear and argued the case at
all.
Court: But perhaps
you say he did not argue but if he was present then most certainly he
was not in default."
[22] After the
dismissal by Webster J of the suspension application, on 5 December
2009 the applicants launched the present application,
which came
before Sapire AJ on 24 December 2009. Sapire AJ removed the matter
from the roll due to lack of urgency. On 1 January
2010, the
variation application, with the amended notice of motion, came before
me in the urgent court. I was not satisfied that
the respondents had
been notified of the enrolment of the matter. I then removed the
matter from the roll. On 12 January 2010,
the variation application
came before Tuchten AJ (as he then was). Tuchten J could not hear
argument fully on the merits because
there was insufficient clarity
about what had occurred before Potterill J, Webster J, Sapire AJ and
myself. He then ordered the
applicants to deliver copies of
transcripts of the proceedings between the parties before the Judges
mentioned above. This has
now been done and the matter came before me
in the urgent court on 24 March 2010.
DISCUSSION
[23] It appears to
me, from the transcribed proceedings before Webster J, that what was
not considered, by both counsel and the
court, was the position of
the second applicant. Even if one accepts that the first applicant
was present before Potterill J, and
argued the rule 49 (11)
application, he could have done so only on his own behalf, and not
for the second applicant. The first
applicant is not a legal
representative. To the extent this is the case, the rule 49 (11)
application was considered and granted
in the absence of the second
applicant.
[24] I have no
reason reject the first applicant’s assertion that there was
agreement not to proceed with the application
for leave to appeal on
2 December 2009 because of short notice. If that be the case, that
consideration should, in my view, have
been made with regard to the
rule 49 (11) application, perhaps even more so given wording of the
rule 49 (11) application, that
the application would be made
“simultaneously” with the application for leave to
appeal.
THE LAW
[25]
Having found that the rule 49 (11) application was heard in the
absence of the second applicant, I turn now to consider whether
the
order of Webster J, can be varied as contended for on behalf of the
applicants. To answer the said question, I must determine
whether the
said order is purely interlocutory, that is, one not having the
effect of a final order. The general principle is that
such an order
may be varied or set aside by the Judge who made it or by any other
Judge sitting in the same court and exercising
the same jurisdiction.
See
Bell v Bell
1908
TS 887
at 891-893;
Duncan
NO v Minister of Law and Order
1985
(4) SA 1
(T) at 3 B-D.
[26]
The general test as to whether an order is a simple interlocutory one
or not, was stated in
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948
(1) SA 839
(A) at 870, as follows:
“
A
preparatory or procedural order is a simple interlocutory order and
therefore not appealable unless it is such as to
‘
dispose
of any issue or portion of the issue in the main action or suit’
or,
which amounts I think to the same thing unless it irreparable
anticipates or precludes some of the relief which would or might
be
given at the hearing”
[27]
In
African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977
(2) SA 38
(A) at 48F, the following passage from Herbstein and Van
Winsen,
The Civil
Practice of the Superior Courts of South Africa
2nd
ed at 631, was quoted with approval:
“
The
principle to be applied in determining whether a preparatory or
procedural order is purely interlocutory is laid down in the
case
of
Pretoria Garrison Institutes v Danish Varity Products (Pty) Ltd,
namely
an order is purely interlocutory unless it is such as to
‘
dispose
of any issue or any portion of the issue in the main action or suit’,
or
unless it
irreparably
anticipates or precludes some of the relief which would or might have
been given at the hearing’.
Earlier
judgments which laid down a further test, namely whether the order
causes irreparable prejudice, are overruled by the majority
judgement
in the
Pretoria
Garrison Institutes
case,
in so far as they purport to take into account prejudice-such as the
loss and inconvenience caused by an interim interdict
which does not
directly affect the issue of the suit.
See
also
Bell v Bell
1908
TS 887
at 891-893;
Bashford
v Bashford
1957
(1) SA 21
(N) at 24 A-C;
Sayprint
Textiles (Pty) Ltd v Girdlestone
1984
(2) SA 572
(ZSC) at 574 G-H; S
v
Leepile
1986
(2) SA 346
(W) at 349 A-E.
ANALYSIS
[28] It seems to me
that the suspension application which served before Webster J did not
have an effect on the final judgment in
the main eviction
application. It could not dispose of any substantive issues. Even if
the variation order was granted, it would
similarly not have any
effect on the final judgment in the eviction application. I therefore
find that the suspension application
before Webster J, was indeed a
simple interlocutory application.
[29]
Next I consider whether, in the present case, a proper case has been
made for this court to exercise its power to vary its
own
interlocutory order. In considering the circumstances in which a
court will be inclined to allow variation of an interlocutory
order
granted by it, the following was stated in
Bell
v Bell (supra)
at
89:
“
The
general question of the limits within which the exercise of that
jurisdiction should be confined is by no means an easy one.
Courts
will not likely vary their orders even though they may be of a merely
interlocutory character. And the case in which such
orders will be
altered in the absence of facts, cannot be numerous,”
[30] To answer this
question, viz whether the applicants have established good cause for
the variation of the order of Webster J,
it is necessary to consider
the events leading to the order made by Potterill J on 2 December
2009. Those events were triggered
by the applicants’ notice of
application for leave to appeal.
[31] The next step
was the setting down of the application for leave to appeal,
simultaneously setting down the respondent’s
rule 49 (11)
application. This was a matter which would have to be attended to by
the Registrar, in consultation of course, with
the Judge concerned.
In terms of rule 49 (1) (d) of the uniform rules, it is provided
that:
“
the
application mentioned in para (b) above (for leave to appeal) shall
be set down on a date arranged by the Registrar who shall
give
written notice thereof to the parties.
[32] It should be
accepted that the envisaged “written notice” shall allow
sufficient period of time between the date
of notice and the actual
date of hearing. In this case, the notice of set down from the
Judge’s office was given on less
than 24 hours notice, which
can hardly be described as sufficient. Potterill J seemed to accept
this during the debate with the
respondents’ counsel on 2
December 2009. If it was short service for the application for leave
to appeal, it should have
been so in respect of the respondents’
rule 49 (11) application. Perhaps even more so in respect of the
latter.
[33] I am satisfied,
on a conspectus of all the facts in this application, that the order
of Potterill J, which I have already found
was made in the absence of
the second applicant would, in my view, lead to an injustice were
such an order be put in effect under
such circumstances, where there
is an application to rescind such an order.
DOES
THE APPLICATION FOR RESCISSION SUSPENDS THE OPERATION
OF THE ORDER?
[34]
Which brings me to the question whether the application to rescind
Potterill J’s order of 2 December 2009, automatically
suspends
its operation. For over two decades, the leading authority on this
subject has been
United
Reflective Converters (Pty) Ltd v Levine
1988
(4) SA 460
(W). In that judgment, Roux J held that there was no
substantive rule of law that an application to rescind or vary an
order or
judgment automatically suspends its operation and that words
“or to rescind, correct or vary” as they appear in rule
49 (11) (a) were of no force or effect.
[35]
Two decades later, in
PE
Khoza and 17 Others v The Body Corporate
,
Ella Court
(Witwatersrand
Local Division case number 22463/2007 (yet unreported)), Notshe AJ
came to a different conclusion, holding among
others, at par 24 that:
"... there
would have been irreparable prejudice if the order was not suspended
and later on the application for rescission
succeeded. That is the
same rational which was given for the existence of the rule
suspending an order on noting of an appeal.”
[36] I prefer the
underlying reasoning and basis of Notshe AJ’s judgment. To the
extent two litigants who challenge orders
or judgments of the same
court, albeit via different routes, are treated differently and
clearly unequally, I am unable to find
agreement with Roux J. We now
live in an era of constitutionalism, with its guarantee of equality
before the courts.
CONCLUSION
[37]
Having regard to all the factors in this application, I am of the
view that the relief sought by the applicants be granted.
I have come
to this conclusion mainly on the basis that Potterill J’s
judgment was granted in the absence of the second applicant.
From a
practical point of view, the order I am about to make affects
invariably the first applicant. They are husband and wife.
Prayers
2.2 of the of applicants’ notice of motion has been overtaken
by events insofar as the applicants have been evicted.
All that can
be done, from a practical point of view, is to order the respondents
to restore the undisturbed possession of the
property to the
applicants, pending the determination of the rescission application.
In other words, the
status
quo
before
the eviction should be restored.
[38] With regard to
costs, I am of the view that these should be costs in the application
for rescission.
[39] I therefore
grant the following order:
1. The order made by
Webster J on the 4 December 2009 is hereby varied to read as follows:
“
1.
The execution order granted by Potterill J on 2 December 2009 is
suspended
,
pending the
determination of the rescission application launched by the first and
second applicants on 3 December 2009;
2. The first,
second and third respondents are ordered to forthwith restore the
immovable property situated at 22 Verbenia Street,
Lynwood Ridge, to
the first and second applicants;
3. The costs are
to be costs in the rescission application. ”
2.
The
costs hereof are to be costs in the rescission application.
T M MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD: 24
MARCH 2010
JUDGMENT
DELIVERED: 10 JUNE 2010
FOR THE FIRST AND
SECOND APPLICANTS
: ADV L S DE KLERK SC
INSTRUCTED
BY :
VICTOR MABE INC, PRETORIA
FOR THE FIRST AND
SECOND RESPONDENT
: ADV NF DE JAGER
INSTRUCTED
BY:
VAN DER MERWE & ASSOCIA TES
PRETORIA