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[2012] ZASCA 50
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van der Merwe and Others v Pitje and Another (232/11) [2012] ZASCA 50 (30 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 232/11
In the matter between:
Not Reportable
GERT THOMAS VAN DER
MERWE
…..................................................
First
Appellant
ANDRIES PETRUS JACOBUS
ELS
….............................................
Second
Appellant
SHERIFF PRETORIA EAST
….............................................................
Third
Appellant
and
SIMON MOLEFE PITJE
….................................................................
First
Respondent
NELLY PITJE
…............................................................................
Second
Respondent
Neutral citation:
Gert Thomas van der Merwe v Simon Molefe Pitje
(232/11)
[2012]
ZASCA 50
(30 March 2012)
Coram:
MPATI P,
NUGENT, HEHER and LEACH JJA and PLASKET AJA
Heard:
17 February
2012
Delivered:
30
March 2012
Summary:
Practice and procedure – interlocutory orders – execution
order suspended pending finalisation of application
to rescind it –
suspension order lapses on abandonment of rescission application.
______________________________________________________________________
ORDER
____________________________________________________________________
On appeal
from:
North Gauteng High Court, Pretoria
(Makgoka J sitting as court of first instance).
1. It is declared that
the order made by Potterill AJ on 30 October 2009 authorising the
eviction of the respondents is of full
force and effect and has not
been superseded by any further orders.
2. The respondents are
ordered to pay appellants costs of the proceedings before Webster J
and before the court a quo, as well as
the costs of this appeal. 3.
Save for the above the appeal is dismissed.
______________________________________________________________________
JUDGMENT
____________________________________________________________________
MPATI P (NUGENT,
HEHER, LEACH JJA, and PLASKET AJA CONCURRING):
[1] This appeal is
against an order of the Pretoria High Court (Makgoka J) varying an
earlier order made by Webster J, dismissing
an application to vary an
even earlier order made by Potterill AJ, granting leave to execute on
an eviction order.
[2] The respondents, who
are husband and wife, were the registered owners of certain mortgage
d
fixed property situated at 22 Verbenia Street, Lynnwood Ridge,
Pretoria (the property). Subsequent to the mortgagor foreclosing,
the
first and second appellants purchased the property at a public
auction on 22 August 2007. (Since the third appellant has no
interest
in the appeal I shall refer to the first and second appellants as
‘the appellants’.) Transfer of the property
into the
names of the appellants was effected on 7 March 2008. The appellants
thereafter sought, and obtained, an eviction order
in the Pretoria
High Court on 30 October 2009 against the respondents who, since the
mortgagor foreclosed on 12 January 2004, had
remained in occupation
of the property. On 20 November 2009 the first respondent lodged an
application for leave to appeal against
the eviction order. The
appellants countered by bringing an application on 25 November 2009,
in terms of Uniform rule 49(11), for
leave to execute on the eviction
order. Both applications were set down for argument on 2 December
2009, but on that day the respondents’
application for leave to
appeal was removed from the roll, while the court (Potterill AJ)
granted the appellants leave to execute
on the eviction order (the
execution order).
[3] However,
as appears from the judgment of the court a quo, the respondents
launched two applications on 3 December 2009, both
on an urgent
basis. In the first, so it seems, they sought rescission of the
execution order and other ancillary relief. In the
second, an order
was sought suspending the operation of the execution order pending
the finalisation of the rescission application.
1
(Like the court below, I shall refer to the second
application as ‘the suspension application’.) The
suspension application
came before Webster J on 4 December 2009 and
after hearing argument the learned judge dismissed it with costs.
[4] But the respondents
were not about to surrender for, on 5 December 2009, they brought yet
another urgent application seeking
the following order:
‘
1
. . .
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 granted by Acting
Justice POTTERILL on the 2
nd
December 2009 is suspended,
pending the finalisation 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 by Acting Justice POTTERILL on the
2
nd
December 2009 in any manner
whatsoever,
pending the finalization of the rescission application launched by
the Applicants on the 3
rd
December 2009;
2.3
That the Respondents are hereby directed to immediately return [the
property] to the Applicants; . . .
. . ..’
The application was
ultimately argued before Makgoka J on 24 March 2010. On 10 June 2010
the learned judge granted prayers 2, 2.1
and 2.3 of the order sought
and ordered further that the costs of the proceedings before Webster
J and before him ‘be costs
in the rescission application’.
He subsequently refused leave to appeal. This appeal is with leave of
this court.
[5] One of the grounds
upon which the appellants sought leave to appeal against Makgoka J’s
order was that the learned judge
‘erred by finding that the
Applicants [were] entitled to a variation of an interlocutory order
because the court of first
instance erred in law or in fact on the
evidence before it’. This ground was elaborated upon in the
appellants’ heads
of argument and their counsel’s
submissions before us that the respondents’ variation
application before Makgoka J
was a disguised appeal against the order
made by Webster J dismissing their application for variation of the
execution order. The
question, therefore, is whether Webster J’s
order was capable of being varied. Put simply, did the court below
have jurisdiction
to vary Webster J’s order? In view of what
follows, however, it is not necessary to consider that question.
[6] In response to
enquiries from the registrar of this court the respondents’
Pretoria attorneys, Messrs F S Kabini and Associates
Inc (Kabini
Attorneys), advised, by letter dated 3 February 2012, that the
respondents’ application for leave to appeal against
the
eviction order was dismissed by Claasen J; that a petition to the
President of this court was refused and that a further application
for leave to appeal to the Constitutional Court was likewise refused.
The application for rescission of the execution order was
never
finalized. Thus, as to the eviction order, the respondents have
reached the end of the road. The appellants’ rights
of
ownership and possession of the property have now finally been
confirmed by the refusal of leave to appeal by the Constitutional
Court. The respondents have no claim to it.
[7] The
application for rescission of the execution order was lodged on 3
December 2009, more than two years ago. The decision of
the
Constitutional Court refusing leave to appeal to it was conveyed to
the respondents on 28 September 2011
,
2
according to the letter from Kabini Attorneys. Nothing
has been done to bring the rescission application to finality.
Consequently,
we are at large to assume that it has been abandoned.
In any event, there would be no point in pursuing it now that the
proprietary
rights in respect of the property have been settled. The
respondents have no rights in the property. There was never any
rental
agreement between them and the appellants.
[8] It follows that since
leave to appeal has been refused and the application for rescission
abandoned, the order of the court
a quo has lapsed and the execution
order no longer suspended. That order of the court a quo was purely
interlocutory and its life
was dependent on the finalization of the
rescission application. This appeal has thus become academic. No
order will therefore
be made on the merits of the appeal. I need to
stress, though, that the route I have taken in dealing with this
appeal must not
be construed to mean that I agree with the court a
quo’s assumption of jurisdiction and consequent variation of
what appears
to be an order that was final in effect. Moreover, in
order to dispel any uncertainty, I propose making a declaratory order
relating
to the present efficacy of Potterill AJ’s order made
on 30 October 2009.
[9] There is another
matter that requires mention. When the matter was called in this
court the respondents were absent and there
was no legal
representation on their behalf, although heads of argument had been
lodged timeously. We were informed from the Bar
by the appellants’
counsel, a fact later confirmed by the registrar of this court, that
the respondents’ erstwhile
Pretoria attorneys, Messrs Mkhabela
Attorneys, had withdrawn as attorneys of record, but that the new
attorneys, FS Kabini Attorneys,
were still using the same local
attorneys, Messrs Mphafi Khang Inc (Khang Attorneys), as their
correspondents. Proceedings were
thus adjourned and Mr Khang of Khang
Attorneys was summoned to explain to this court why there was no
representation on behalf
of the respondents.
[10] Upon resumption of
the proceedings Mr Khang informed us that although he was the local
correspondent attorney for the respondents
he had never received any
instructions other than to act as a ‘postbox’; that on 29
November 2011 he faxed the notice
of set down of the appeal to the
respondents’ erstwhile attorneys, Mkhabela Attorneys, and
thereafter sent it by registered
post the next day and that he had
been under the impression that someone from the respondents’
new attorneys would be present
at court. He applied for a
postponement of the appeal for the reason that he was not in a
position to argue the appeal. Because
it was clear that Mr Khang had
no instructions even to apply for a postponement, he was afforded an
opportunity to contact Kabini
Attorneys for instructions in respect
of the further conduct of the matter. When the court reconvened Mr
Khang informed us that
he had spoken to Mr Kabini, who was unable to
give him instructions. He, however, received a telephone call from
the first respondent
who advised him that he (first respondent) was
not aware of the date of the hearing of the appeal and that Mr Khang
should seek
a postponement. Mr Khang accordingly moved for a
postponement, submitting that the respondents would be prejudiced if
the appeal
were to proceed in their absence.
[11] Counsel
for the appellants opposed the application for a postponement. He
submitted that at least by 8 February 2012 Kabini
Attorneys knew of
the date of set down of the appeal. The appellants’ attorneys
had received a copy of a letter from Kabini
Attorneys dated 3
February 2012 and addressed to the registrar of this court
requesting, inter alia, a copy of the notice of set
down of the
appeal. On 8 February 2012 the appellants’ attorneys sent a
copy of the notice of set down
3
to Kabini Attorneys by facsimile under cover of a letter
of the same date, the third paragraph of which reads as follows:
‘
We
attach in any event the notice of set down hereto for your attention
as well as correspondence received from the Constitutional
Court.
Seeing that you are still utilising the services of the same
correspondent … we find it strange that you have not
requested
the notice from them. They are your correspondents.’
4
[12] In my view, it is
quite clear from the above that Kabini Attorneys were aware of the
date on which the appeal was to be argued,
at the latest by 8
February 2012. If that was not the case, Mr Kabini would have said so
when Mr Khang spoke to him on the telephone.
Instead, he was simply
unable to give instructions for the further conduct of this appeal.
In my view, the attitude displayed by
the respondents and their legal
representatives, including Khang Attorneys, is unacceptable and
indeed contemptuous towards this
court. As the respondents’
local attorneys Khang Attorneys should have established from their
Pretoria correspondents before
the date on which the appeal was to be
argued, whether or not the respondents would be represented in this
court. If not, they
should have dispatched someone from their offices
or obtained the services of counsel to be present when the matter was
called
so as to explain the absence of the respondents and why they
were not legally represented. In the prevailing circumstances, I
could
find no reason why the appeal should be postponed to the
obvious prejudice of the appellants, who would have to endure yet
further
delay, through no fault of theirs, before the ultimate
finalisation of the matter.
[13]
Moreover, the respondents sought an order before Webster J suspending
the execution order pending the finalization of an application
for
its rescission. From the record of proceedings before Webster J
(excluding the application papers), which formed part of the
record
before the court a quo, it is clear that the order suspending the
execution order was sought on the basis that the execution
order was
granted in the respondents’ absence. Assuming that the
respondents’ case that the execution order was granted
in their
absence was true,
5
it does not appear that any attempt was made to show
’good cause’,
6
which Webster J could consider in deciding whether or
not to vary or suspend the execution order. No substantial defence
was disclosed.
7
In the opposing affidavit in the court below the
appellants, averred that ‘[t]o date [respondents] have not
disclosed any
defence to the merits of the main application’.
There was no response to this averment in the respondents’
21-page
replying affidavit. On the face of it, therefore, it
appears that there was no
proper case for the order sought before Webster J. For these reasons
the application for a postponement
was refused. And because Mr Khang
had no further instructions his request to be excused was exceeded
to.
[14] What remains is the
question of costs. As I have mentioned above, the court a quo ordered
that the costs of the proceedings
before Webster J and itself be
costs in the rescission application. There is no reason why the
respondents should not be ordered
to pay those costs.
[15] In the result I make
the following order:
1. It is declared that
the order made by Potterill AJ on 30 October 2009 authorising the
eviction of the respondents is of full
force and effect and has not
been superseded by any further orders.
2. The respondents are
ordered to pay appellants costs of the proceedings before Webster J
and before the court a quo, as well as
the costs of this appeal.
3. Save for the above the
appeal is dismissed.
___________________
L Mpati
President
APPEARANCES
For the Appellants: N F
de Jager
Instructed by: Van der
Merwe & Associates, Pretoria
Rossouws Attorneys,
Bloemfontein
For the Respondents: M J
Khang
Instructed by: F S Kabini
Attorneys, Pretoria
Mphafi Khang Inc,
Bloemfontein
1
In
their founding affidavit in the present matter the respondents (the
first respondent being the deponent) aver that the first
respondent
‘served our Notice of Motion in terms of which we are seeking
a variation and/or rescission of the judgment
and order made by
Acting Justice POTTERILL on the 2nd December 2009’.No
reference is made to a further application.
2
The
order was made on 5 August 2011.
3
The
date of set down was 17 February 2012.
4
Proof
of a successful facsimile transmission was made available to the
court.
5
Webster
J dismissed the application on the ground that the order was not
granted in the respondents’ absence because the
first
respondent was present even though it was argued that he did not
make any submissions.
6
See
Rule 31(2)(
b
).
7
Silber
v Ozen Wholesalers
(Pty) Ltd
1954 (2) SA 345
(A) at 352F-H.