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[2023] ZAFSHC 79
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Welkom Retirement Village v Shahia and Another (3431/2022) [2023] ZAFSHC 79 (24 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
Number 3431/2022
Reportable:
yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/no
In
the matter between:
WELKOM
RETIREMENT
VILLAGE
Applicant
and
BEVERLEY-ANNE
SHAHIA
1
st
Respondent
MATJHABENG
LOCAL MUNICIPALITY
2
nd
Respondent
CORAM:
BERRY, AJ
HEARD
ON:
10
MARCH 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 24 March 2023.
JUDGEMENT
BY:
BERRY,
AJ
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
[1]
The Applicant brought an Application in terms of Sec 4(1) of the
Prevention
of Illegal Eviction from Unlawful Occupation of Land, Act
19 of 1998 (PIE) to seek an Order evicting the 1
st
Respondent.
[2]
All the formalities regarding service and notice as required by PIE
were
met.
[3]
The Application was opposed and served before Court on 02 February
2023.
[4]
I gave an ex-tempore Judgment and made the following Order.
“
1.
The First Respondent and/or any other person occupying the immoveable
property, Unit Number [....],
Welkom Retirement Village, P
[....] Avenue, Jan Cilliers Park, Welkom, is declared to be illegal
occupiers.
2.
The First Respondent and/or any other person occupying the immoveable
property, Unit Number
[....], Welkom Retirement Village, P
[....] Avenue, Jan Cilliers Park, Welkom, is ordered to vacate the
immovable property
on or before 31 March 2023.
3.
The First Respondent and/or any other person occupying the immoveable
property, Unit Number
[....], Welkom Retirement Village, P
[....] Avenue, Jan Cilliers Park, Welkom, is ordered to remove all
personal belongings,
furniture and/or equipment on or before 31 March
2023.
4.
The Sheriff of the Court for the District of Welkom is authorised,
ordered, and directed
to evict the First Respondent and/or any other
person occupying the immovable property, Unit Number [....],
Welkom Retirement
Village, P [....] Avenue, Jan Cilliers Park,
Welkom, should the First Respondent and/or any other occupiers refuse
and/or fail
to comply with this Court Order.
5.
The Sheriff is authorised to enlist the assistance of South African
Police Services, should
he/she deem it necessary to comply with this
Court Order to evict the First Respondent and/or any other occupant
from the immovable
property, Unit Number [....], Welkom
Retirement Village, P [....] Avenue, Jan Cilliers Park, Welkom.
6.
The First Respondent is ordered to pay the costs for the Condonation
Application and this
Application on party and party scale.”
[5]
The Application for leave to appeal lies against this Order.
[6]
I firstly deal with the salient matters raised in the main
Application.
[7]
The 1
st
Respondent applied for Condonation for the late
filing of her papers.
[8]
Whilst the Applicant contested the Condonation Application fiercely
on
its papers, it was not pursued with any vigour in Court. The
matter deals with the eviction of an elderly person, thus Condonation
was granted.
[9]
The Applicant raised historical misconduct arising from the time when
the 1
st
Respondent was chairperson of the Board.
[10]
I did not place to much weight on the historical conduct but did take
cognisance of the
history between the parties.
[11]
I did consider that after the 1
st
Respondent stopped
serving on the Board, she opened a private account which was linked
to the business account of the Applicant.
[12]
The 1
st
Respondent made one withdrawal from the
Applicant’s bank account.
[13]
When the board discovered this, they demanded that she hand the card
over.
[14]
The 1
st
Respondent only handed the card over after she
drew bank statements of the Applicant.
[15]
The 1
st
Respondent provided a letter from the bank
indicating that the linking of the card to the Applicant’s
business account, was
an error by the bank.
[16]
The mistake by the bank does not explain why the 1
st
Respondent withdrew money from the Applicant’s account and why
she accessed the bank statements.
[17]
The 1
st
Respondent did not serve on the board, and she was
an ordinary resident of the retirement village at the time of this
conduct.
[18]
The 1
st
Respondent referred a dispute to the Ombudsman
where the parties reached a settlement agreement on 15 November 2018,
which entailed
that they would obtain separate quotations for the
thatch roof and that they would meet to determine a mutually
acceptable premium
the 1
st
Respondent would be liable for.
[19]
This never materialised.
[20]
The 1
st
Respondent did not agree with the amount levied by
the Board and decided to pay an amount she deemed reasonable.
[21]
The parties signed an endowment agreement on 04 November 2011.
[22]
The 1
st
Respondent’s main contention is that the settlement agreement
signed at the Ombudsman, amended the endowment agreement.
[23]
The 1
st
Respondent’s contention is that the Applicant could not
terminate her residency relying on the endowment agreement on the
basis that she did not pay the full levy, because the settlement
agreement amended the endowment agreement.
[24]
Clause 11 of the endowment agreement provides that
the Board has the right to terminate the Donor’s occupation of
the cottage
in the event of the Donor breaching any terms and
conditions thereof, or being guilty of misconduct which in the sole
opinion of
the Board, is detrimental to the wellbeing of the Board or
the occupants of the cottages.
[25]
The 1
st
Respondent did not pay the full amount of the levy and failed to
arrange to pay back the arrears as agreed at the Ombudsman.
[26]
This forced the Applicant to issue an Application
in terms of Sec 56 of the Community Service Schemes Act.
[27]
The Applicant obtained judgment for the
outstanding levies.
[28]
When the 1
st
Respondent did not satisfy the judgment, the sheriff attached movable
assets at her residence.
[29]
The 1
st
Respondent’s daughter then claimed that the furniture in the
1
st
Respondent’s residence belonged to her.
[30]
The 1
st
Respondent admits that she does not pay the full amount levied and
holds that she pays what she deems appropriate.
[31]
Clause 6 of the endowment agreement provides that
the 1
st
Respondent is responsible for paying a monthly service charge to be
determined by the Board.
[32]
The 1
st
Respondent persisted to only pay the amount she deems appropriate by
the time the matter served before Court.
[33]
It is evident that the relationship between the Applicant’s
Board and the 1
st
Respondent has become intolerable.
[34]
On 31 July 2022 the arrears were R58 820.68.
This is after the previous judgment debt was satisfied.
[35]
The dispute between the parties has been running
for a long time and the relations between them has become unbearable.
[36]
This is exacerbated by the 1
st
Respondent’s persistent refusal to pay the levy as determined
by the board.
[37]
The conflict surrounding the insurance premium
seems to be a rouse to frustrate the Board in the execution of their
duties.
[38]
The 1
st
Respondent’s conduct has a direct impact on the ability of the
Board to manage the retirement village to the benefit of all
its
occupants.
[39]
The main grounds for the Application for leave to
appeal are:
39.1 That the Court
erred in not finding that the settlement agreement at the ombudsman
did not vary the endowment agreement.
39.2 That the Court
failed to consider that the obligations created in the settlement
agreement is reciprocal and that the
Applicant failed to obtain
separate quotations for the thatched lapa and did not endeavour to
reach an agreement with the 1
st
Respondent on the amount
to be levied for the insurance.
39.3 That the Court
erred in finding that the 1
st
Respondent did not pay her
levies, as she paid it in part. As the parties have not reached
agreement on the insurance premium,
as agreed at the Ombudsman, the
1
st
Respondent was not in breach of the endowment
agreement, as amended by the Ombudsman settlement agreement.
39.4 That the Court
did not appreciate the import of the amendment the settlement
agreement has on the endowment agreement.
39.5 That the Court
erred in finding that the 1
st
Respondent’s failure
to pay the full amount levied, constitutes breach of contract.
39.6 The Court
erred by not concluding that the failure to reach an agreement on the
insurance premium does not constitute
a breach of the agreement as
the amount to be levied has not been agreed.
[40]
The 1
st
Respondent contends that she has good prospects of
success on appeal.
[41]
The Applicant contends that the Application that the 1
st
Respondent did not make out a case in terms of
section 17
of the
Superior Courts Act 10 of 2013
.
[42]
Sec 17(1)(a)
of the Superior Court’s Act 10 of 2013 provides
that leave to appeal may only be granted if the judge concerned is of
the
opinion that the appeal would have a reasonable prospect of
success or if there are compelling reasons why leave should be
granted.
[43]
In
Matoto
v Free State Gambling and Liquor Authority and Others
[1]
the Court held:
“
There can be no
doubt that the bar for granting leave to appeal has been raised.
Previously, the test was whether there was a reasonable
prospect that
another court might come to a different conclusion. Now, the use of
the word ‘would’ indicates a measure
of certainty that
another court will differ from the court whose judgment is sought to
be appealed against.”
[44]
In
S v
Smith
[2]
the Court dealt with reasonable prospects of success?
“
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial Court. To succeed, therefore, the appellant
must convince this
court on proper grounds that he has prospects of success on appeal
and that those prospects are not remote but
have a realistic chance
of succeeding. More is required to be established than that there is
a mere possibility of success, that
the case is arguable on appeal or
that the case cannot be categorised as hopeless. There must, in other
words, be a sound, rational
basis for the conclusion that there are
prospects of success on appeal.”
[45]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
the Court held:
“
[16] Once again it
is necessary to say that leave to appeal, especially to this court,
must not be granted unless there truly is
a reasonable prospect of
success. Section 17(1)(a) of the Superior Court Act 10 of 2013 makes
it clear that leave to appeal may
only be given where the judge
concerned is of the opinion that the appeal would have a reasonable
prospect of success; or there
is some other compelling reason why it
should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There
must be sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[46]
The bar has been raised for granting leave to appeal.
[47]
The Appeal does not have any reasonable prospects of success.
[48]
ORDER
The
following order is made:
1.
The Application for leave to appeal is
dismissed with costs.
AP
BERRY, AJ
For
the Applicant:
Adv. N Snellenburg SC
Instructed
by:
Honey Attorneys
(Ref:
CH DU PLESSIS/LM/I127621)
jacobs@honeyinc.co.za
BLOEMFONTEIN
For
the 1st Respondent:
Adv. A Sander
Instructed
by:
Kruger Venter Inc
(Ref:
CK/TL/SB0097)
reception@krugerventerinc.co.za
BLOEMFONTEIN
[1]
(4629/2015)
[2017] ZAFSHC 80
(8 June 2017).
[2]
2012(1) SACR 567 (SCA) par [7].
[3]
(1221/2015[2015] ZASCA 176(25 November 2016).