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2023
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[2023] ZAFSHC 263
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Dollavil Boerdery (Pty) Ltd v Jonker and Another (A72/2021;4303/2020) [2023] ZAFSHC 263 (26 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Case number: A72/2021
Case
number: 4303/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DOLLAVIL
BOERDERY (PTY) LTD
Applicant
And
MATTHYS
JOHANNES JONKER
1
st
Respondent
PETRONELLA
MARGARETHA JONKER
2
nd
Respondent
HEARD
ON:
13 APRIL 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment was handed down electronically by
circulation to the parties' representatives by email and by release
to SAFLII.
The date and time for hand-down is deemed to be 26 June
2023 at 12h00.
[1]
On 20 November 2020 the applicant obtained an eviction order against
the respondents
in terms of which the respondents were ordered to
vacate the applicant's farm known as The Farm Van Niekerksrus 554 in
Bothaville
with immediate effect.
[2]
Following the eviction order, the respondents obtained leave to
appeal the said order
to the full bench of this Division on 4 June
2021 and subsequently filed their notice to appeal on 23 June 2021.
Since then the
respondents have not taken any further steps to
prosecute the appeal and it is in that regard that the applicant has
launched this
application seeking an order on the following terms:
"1.
Confirmation that the appeal under the abovementioned case number has
lapsed and same
be dismissed alternatively struck, with costs;
2.
That the respondents pay the costs of this application on a punitive
scale."
[3]
It is the applicant's case that in terms of Uniform rule 49(6) (a)
the respondents
were required to apply for the assignment of the date
for the hearing of the appeal within 60 days after delivery of a
notice of
appeal however, as at the date of the hearing of this
application approximately sixteen (16) months has elapsed since the
respondents
delivered their notice to appeal. On 23 February 2023, a
month after the respondents were served with this application they
filed
an application for the reinstatement of the appeal (the
reinstatement application) without an application for condonation.
The
reinstatement application does not revive the appeal it remains
lapsed until the reinstatement application is heard and determined
in
favour of the respondents.
[4]
In support of his submissions, counsel for the applicant referred to
Figures
& CO (Pty) Ltd and Others v Urban Real Estate (Pty) Ltd
[1]
wherein it is confirmed that
'...the
effect of non-compliance is that the appeal is deemed to have
lapsed...'
[5]
The applicant contends that it is prejudiced by the delay as the
eviction order remains
suspended by these pending proceedings.
[6]
At the hearing, the applicant conceded that the relief sought for the
dismissal of
the appeal is not competent. It was however argued by
counsel that the appeal ought to be struck off with costs on a
punitive scale
to enable the applicant to obtain its costs including
the costs of opposing the application for leave to appeal and
opposing the
consequent appeal.
[7]
On the other side, the fact that the appeal is deemed to have lapsed
due to the inaction
on the part of the respondents is not disputed.
Based on this fact, the respondents argue that it was not necessary
for the applicants
to have launched these proceedings to seek a
declaratory order in that regard.
[8]
The application is opposed on the grounds that the respondents have
since filed a
declaratory application which if determined in favour
of the respondents would render the institution of these proceedings
void
as it relates to the validity of the second respondent's
purported resignation as the director of the applicant and the
subsequent
appointment of the deponent of the applicant's founding
affidavit as the director. Furthermore, the respondents'
reinstatement
application is yet to be heard and if granted it would
render any decision relating to these proceedings superfluous.
[9]
The respondents thus submit that the appropriate order in these
circumstances would
be for the dismissal or a postponement of the
applicant's application pending the outcome of the declaratory and
reinstatement
applications.
[10]
According to the respondents, the applicant is not entitled to
costs let alone on a punitive
scale for the reason that, the
applicant has conceded that the order sought for the dismissal of the
appeal is incompetent. The
applicant is also not entitled to the
remainder of the orders sought therefore costs should stand over for
determination at the
appeal hearing.
[11]
I am in agreement with the respondents' contentions. Having regard to
the facts of this matter,
I am of the view that the issue of whether
the applicant is entitled to the order it seeks has been resolved by
the applicant's
own concession that: the appeal is deemed to have
lapsed when not enrolled for hearing within 60 days after delivery of
a notice
of appeal. The deeming provision has the effect that the
appeal is defunct and can only be reinstated if the applicant invokes
the provisions of sub-rule (6)(b).
[12]
The applicant's reliance on
Figures
& CO
is also on point. This authority also confirms that the suspension of
the order which is subject to the appeal is terminated when
the
appeal lapses with the result that the applicant is entitled to put
the order into effect.
[2]
Based
on this reasons, I am not persuaded that the applicant is prejudiced
by the lapsed appeal. It is also important to note that
in terms of
rule 49(6) (a), the applicant was also entitled to set down the
appeal within 10 days after the expiry of the 60 days
and also seek
the costs where appropriate.
[13]
An application for the striking off of the appeal is in my view, not
legally sound as such an
application can only be heard by the court
to which the appeal is made including the order in respect of the
costs pertinent to
the appeal.
[14]
I have come to a conclusion that no proper case has been made out for
the granting of the order
sought by the applicant.
[15]
In the premises, the following order is made:
(1)
The application is dismissed.
(2)
The costs shall stand over for determination at the hearing of the
appeal and/or reinstatement
of the appeal.
N.S.
DANISO, J
Honourable
Justice
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
Zietsman (SC)
Instructed
by:
Theron
Jordaan & Smit Inc. C/O Phatsoane Henney Inc.
BLOEMFONTEIN
Counsel
on behalf of Respondents:
Adv.
JE Kruger
Instructed
by:
Moolman
& Pienaar Inc.
C/O
Rosendorff Reitz Barry
BLOEMFONTEIN
[1]
2022 JDR 1567 (GJ) para 7.
[2]
See para 11.