Brief Summary

Eviction — Stay of eviction order — Applicants sought urgent relief to stay an eviction order pending appeal — Application for leave to appeal filed late — Court's discretion to suspend execution of order under Rule 45A — Applicants argued that no appeal exists until condonation granted, and sought reliance on common law powers to suspend eviction — Court found urgency justified due to imminent eviction and potential homelessness of applicants — Balance of convenience favoured applicants as they faced irreparable harm if evicted while appeal pending.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an urgent interlocutory application in which a group of occupiers sought a temporary stay of execution of an eviction order. The application was framed as a request to suspend the operation and execution of an order previously granted by the High Court, pending the finalisation of a belated application for condonation and leave to appeal.

The principal applicants were Paseka Pascal Ndevu and The Borwa Community Action Group, described as consisting of all occupiers (a group of approximately 116 persons) occupying government-sector housing in a development. The principal respondents were Westonaria South Property Holding (Pty) Ltd t/a Westonaria South, together with Westonaria Borwa Mega Project (Pty) Ltd and Crimson King Properties 351 (Pty) Ltd t/a Crimson King Developments.

Procedurally, an eviction order had been granted by the High Court on 15 December 2021 (by Acting Justice Manamela). The applicants thereafter delivered an application for leave to appeal on 13 January 2022, which was approximately four days out of time when measured against the 15-day period referred to in the judgment as prescribed by Rule 49, together with an application for condonation. Before that leave-to-appeal process could be finalised, the applicants approached the court urgently to prevent execution of the eviction order.

The general subject matter of the dispute, as presented in this urgent application, was not the substantive merits of the eviction, but whether execution of the eviction order should be suspended to preserve the applicants’ ability to pursue the leave-to-appeal screening process, including condonation for lateness, without being rendered homeless in the interim.

2. Material Facts

An eviction order was granted against the occupiers on 15 December 2021. The order remained operative and executable, and the applicants faced the imminent prospect of eviction.

It was common cause (or at least accepted for purposes of this application) that the applicants delivered their application for leave to appeal on 13 January 2022, after the expiry of the period identified in the judgment as prescribed by Rule 49, and that they simultaneously sought condonation for the late filing. The applicants accepted that they could not rely on section 18 of the Superior Courts Act to claim an automatic suspension of the order, given the late filing, and they did not contend that the condonation application itself automatically suspended the eviction order.

On urgency, the applicants’ case was that the matter could not wait for ordinary motion court timelines because execution was imminent. In reply, they relied in particular on a letter from the respondents’ attorneys dated 17 January 2022, stating that the respondents intended to proceed with execution of the eviction order that week, and that the sheriff would conduct an audit of unlawfully occupied houses and make arrangements with the police and additional security.

The respondents disputed urgency in part by contending that the applicants had delayed for a substantial period after 15 December 2021 before delivering their leave-to-appeal application, and that they had created their own urgency. The applicants explained the delay by reference to steps taken to obtain legal representation over the holiday period, efforts to raise funds, and their interactions with institutions such as the Human Rights Commission, culminating in confirmation of representation by Lawyers for Human Rights on 14 January 2022.

The respondents also raised points in limine, including an argument that the application for leave to appeal had lapsed and that the applicants should instead have brought an urgent application for condonation, and a challenge to the locus standi of the first applicant as deponent and representative. The court noted that locus standi had not been raised in the papers and treated the applicants’ answer—that it ought therefore to be accepted as admitted—as correct on the law applicable to the conduct of motion proceedings.

3. Legal Issues

The central legal questions were whether the court had the power to stay (suspend) the execution of an eviction order in circumstances where the applicants’ leave-to-appeal application was late and required condonation, and whether the matter justified being heard as urgent.

A related question concerned the proper source of authority for a stay: whether the stay should be located in Rule 45A (as limited by the proviso relating to section 18 of the Superior Courts Act in appeal situations) or in the court’s common-law/inherent jurisdiction to regulate its own process, including as recognised under section 173 of the Constitution.

The dispute primarily concerned the application of legal standards to established or largely common-cause procedural facts, together with an evaluative determination on urgency and whether “real and substantial justice” required a stay. It also involved the court’s exercise of a discretion in regulating its process and in deciding whether a temporary suspension was justified pending the leave-to-appeal screening process.

4. Court’s Reasoning

The court commenced by identifying Rule 45A as the procedural rule that empowers a court, on application, to suspend the operation and execution of an order for a period the court deems fit, while noting the proviso that in appeal circumstances suspension must comply with section 18 of the Superior Courts Act 10 of 2013. The judgment recorded that, apart from that proviso, the rule confers a discretion of a wide kind and does not impose procedural or substantive fetters.

The judgment then considered authority indicating that procedural defaults in appeal processes do not, without more, suspend execution. Relying on Panayiotou v Shoprite (Pty) Ltd and others, the court noted that the filing of an application to condone a late petition does not itself suspend the judgment, and that lapsing of appeal steps due to non-compliance is common and ordinarily requires condonation to revive the process. In the present matter, the applicants accepted they could not invoke section 18 for automatic suspension and did not argue that the condonation application automatically had that effect.

On the source of power, the court referred to Road Accident Fund v Legal Practice Council and others, where a full court held that a stay of execution falls within the scope of a court’s common-law inherent power to regulate its procedures, and also within section 173 of the Constitution. On that basis, the court indicated that it might not be necessary to determine the stay purely under Rule 45A, because the court’s inherent power provided a sufficient foundation.

Turning to urgency, the court considered the applicants’ reliance on the “second degree of urgency” formulation from Luna Meubel Vervaardingers (Edms) BPK. The court weighed the respondents’ allegation of self-created urgency against the applicants’ explanation (difficulty obtaining representation during the holiday period and efforts to raise funds), and also took account of the respondents’ stated intention (in the 17 January 2022 letter) to proceed with eviction imminently. Having considered these submissions, the court was satisfied that the matter was urgent.

On the requirements for a stay, the court adopted the approach articulated in Gois t/a Shakespeare’s Pub v Van Zyl, namely that a stay is granted where real and substantial justice requires it or where injustice would otherwise result, and that the court is guided by factors usually applicable to interim interdicts, subject to the qualification that in some instances the applicant is not asserting a substantive right but seeking to avert injustice. The judgment emphasised that the court is not concerned with the merits of the underlying dispute, but only whether the underlying causa is in dispute.

In applying those principles, the court accepted the applicants’ characterisation of the interest to be protected as the right to be heard in the leave-to-appeal screening process. It treated this as linked to the right of access to court, drawing support from Besserglik v Minister of Trade, Industry and Tourism and Others, where the Constitutional Court explained that a screening procedure excluding unmeritorious appeals is not, in itself, a denial of access to court so long as it enables an informed decision on prospects of success. On that framing, the applicants’ request was for a stay of the shortest duration, pending determination of condonation and leave to appeal, with the observation that the parties could approach the leave-to-appeal judge for an expedited hearing to limit prejudice.

As to prejudice and convenience, the court recorded that the applicants alleged homelessness if evicted, whereas the respondents alleged significant economic harm. The judgment did not resolve the merits of those claims but treated the temporary nature of the requested relief as relevant to reducing potential prejudice to the respondents. The court also accepted that the applicants lacked an adequate alternative remedy: it regarded it as inappropriate for the urgent court to purport to determine the condonation for late leave to appeal because that process was bound up with the leave-to-appeal screening function, and it rejected the respondents’ suggestion that an urgent condonation application was the proper substitute. The court further considered that locus standi was raised too late (in heads of argument) and had not been properly ventilated on the papers.

In concluding that a stay was justified, the court was assisted by the Constitutional Court’s observation in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another that, in certain circumstances, an owner may have to be patient and accept a temporary restriction on the use and enjoyment of property in the justice and equity inquiry mandated by PIE, while also acknowledging that an owner cannot be expected to provide free housing indefinitely. The court treated this as consistent with the appropriateness of a temporary suspension pending completion of the appeal-related process.

5. Outcome and Relief

The court granted condonation for non-compliance with the Uniform Rules of Court and heard the matter as urgent in terms of Rule 6(12)(a).

The court ordered that the operation and execution of the eviction order made on 15 December 2021 under case number 46484/2021 be suspended, pending finalisation of the applicants’ application for condonation and leave to appeal.

The court ordered that the first, second, and third respondents pay the applicants’ costs, jointly and severally.

Cases Cited

Panayiotou v Shoprite (Pty) Ltd and others 2016 (30) SA 110 (GJ).

Road Accident Fund v Legal Practice Council and others 2021 (6) SA 230 (GP).

Luna Meubel Vervaardingers (Edms) BPK 1972 (1) SA 3A at 137A–E.

Gois t/a Shakespeare’s Pub v Van Zyl 2011 (1) SA 148 (CC).

Besserglik v Minister of Trade, Industry and Tourism and Others 1996 (4) SA 331 (CC).

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) at para 40.

Legislation Cited

Superior Courts Act 10 of 2013, section 18.

Constitution of the Republic of South Africa, 1996, section 173.

Constitution of the Republic of South Africa, 1996, section 34.

Interim Constitution of the Republic of South Africa, 1993, section 22.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).

Rules of Court Cited

Uniform Rules of Court, Rule 45A.

Uniform Rules of Court, Rule 49.

Uniform Rules of Court, Rule 6(12)(a).

Held

The court held that the application was sufficiently urgent to be heard on an expedited basis, given the imminent execution steps communicated by the respondents and the risk of immediate eviction.

The court held that a temporary stay of execution could be granted to prevent injustice and to preserve the applicants’ ability to access the leave-to-appeal and condonation screening process, without deciding the merits of the underlying eviction dispute.

The court held that the applicants had no adequate alternative remedy in the circumstances and that points such as locus standi were not properly raised for determination where they had not been pleaded on the papers.

The court therefore suspended the execution of the eviction order pending finalisation of the condonation and leave-to-appeal application, and granted costs against the first to third respondents.

LEGAL PRINCIPLES

A High Court may, on application, suspend the operation and execution of an order under Rule 45A, subject in appeal contexts to compliance with the requirements of section 18 of the Superior Courts Act 10 of 2013.

The filing of a condonation application in an appeal-related process does not, without more, automatically suspend the operation of the order sought to be appealed, and procedural non-compliance commonly results in lapsing that must be cured through condonation to revive the process.

A stay of execution may be granted where real and substantial justice requires it or where injustice would otherwise result, guided (in an adapted way) by the factors relevant to interim interdicts, while keeping the inquiry focused on whether the underlying causa is disputed rather than adjudicating the merits of the underlying dispute.

A court’s power to stay execution is also sourced in the court’s inherent jurisdiction to regulate its own process, recognised at common law and under section 173 of the Constitution.

In eviction-related contexts, the common-law entitlements of ownership may be temporarily restricted in the justice and equity inquiry required by PIE, and temporary procedural relief may be appropriate, although property owners are not required to accommodate unlawful occupation indefinitely.

Ndevu and Another v Westonaria South Property Holding (Pty) Ltd t/a Westonaria South (46484/2021) [2022] ZAGPPHC 80 (21 January 2022)