About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 23
|
|
Victor and Another v Wonderhoek Farms (Pty) Ltd (2356/2021) [2022] ZAFSHC 23 (7 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.:
2356/2021
In
the matter between:
MARIA
MAGRIETHA CATHARINA VICTOR
First
Applicant
VAUGHN
VICTOR
Second
Applicant
And
WONDERHOEK
FARMS (PTY) LIMITED
First
Respondent
THE
SHERIFF, WEPENER
Second
Respondent
CORAM:
MATHEBULA,
J
HEARD
ON:
04 FEBRUARY 2022
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’
legal representatives by email and release to SAFLII
on 07 February 2022. The date and time for hand-down is deemed to be
07 February
2022 at 14H15.
[1]
The applicants launched an urgent application contending that there
is an appeal before this court and
pending its finalisation the order
of the learned Magistrate E.M. Sebe of Wepener should not be
executed. The respondents oppose
the matter contending that there is
no appeal process before any court. Therefore, the aforementioned
order was properly put in
operation and executed. The matter first
served before me on 31 January 2022 and I made an order allowing both
parties to file
supplementary papers. It apposite to mention that the
papers were served on the respondents few hours before the applicants
approached
me in chambers. None of the parties took issue with the
fact whether the matter is urgent or not. I am of the view that it
was
a prudent thing to do because this matter is by its very nature
urgent.
[2]
The facts are fairly straightforward and are as follows. On 12 March
2021, the learned Magistrate E.M.
Sebe granted an eviction order in
favour of the first respondent. Aggrieved with the order, the
applicants filed a notice of appeal
to bring the matter before this
court. It seems that despite the appeal process pending, the first
respondent was hellbent on executing
the order. This caused the
applicants to bring an urgent application to prevent the first
respondent from carrying out the eviction
order. The order granted by
Van Zyl J reads as follows: -
“
1.
Condonation is granted in terms of prayer 1 of the Notice of Motion.
2. Pending the
finalization of the applicant’s appeal of the court order
granted on 12 March 2021 in the Magistrate’s
Court for the
district of Wepener, under case number 12/2020, the respondents is
interdicted from enforcing the eviction against
the applicants.
3. Costs of
the application to be costs in the appeal.”
[3]
On 3 November 2021 Mhlambi J (with De Kock AJ concurring) dismissed
the appeal with costs. The effect
of this meant that the order of the
learned Magistrate E.M. Sebe was confirmed rendering the applicants
liable to be evicted from
the contested property to
wit
Farm
Aanvang, Wepener.
[4]
On 15 December 2021, the applicants served and filed the application
for leave to appeal
with the Registrar of this Court. What followed
was an exchange of letters between the attorneys of the parties and
they could
not resolve the impasse. On 31 January 2022 the second
respondent armed with a warrant of ejectment issued by the Clerk of
the
Court, Wepener and assisted by a number of independent
contractors executed the order of the learned Magistrate.
[5]
The case for the applicants is thinly based on the provisions of
Uniform Rule 30. The main
contention on behalf of the applicants is
that they have filed the application for leave to appeal. Therefore,
in the event that
by taking such a step they contravened the Uniform
Rules of Court, that action constituted an irregular step. The first
respondent
was duty bound to invoke the provisions of the
aforementioned rule. It was not open to the first respondent to
disregard such filing
because the respondent cannot unilaterally
decide on the legal consequence of the filed document. The applicant
further contended
that the first respondent wrongly implemented the
order of the full court by inserting its own date to effect the
eviction. Turning
to the order by Van Zyl J, the point raised is that
the court can enforce its own order to grant the relief. Lastly, it
was argued
that the first and second respondents did not act in terms
of the order. The main thread of this argument is that independent
contractors
were involved instead of the South African Police Service
(SAPS). Based on these grounds, counsel urged me to grant the
application
with a punitive costs order against the respondents.
[6]
Counsel for the first respondent sketched out the laws governing the
appeal process before
our courts. He submitted that the lodging of
the appeal relied upon by the applicant is not in accordance with the
law. The gist
of his argument is that the appeal brought outside the
Uniform Rules of Court has no effect because it is a nullity. He
pointed
out that the applicants were obliged to seek leave from the
Supreme Court of Appeal and they failed to do that. Further they have
not only failed to file their papers, they are now out of time.
Therefore, until condonation is granted by that court, there is
no
appeal pending. Turning to the order of Van Zyl J counsel argued it
was applicable only if there is an appeal pending and in
this case
there was none. Therefore, it is of no force and effect.
[7]
The submissions of counsel for the second respondent substantially
mirror those made on
behalf of the first respondent. He emphasised
that the procedure followed in this matter was not an irregular step
but a nullity.
He urged me that if this argument sustains, it must be
treated as if it never occurred. Counsel argued that the second
respondent
was duty bound to give effect to the order. The second
respondent was acting in terms of a valid warrant of ejectment and he
was
acting lawfully.
[8]
Both counsel argued that the application should be dismissed with a
punitive costs order
against the applicants. They referred to the
manner the application was brought to court which was tantamount to
sneaking a favourable
court order. As a result of the conduct of the
respondents, the respondents were placed under undue pressure to
comply with unreasonable
timeframes.
[9]
It is common cause that when the matter served before Mhlambi J and
De Kock AJ, they were
sitting as a court of appeal. An appeal against
their decision lies to the Supreme Court of Appeal upon special leave
having been
granted by the last mentioned court.
[1]
The applicants have not complied with this provision.
[10]
The argument of the applicants on the law is fallacious and bereft of
any merit. When the learned Judges
handed down their judgment and
order, that was the end of the business of this court with this
matter. This court could only entertain
it if the parties approached
it for a reconsideration of the order. The High Court does not, in
the circumstances prevailing in
this matter, have the authority to
grant an application for special leave to the Supreme Court of
Appeal.
[2]
[11]
There is a veiled concession on the part of the applicants that they
misapplied the law on the issue
of filing the application for leave
to appeal. When this issue was raised by the first respondent, the
applicants filed with the
Registrar of the Supreme Court of Appeal an
application on the notice of motion seeking condonation for the late
application for
leave to appeal and special leave to appeal. This is
indicative of the fact that the applicants have failed to comply with
the
provisions of section 16(1)(b) of Act 10 of 2013. In my view,
this put paid to the gallant effort of the applicants to prevent the
execution of the warrant of ejectment.
[12]
The argument that the first respondent should have invoked the
provisions of Uniform Rule 30 does not
make sense at all. I have
already stated that the business of this court with this matter ended
when the learned Judges delivered
their judgment and order. The
Uniform Rules of Court can only be applied on a matter that is
pending before the court. The first
respondent was correct to ignore
the purported application for leave to appeal because it was fatally
flawed and defective. It
seems to me that the applicants expect the
first respondent to revive a nullity.
[13] This
brings me to the order of Van Zyl J which stipulates that the order
of the learned Magistrate is suspended
pending the finalisation of
the appeal. The order presupposes that it will automatically lapse
once the appeal has reached such
stage of finalisation. There can be
no talk that this appeal has not reached such a stage. Any reliance
on this order is misplaced.
[14] On the
changed circumstances, the applicants argued that now that the
application has been filed with the Registrar
of the Supreme Court of
Appeal, there is an appeal pending bringing the suspension of the
order within the purview of section 18
of Act 10 of 2013.
[3]
On the facts of this matter, the applicants still have to scale the
hurdle of condonation. The primary question whether the application
for condonation has the same effect of suspending the operation and
execution of the decision of the court.
[15] In
Panayiotou v Shoprite Checkers (Pty) Ltd and Others
Sutherland
J (as he then was) wrote the following: -
“
The inherent logic
of the position is unassailable. It can be tested by asking what were
to happen if many months or years were
to pass before an application
for condonation is lodged. It is untenable that upon the service of a
condonation application the
judgment would then be suspended.
Accordingly, the application fails for want of even a prima facie
right that the judgment of
Legodi J be suspended.”
[4]
I agree.
[16] The
parties are
ad idem
that the losing party must pay the costs
on the scale between attorney and client. I agree with them. The
application brought by
the applicants was brought against the
background of what is an elementary mistake of the law. Even an
attempt to rectify the same
was another comedy of errors in that a
wrong form to the Supreme Court of Appeal was used. It does not end
there, the applicants
brought the application with unreasonable
timeframes. They have been in the know for some time that the first
respondent was going
to execute the decision at least on 31 January
2022. However, they sat back and did nothing to prevent it.
[17] This
conduct compelled the first respondent to file supplementary papers
which could have been avoided had they
exhibited a measure of
fairness to the other side. The papers put before me are
unnecessarily bulky and repetitive. The application
focussed on a
narrow issue which is the centre of the dispute between the parties
ie
whether the order of the learned Magistrate E.M. Sebe is
suspended or not. On these grounds, I hold a view that a costs order
on
an attorney and client scale is appropriate.
[18] In the
result I make the following order: -
18.1. The applicants’
non-compliance with the Uniform Rules of Court is condoned and this
application is heard on an urgent
basis in terms of Uniform Rule
6(12).
18.2. The application is
dismissed and the applicants are ordered, jointly and severally, the
one paying the other to be absolved,
to pay the costs on attorney and
client scale.
M.A. MATHEBULA, J
On
behalf of the applicant:
Adv.
F.G. Janse Van Rensburg
Instructed
by:
Willers
Attorneys
Bloemfontein
On
behalf of the first respondent:
Adv.
J.W. Kloek
Instructed
by:
Michael
Du Plessis Attorneys
Bloemfontein
On
behalf of the second respondent:
Adv.
M.C. Louw
Instructed
by:
Kleingeld
& Mayet Attorneys
Bloemfontein
/TKwapa
[1]
Section
16(1)(b)
of the
Superior Courts Act 10 of 2013
reads as follows: -
“
Subject
to
section 15(1)
, the Constitution and any oher law – an
appeal against any decision of a Division on appeal to it, lies to
the Supreme
Court of Appeal upon special leave having been granted
by the Supreme Court of Appeal”.
[2]
Potgieter v S
(2015) ZASCA 15
at para 3.
[3]
Section
18(1) of Act 10 of 2013 reads as follows: -
“
Subject to
subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the
application or appeal”.
[4]
2016
(3) SA 110
(GJ) at para 15.