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2022
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[2022] ZANCHC 7
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Mokotedi and Others v Shishen Iron Ore Company (Pty) Ltd (2580/18) [2022] ZANCHC 7 (18 February 2022)
Reportable/
Not
reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO:
2580/18
DATE
HEARD:
11/02/2022
DATE
DELIVERED:
18/02/2022
In
the matter between:
JOHN
PANTI
MOKOTEDI
1
st
Applicant
THE
OCCUPIERS OF ERF 7054, KATHU TOWNSHIP
,
ALSO
KNOWN AS 7054 21
ST
AVENUE, ROOISAND,
KATHU
2
nd
Applicant
GAMAGARA
LOCAL MUNICIPALITY
3
rd
Applicant
and
SISHEN
IRON ORE COMPANY (PTY) LTD
1
st
Respondent
Coram:
MOSES AJ
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
MOSES
AJ
1.
This is an application for leave to appeal, launched by Mr John
Panti
Mokotedi, the First Applicant, herein, on behalf of the First and
Second Applicants on or about 2 November 2021, against
the judgment
and orders granted by this Court dated 29 October 2021.
2.
This application has subsequently been enrolled by the Registrar
of
this Court, by agreement between the parties for Friday, 11 November
2021. However this hearing could not proceed for the reasons
fully
set out in this Court’s directive dated 15 November 2021, filed
of record. In the said Directive, paragraph 12 thereof,
the parties
were directed as follows:
“
12.1 The Applicants file and
serve their Heads of Argument by no later than Monday 22 November
2021;
12.2 In the event that the Respondent
wishes to supplement its/their Heads of Argument, to serve and file
same by 24 November 2021;
12.3 The Applicants shall file and
serve their replying Heads of Argument, if any, on or before 26
November 2021;
12.4 The parties may serve and file
these Heads of Argument per electronic mail as contemplated in Rule
4A(1) of the Rules of Court.
12.5 The Application for Leave to
Appeal will be determined by this Court on the papers duly filed and
served, including the respective
Heads of Argument of/by the
parties.”
3.
Due to the Applicants’ failure to adhere to this Directive
as
above stated, the application for leave to appeal was struck off the
roll with costs, by Court Order dated 30 November 2021.
4.
Subsequently and given various emailed correspondence
by the
First Applicant to the Registrar of this Court and exchanged between
the First Applicant, the Respondent’s attorney
of record and
the Registrar of this Court the following Directive was issued by the
Registrar on instructions of Williams AJP-
as she then was, dated 21
January 2022:
“
Please be informed that
Williams AJP directed that the parties be informed as follows:
1.
On 30 November 2021 the application for leave to appeal brought by
the 1
st
and 2
nd
respondents in the main
application was struck from the roll with costs.
2.
Mr Mokotedi has indicated by email on 11 January 2022 that he intends
bringing
an application for condonation for the late filing of his
heads of argument in the application for leave to appeal. Having been
struck from the roll, an application for the reinstatement of the
application for leave to appeal must also be brought.
3.
Moses AJ will be in Kimberley finalising a part-heard matter from 7
to 11 February
2022 and is available to hear these applications (and
if successful the application for leave to appeal) at 09:00 on 8,9,
and 11
February 2022.
4.
The parties are to indicate by 26 January which of these dates suits
them, taking
into account the time necessary for the filing of
affidavits.”
5.
However, and amidst further emailed correspondence from/ by
Mr
Mokotedi, on behalf of the Applicants, the Registrar’s office
had to issue an urgent notice to the said Applicants and
the
Respondent, on 10 February 2022, in the following terms:
“
The Court has received no
indication on whether this matter will be proceeding tomorrow
pursuant to the Directive of Williams AJP
dated 21 January 2022 or
whether you intend requesting the indulgence of a postponement.
Please note that in the event the
Court requires the matter to be postponed
on record
,
especially in view of the fact that you and your co-applicant are
appearing in person and thus representing yourselves.
I require an e-mail address for
yourself and the other two Respondents to which the link for the
virtual proceedings can be sent
so that arrangements can be made with
our IT department to see to the recording of such virtual hearing.
All parties participating
in the application will be included in such
link notification.”
6.
The matter was therefore envisaged to be enrolled for hearing
on 11
February 2022 to enable the Applicants to bring and move their
applications for
a.
Condonation for non-compliance with the directives and Rules of
Court;
b.
Reinstatement of their Applications for Leave to appeal, and, in the
event;
c.
Their application for leave to appeal;
which
was to be concluded virtually, as agreed to between the parties and
with leave of this Court.
7.
On 11 February 2022 the Registrars’ office having made
all the
necessary arrangements for the parties to be heard and the hearing to
be conducted, the First Applicant having come on
record, virtually,
in person moved for a postponement, on the ground that he could not
prepare for this hearing and hence unprepared,
because he was busy
with his Labour Court Appeal case, against the same Respondent in
that Court.
8.
Mr Kloek appearing on behalf of the Respondent advised the Court
that:
8.1 The
First Applicant’s appeal in the Labour Court in Johannesburg,
was dismissed the previous
day 9 or 10 February 2022; which was
confirmed by the Applicant in casu;
8.2 His
instructing attorney offered and made arrangements for the First
Applicant to have access
to an office/ offices of their colleagues,
both in Johannesburg and Kathu - where the Applicant still resides,
to enable him to
have internet access and to conduct these
proceedings virtually, which he, the First Applicant refused. The
First Applicant disputed
and denied that he had refused the offer of
and by the said attorneys. He however did not dispute and/or deny
that the offer was
indeed extended; and
8.3 In
the circumstances, and given the derogatory statements made, and
attitude displayed by the
First Applicant in his emailed
correspondence to the Registrar’s Office and his attorney of
record, as well as accusing the
presiding judge in these proceedings
of bias without substantiation, this application for a postponement
at this juncture was mala
fide and an abuse of the process of Court,
the said Applicant being fully aware that as long as these
proceedings are pending the
eviction order of/by this Court cannot be
executed, and he would therefore remained and continue to occupy the
Respondent’s
property, unlawfully so. In the circumstances the
Respondent strongly object to the application for a postponement in
as much as
the Respondent is/was ready to proceed with the hearing in
respect of the Applicant’s application for leave to appeal and
would therefore be seriously prejudiced in the event of a further
postponement.
9.
In answer to these submissions by Mr Kloek on behalf of the
Respondent, Mr Mokotedi, for the Applicants, said that he had noted
an appeal against that judgment/order of the Labour Court the
previous night, 10 February 2022, and as such could not properly
prepare for this application before this Court, hence his application
for a postponement. He also indicated that his phone, which he was
using to be connected to this virtual hearing, might soon run
out of
data, and he would have to obtain more data. In the event the virtual
connection with Mr Mokotedi was lost, and he disappeared
from the
screen.
10.
Mr Kloek, on an invitation by the Court to make submissions given the
present
circumstances, on he further conduct of the proceedings, made
the following submissions:
10.1 In as much as the
Respondent is frustrated by the said Applicants’ conduct in
these proceedings and is desirous
to proceed and finalise this
Application for leave to Appeal before this Court, his client is
prepared to waive certain rights
and to this effect;
a)
would agree to the condonation of the Applicant’s
non-compliance with the
Rules of Court and more particularly to the
late filing of his (Applicant’s) papers in the application for
leave to appeal;
b)
agree to the re-instatement of the Applicants’ application for
leave to
appeal; and
c)
costs to stand over for later determination; and
10.2. In the circumstances that this
Court, having been provided with all papers and submissions in
respect of the application for
leave to appeal, determine that
application on the papers and provide the parties with the Court’s
judgment once finalised.
This, he submitted would obviate the need
for an application for postponement and/or a decision on whether or
not to grant such
an application for postponement.
11.
In the meantime the Applicants’ Mr Mokotedi was reconnected and
appeared
on the screen, apologising for the interruption and
indicating that he had to obtain data so as to enable him to be
reconnected,
which had been done.
12.
The Court then advised Mr Mokotedi of the submissions and suggestions
by Mr
Kloek on behalf of the Respondent, and requested Mr Kloek to
repeat those submissions and suggestions for the record and for the
said Applicant to hear, which Mr Kloek did by repeating the
above-stated submissions and suggestions verbatim.
13.
After having heard the said submissions and suggestions, the Court
then enquired
from Mr Mokotedi what the Applicants’ position
was regarding same, and whether he fully understood it. Mr Mokotedi
indicated
that he understood those submissions and suggestions, and
was in full agreement thereof and that this Court could proceed on
that
basis.
14.
In the circumstances, having heard Mr Mokotedi on behalf of the First
and Second
Applicants and counsel for the Respondent, the following
order was made:
14.1 Condonation for the
late filing of the Applicant’s papers and non-compliance with
the Rules and directives
of Court, in respect of the application for
leave appeal, is granted;
14.2 The Applicants’
application for leave to appeal is reinstated;
14.3 The application for
leave to appeal to be determined and decided by this Court on the
papers and submissions filed
of record; and
14.4 Cost to stand over
for later determination.
The
Application for leave to Appeal
15.
In the circumstances, the crisp issue for determination is whether or
not the
Applicants have demonstrated that there is a reasonable
prospect of success on appeal and hence ought to be granted leave to
appeal
the judgment and order of this Court dated 29 October 2021.
(See section 17(1)(a) of the Superior Court’s Act, 10 of 2013
-
:the Superior Court Act”)
16.
It is trite that section 17(1) (c)of the Superior Court’s Act
introduced
a different and higher threshold since its inception to be
granted leave to appeal then before its enactment, when that
threshold
or test was a reasonable prospect that another Court might
come to a different conclusion. See: Van Heerden vs Cronwright &
Others
1985 (2) SA 341(J)
343 H. See also: Smith v S 2012 (1) ZACR 56
SCA para [7].
17.
It is in this context that the First and Second Applicants
application for leave
to appeal must be determined by this Court
being mindful of the fact that the First Applicant, Mr John Panti
Mokotedi, is a layperson
prosecuting this application, in person, on
behalf of the said Applicants.
18.
The gist of the Applicant’s application for leave to appeal
seems to be
summarised in the conclusion of their application, which
is quoted herein verbatim:
“
The
1
st
and 2
nd
appellants seek an order in terms
of the notice of appeal and an order that set aside summary of
evidence order based on legal
reasons:
-
Excusable neglect on the 1
st
and 2
nd
appellants
part.
-
1
st
and 2
nd
appellants were mis represented by
attorney and counsel.
-
1
st
appellant is permanently leaving with disability, Pie
Act section 4(7) protect the 1
st
appellant.
-
Evidence of procedure which respondent did not follow when
automatically
dismissing 1
st
appellant.
-
The summary of eviction order is void because during hearing
proceeding 1
st
, 2
nd
appellants and 3
rd
respondent were not present.
-
The summary of eviction order has been satisfied of moving out
of 1
st
and 2
nd
appellants which will result in 1
st
and
2
nd
appellants been homeless.
-
1
st
appellant labour court matter set for trial on the 07
February 2022 which the 1
st
appellant request relief of
been reinstated by respondent after been automatically dismissed
unfairly.”
19.
Apart from, and preceding the conclusion as above-stated, the
Applicants have
also listed numerous “Grounds of appeal”
in paragraph 3 of their papers. There was nothing of substance
advanced on
behalf of the Applicants in addition to the above-stated
which had a bearing on the above-stated judgment of this Court dated
19
October 2021, and which ought to be considered in this application
for leave to appeal, apart from the undisputed fact that the
First
Applicant’s Labour Court Review Application was dismissed on or
about 7 – 10 February 2022. It is common cause
that the said
Labour Court matter is/was the one referred to by the First Applicant
at all relevant times in these proceedings
before this Court.
20.
This Court has carefully considered the submissions, including the
reasons,
grounds and statements advanced by the First Applicant on
the Applicant’s behalf, in support of their application for
leave
to appeal.
21.
This Court has also carefully considered the Respondent’s
submissions
made in opposition to this application for leave to
appeal, including its written submission dated 9 November 2021, with
which
this Court fully agrees.
22.
In the circumstances the Applicants have failed to demonstrate that
they have
a reasonable prospect for success on appeal. I find
accordingly.
IT
IS ORDERED
The Application for leave to appeal is
dismissed with costs.
___________________
J.J.
MOSES
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION, KIMBERLEY
For
the Applicant:
Mr J.P. Mokotedi
Instructed
by:
In Person
For
the Respondent:
Adv. J.W. Kloek
Instructed
by:
Elliot Maris Wilman and Hay Attorneys