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[2021] ZAGPPHC 220
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Osborne v Erasmus and Others (90835/2016) [2021] ZAGPPHC 220 (12 March 2021)
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Note:
Certain
personal/private details of parties or witnesses have been
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I
N
THE
H
I
GH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 90835/2016
Reportable: NO
Of
interest to other judges: NO
Revised:
YES
Date:
Signature
In the matter between:
ALLAN
FRANCIS
OSBORNE
Applicant
and
ETTIENE
ERASMUS
1
st
Respondent
ALL OCCUPIERS OF
NUMBER 8[...] A[...] DRIVE
FOURWAYS,
JOHANNESBURG, GAUTENG (Also
Known as ERF 1[...],
Fourways Township, Registration
Division
l
.
Q.
Province
of
Gauteng
2
nd
Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
3
rd
Respondent
JUDGMENT
PRINSLOO
AJ
General
[1]
The
parties
i
ndicated
that
on
their papers they
referred to
the
parties
as
cited
i
n
the main
application and
that
reference
to
the
Appl
i
cant,
meant Mr Osborne
and
the
Respondent,
Mr
Erasmus.
[2]
To
avoid
confusion and
for
purposes of this judgment,
Mr
Erasmus
is
referred to
herein as the appellant and Mr Osborne as the Respondent.
[3] It is common cause
that this application for leave to
appeal is only brought
on behalf of the appellant
as first respondent in the main application and that there is no
application on behalf of the second
respondents, being the
other occupiers at the premises and that the eviction order granted
against such occupiers on
the 17th of March 2020 stands.
Non-Compliance
with
the
Rules of
Court,
Practice
Directives and
absence
of an Application
for
Condonation
[4]
Rule
49(
1
)(b)
i
s
prescriptive
that
an
appl
i
cation
for
l
eave
to
appeal
shall
be
made
within
15
{fifteen)
days
after
the
date
of
the
order
appealed
against.
[5]
This
court's
directives
i
n
Chapter 11 of
i
t's
Practice
Manual,
sets
out
concisely
the process to
be followed, namely that a written
letter
be submitted
to the Registrar in charge of
civil
appeals,
applying for a date of hearing.
[6]
Despite the
Notice of Appl
i
cation
for
Leave to
Appeal
being
dated the
20th of March 2020 and being
served electronically on the Respondent on the
25th
of March 2020, there is no proof that the appellant
has complied with the
court
rule
by
making
the
appl
i
cation
to
court
within
the
15-day
period.
Mr
Scholtz, for
the appellant after asking
for
an indulgence to contact his attorney who
was
not
at court,
made
a submission
that
his attorney
advised
him
that
the
notice was filed at court.
He however could supply
no written proof. In the
absence thereof, the submission could not
be accepted.
[7]
The
most
compelling
reason
for
this
i
s
that
the
first
i
ndication
of
the
appeal with the registrar
i
s
that the Notice of Appl
i
cation
was first uploaded on
Case-Lines
on the
10
th
of December 2020.
I
t
was quite disturbing to hear that
it was
in fact
the
respondent
who
has been pro-active
in having brought this.
application
before
:court
and
not the
appellant.
This
was
conceded
by Mr
.
Scholtz.
[8]
This
gives
credence
to
the
respondent's
argument,
that
the
appellant
only served
the
appl
i
cation
for
l
eave
as
a
delaying
tactic,
to
achieve
the
suspension of
the eviction order against him.
[9]
The
rules
of court and this
Division's
practice directives
have
not been
complied
with
and
there
i
s
no
condonation
appl
i
cation
before
the
court.
On
this basis alone, this appl
i
cation
falls to be dismissed.
The Grounds for Leave
[10] I placed on record,
that it was the court's view that the appellant had from day one used
tactical and technical points to
frustrate the respondent. To ·
prevent any further opportunity for complaint by the appellant, and
despite the finding that
the application fails due to the appellant's
non-compliance with the Rules of Court, I in any event afforded Mr
Scholtz an opportunity
to address the court on the grounds for leave
to appeal.
[11] At the outset there
was an attempt to raise additional grounds that were not contained
within the notice of application for
leave to appeal.
[12]
The first point raised was that the court had erred in not
considering the
1
time
periods
stipulated
in
sections 4(6)
and
4(7)
of
the
PIE
Act and
had not
considered
the
period
of
unlawful
occupation.
Mr
Scholtz
was
asked
where
this
was
raised
as
a ground
of
appeal
and
he
referred
to
ground
number 4.
With
respect
Ground
4
relates
to
an
alleged
misdirection
of
circumstantial
evidence.
[13]
There was then an attempt to raise argument on behalf of the
appellant
by referring to two further
unreported judgments,
which also did not form part
of
the appellant's concise heads of argument.
[14]
The
Notice
of application for
l
eave
to appeal,
with
respect, fell short of
what
i
s
reasonably required.
I
t
i
s
trite
that
the
grounds
of
appeal
must
be
clearly and succinctly set out in clear and
unambiguous terms so as to enable
the
court
and
the
respondent
to
be
fully
informed
of the
case
the
appellant
seeks
to
make
out
and
which
the respondent is
to
meet
in
opposing
the
application
for
l
eave
to appeal.
[15]
Not one
of
the
seven
grounds,
in
clear
and
unambiguous
terms,
sets
out
a
basis in
l
aw
or the factual
basis
on which
the
court erred.
For
example,
on
the
first
ground
the
appellant
simply
states
that
the
court
erred
in finding
that
the
respondent,
Mr
Osborne,
had
discharged
the
onus.
There
are
no
grounds stated
on why the court had
erred.
[16] The second ground
states that the court erred in finding that the PIE act had been
complied with. The notice does not state
which provisions were not
complied with.
[17] The third ground
alleges that the court misguided itself by applying common law. No
reference is made to which aspect of common
law or how the court
misguided itself.
[18] The fourth ground
alleges a misdirection on circumstantial evidence. The -alleged
circumstantial evidence or facts are not
stated.
[19] The remaining three
grounds are the same. Bald statements without substance.
[20] Mr Scholtz was then
asked to confine his arguments to the notice and heads of argument
for the appellant.
[21] This led to the crux
of the matter, which is the appellant's continued denial that he was
in occupation of the property and
his failure to produce a shred of
evidence to prove that he was residing elsewhere and to substantiate
the argument in the heads
of argument that there was a
bona
fide
dispute of fact.
[22]
Mr
Scholtz
heavi
l
y
rel
i
ed
on
the
judgment
of
The
National
Director
of
Public
Prosecutions
v
Zuma,
Mbeki
&
Another
[1]
,
but
i
t
is in that very judgment
wherein
lies
the
crux
of
this
matter,
where
Harms
JA
states
that:
"It
may
be
different
if the respondent's version consists of bald or uncreditworthy
denials raises
fictitious
disputes
of
fact,
i
s
palpably
implausible.
far-fetched
or
so clearly untenable
that
the
court
i
s
justi
fied
i
n
rejecting
them
merely on
the
papers.
[33]
That
is
the
appellant's
difficulty.
He
chose,
either
tactically
not
to
provide
the
court
with the
substantiated
particulars
of where
he
truly was
residing,
or
dishonestly
attempted
to
mislead
the
court,
and
that
he
was
in
fact
residing
at
the
premises.
I
t
was
pointed
out
again
to
Mr
Scholtz,
what
was
stated
in
paragraph
32
of
the
judgment
that
the
matter
of
Ndlovu
[2]
requires
an
occupier
to
disclose
circumstances
relevant
to
the
eviction,
if
he
opposes
such
an
order,
failing
which
an
appl
i
cant
i
s
entitled to
such
an
eviction
order.
.
[34]
That
is
why,
in
my view, there
is
no reasonable prospect
of the
appellant
succeeding
with
an
appeal.
A
different
court will
be
faced
with
the
same
position:
an
occupier
(the
appellant)
who
makes the
single
bald denial
that
he
is
not
in
occupation
of
a
premises
and
refuses
to
disclose
circumstances, which
he
could
easily
do,
which
could
assist
that
court
in
making
a
finding.
[35]
I
am
of
the
humble
view
therefore,
that
a
different
court
would
not
reach
a
different
conclusion
and
that
there
are
no
other
compelling
reasons
why
the
appeal
should
be
heard,
or
grounds
in
terms
of
the
Act
[3]
on
which
l
eave
should be granted for the appellant to prosecute h
i
s
appeal.
Costs
[36]
The appellant
fai
l
ed
to comply
with
the
ru
l
es
of this court,
he
failed
to
comply
with
the
directives
of
this Division.
He
never
sought
condonation.
He
failed to
deliver
an
adequate
notice
setting
out
grounds
with
the
particularity
and
clarity required
to
enable
this
court
and
the
respondent
to
reasonably
understand
and
meet
the
appellant's
arguments.
Worst
of
all
though
is that
the Appellant
never brought this application for
leave to appeal to fruition,
but
the
respondent was forced to do so.
[37] This is again worthy
of a punitive sanction.
Order:
[38] Consequently, I make
the following order:
The
appl
i
cation
for
l
eave
to
appeal
i
s
refused
and
the
appellant
i
s
ordered
to
pay
the
respondents
costs
on a scale as
between attorney
and
own cl
i
ent.
AC PRINSLOO
Acting Judge of the High
Court
APPEARANCES:
Applicant:
Advocate
Prinsloo
I
n
n
es
R
Steenkamp
Attorneys
Respondent:
Advocate
Scholtz
Taute,
Bouwer
and
Cilliers
I
nc.
Date heard:
11 March 2021
Judgement delivered
on:
12 March 2021
[1]
2009
(2) All SA 243 (SCA)
[2]
Ndlovu
v Ngobo: Bekker and Another
v
Jika 2002 Alf
SA
384 SCA.
[3]
Superior
Courts
Act
1
0
of
2013,
Section
1
7.