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[2019] ZALMPPHC 51
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Sports tarven (Pty) Ltd and Another v Executor, Estate Late A.P Santos and Another (1902/2019) [2019] ZALMPPHC 51 (31 October 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 1902/2019
31/10/2019
In
the matter between:
THE
SPORTS TARVEN (PTY) LTD
FIRST
APPLICANT
MOAGABO
ELIZABETH MOLAPO
SECOND APPLICANT
AND
THE
EXECUTOR, ESTATE LATE A.P SANTOS
FIRST RESPONDENT
SHERIFF
A.T RALEHLAKA
SECOND RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On
the 24
th
of April 2018 the first respondent obtained an eviction order against
the first and second applicants in the Magistrate Court Polokwane.
On
the 9
th
May 2018 the applicants’ attorneys filed a notice requesting a
written judgment and reasons for the judgment from the Presiding
Magistrate. The Presiding Magistrate responded on the 14
th
May 2018 stating that the proceedings were mechanically recorded,
judgment and facts found to have been proved are on record and
he has
nothing to add, save to say the transcript will be a true reflection
of his judgment.
[2]
The applicants’ attorneys were not satisfied with the Presiding
Magistrate’s response,
and brought a
mandamus
application
to compel the Magistrate to deliver his judgment. The application is
still pending as the Presiding Magistrate is opposing
it.
[3]
On the 22
nd
August 2018, the applicants lodged an appeal
against the judgment and order of the Presiding Magistrate. The
applicants struggled
to transcribe the record of the proceedings, and
that resulted in them failing to prosecute their appeal timeously. As
a results
of that their appeal lapsed.
[4]
On the 18
th
February 2019, the first respondent gave the
applicants thirty days notice within which to vacate the premises,
failing which they
will be evicted. On the 15
th
March
2019, the applicants’ attorneys served the first respondent’s
attorneys with an application for a date of hearing
of the appeal.
The applicants’ attorneys also wrote a letter to the first
respondent’s attorneys to hold in abeyance
the eviction process
as they were in the process of prosecuting the appeal. The first
respondent’s attorneys replied informing
the applicants’
attorneys that they were not condoning the late prosecution of their
appeal and that they were proceeding
with the eviction application.
The applicants received the transcribed record on the 27
th
March 2019.
[5]
On the 27
th
March 2019 the second respondent went to the
applicants’ premises to execute the writ of eviction. On the
28
th
March 2019 the applicants obtained an interim relief
on
ex parte
basis interdicting the respondents from evicting
the applicants. A rule
nisi
was also issued. The applicants
are seeking confirmation of the rule
nisi
on the basis that
the warrant of eviction be set aside being as a nullity, and that the
first respondent be interdicted from evicting
them pending the
finalisation of their appeal.
[6]
The first respondent is opposing confirmation of the rule
nisi
and
has also brought a counter-claim seeking an order that it be declared
that the applicants’ appeal has lapsed. The first
respondent
has submitted that the applicants’ appeal was not properly
noted and further that the applicants’ appeal
has lapsed. The
first respondent contends that once the appeal has lapsed, the order
granted by the Magistrate Court is no longer
suspended and therefore
they were entitled to execute such order.
[7]
The first issue to be determined is whether the warrant of execution
issued by the first respondent
on the 20
th
March 2019
against the applicants was valid, and the second issue is whether the
applicants have satisfied the requirements for
an interim relief.
[8]
The basis for the first respondent to issue the warrant of eviction
was that the appeal
has lapsed. In terms of section 51(9) of the
Magistrates’ Courts Rules of Court, a party noting an appeal or
cross appeal
shall prosecute it within such time as may be prescribed
by rule of the Court of appeal and, in default of such prosecution,
the
appeal or cross appeal shall be deemed to have lapsed, unless the
court of appeal shall see fit to make an order to the contrary.
[9]
In terms of rule 50(1) of the Uniform Rules of Court, an appeal shall
be prosecuted within
60 days after it has been noted, failing which
such appeal shall be deemed to have lapsed. However, the court of
appeal has a discretion
to grant an indulgence taking into
consideration of all the circumstances of the case.
[10]
Both rule 50(1) of the Uniform Rules of Court and rule 51(9) of the
Magistrates’ Courts
Rules of Court provides that if the appeal
is not prosecuted within the stipulated time period it shall be
deemed to have lapsed.
The court of appeal taking into consideration
all the circumstances surrounding the lapsing of the appeal, may
exercise its discretion
and reinstate the appeal. The mere fact that
an appeal has lapsed, does not mean that it is the end of it. It may
still be revived
as it has merely been deemed to have lapsed.
[11]
The word “deemed” will need some interpretation.
According to the Concise Oxford
Dictionary, “deemed”
means regard or considered in a specified way. In the context of a
lapsed appeal in my view, while
the appeal has lapsed, it may still
be revived by presenting facts which will persuade the appeal court
to exercise its discretion
in favour of reinstating it.
[12]
In Assign Services (Pty) Ltd v NUM and Others
[2018] ZACC 22
;
2018
9 BLLR 837
(CC); (2018) ILJ 1911 (CC); 2018(5) SA 323 (CC);
2018 (11)
BCLR 1309
(CC) (26 July 2010
at para 92 Cachalia AJ said:
“
Deeming
provisions are often used in statutes to give the subject-matter a
meaning not ordinarily associated with it”
[13]
In S v Rosenthal 1980 (1) 65 (A) at 75 F -76 A Trollop JA
said:
“
The word “shall
be deemed” (word geag” in the signed Afrikaans text) are
a familiar and useful expression often
used in a legislation in order
to predicate that a certain subject-matter, e.g. a person, thing,
situation, or matter, shall be
regarded or accepted for the purpose
of the statute in question as being of a particular, specified kind
whether or not the subject-matter
is ordinarily of that kind. The
expression has no technical or uniform connotation. Its precise
meaning and especially its effect,
must be ascertained from its
context and the ordinary canons of construction. Some of the usual
meanings and effect it can have
are the following. That which is
deemed shall be regarded or accepted (i) as being exhaustive of the
subject-matter in question
and thus excluding what would or might
otherwise have been included therein but from the deemed, or (ii) in
contradistinction thereof,
as being merely
supplementary, i.e.,
excluding and not curtailing what the subject-matter included, or
(iii) as being conclusive or irrebuttable,
or (iv) contrarily
thereto, as being merely prima facie or rebuttable. I should add that
in the absence of any indication in statute
to the contrary, deemed
provision that is exhaustive is also usually conclusive, and one
which is merely prima facie or rebuttable
is likely to be
supplementary and not exhaustive”.
[14]
In terms of rule 51(9) of the Magistrates’ Courts Rules, the
appeal is deemed to have lapsed
unless the court of appeal shall see
it fit to make an order to the contrary. That shows that it is not
exhaustive that the appeal
has lapsed. In my view, if it was the
intention of the drafters of the rules that after 60 days it is
exhaustive that the appeal
has lapsed, they would not have included
the deeming provisions in the Uniform Rules of Court and Magistrates’
Court Rules
of Court.
[15]
For one to be certain that indeed the appeal has lapsed, an
application to declare that should
be made.
In Nawa and Other v
Marakala and Another
2008 (5) SA 275
(BHC) at 278 A Landman J
said:
“
I
am satisfied that a single judge has by virtue of section 13(1) (a)
of the Supreme Court Act 59 of 1959 the jurisdiction to entertain
an
application, such as this one for a declaration that an appeal has
lapsed”.
[16]
Before the court declares that the appeal lapsed, it would not be
appropriate for the first respondent
to issue and execute a writ of
eviction against applicants. The applicants still had an opportunity
to bring a condonation and
reinstatement application for the lapsed
appeal. Until that process has been exhausted, it will be premature
for the first respondent
to issue a writ of eviction against the
applicants. Should the first respondent proceed with the issuing of
the writ before the
court has declared the appeal to have lapsed, it
follows that the writ of eviction issued will be a nullity. The first
respondent
has issued a writ of eviction against the applicants
prematurely and it is therefore
void.
[17]
The first respondent has brought a counterclaim seeking an order that
it be declared that the appeal
has lapsed. That is the process which
he should have first followed. At the moment his counterclaim will
not cure the damage already
done. Therefore, in my view, the first
respondent’s counterclaim lacks merit.
[18]
The second issue that the applicants are seeking is an interim relief
pending the finalisation
of their appeal. It is trite that the
granting of an interim relief pending action is an extra ordinary
remedy which is within
the court to either grant or withhold. The
test for granting an interim relief was formulated in the well-known
case of
Setlogelo v Setlogelo
1914 AD 221
at 227
being (i) a
prima
facie
right;(ii) well-grounded apprehension of
irreparable harm; (iii) balance of convenience and; (iv) the absence
of any other satisfactory
remedy.
[18]
The first requirement which the applicants must satisfy is a
prima
facie
right. The applicants have legally been operating their
business on the premises in which the first respondent’s wants
to
evict them. The legality of the eviction is the subject of the
dispute that will be determined by the appeal court. The issue at
this stage is not whether the applicants are occupying the premises
lawfully or not. That will be determined when the appeal
is
heard if the applicants succeed in reinstating their appeal. It is
trite that the right is required to be
prima facie,
though
open to some doubt. The court is therefore satisfied that the
applicants have established a
prima facie
right.
[19]
The second requirement which the applicants must satisfy is to show
that there is a reasonable
apprehension of irreparable and eminent
harm eventuating should the order not be granted. Should the
applicants be evicted whilst
the appeal has not yet been finalised,
they will not be able to trade and will lose income which even if
they succeed on appeal
they will not be able to recover. That will
also damage their goodwill which will not be easy for them to rebuild
it. The court
is therefore satisfied that the applicants have
satisfied the second requirement.
[20]
The third requirement which the applicants must establish is the
balance of convenience. The
applicants’ customers are already
used to the place where the applicants are trading. If they are
evicted and moved to another
premises and later are successful with
their appeal, they will be forced to move back. It will therefore be
convenient for them
to remain in the same premises until the appeal
is finalised. The court is therefore satisfied that the applicants
have satisfied
the third requirement.
[21]
The fourth requirement which the applicants must satisfy is the
absence of any other remedy.
The applicants are still exhausting the
legal remedies available to them, which at this stage is to appeal
the judgment of the
court
a quo
, of which they have done.
Since the appeal is still pending, they don't have any other remedy
to minimize the losses which they
might suffer should they be evicted
from the premises. Their only remedy is to wait for the outcome of
the appeal. The court is
therefore satisfied that the applicants have
satisfied the fourth requirement.
[22]
The court is therefore satisfied that the first respondent's writ of
eviction is a nullity and
that the applicants have satisfied the four
requirements to obtain an interim relief. Under the circumstances,
the applicants are
entitled to the relief that they are seeking.
[23]
In the results I make the following order:
23.1. Pending the
finalisation of the appeal under case number ACA04/2019, the interim
relief granted on the 28
th
March
2019
is confirmed on the following basis:
23.1.1. The warrant of
eviction issued by the first respondent on the 20
th
March
2019 is hereby set aside as a nullity.
23.1.2. The first
respondent is interdicted from evicting the applicants from the
property known as shop number 10 and 11 situated
at 17 Witklip
Street, Ladanna, Polokwane pending the finalisation of their appeal.
23.2. The first
respondent’s counterclaim is dismissed.
23.3. The first
respondent to pay the applicants’ costs on party and party
scale.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANTS : ADV K.K. KEKANA
INSTRUCTED BY
: MAKWELA & MABOTSA
ATTORNEYS
COUNSEL FOR 1
ST
RESPONDENTS : MR. G. ELLLERS
INSTRUCTED BY
: DDKK ATTORNEYS
INC.
DATE OF HEARING
: 10
October 2019
DATE OF JUDGEMENT
: 31
st
October 2019