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[2017] ZAGPPHC 96
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Erasmus v Alcock and Others (228/2016) [2017] ZAGPPHC 96 (28 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION,)
CASE
N0:228/2016
ANDRE
CARL
ERASMUS
APPLICANT
Versus
ANTHONY
GRAHAM
ALCOCK
FIRST RESPONDENT
SUSAN
KAREN
ALCOCK
SECOND RESPONDENT
SHERIFF
OF THE HIGH COURT, PRETORIA EAST THIRD
RESPONDENT
REASONS
JUDGMENT
LEGODI
J
[1]
On Wednesday 15 February 2017 after having heard an oral argument
presented by the parties in an urgent motion roll, I granted
an order
as follows:
"1.
The application
is struck
off from
the roll due to lack
of
urgency
which is self created.
2.
The applicant to pay the costs of the application.
3.
Reasons
for the order to follow in due course"
[2]
I now give reasons for the order so made. The order which was
granted by De Vos J on 19 August 2016 under case number
36480\ 14
together with an order of 7 October 2016 granted by Jordaan J became
the subject of a dispute before me, which dispute
was prompted by an
urgent application instituted by the applicant on 8 February 2017 in
terms of which a relief is sought to vary
the order of 19 August
2016.
[3]
Of relevance, the relief sought in these proceedings is couched as
follows:
"2.
That the order granted
by his Lordship
Mr
Justice
De
Vos on
19
August
2016
be varied to read as
follows:
'Pending
the finalization
of the application
for
condonation and the application for leave to appeal
under
case number
36480\2014
and the
finalization
of the
appeal
under
case
number
A982\2013.
the
third
Respondent
is
interdicted from effecting any
steps in the eviction of the
Applicant
and all persons holding under him from the premises
situated at Portion 457 of Portion
57
of
the Farm Zwavelpoort'.
[4]
The underlining is my emphasis. The order of 19 August 2016 reads as
follows:
"
1.
Pending the finalisation
of the application
for condonation
and
the application for leave
to appeal
under
this case number,
the
3rd
Respondent
is interdicted
from
effecting
any steps in the eviction of the applicant
and all persons
holding
under him
from the
premises
situated
at
portion
457 of
57
of the farm
Zwavelpoort
(the property'? .
[5]
'Under this case number' relates to case number 36480\2014 which is
about a petition to the Supreme Court of Appeal against
an eviction
order granted against the applicant by Canca AJ on 29 June 2016. On
the other hand, the matter under case number A982\2013
relates to a
pending application for condonation and an appeal to the full court
of this Division regarding the dismissal of an
application for
rescission of a default judgment which was granted in favour of Absa
Bank against the applicant on 5 November 2007.
[6]
On 20 January 2017 Shongwe JA and Govern AJA with regard to the
petition for leave appeal against the eviction order under case
number 36480\14, ruled as follows:
"
1. Condonation
as
applied for is granted.
The
applicant for condonation is to
pay the costs of the application.
2.
The application
for leave to appeal is dismissed
with costs on the grounds that there
are no reasonable
prospects
of
success
in an
appeal
and
there
are
no
other compelling
reasons
why an appeal
should be heard."
[7]
On 8 February 2017 the applicant, as indicated in paragraph 2 above,
instituted the present proceedings against the current
registered
owners (the respondents) of the property namely, Portion 457 of
portion 57 of the form Zwawelpoort in respect of which
an eviction
order was obtained against the applicant.
[8]
In essence the order in paragraph [3] above is an addition to the
order quoted in paragraph [4] above. Pending finalization
of the
appeal under case number A 982/201 where the Sheriff is to be
interdicted from taking any steps in the eviction of the applicant
is
intended to put the execution of the eviction order on ice.
[9]
The present application was brought on an urgent basis having issued
the papers on Wednesday 8 February 2017. The first enquiry
being the
only issue which was argued before me was whether this matter
deserves to be heard on an urgent basis. Or put differently,
whether
urgency is self-created. Having heard argument an order was made as
in paragraph [1] above.
[10]
Brief background to the issue of urgency is necessary: The
applicant was previously the registered owner of the immovable
property described in paragraph 7 of this judgment against which a
mortgage bond was registered in favour of Absa Bank. On
5
November 2007 and after having failed to service the bond, Absa bank
obtained a default judgment against the applicant in the
amount of R2
622 923.86. On 29 November 2007 the default judgment was brought to
the attention of the applicant. On 20 November
2008, that is, a year
after the applicant became aware of the judgment, he filed an
application for the rescission of the default
judgment granted on 5
November 2007.
[11]
On 25 November 2008 the applicant launched an urgent application
seeking to stop the sale in execution of the property, which
application was struck off the roll due to lack of urgency. On 25 May
2011 Absa Bank bought the property at a sale in execution.
On 16
November 2011, that is, three years after the application to stop the
sale in execution was struck off, the applicant sought
to set aside
the sale in execution and the default judgment. On 16 January 2012 he
filed his notice of amendment to the initial
notice of motion to set
aside the sale in execution and the default judgment which amendment
was then effected on 8 February 2012.
On 18 December 2012 his
application for rescission of judgment was dismissed by De Klerk AJ.
However, on 12 November 2013 the Supreme
Court of Appeal granted
leave to appeal against the dismissal of the application for
rescission of judgment and such leave to the
full court of this
division which appeal is still pending as indicated in paragraph [5]
above.
[12]
The appeal aforesaid lapsed on 10 March 2014, the applicant having
neglected to prosecute the appeal timeously after leave
to appeal was
granted by the SCA on 12 November 2013. On 15 April 2014 the
applicant applied for hearing of the appeal without
filing an
application for condonation as he was required to do due the lapsing
of the appeal. On 9 September 2014 the appeal against
the dismissal
of the application for rescission of judgment was struck off the roll
for having failed to apply for condonation.
On 25 April 2016 that is,
about two years after the appeal was struck off the roll, the
applicant delivered an application for
condonation which as I said,
is still pending.
[13]
The present application seems to have been prompted by the dismissal
by the SCA on the 20 January 2017 of the petition to appeal
against
the eviction order. In his founding affidavit, the applicant
articulates urgency as follows:
"24.
The reasons
as
to why I aver that this application
is
urgent are
as
follows:
24.
1
The
first and second Respondents
have indicated
that they have instructed
the
Third respondent
to
evict
the Applicant
from
the property
and the
instructions
to the
Third Respondent
are
that
the
said
eviction
has
to be effected on
10 February
2017.
24.2
Notwithstanding requests that
the
eviction
be
held
over
pending the finalasation
of the appeal
under case number A982\2013,
the First
and Second
respondents
have
instructed
the
Third Respondent
that
the eviction should
occur.
24.3
I
annex
hereto
as
annexure
"F"
a
letter
from
the
First
Second respondents'
attorneys
from
which it
inter
alia
appears
from
paragraph
13.3.3.1
thereof, that the First and Second Respondents agreed to stay the
eviction until Friday 10 February 2017 and thereafter
intend to
proceed with the eviction.
24.4
I
replied
to
the
letter
and
counter
proposed
alternative
time period
to allow the
application
to be adjudicated.
I
refer to Annexure
"G"
hereto.
24.5
On the 5th
of February
2017 the
First and Second respondent
attorney replied
and
advised
that he
was instructing
the
Third Respondent
to execute
the eviction order.
I attached
hereto
as
Annexure
"H" hereto.
24.6
There
cannot
be
any
doubt
that
the
First
and
Second
Respondents intend
to proceed
with their instructions
to
the
Third Respondent
to effect
the
eviction.
24.7
I therefore aver that this application is
urgent."
[14]
These averments for urgency must be seen in context. The order
referred to in paragraph [4) of this judgment having been granted
on
19 August 2016, the applicant on 4 September 2016 launched an urgent
application under case number 36480\14 on which a renewed
relief was
sought as follows:
"2.
Pending
the finalization
of an
application
to the Supreme
Court of
Appeal
for leave
to appeal
in
this matter,
and pending
the finalization
of the Appeal
under case number A982\2013,
that the Third Respondent be interdicted from effecting any
steps in the eviction of the Applicant
and all persons
holding
under him, from the premises situated
at
Portion
457
of
Portion
57
of
the
Farm
Swavelpoort,
Gauteng
Province."
[15]
On 3 October 2016 and before the hearing of the application
aforesaid, the applicant's sent an email to the respondents'
attorneys
in which it was indicated that the applicant contacted the
Sheriff who conveyed to the applicant that the respondents attorneys
were finalizing the eviction order and that the applicant should
expect to be effected on Monday 3 October 2016. The applicant's
attorneys then concluded in the email as follows:
"
We refer to the Court Order granted on
19
August
2016 and would like to inform you that it
was ordered pending
the finilasation
of
the application for condonation
and the application
for leave
to appeal,
the 3rd
Respondent
is
interdicted
from
effecting
any steps
in
the
eviction
of
the
Applicant and
all
persons holding
under
him
from
the
premises situated at
Portion
457 of
Portion
57
of
the
Farm
Zwavelopoort ("the property'
}.
[16]
On the same date that is, 3 October 2016 the attorneys for the
respondents wrote inter alia as follows:
"
We can't therefore say what your instructions
were
to your counsel
but we would not
have
agreed
to
suspend
the
eviction
order
pending
the
appeal
against
ABSA
as
we
were not satisfied that
your
client had been pursuing
the
appeal
against ABSA and we
are
of the opinion that the matter
is intentionally
delayed.
The
court order of 19 August 2016 is clearly setting out the terms of our
agreement and we will oppose any application to suspend
the eviction
order any further".
[17]
The underlining is my emphasis. On 7 October 2016 the application
which was launched on 4 September 2016 and referred to in
paragraph
[14] above came before Jordaan J who then made an order as follows:
36480\2014
handed
down by
Canca AJ
("the
judgment”)
within
fifteen days of obtaining
the reasons
of
Canca AJ
for his dismissal of the
Applicant's
application for leave
to
appeal
the judgment.
These
reasons were
provided to
the
parties
on
6 October
2016.
2.
It is further recorded that the 1
st
and
2
nd
Respondents have undertaken not
to
evict the Applicant
or anyone holding
under him from the premise
situated at Portion
457 of Portion
57
of the Farm Swavelpoort,
Gauteng Province
("the
premises”)
until such time as the aforesaid petition
has
been finalized.
3.
Notwithstanding this undertaking, the Respondents will be entitled to
proceed with the eviction of the Applicant and anyone holding
under
him from the premises in the following circumstances:
3.
1 If the aforesaid lapses for
any reason.
3.2
If the Applicant fails to petition the Supreme Court of Appeal
within the fifteen day period specified above in 1 above:
3.3
If
the
Respondents would
be
entitled
to
evict
the
Applicant and\or
anyone holding
under
him
in
terms
of
the
order
of
De
Vos AJ
in
case
number
36480
1
2014 ("the De
Vos
Order”), subject
to clauses
4 and
5
below;
4.
Notwithstanding the
content of
Paragraph
3
above,
neither
party
shall
be deprived on any rights that they may have in
law.
5.
Nothing
in this order
will impact
on the De
Vos order,
which will
remain
of full force
and
effect.
The parties' rights
to seek
a
suspension, variation
or
rescission
of the De
Vos order remain unaltered by this order.
6.
The time periods for the filling of further affidavits in this matter
are stayed until either of the following has occurred,
at which point
the normal periods set out in the rules for delivery of further
affidavit will commence running:
6.
1 The fifteen day period set out in 1 above for the launching of the
Applicants' petition lapses without the Applicant launching
his
petition.
6.2
The applicant's petition
lapses for any reason.
6.3
The Applicant's petition
is finalized.
7.
Once
the
time periods
have
commenced
running,
the parties
may
file Answering
and Replying
papers respectively, and any
other
further
affidavits
as
agreed
by
the parties
or allowed
by
this
Court,
to allow
the
matter
to be
considered and specifically
the question of costs.
8.
The costs of this application,
including
the
Sheriff's costs incurred
as a
result of
the
cancellation
of
the
eviction
that
was
taking
place
when
this
application
was launched,
are reserved.
"
[18]
The respondents in the answering affidavit deposed to by their
attorney amongst others, attack urgency as follows:
"
6. Whilst I admit that is the intention of the
respondents to evict the Applicant at the earliest possible
convenience, I note that the applicant's founding papers deliberately
withhold certain facts from this Honourable Court, presumably
in an
attempt to bamboozle the Court into thinking that the matter is
urgent.
7.
This applicant is not urgent for several reasons.
8.
Firstly, the Applicant has been aware of the
order of De Vos AJ (and all its terms) since 19 August
2016 when the
order was made by agreement between the parties yet has elected to do
nothing about the alleged need to amend the
order for over five
months. He now claims that he should be afforded access to the urgent
court to seek a variation of the order
that the Respondents should be
prejudiced by only being afforded just over a day within which to
deal with the averments leveled
against them when they would normally
be afforded fifteen court days, plus the time within which to oppose
an application in the
ordinary course.
9.
The question of the possible amendment of
the order is not a new one. On 3 October 2016 the Applicant's
attorney dispatched an email to me in which he noted as follows:
"My
instructions to Counsel at the date of hearing of the urgent
application that the stay of the eviction is subject to the
finalization of both applications and not merely the eviction as
such."
[19]
Counsel for the applicant was at pains in substantiating the basis
for urgency. He heavily sought to rely on the order of 7
October 2016
quoted in paragraph [17] above contending that paragraph [6] thereof
read with the relief sought as quoted in paragraph
[14] of this
judgment speak to the appeal against the dismissal of the application
for rescission of judgment.
[20]
To come to the conclusion as counsel for the applicant suggested, one
would have to ignore first, the events after the granting
of the
order by De Vos J on 19 August 2016. Long before the dismissal on 20
January 2017 by the SCA of the petition to appeal against
the
eviction order, the applicant knew that the respondents rejected the
notion that the appeal against the dismissal of the rescission
of
default judgment was the subject of the order of 19 August 2016 and
or 7 October 2016. The communications referred to respectively
in
paragraphs [15] and [16] of this judgment made it clear or
should have made it clear to the applicant that the pending
appeal
against dismissal of the application for rescission of judgment did
not suspend any of the respondents' rights to issue
and execute a
writ of ejectment.
[21]
In fact, paragraph 5 of the order of 7 October 2016 quoted in
paragraph [17] above makes it clear how each party needed to
approach
the order of 19 August 2016 quoted in paragraph [14] above. One, the
order of 7 October 2016 did not impact on the order
of 19 August
2016. Two, the order of 19 August 2016 was to remain of full force
and effect. Lastly, the parties' rights to seek
a suspension,
variation or rescission of De Vos J's order remained unaltered. In
other words, as from 7 October 2016 the applicant
was at liberty to
approach the court and ensure that the default judgment is not acted
upon by issuing another ejectment order.
Put differently, the
applicant knew as early as 19 August 2016 or at least on 7 October
2016 that the respondents would be entitled
to proceed with the
ejectment, should the petition against the eviction order be
unsuccessful. The applicant did not have to wait
for the outcome of
his petition to the SCA regarding the eviction order before he seeks
suspension or variation as he now seeks
to do pending his condonation
application in the appeal against dismissal of the application for
rescission.
[22]
The attempt to find a case for interdict against the Sheriff
from effecting any steps in the eviction of the applicant
and all
persons holding under him from the premises situated at Portion 457
of Portion 57 of the Farm Zwavelpoort, Gauteng Province
based on
paragraph 6 of the order of 7 October 2016 quoted in paragraph [17]
above, has no basis. Paragraph 6 deals with
the stay of filling
of any affidavit pending finalization of the eviction appeal or
petition thereof to the SCA. The applicant
did not approach this
court on the basis that he wants to file 'further affidavit in this
matter' referring to the petition to
appeal against the eviction
order as contemplated in paragraph 6 of the order of 7 October 2016.
[23]
That being so, considering also paragraph 5 of the order quoted in
paragraph [17] above, the applicant delayed in bringing
or pursuing
the application he has now launched on 7 February 2017. Put
differently, urgency is self-created. These are the reasons
for the
order made on 15 February 2017 quoted in paragraph [1] of this
judgment.
_________________________
M
F LEGODI
JUDGE
OF THE HIGH COURT