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[2017] ZAFSHC 138
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Mosai and Another v Masike and Another (A80/2017) [2017] ZAFSHC 138 (24 August 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
Appeal
number: A80/2017
In
the Appeal between:
SEPHAPHO
JACOB MOSAI
1
st
Appellant
MOIPONE
JULIA MOSAI
2
nd
Appellant
and
MUHAMMED
M M
MASIKE
1
st
Respondent
DURAH
MASEGO
MASIKE
2
nd
Respondent
CORAM:
DAFFUE, J
et
VAN
SCHALKWYK, AJ
HEARD
ON:
31 JULY 2017
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
24 AUGUST 2017
I.
INTRODUCTION:
[1]
The focal point in this appeal is the manner in which two pensioners
and previously registered owners of certain immovable property
in
Kroonstad have been evicted from such property by order of the
magistrate in Kroonstad in their absence and his failure to rescind
the judgment thereafter.
II.
THE PARTIES:
[2]
The appellants are Sephapho Jacob Mosai and Moipone Julia Mosia of
[...] T. S., Kroonstad (“the property”).
The
appellants’ identity numbers are [5...] and [5...] respectively
which means that they are now 66 and 60 years old respectively.
At all relevant time appellants were represented by Rampai Attorneys
in
Bloemfontein
who instructed Majavu Inc of Kroonstad as the local attorneys during
the Magistrates’ Court proceedings.
Mr Rampai still acts
as attorney for the appellants in the High Court. Adv Khokho,
who argued the rescission application
on behalf of the appellants in
the Magistrates’ Court in Kroonstad, again appeared on their
behalf before us.
[3]
The respondents are Muhammed Mosiuwa Muhajid Masike and Durah Masego
Masike, married in community of property, the current registered
owners of the property. Mr Day, an attorney of Kroonstad,
appeared on behalf of the respondents in the Magistrates’
Court
proceedings, but Adv P C Ploos Van Amstel argued the matter on behalf
of the respondents before us. In order to avoid
confusion I
shall refer to the parties as cited in this appeal.
III.
MATERIAL HISTORY:
[4]
It appears from the papers that the following are common cause,
unless the contrary is indicated.
[5]
The appellants were the registered owners of the property.
[6]
Ex facie
respondents’
application for eviction a deed of sale was entered into between
appellants and respondents on 18 August 2010
and about two years
later,
i.e.
on 31 May 2012, registration of transfer was effected in the names of
respondents. Reference is made to these facts in the
affidavit
deposed to by first respondent in the eviction application and
although the deed of sale and deed of transfer were apparently
attached to his affidavit, these documents do not form part of the
record before us. It is therefore not possible to consider
the
veracity of the information contained therein. However for the
reasons set out
infra
,
there is no reason not to accept that respondents are at present the
registered owners of the property.
[7]
It must be emphasized that although appellants admitted the written
documents relied upon by respondents in the eviction application
–
the deed of sale and deed of transfer - they denied the
legality thereof and claimed that the deed of sale was entered
into
fraudulently. I shall deal with this issue again
infra
when I evaluate the evidence.
[8]
Appellants were provided with a letter of demand in accordance with
s
14
of the
Consumer Protection Act, 68 of 2008
in terms whereof they
were requested to vacate the property before 8 May 2015.
Appellants tried to obtain the services of
legal representatives and
even went so far to contact the University of the Free State’s
Law Clinic as well as the Law Society
of the Free State, but to no
avail.
[9]
During 2015 an application was issued on behalf of respondents out of
the Kroonstad Magistrates’ Court, seeking appellants’
eviction from the property. It was
inter
alia
alleged that appellants were unlawful occupiers in terms of the
Prevention of Illegal Eviction from and Unlawful Occupation of
Land
Act, 19 of 1998 (“PIE”) and that they were not occupiers
in terms of the
Extension of Security of Tenure Act, 1997
. The
Moqhaka municipality within whose jurisdiction the property falls,
was not cited as a party to the application and it
also does not
appear from the record whether the documents were served on the
Moqhaka municipality and/or whether it filed a report
as provided for
in PIE. The respondents’ notice of motion does not form
part of the record of proceedings before us.
[10]
It is also apparent from the record of proceedings that no order in
terms of
s 4(2)
of PIE was issued by the court
a
quo.
However,
the appellants received sufficient opportunity to oppose the
application and it was even postponed to allow them to approach
the
High Court to which I shall refer
infra.
[11]
As mentioned, appellants opposed the application for eviction and as
indicated
supra
,
based their defence upon the fact that the deed of sale was
fraudulently entered into. According to first appellant he and
first respondent were friends for a long time and when he started
having financial difficulties, Absa threatened to repossess their
house. He approach first respondent for financial assistance
who was prepared to grant him a loan. First appellant
therefore
believed that the document signed by them was in respect of a loan
obtained, and certainly not a deed of sale.
[12]
The matter was not proceeded with in the Magistrates’ Court,
but kept in abeyance pending an application by appellants
to the High
Court for the setting aside of the deed of sale and deed of transfer
pertaining to the property. The parties
agreed to postpone the
eviction application to 12 April 2016 pending finalization of the
High Court proceedings. Such application
was brought in
November 2015, but withdrawn in February 2016.
[13]
The contents of the following letter by Naude Thompson attorneys
(reference Mr Day) dated 1 April 2016 is important for the
consideration of the appeal and it is therefore quoted
verbatim
:
“
We
refer to the above-mentioned matter.
We
confirm that the application was
postponed
to 12 April 2016 to monitor
the progress of the High Court Application, which application was
withdrawn as stipulated in your letter dated 2 February 2016.
Kindly
provide is with two suitable dates
as to place the Magistrate’s Court matter down accordingly.
Kindly
also inform us whether your clients dispense with any further
notifications as stipulated in
Section 4(2)
of Act 19 of 1998,
once
a date for the hearing of the proceedings are awarded
.”
Appellants’
attorney, Mr Rampai, did not respond to this letter before the 12
April 2016, but only a few days thereafter.
[14]
On 12 April 2016 Mr Day on behalf of the respondents appeared before
the magistrate in Kroonstad, apparently handed in his
letter of 1
April 2016 and contrary to the agreement between the parties and the
contents of his letter proceeded to request the
eviction of
appellants in accordance with the notice of motion. An eviction
order was granted as he requested.
[15]
An application for rescission of judgment was eventually issued on
behalf of appellants which was opposed. The rescission
application was dismissed with costs on 4 November 2016. I
shall deal with the reasons for judgment
infra
.
[16]
Hereafter and after some delay due to ineptness of the legal
representatives of the appellants a notice of appeal was eventually
filed and the record of appeal submitted where after a date of appeal
was provided by the registrar of this court.
IV.
JUDGMENT OF THE COURT A QUO:
[17]
The court
a
quo
inter
alia
made
the following remarks in its judgment of 4 November 2016 which I
quote
verbatim
:
1.
Ad
para 3.6.1:
“
In
the papers the contention is that the date on which the order was
obtained was
not
agreed date of hearing.
This
fact is conceded by the Respondent
……On
the court date, Respondent’s attorney went to court and
obtained and eviction order by default citing non-appearance
and
non-communication by the Applicants and their attorney.”
2.
Ad
para 3.6.2:
“…
..The
question that arises is what should the Applicant
(it
should read “Respondent”)
have
done in the absence of the Applicants and his attorney on the 12/04
with no communication and most importantly the reason for
which the
case was remanded had fallen away (High Court application). There
are many answers to this question. What
seem to make sense is
that the Applicant or his attorney might have forgot about the court
date or were less concerned.”
1.
Ad
para 3.7.2:
“
What
remains clear is the fact that the property in question is now
registered in the name of the Respondents. There could
be
arguments whether such registration was just or otherwise. It
has also been accepted that such a question cannot be answered
by the
Magistrate Court.”
2.
Ad
para 3.7.7:
“
Given
the circumstances outlined above, I’m not convinced that the
Applicants are likely to convince a court that the eviction
order was
erroneously granted. This is because Respondents have a clear
right over the property and have not authorised Applicants
to
occupy.”
3.
Ad
para 3.7.8:
“
Evidence
shows that Applicants did not attend court on 12/04/16 and judgement
was obtained. Applicant’s explanation
for being in
default is flimsy. It can be attributed to the negligence on
the part of the Applicants or the attorney.
The
fact that the case was not for hearing can never be an excuse to stay
away from court
and worse; not follow up until you catch a wakeup call after the
fact.”
4.
Ad
para 4:
“
I
accordingly find that Applicants have failed in showing that there
exists good cause or good reason warranting rescission of eviction
order herein….. I also find that Applicants have failed to
show that there is substantial defence to Application for eviction.”
(emphasis
added)
V.
GROUNDS OF APPEAL:
[18]
The appellants rely on five grounds of appeal, but for purposes of
adjudication of this appeal it is necessary to quote the
first two
grounds only.
“
1.
The Learned Magistrate erred in finding that the eviction order was
properly and justifiably obtained. The learned Magistrate
ought
to find that the manner in which the default judgment was obtained
was irregular.
2.
The Honourable Magistrate misdirected himself in finding that the
Applicants failed to satisfied the requirements
for the granting of
rescission of default judgment.”
VI.
NON-COMPLIANCE:
[19]
The appeal record is in shambles which made it extremely difficult to
adjudicate the appeal. Documents that should have
been
contained in the record are absent and documents that should not have
been included such as the transcript of the arguments
in the court
a
quo
-
in total 173 pages - caused the record to be unnecessary voluminous.
[20]
As mentioned, the notice of appeal was filed late. Clearly the
attorney did not know what to do insofar as he initially
tried to
file the notice of appeal at the High Court instead of the
Magistrates’ Court. The allegation that it took
time for
the transcribers to prepare the record is without substance. It
was unnecessary for the oral arguments in the court
a
quo
to
be typed. The record of appeal consisting of the relevant
documentation could have been prepared within a few days.
[21]
Ex facie
the
record of appeal security was not given by appellants as provided for
in rule 51(4) of the Magistrates’ Courts Rules.
The point
was not raised on behalf of respondents, but by the court, whereupon
appellants’ counsel provided us with proof
that an amount of
R1 000.00 was paid in at the Magistrates’ Court, Kroonstad
as security for respondents’ costs.
Mr Ploos van
Amstel did not submit that the appeal was not properly noted and in
view of the outcome to which we arrive herein,
any non-compliance
should be and is hereby condoned. However, this shall not be
seen as a precedent and appellants’
legal representatives must
be fully aware that a similar non-compliance may not be condoned
again. In similar vein, no power
of attorney was filed as
provided for in rule 7(2) of the Uniform Rules of Court. Again,
the issue was not raised by Mr Ploos
van Amstel, but by the court.
We are satisfied that both Messrs Rampai and Khoko appeared for
appellants in the court
a
quo
and
have no reason to doubt that they were duly authorised to act in the
High Court. Fact of the matter is that the registrar
allowed
the appeal to be set down notwithstanding non-compliance with the
provisions of rule 7(2).
[22]
Appellants filed an application for condonation for late filing of
the notice of appeal. This application is not formally
opposed,
but Mr Ploos Van Amstel submitted that appellants should bear the
costs of the application and that those costs should
not form part of
the costs of the appeal. Although I need to express my
dissatisfaction with the manner in which appellants’
attorney
executed his duties, it is in the interest of justice that
condonation be granted, bearing in mind the merits of the appeal
which I shall consider
infra
.
[23]
Therefore condonation should be granted for the late filing of the
notice of appeal.
VII.
LEGISLATION AND RELEVANT AUTHORITIES:
[24]
The relevant part of
s 36
of the
Magistrates’ Courts Act, 32 of
1944
reads as follows:
“
(1)
The court may, upon application by any person affected thereby, or,
in cases falling under paragraph (c),
suo
motu
-
(a)
rescind
or vary any judgment granted by it in the absence of the person
against whom that judgment was granted;
(b)
…
(c)
…
(d)
…”
[25]
Rule 42 of the Uniform Rules of Court dealing with variation and
rescission of orders in the High Court provides as follows:
“
1.
The court may, in addition to any other powers it may have
mero
motu
or
upon the application of any party affected, rescind or vary:
(a)
An
order or judgment
erroneously
sought
or
erroneously
granted
in the absence of any party affected thereby.
(b)
…
.
(c)
…
.”
(emphasis
added)
[26]
It should immediately be clear that the words
“
erroneously
sought”
and
“
erroneously
granted”
contained
in rule 42 do not appear in s 36. No doubt rule 42 provides for
specific instances, but also allows the High Court
to make use of its
inherent powers such as to set aside judgments in accordance with the
provisions of the common law. The
Magistrates’ Court,
being a creature of statute, does not have such inherent powers.
In my view s 36(1)(a) provides
for much more leniency towards an
applicant than rule 42(1)(a). In the Magistrates’ Court
any judgment granted in the
absence
of
any
person against whom the judgment was granted may be rescinded or
varied, subject to the other requirements stipulated in rule 49
of
the Magistrates’ Courts Rules. The Magistrates’
Courts’ powers are therefore not limited to judgments
erroneously sought or erroneously granted, but obviously include the
power to set aside any judgments granted in the absence of
the
affected party.
[27]
It appears from respondents’ version in the eviction
application that the deed of sale provided for a right of pre-emption
to appellants. It is not appellants’ case that a deed of
sale was entered into and consequently they do not rely on
a right of
pre-emption. As mentioned, the deed of sale does not form part
of the record of appeal and it is impossible to
speculate about the
right of pre-emption and/or the allegation that appellants failed to
exercise this right. However, it
is instructive to refer to a
very recent judgment of the Constitutional Court,
i.e.
Mokone v
Tassos Properties CC
and
Another
and
Mokone v
Blue Canyon Properties CC, case number CCT113/16 [201] ZACC25,
delivered on 24 July 2017 where the majority found that the
formalities of the Alienation of Land Act apply to the alienation of
land, but that the right of pre-emption does not constitute an
alienation of land. The right of pre-emption in that case
was
not invalid for lack of signature by Ms Mokone and consequently the
well-known judgment of
Hirschowitz
v Moolman
was overruled. The Constitutional Court held that s 173 of the
Constitution empowered that court to hold the appeal relating
to Ms
Mokone’s eviction in abeyance pending the determination of the
issues left pending before the High Court in the right
of pre-emption
dispute.
[28]
Section 4(2) of PIE stipulates the procedure to be followed by a
registered owner of land who wants to enforce the eviction
of an
unlawful occupier. That procedure has not been undertaken
in
casu
. Instead, in their notice of demand respondents relied
on
s 14
of the
Consumer Protection Act, 68 of 2008
which is totally
irrelevant for purposes of the eviction of an unlawful occupier.
The particular section deals with consumer
agreements for a fixed
term and aspects pertaining to the expiry and renewal of such fixed
term agreements. It is irrelevant
in casu
.
[29]
Section 4(7)
of PIE stipulates that if an unlawful occupier has
occupied the land in question for more than six months at the time
when the
proceedings are initiated, a court may grant an order of
eviction if it is of the opinion that it is just and equitable to do
so,
after considering all the relevant circumstances, including
whether land has been made available or can reasonably be made
available
by a municipality, an organ of state, or another land owner
for the relocation of the unlawful occupier and including the rights
and needs of the elderly, children, disabled persons and households
headed by women.
[30]
Section 4(8)
of PIE provides that if the court is satisfied that all
the requirements of
s 4
have been complied with and that no valid
defence has been raised by the unlawful occupier, it must grant an
order for his/her
eviction and determine a just and equitable date on
which the unlawful occupier must vacate the land. The
respondents became
the registered owners of the property and had the
necessary
locus
standi
to apply for the eviction of appellants, once the procedures and
formalities of PIE had been met. See
Jackpersad
NO and Others v Mitha and Others
2008 (4) SA 522
(D &CLD)
at
528H with reference to
Ndlovu
v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA)
.
[31]
The Magistrates’ Court does not have jurisdiction to adjudicate
upon the validity of the deed of sale or the deed of
transfer
in
casu
or
even to raise questions as to whether these documents are defective
or not. Only the High Court may cancel a deed of transfer
in
accordance with the provisions of
s 6
(1) of the
Deeds Registries
Act, 47 of 1937
, read with
s 102
thereof and in such event the deed
under which the land or real right in land was held immediately prior
to the registration of
the deed which is cancelled, shall be
revived. See
s 6(2).
Appellants were on the right track
to approach the High Court whilst the Magistrates’ Court
proceedings were kept in
abeyance. It is uncertain why the High
Court application was withdrawn, but in any event, the High Court is
not
functus
officio
and nothing would prevent the appellants to approach the High Court
again for appropriate relief.
[32]
A party who snatches a judgment or order should not complain
afterwards if the order is rescinded. More than a century
ago
Buchanan J expressed himself in no uncertain terms in
Frier
v Vos
1913
CPD 465
in respect of a judgment obtained by default and I quote the
following from p 467:
“
He
(the
attorney)
was
not aware of the withdrawal of the power when the demand for plea was
served upon him, and judgment was taken without any notice
being
given to the respondent. … The obstacle to taking
further proceedings - that is, the sequestration - being removed,
the
application for reopening the case now comes on for hearing. …
The Court under Rule No. 319, may then consider
the circumstances of
the case, and set aside the judgment obtained by the plaintiff by
default, upon such terms as to costs and
otherwise as it may deem
expedient. In this case, the respondent, who is not an
attorney, has claimed for his work and labour
something like £170,
a very much larger sum than that charged by the attorneys who did the
work. I use the expression
advisedly when I say that in this
case
the
judgment seems to me to have been snatched
,
and for that reason the case ought to be further investigated.
Yet, while of that opinion, I think that certain terms must
be
fulfilled by the applicant before the judgment should be set aside.
The order of the Court will be that the judgment by
default be set
aside, the applicant to pay, as for wasted costs in obtaining the
judgment the sum of £10 … On
making these
payments, leave will be given to the applicant to reopen and to
defend the case, plea to be filed by the 15
th
July.
[33]
In
Pitso v Sanlam Home Loans Guarantee 2007 JDR 0499 (D)
Ms
Pitso brought an application for rescission of a default judgment and
setting aside of a sale in execution. She filed a
notice of
appearance to defend the action against her out of time, but before
judgment was granted by the registrar. Notwithstanding
submissions on behalf of the plaintiff (first respondent in the
application) that serious doubt existed as to whether Ms Pitso
has a
defence, and that the court should not exercise its discretion in the
applicant’s favour, the court continued as follows
at para 13:
“
These
submissions are all very well, but as Ms Leonard for the Applicant
pointed out, the First Respondents own conduct is subject
to
scrutiny. There is no proper explanation as to why the First
Respondent or is attorney did not withdraw the application
for
default judgment from the Registrar once the notice of intention to
defend had been delivered. In my judgment there is
a
fundamental and clear duty on a litigant to take steps to prevent the
Court from being misled, or from labouring under a misapprehension.
That duty is also owed to the Registrar when she is about her duties
under
Rule 31
(1). The First Respondent failed in that duty.
The First Respondent thereafter went ahead within an attachment and
sale in execution on a palpably erroneous judgment. In my view
the
First
Respondent snatched at a judgment, and its behaviour bordered on the
improper. I cannot allow the judgment to stand
in the
circumstances.”
(emphasis
added)
[34]
In
Johannesburg Roads Agency (Pty) Ltd v Midnight Moon Trading 105
(Pty) Ltd
2013 JDR 0739 (GNP) the applicant in an application for
the setting aside of a warrant of execution alleged that the
respondent
snatched the judgment amidst an agreement that the matter
be held in abeyance pending investigations of the matter. The
following
remarks are apposite:
“
14.
It is without doubt that it would take an entity like the Applicant
quite a significant number of days to investigate
a claim of this
magnitude. Therefore, the First Respondent by taking default
judgment notwithstanding an undertaking from
the Applicant that it
sought to investigate and would revert to the First Respondent, leave
a bad taste.
15.
Therefore, I accept the Applicant’s version that it did not
wilfully and deliberately enter notice of
intention to defend.
I am therefore satisfied that the Applicant advance sufficient
reasons for his failure to enter notice
of intention to defend.”
[35]
Cilliers
et
al
,
Herbstein & Van Winsen:
The
Civil Practice of the High Courts of South Africa,
5
th
ed, vol 1 at p 717 deal with rescission of judgments by default with
specific reference to
Frier
v Vos
and the snatching of a judgment. The authors, relying on
Scott
v Trustee, Insolvent Estate Comerma
1938 WLD 219
at 316
are
of the view that a court should be
“
slow
to refuse a defendant leave where he has never acquiesced in the
plaintiff’s claim but actually persisted in disputing
it.”
VIII.
EVALUATION OF THE EVIDENCE:
[36]
It may be argued that insofar as appellants failed to obtain an order
from the High Court pertaining to the invalidity of the
deed of sale
and subsequent deed of transfer, they have no defence at all in the
eviction application and that the court
a quo
was entitled to
dismiss the application for rescission. No doubt, an unlawful
occupier cannot claim to remain indefinitely
on the premises of the
registered owner. Eventually, a day will come when such
unlawful occupier will have to vacate.
[37]
The
deed of sale relied upon by respondents entitled appellants to
possession of the property for a period of two years until 20
August
2012 without having to pay rent. Furthermore appellants
obtained a right of first refusal after expiration of the
aforesaid
two year period. It is respondents’ case that appellants
waived such right and they became entitled to apply
for eviction.
Appellants do not rely on any entitlement in that regard insofar as
they denied having signed a deed of sale.
They believed that
they were requested to sign a loan agreement and I quote from
paragraph 7.6 of the answering affidavit in the
eviction
application:
“
On
arrival myself and second Respondent were given the contract and
without any explanation or been given an opportunity to ask
questions
or even peruse it, we were hurriedly ordered to sign the contract.”
Appellants’
right to approach the High Court to ask for the declaration of
invalidity pertaining to the deed of sale and subsequent
deed of
transfer remains open. If they succeed in the High Court, the
respondents’
locus
standi
to apply for their eviction would obviously fall away. It
cannot be found that appellants, by withdrawing the High Court
application, forfeited the right to approach the High Court again.
They might have received certain advice in this regard
or some other
factor prevented them from proceeding with the application. It
is unnecessary to speculate as to the reasons
for not proceeding with
the High Court application.
[38]
Even if it is accepted that appellants waived their right to approach
the High Court for a declaration of invalidity, it is
doubtful
whether the court
a
quo
properly considered respondents’ eviction application in
accordance with the provisions of PIE and the applicable
authorities.
Apparently no reasoned written judgment was
prepared as an order was made at the request of Mr Day on behalf of
respondents in
the absence of appellants.
[39]
Under the circumstances it has to be accepted that the learned
magistrate did not consider the provisions of
s 4(7)
of PIE at all.
The municipality was not cited as a party and no report of the
municipality was placed before the court
a
quo
.
There is no indication that alternative housing and/or other
accommodation was available to appellants at that stage of
the
proceedings.
[40]
If the matter was properly argued on behalf of appellants and/or if
the learned magistrate was provided with written heads
of argument by
both parties, relying on authorities as is expected in opposed motion
procedure, the magistrate might have come
to a different conclusion,
even on the basis of an acceptance of respondents’ version of
the facts as correct, pertaining
to the date when appellants had to
vacate. Fact of the matter is that the matter was considered as
if it was placed on the
opposed roll for argument of the merits
whilst this was obviously not the case and both Mr Day and the
learned magistrate knew
this. I am satisfied that appellants
have shown good cause for rescission of the judgment by default, but
even if I am wrong
in this regard, there was good reason to rescind
the judgment and the court
a
quo
should
have found as such.
[41]
I find Mr Day’s reply in his letter of 19 April 2016 in
response to the letter of Mr Rampai on behalf of appellants dated
15
April 2016 unacceptable and bordering on being unethical. I
quote:
“
We refer our
letter dated 1 April 2016
(the
one referred to earlier in this judgment)
as
well your reply thereto dated 15 April 2016.
Kindly take note that an
order as prayed for in the Applicants Notice of Motion was granted on
12 April 2016 seeing that neither
the Respondents, nor any
representative was present at Court.”
This
is nothing else than confirmation of the snatching of a judgment in
the absence of the appellants and/or their legal representatives.
The matter was not set down for hearing, but for the arranging of
dates on which the opposed application would be argued.
I find
the attitude of respondents’ attorney deplorable in the
circumstances. Even if he believed that appellants did
not have
a valid defence, he had no right whatsoever to snatch an order.
[42]
Although there was no timeous response from appellants’
attorneys as requested in his letter of 1 April 2016, I would
have
expected Mr Day to try and get hold of either the local correspondent
or Mr Rampai in
Bloemfontein telephonically in
order to establish why they were absent from court. A date for
the hearing of the opposed application
could have been arranged
telephonically and Mr Day could have appeared asking for the matter
to be postponed to such agreed date.
However, Mr Day refused
and/or neglected to take such steps, but preferred to utilize the
opportunity to obtain an unfair advantage
on behalf of his clients.
This cannot be countenanced. As mentioned earlier, the
unfortunate actions taken on the 12
th
April 2016 constitute good reason to rescind the judgment that was
granted that day.
[43]
Appellants merely stated in their application for rescission that
neither they nor their attorney was wilful in not attending
the
proceedings on 12 April 2016 and first appellant continued as
follows:
“
I
was under the impression that the matter will be argued once a date
has been agreed upon by the two legal teams.”
Sadly,
their attorney did not deem it necessary to file an explanatory
affidavit. It is not unusual for courts to penalise
parties for
wrongdoings of their attorneys and not come to their assistance in
the event of the attorneys’ negligence.
I would not be
prepared to assist appellants in different circumstances, but the
material, erroneous and fatal request for eviction
and the consequent
erroneous order cannot be sanctioned.
[44]
Mr Ploos Van Amstel submitted that the appeal should be struck from
the roll due to the manner in which the appeal record had
been
prepared, alternatively that the appeal be dismissed with costs on
the merits. I have given sufficient consideration
to his
arguments which I shall not repeat, bearing in mind the manner in
which I have approached the appeal. I would have
approached the
matter differently, if it was not for the manner in which default
judgment was obtained on behalf of respondents.
I accept that
there was already a long delay in obtaining finality in the eviction
application and that appellants might be accused
of using delaying
tactics in order to remain in possession of the property, but
whatever accusations may be made towards them,
the inappropriate
action of respondents’ attorney overrides all such actions
and/or inaction.
IX.
CONCLUSION:
[45]
I am satisfied that the appeal should succeed. I made remarks
pertaining to the record
supra
and for that reason appellant should not be entitled to all their
costs. As a mark of displeasure I intend to order respondents
to pay only 50% of appellants’ costs of the appeal.
X.
ORDERS:
[46]
Wherefore the following orders are issued:
1.
Condonation
is granted for the late filing of the notice of appeal; the parties
to pay their own costs in respect of this application.
2.
The appeal
succeeds.
3.
Respondents
are ordered to pay 50% (fifty percent) of appellants’ costs of
the appeal.
4.
The
judgment of the court
a
quo
dated
4 November 2016 is set aside and the order of the court
a
quo
is
substituted with the following order:
“
Applicants’
application for rescission of the eviction order granted against them
in favour of respondents on 12 April 2016
is granted with costs.”
____________
JP
DAFFUE, J
I
concur
______________________
OJ
VAN SCHALKWYK, AJ
On
behalf of appellants: Adv
ND Khokho
Instructed
by:
Rampai Attorneys
Bloemfontein
On
behalf of respondents: Adv PC Ploos van
Amstel
Instructed
by:
Symington & De Kok
Bloemfontein