About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2016
>>
[2016] ZAECMHC 23
|
|
Mdingi v Eastern Cape Development Corporation (CA & R 50/2014) [2016] ZAECMHC 23 (24 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
NOT
REPORTABLE
CASE
NO. CA & R 50/2014
DATE:
24 MAY 2016
In
the matter between:
LUNGELWA
MDINGI
......................................................................................................
APPELLANT
AND
EASTERN
CAPE DEVELOPMENT
CORPORATION
............................................
RESPONDENT
APPEAL
JUDGMENT
KAHLA
AJ:
1.
The appeal emanates from a refusal by the
Magistrate to rescind a judgment granted against the Appellant.
2.
The main basis of the rescission
application was the Respondents non-compliance with the provisions of
section 4 of Prevention of
Illegal Eviction and Unlawful Eviction and
Unlawful Occupation of Land Act 19 of 1998 (hereinafter referred to
as PIE), which reads
as follows “notwithstanding anything to
the contrary contained in any law or common law the hearing of
proceedings for eviction
of unlawful occupier should be preceded by a
notice, 14 days before the hearing.
3.
The Application was dismissed with costs.
4.
The present appeal is to be decided on a
twofold basis:-
(a)
Should the Magistrate have considered that
the technical non-compliance with the provisions of the Act was
sufficient to warrant
a rescission on the basis of a procedural
defect despite the fact that the Appellant failed to disclose any
defence on the merits,
i.e. where the defence was a formal or legal
defence.
(b)
Whether or not a finding in favour of the
Appellant with regard to the above would have any practical effect on
the outcome of the
case due to inter alia the subsequent events, the
effluxion of time, i.e. whether or not this matter is for all intents
and purposes
purely academic.
5.
The starting point is to accept:-
(a)
The provisions of section 4 regarding
notice prior to the hearing of a matter is pre-emptory.
(b)
The Respondent accordingly is obliged to
comply with the provisions thereof.
(c)
It is common cause that the respondent
failed to do so.
(d)
The Appellant accordingly correctly raised
a statutory defence of non-compliance with section 4 of PIE.
(e)
I would accordingly assume in favour of the
Appellant that the judgment was void ab origine by reason of
non-compliance with section
4 of PIE due to the failure on the part
of the Respondent to obtain an order in terms of section 4 or serve
the notice.
(f)
However one has to have regard to the
peculiar circumstances of this case in order to determine whether or
not rescission ought
to be granted and the matter allowed to follow
the ordinary cause.
6.
In this case it is common cause inter alia:
a)
The Appellant was not personally in
occupation of the premises from around April 2002,
b)
That the Appellant was in arrears on her
papers due to the fact that her husband, who was in factual
occupation failed to pay the
rentals over to the Respondent,
c)
That the Respondent obtained judgment
against her,
d)
That no eviction of the actual occupants
occurred as a result of the judgment,
e)
That in fact a new lease was entered into
between the Respondent and the Appellant’s husband;
f)
That the original lease had nonetheless
expired by the effluxion of time,
g)
That the lease entered into by the
Respondent’s husband was terminated due to his non-compliance
with the terms thereof and
judgement was obtained against him,
h)
There was no challenge to the court order
obtained against him and he in fact vacated the premises,
i)
The appellant did not attempt to renew the
original lease upon the termination thereof, in at best for her April
2005.
j)
The Appellant after a period in excess of 8
years from the date of obtaining the judgment, and despite her
failure to renew the
lease or attempt to do so in the interim brought
an application to rescind the judgment, on the procedural defect
since she had
no defence on the substantive claim.
7.
The court accepts that there was
non-compliance with the provisions of PIE and that the provisions are
pre-emptory and there was
an obligation on the part of the Respondent
to comply with the provision of the Act prior to obtaining judgment.
8.
The
issue is whether or not this would constitute a bona fide defence in
terms of section 49 (3) of the Magistrate’s Court
Act in that
it constitutes a valid and bona fide defence as referred to in
Leo
Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor Stewarts and
Llyods
[1]
.
9.
The case of Leo Manufacturing (supra) where
there was no service of the summons was found to be
void
ab oringine
but despite service being a
pre-emptory prerequisite for the obtaining of judgment the Appeal
nonetheless failed due to the fact
that section 49 (3) nonetheless
required the Appellant to set out the basis of the defence
non-compliance with the requirement
for service was not regarded as
sufficient. The technical defect was not found to constitute a
defence in that case. The requirement
of service of summons was also
pre-emtory so non-compliance with what was technically a statutory
defence was found to be insufficient
to warrant rescission, because
the grounds of the defence had not been set out in the application
for rescission.
10.
The Appellant herein merely stated that
there was no notice or service of the notice upon her. She failed to
state what factors
she would have raised or what her defence would
have been to enable the magistrate to exercise his discretion in
refusing eviction.
She was gainfully employed overseas and her
husband was the head of the household that he occupied with her
children. The respondent
was not paid rental despite them having the
means to do so. Her reasons set out in the rescission application are
far too scant
to constitute a valid bona fide defence.
11.
The Appellant failed to demonstrate how
this nullity or non-compliance adversely impacted upon her and her
family by showing a bona
fide defence and a valid one to stave off a
claim for eviction by a court exercising its discretion in
determining whether or not
to grant eviction despite her failure to
pay rentals. It would not be granted having inter alia to the
following:
(a)
This case however having regard to the
facts present herein is peculiar and rescission is not justifiable
having regard inter alia
to:
(i)
the fact that practically no prejudice
resulted from the judgment to the Appellant’s family members
who were in occupation
of the premises as the Respondent gave her
husband a lease to continue occupying the premises,
(ii)
that her husband was only evicted on the
basis of another application upon his failure to pay rentals in terms
of the second lease
agreement and there was no allegations pertaining
to non-compliance with this formalities prior to his eviction,
(iii)
There was further no renewal of the
Appellant’s initial lease agreement which expired through
effluxion of time, despite her
believing that she was still the
lessee if we accept her version,
(iv)
The Application for rescission was brought
8 years after the original agreement elapsed,
(v)
The appellant had no defence on the merits
and was factually in arrears, the outcome on the merits would not
have changed,
(vi)
The Appellant has not demonstrated how an
eviction order would adversely impact upon her or her family
especially in circumstances
where she was not even personally in
occupation of the premises during the duration of the lease,
(vii)
There is in fact at present no lease
agreement between the parties as the same expired through the
effluxion of time.
(viii)
Furthermore neither the Appellant nor her
family members are presently in occupation of the premises.
12.
A further factor that mitigates against
granting an order in favour of the Appellant is that no practical
effect will be served
by referring the matter back to the court
a
quo
having regard to the fact that:-
a)
The lease has expired;
b)
That neither the appellant nor her family
are in occupation of the premises;
c)
Accordingly no purpose would be served by
rescinding the judgment and referring the matter back to the court a
quo in circumstances
where practically no
lis
exists between the parties; and
d)
Mr Hobbs accordingly correctly argued that
in terms of
Section 16 (2) (a) (i) of
the Superior Court Act
the court is
entitled to dismiss the appeal sought where it will have no practical
effect or result.
i)
Section 16(2)(a)(i) is akin to the now
repealed section 21A of the Supreme Court Act 59/1959.
ii)
Section 21A is premised upon the existence
of an issue subsisting between the parties which require to be
decided.
iii)
The dispute between the parties in this
matter has become academic (see
Western
Cape Education Department & Another v George 1998(3) SA 77 (SCA)
@ 84 E.
iv)
In
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa 2005(1) SA 47(SCA) @ 56 G – I,
the
court held that a case is moot and, therefore, not justiciable if it
no longer presents an existing or live controversy.
v)
The object of Sec 16(2)(A)(i) of the
Superior Court Act and its predecessor, namely, sec 21A(1) of
the Supreme Court Act 59/1959
was enacted mainly to relieve the
courts of hearing issues which had since become academic, which are
not live issues. Courts are
concerned with settlement of concrete
controversies and actual infringements of rights, not to pronounce
upon abstract questions
or merely to advise on differing
contentions ( see
Coin Security
Group(Pty) Ltd v SA National Union for Security Officers & Others
2001(2) SALR p 872@
875 AD
13.
This appeal accordingly further falls to be
dismissed on the basis of section 16 (2) (a) (i) of the Superior
Court Act in that the
decision sought will have no practical effect
or result for the reasons given.
14.
For all the reasons set out above the
Appeal is dismissed. The Respondent however should have been more
vigilant and followed the
proper procedures and guidelines laid down
in PIE to prevent these kind of applications being made, in the first
place.
15.
As a mark of the court’s disapproval
for the shoddy manner in which this matter was initially handled and
its failure to initially
even oppose this Appeal in the exercise of
the court’s discretionary power, no order of costs is made in
favour of the Respondent
in the Appeal despite it being the
successful party.
16.
ORDER
(i)
The Appeal is dismissed; and
(ii)
No order as to costs.
KAHLA
AJ
ACTING
JUDGE OF THE HIGH COURT
I
AGREE:
DAWOOD
J
JUDGE
OF THE HIGH COURT
DATE
HEARD: 21 AUGUST 2015
JUDGMENT
DELIVERED: 24 MAY 2016
FOR
THE APPELLANT: MR HOBBS
APPELLANT
ATTORNEYS: B MAKADE INC
SUITE
7 – IDK BUILDING
92
SUTHERLAND STREET
MTHATHA
FOR
THE RESPONDENT: MR SIKUNGO
J.S
SIKUNGO AND ASS.
SUITE
13 –
MEYERS
BUILDING
55
MADEIRA STREET
[1]
2007
(2) SA 1
(SCA)