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[2016] ZAGPPHC 39
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Geldenhuys v Segage and Others (30172/2015) [2016] ZAGPPHC 39 (29 January 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER 30172/2015
29/1/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
PIETER
MARTHINUS
GELDENHUYS APPLICANT
And
PRUDENCE
SEGAGE 1
ST
RESPONDENT
THE
OCCUPIERS 2
ND
RESPONDENT
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY 3
RD
RESPONDENT
JUDGMENT
MAVUNDLA.
J,
[1]
This is an opposed application to have the first and second
respondent's application for leave to appeal served on the 6 October
2015, declared as an irregular proceeding and set aside in terms of
rule 30(1)(A) with a costs order.
[2]
On the 6 October 2015 the first and second respondents served their
application for leave to appeal the eviction order which
was granted
on the 4 September 2015. The first and second respondents had filed
their notice of intention to oppose the eviction
application,
however, did not file their opposing affidavits, which resulted in
the eviction order being granted on the 4 September
2015.
[3]
The applicant subsequently served a notice of irregular proceedings
in terms of Rule 30 on the 2 November 2015, giving the first
and
second respondents notice to remove the cause of complaint on the
grounds that:
3.1. The application for
leave to appeal constitutes an irregular step within the meaning of
Rule 30 as the first and second respondents
ought to have brought an
application for rescission of judgment.
3.2. The first and second
respondents have not taken any step to remove the irregular
proceeding nor have taken any further step
as contemplated in terms
of the Rules of this Court.
[4]
In opposing the application in terms of rule 30(1) (A), it was
contended on behalf of the respondents that the Court
a quo
erred
in that when it granted the eviction order:
4.1. it did not give
special consideration to the fact that the second respondent is, in
fact, the 3 children of the first applicant.
The latter is a woman, a
widow and the household head;
4.2. it did not determine
with certainty the specific date on which the respondents must be
evicted, as required by section 4(8)
of the PIE Act.
[5]
It needs mentioning that in the relevant notice for leave to appeal
the grounds raised are in essence the very grounds raised
in the
submission why the applicant's application should be dismissed.
[6]
On behalf of the applicant it was submitted,
inter alia,
that,
the application should succeed because the first and second
respondents should have brought an application to rescind the
judgment and order they seek leave to appeal against. Further, the
first and second respondent, save to file a notice of intention
to
oppose, failed to file their opposing affidavits in the eviction
application. It was further contended on behalf of the applicant
that
the respondents cannot therefore appeal the judgment in the
circumstances mentioned herein above.
[7]
The issue to be decided
in casu,
is whether the eviction
granted against the respondents is final and appealable although
granted in their absence. It is common
cause that the respondents
save for filing a notice of intention to oppose the eviction
application, failed to file their opposing
affidavit. It is not as if
the judgment was granted against them without them being aware of the
application.
[8]
In the matter of
Charlton
v Parliament of RSA
[1]
the Supreme Court of
Appeal held that:
"[17] In term s20
(1) of the Supreme Court Act 59 of 1959, only 'judgments' and
'orders' (and not merely 'rulings') are appealable.
In
Zweni
v Minister of Law and Orders
[2]
,
the
test for what is meant by a 'judgment' or 'order' was expressed as
follows:
"first, the decision
must be final in effect and not susceptible of alteration by the
Court of first instance; second, it must
de definitive of the rights
of the parties; and third it must have the effect of disposing of at
least a substantial portion of
the relief claimed in the main
proceedings."
[8]
In the Civil Procedure in the Superior Court by Harms
[3]
,
the learned author stated that:
"A judgment or
order'' is generally speaking, a decision with three attributes:
· It must be final
in effect and not susceptible of alterations by the Court of first
instance.
· It must be
definitive of the rights of at least a substantial portion of the
relief claimed and distinct relief.
· It must have the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings. This
requires a proper
identification of the 'main proceedings... A decision that does not
have these attributes is a "ruling"
is not appealable. A
ruling, although couched in the form of an order, is usually a
direction as to the manner in which the case
should proceed."
[8]
In the matter of
Pitelli
v Everton Gardens Projects
[4]
the Supreme Court
of Appeal held that:
"[27] An order is
not final for the purposes of an appeal merely because it takes
effect, unless it is set aside. It is final
when the proceedings the
court of first instance is complete and the court is not capable of
revisiting the order. That leads one
ineluctably to the conclusion
that an order that is taken in the absence of a party is ordinarily
not appealable.... It is not
appealable because such an order is
capable of being rescinded by the court that granted it, and it is
thus not final in its effect."
[9]
Section 16(1)(a)(i)
of the
Superior Courts Act 10 of 2013
provides as
follows:
"...an appeal
against any decision of a Division as a court of first instance lies
upon leave having been granted-
(i) If the court
consisted of a single judge, either to the Supreme Court of Appeal or
to the full court of that Division on direction
issued in terms of
section 17(6).
[10]
It is trite that in considering an application for leave to appeal,
the court of first instance has to consider whether there
are
reasonable prospects of success in the appeal. This Court need not
decide this issue. All this Court need to decide is whether
the
eviction order is appealable, although granted in the absence of the
respondent.
[11]
It is trite that a judgment granted in the absence of a party, can be
set aside in terms of
rule 31(2)
(b),
42
(1) or common law. Under
rule
31(2)(b)
the affected person on application must show good cause why
the judgment must be rescinded. Good cause or sufficient cause
entails
that the affected person must first and foremost giving a
satisfactory and reasonable explanation of his default. Secondly he
must
show that he has a
bona
fide
defence
to the claim and that he is
bona
fide
in
opposing the action and not merely delaying the action. In this
regard vide Mutebwa v Mutebwa and Another
[5]
;
Sanderson
Techntool
(Pty) Ltd v lntermenua (Pty) Ltd
[6]
; Vilvanathan v
Louw
[7]
Both requirements must
coexist with each other and absent the other the application for
rescission is doomed to fail; vide Harris
v ASSA Bank Ltd t/a
Volkskas
[8]
.
[12]
Under
rule 42(1)
''The court may, in addition, to any other powers it
may have,
mero
motu
or upon application of any party
affected, rescind or vary:
(a) An order or judgment
erroneously or erroneously granted in the absence of any party
affected there by;
(b) an order or judgment
in which there is an ambiguity, or a patent error or omission, but
only to the extent of such ambiguity,
or a patent error or omission;
(c) an order or judgment
granted as the result of a mistake common to the parties.
[13]
In casu
rule 42(1)
is not available to the respondents the
eviction application was not erroneously sought nor erroneously
granted, neither is there
any suggestion of any patent mistake common
to the parties.The respondents simply did not file opposing papers.
The applicant was,
in my view, at large to approach the court for the
eviction order.
[14]
Under common law the Court has discretion to grant rescission of
judgment where sufficient or good cause has been shown. By
sufficient
cause is meant the applicant must give an acceptable explanation of
his default and this must coexists with evidence
of reasonable
prospects of success on the merits. If one of the essentials is
lacking then the court will not come to his assistance;
Harris
v ABSA Bank Ltd t/a Volkskas
[9]
.
I have
already stated herein above that the absence of the respondents was
not explained and therefore, the respondents could not
resort to
common law to bring an application for rescission.
[15]
In the matter of
Arendse
v Arendse and Others
[10]
the Court held,
inter
alia,
that
a court considering eviction, need not consider who has the right to
the property, but is obliged in terms of PIE to consider
all relevant
facts and decide whether it is just and equitable to grant eviction
order. Towards that end the court must consider
the rights and
interest of the children, and whether there would be alternative
accommodation. The Court must consider all the
circumstances and
whether it is just and equitable to order eviction. The Court must
also pronounce a specific date on which the
eviction order must be
carried out in the event the unlawful occupiers did not comply
with the court order; vide City of Johannesburg
v Changing Tides
74
[11]
[16]
In casu,
the order provided that the respondents must be
evicted from the property within twenty (20) calendar days from the
date of service
of the order upon the first and second respondents.
In my view, the order as couched, is, with respect, vague and does
not inform
the respondents by which date must they be evicted. Where
it can be shown that the Court failed to apply its mind as demanded
by
the PIE Act, in circumstance where the order is final, such order
can only be set aside through the appeal process because then
the
court granting such order would have misdirected itself. The failure
of the Court in complying with the prescripts of PIE Act,
in casu,
does not form a basis for the defence against to the merits of the
eviction application. The defence to the eviction application
must
have been inherently available prior to the consideration of the
application.
In casu,
the non-compliance with PIE Act is, in
my view, an irregularity on the part of the Court
a quo
during
the consideration of the eviction application, which renders the
matter not capable of being corrected through rescission
but only
through an appeal process. Consequently I find that the eviction
order of the Court o
quo
is appealable.
[17]
In the result I find that the notice for application for leave to
appeal filed by the respondents on the October 2015 is not
an
irregular step. I further find that the applicant's application in
terms of Rule 30(1)(A) application to have the first and
second
respondent's application for leave to appeal declared an irregular
proceedings must fail and be dismissed with costs.
[18]
In the premises it is hereby ordered that the application in terms of
Rule 30(1)(A) is dismissed with costs on opposed party
and party
scale.
_________________________
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE: 14/01
I
2016
DATE
OF JUDGMENT: 29
I
01/2016
APPICANT'
S ADV: ADV J. JANSE VAN VUUREN
INSTRUCTED
BY: STEYN STEYN LE ROUX INCORPORATED
RESPONDENTS'
ADV: ADV. L. DU PREEZ
INSTRUCTED
BY: SDU PREEZS ATTORNEYS
[1]
2012 (1) SA 472
(SCA) at 477E
[2]
1993 (1) SA 523
(A) at 532J-533A.
[3]
C-9 [Issue 54]
[4]
2010 (5) SA 171
(SCA) at 176D
[5]
2001 SA 193
(Tk HC) at 197E- 198C.
[6]
1980 (4) SA 573
(W) at 575H-576A.
[7]
2010 (5) SA 17
(WCC) at 21G-23F.
[8]
2002(3) ALL SA 215 at 217
[9]
2002 (3) ALL SA 215
at 217.
[10]
2013 (3) SA 347
(WCC) vide pars [34]-[38].
[11]
74
2012 (6) SA 294
at 3040-3056, 311F-312D.