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[2016] ZAGPPHC 551
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Mabhena and Another v Greaves Properties CC (A809/2015, 1688/2015) [2016] ZAGPPHC 551 (15 June 2016)
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IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
APPEAL CASE
NO
: A809/2015
COURT
A
QUO
CASE NO
:
1688/2015
In
the matter between:
MABHENA:
MARIA
.......................................................................................................
First
Appellant
MABHENA
:
JOHANNES
.........................................................................................
Second
Appellant
And
GREAVES
PROPERTIES
CC
.............................................................................................
Respondent
JUDGMENT
ADAMS
AJ
:
[1]
.
This is an appeal against the Judgment and the order of the Witbank
Magistrates Court handed down on the 8
th
May 2015. In terms of the Judgment the application by the appellants
for a rescission of the eviction order granted against them
in favour
of the respondent was dismissed with costs. The learned Magistrate
also confirmed the order for the eviction of the appellants
from the
p
roperty known as Farm N…. 3…, Portion 1…..
,
Witbank (‘the property').
[2]
.
On the 8
th
of May 2015 the court a quo had granted an order by default against
the ‘illegal occupant of the property, as the first respondent,
and against ‘all other occupiers’ thereof, as the second
respondent. The first and the second appellants as well as
their
children are the occupiers of the property and have inhabited the
buildings on the property at all material times. The order
was
granted by default under the circumstances set out hereafter.
[3]
.
On the 16
th
of February 2015 the respondent issued out of the court a quo a
notice of motion in terms of the Prevention of Illegal Evictions
from
and Unlawful Occupation of Land Act, Act no 19 of 1998 (‘the
PIE Act’). The aforesaid notice of motion incorporated
an Ex
Parte application in terms of section 4(2) of the PIE Act, to be
heard on the 23
rd
March 2015. On the 23
rd
March 2015 the ex parte Order was in fact granted, and pursuant to
the Order the application was served on the appellants. I interpose
here to note that the procedures followed by the respondent in terms
of the PIE Act, were completely defective and wholly non-compliant
with the provisions of the said Act. In any event, this point was
conceded during argument by Ms Gianni, who appeared on behalf
of the
respondent.
[4]
.
All the same, at some point subsequent to the 23
rd
of March 2015 service of the application came to the attention of the
appellants and on the 15
th
April 2015 their attorney communicated with the attorneys for the
respondent, and advised them that the appellants have instructed
him
to oppose the application for their eviction from the property. On or
about this date a notice of intention to oppose the application
was
delivered on behalf of the appellants.
[5]
.
The attorney for the appellants also arranged with the respondent’s
attorneys that the application which, according to the
notice of
motion was on the motion court roll for the 24
th
April 2015, would be removed from the roll for the aforementioned
date to enable him to file the answering affidavits of the appellants
within 2 (two) weeks from the 15
th
April 2015. Respondent’s attorneys thereupon attended court on
the 24
th
April 2015 and postponed the matter to the 8
th
May 2015, as he understood the arrangement to have been that the
appellants would file opposing papers within 2 weeks, failing
which
he (respondent’s attorney) would apply for an order by default.
Respondent’s attorneys failed to advise the appellants’
attorneys that the application had been postponed to the 8
th
of May 2015.
[6]
.
On the 8
th
May 2015 the eviction order was granted. The appellants and their
legal representatives were however blissfully unaware of this
as they
laboured under the impression that the application would simply be
removed from the motion court roll for 24
th
April 2015. They had no idea that the matter was on the roll for this
date. On the 28
th
May 2015 the appellant’s affidavit opposing the application for
eviction was served and filed, albeit rather belatedly. At
that point
the respondent’s attorneys advised the appellants’
attorneys that an eviction order had been granted on
the 8
th
May 2015. By all accounts, the appellants and their attorney were
caught completely by surprise as they were totally unaware that
the
application was on the roll for the said date, and had in fact
already been dealt with.
[7]
.
On the 11
th
June 2015 the appellants launched the application for rescission of
the judgment. On the 7
th
October 2015 the application was dismissed on the basis that the
application was out of time and that the appellants ought to have
filed an application for the late filing of the application. Also,
the court was of the view that the appellants had not demonstrated
a
bona fide defence to the respondent’s claim.
[8]
.
The Learned Magistrate found that the application for rescission was
out of time and that the appellants ought to have applied
for
condonation for the late filing of the said application. For the
reasons alluded to later on in this judgment, I am of the
view that
this finding by the Magistrate was incorrect. The Court also found
that the appellants had not demonstrated a ‘substantial
defence’. The court rejected the defence of the appellants to
the effect that the respondent was not entitled to have them
evicted
because they were labour tenants’ as defined in the Land Reform
(Labour Tenants) Act no 3 of 1996 (‘the Labour
Tenants Act’),
which means that the Court a quo did not have jurisdiction to hear
the matter.
[9]
.
This appeal is on the basis that the court a quo erred in its
findings relating to these issues, and it is submitted, on behalf
of
the appellants, that the Magistrate should have granted the
rescission of the default judgment.
[10]. Section 36(1) of the Magistrates’
Court Act, Act no 32 of 1944 (as amended), empowers the court to
rescind any judgment
granted by it in the absence of the person
against whom that judgment was granted.
[11]. In terms of Rule 49(1) of the
Magistrates’ Court Rules a party to proceedings in which a
default judgment has been given
may within 20 (twenty) days after
obtaining knowledge of the judgment serve and file an application to
court, on notice to all
parties to the proceedings, for a rescission
of the judgment and the court may, upon good cause shown, or if it is
satisfied that
there is good reason to do so, rescind the default
judgment on such terms as it deems fit:
[12]. The undisputed and uncontested version
of the appellants, as corroborated by their attorney, is that the
first time that they
became aware that an eviction order had been
granted against them was on a date after the 28
th
of May 2015, that is the date on which their papers opposing the
application for an eviction order was filed. On the 11
th
June 2015 the appellants’ application for rescission was
delivered. This means that at most the application was filed within
10 (ten) days from the date on which the appellants obtained
knowledge of the judgmenttherefore well within the 20 day time period
limited by Magistrates Court Rule 49(1). It is for this reason that I
am of the view that Court a quo was incorrect in ruling that
the
application for rescission was out of time.
[13]. In terms of Rule 49(1) the court is
not entitled to rescind or vary a judgment if the applicant fails to
show ’good
cause' for relief or does not satisfy the court that
there is good reason for the rescission or variation of the judgment.
If the
applicant succeeds in showing good cause, it is still in the
discretion of the court to grant or refuse relief. This discretion
must be exercised judicially in the light of all the facts and
circumstances of the case as a whole. The approach to be adopted
by
the court has been described by Jones J in De Witts Auto Body Repairs
(Pty) Ltd v Fedgen Insurance Co Ltd,
1994 (4) SA 705
(E), at 711E-G,
as follows:
'An
application for rescission is never simply an enquiry whether or not
to
penalize
a party for his failure to
follow the rules and procedures laid down for civil proceedings in
our courts. The question is, rather,
whether or not the explanation
for the default and any accompanying conduct by the defaulter, be it
willful
or negligent or otherwise, gives
rise to the probable inference that there is no bona fide defence,
and that the application for
rescission is not bona fide. The
magistrate's discretion to rescind the judgments of his court is
therefore primarily designed
to enable him to do justice between the
parties. He should exercise that discretion by balancing the
interests of the parties,
bearing in mind the considerations referred
to in Grant v Plumbers (Pty) Ltd,
1949 (2) SA 470
(O), and HDS
Construction (Pty) Ltd v Wait,
1979 (2) SA 298
(E), and also any
prejudice that might be occasioned by the outcome of the application.
'
[14]. In Silber v Ozen Wholesalers (Pty)
Ltd,
1954 (2) SA 345
(A) at 352G, the Appellate Division held
that'good cause' includes, but is not limited to, the existence of a
substantial defence.
The court declined to make the phrase the
subject of further definition and found it sufficient for the purpose
of the case before
it to state at 353A that:
'the
defendant must at feast furnish an explanation of his default
sufficiently full to enable the court to understand how it really
came about, and to assess his conduct and motives’.
[15]. In casu, the appellants gave a
perfectly plausible explanation for their default. They were not
aware of the fact that the
matter had remained on the motion court
roll. According to them, their legal representatives, who had served
notice of intention
to oppose the main application for eviction, had
arranged with the respondent’s attorneys that the matter would
be removed
from the roll as same had by then become opposed. There is
nothing inherently improbable about this version and it cannot
possibly
be said that this explanation is far-fetched.
[16]. This court is therefore of the view
that the appellants gave an explanation for their default which is
sufficiently full and
which ought to have enabled the court a quo to
understand how the default judgment came about.
[17]. The sub rule also imposes on the
appellants the burden of actually proving good cause for rescission.
It has been held that
the requirement of 'good cause' cannot be held
to be satisfied unless there is evidence not only of the existence of
a substantial
defence but, in addition, of a bona fide presently held
desire on the part of the applicant for relief actually to raise the
defence
concerned in the event of the judgment being rescinded. See:
Ga/p v Tansley NO, 1966(4) SA 555 (C), at 560B. The requirement that
the applicant for rescission must show the existence of a substantial
defence does not mean that he must show a probability of
success: it
suffices if he shows a prima facie case, or the existence of an issue
which is fit for trial.
[18]. In this matter the main defence which
the appellants intended raising against the application for their
eviction was based
on the provisions of Labour Tenants Act 3 of 1996.
In terms of this Act the Magistrates Court does not have jurisdiction
to adjudicate
a matter relating to the eviction from premises of
‘labour tenants' as defined in the said Act 3 of 1996.
Jurisdiction relative
to such matters is the exclusive reserve of the
Land Claims Court, and this is expressly provided for in the Act 3 of
1996, read
with the Restitution of Land Right Act, Act no 22 of 1994.
[19]. The appellants alleged in their
application for rescission in the Court a quo that they are ‘labour
tenants’ as
defined. This was disputed by the respondent.
However, the denial by the respondent that the appellants are ‘labour
tenants’
is immaterial. The mere fact that the appellants claim
that they are
1
labour
tenants’ is sufficient to exclude the jurisdiction of the
Magistrates Court. This, in our view, ought to have been
regarded by
the Magistrate as a ‘substantial defence’ to the
respondent’s eviction application.
[20]. Accordingly, the court a quo erred in
not granting the application for rescission. It ought to have ruled
that it has no jurisdiction
to adjudicate this issue. By finding, as
it did, that the appellants are not labour tenants’, the court
a quo had misdirected
itself. The misdirection lies therein that,
having regard to the applicable legislative framework, the
Magistrates Court does not
have jurisdiction to hear the matter. A
further misdirection related to the actual finding on this point that
the appellants were
not labour tenants’. In our view, there
appears to be no factual basis for this finding. On the contrary, the
uncontested
facts, notably that the mother of the appellants is
buried on the property, which suggests that they have their roots
firmly in
the ground of the property, seemingly supports the version
of the appellants on this point. We are however not required to
decide
this point and we do not intend doing so. The point is however
that the court a quo’s jurisdiction to hear this matter is
excluded.
[21]. The appellants have also alluded to
other aspects which, according to them, demonstrate that they have
additional defences.
These include the fact that there has not been
proper compliance with the procedural requirements of the PIE Act. I
agree with
the submissions on behalf of the appellants in that
regard. I have already indicated what the difficulties are which I
have with
the procedures followed by the respondent. Importantly, the
ex parte application for directions on the service of the processes
was part and parcel of the main application for the eviction of the
appellants. This is unprocedural and defeats the purpose of
the PIE
Act.
[22]. For these reasons, I am of the view
that the court a quo was incorrect in dismissing the application for
rescission. Accordingly,
the appeal stands to be upheld.
COST
[23]. Mr Mojapelo, who appeared on behalf of
the appellants, submitted that cost of the appeal, as well of the
cost of the application
in the Court a quo for the rescission, should
be awarded in favour of the appellants against the respondent. I
agree with these
submissions.
[24]. The general rule in matters of costs
is that the successful party should be given his costs, and this rule
should not be departed
from except where there be good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See: Myers v Abramson, 1951(3) SA
438 (C) at 455.
[25]. I can think of no reason why I should
deviate from this general rule. If anything, the facts in this
matter, notably that
the respondent opposed the application for
rescission in circumstances where the opposition was not warranted,
mitigate in favour
of the application of the general rule.
ORDER
[26]. Accordingly, the order that I would
make is the following
1.
The
appeal is upheld with costs.
2.
The
order of the Court a quo be and is hereby set aside and substituted
with the following
The
Order granted by this Court on the May 2015 be and is hereby
rescinded and set aside; and the respondent is ordered to pay the
cost of the applicants relating to the opposed aoDlicatiojrior
rescission
ADAMS AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
MPHAHLELE J
Judge
of the High Court Gauteng Division, Pretoria
HEARD
ON: 14
th
June 2016
JUDGMENT
DATE: 15
th
June 2016
FOR THE PLAINTIFF: Adv M M Mojapelo
INSTRUCTED
BY: Mketsu & Associates Inc
FOR
THE DEFENDANT: Adv D S Gianni
INSTRUCTED
BY: Harvey Nortje Wagner & Motimele