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[2016] ZAGPPHC 1003
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Pitje and Another v Joubert and Another (A640/2015) [2016] ZAGPPHC 1003 (6 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NO: A640/2015
6/12/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SIMON
MOLEFE PITJE
FIRST
APPELLANT
NELLY
PITJE
SECOND
APPELLANT
and
JEAN
EWALD JOUBERT
FIRST
RESPONDENT
THE
METROPOLITAN MUNICIPALITY OF THE CITY
OF
TSHWANE
SECOND
RESPONDENT
JUDGMENT
YACOOB,
AJ:
1.
This is an appeal against an order evicting the first and
second appellants and their family from residential property owned by
the first respondent.
2.
I set out the relevant facts before dealing with the relevant
issues.
FACTUAL
BACKGROUND
3.
The appellants took occupation of the property on 1 October
2014 in terms of a lease agreement, which provided for a lease term
of one year.
4.
The appellants offered a trust cheque as payment of the
deposit and first month's rental. There is a dispute about whether
the respondent
accepted this when it was offered. Nevertheless he
permitted the appellants to move in.
5.
On 2 October 2014, the respondent informed the appellants that
he did not accept the trust cheque "as it is not a legal
tender''.
For purposes of this judgment I refrain from commenting on
the correctness of that contention. The respondent then requested
payment
by other means, and when this was not forthcoming, spoliated
the appellants from the property. The appellants regained possession
by obtaining a court order.
6.
The first respondent then sent a letter of demand through his
attorneys, for payment of the deposit and first month's rental, in
response to which appellants' attorneys offered new terms for payment
of the amount. This was apparently not accepted. It is common
cause,
though, that the appellants did pay one month's rent to the first
respondent.
7.
An application for eviction was launched on 20 November 2014,
which the appellant only received on 8 December 2014. The first
respondent
obtained an order evicting the appellants on 26 May 2015,
in the Tshwane Magistrate's Court. The appellants duly noted an
appeal.
8.
The first respondent then brought an application in terms of
section 78 of the Magistrate's Court Act 32, in the magistrate's
court,
for leave to execute the eviction order notwithstanding the
pending appeal. This application was granted on 14 October 2015,
after
the term of the lease had expired. The appellants were evicted
the very next day, while they were attempting to take steps in this
court to prevent the eviction.
9.
It has been confirmed in this court that the applicants are no
longer in occupation of the property, and have no desire or intention
to return to it.
10.
I pause to note that the first appellant is an unrehabilitated
insolvent, and that he has been declared a vexatious litigant. The
first respondent sought to make these facts relevant to the issues
before this court, but they are not. In particular, the first
appellant obtained leave to defend the eviction proceedings, and this
must include proceedings ancillary to the eviction proceedings,
including the counter application and the appeal. There is therefore
no basis on which to conclude that the first appellant is
not
properly before this court.
ISSUES
11.
The appellants raised the following points in
limine
in the
court below:
11.1. that they had not
received the application in time to respond to it on the date
required on the notice of motion, and that
the date on which the
notice of motion stated that the matter would be heard if not opposed
was in the past;
11.2. that a summons had
been issued on 17 December 2014 claiming confirmation that the
written lease was cancelled and claiming
payment of R22 439, and that
the application should be stayed pending the action proceedings;
11.3. that there were
irresoluble disputes of fact between the parties and that the
application was therefore an abuse of process.
12.
The following disputes were raised:
12.1. whether the
appellants were given full occupation in terms of their lease;
12.2. what the condition
of the property was and whether the appellants were entitled to
withhold rent pending repair of the alleged
defects in the property,
and
12.3. whether the
appellants paid their deposit and first month's rent.
13.
The appellants also made a counter-application, for an order that:
13.1. the first
respondent be held in contempt of the spoliation order;
13.2. the first
respondent be directed to remove his belongings from the double
garage at the property;
13.3. the rental amount
be reduced to R6000 per month, pending the first respondent's
compliance with the alleged obligations in
terms of the lease
agreement, and
13.4. this application be
stayed pending the determination of the action proceedings.
14.
The appellant also made an application for the Magistrate's recusal,
which was dismissed.
15.
The parties were invited by this court to make submissions on whether
any order made by this Court on appeal would have any
practical
effect (other than with regard to costs), taking into account that
the appellants had no desire to return to the property,
and that the
lease term had expired.
16.
Mr Snyman for the appellants submitted that the appellants' counter
application had not been considered by the magistrate
and therefore
that there was still a live issue to be determined.
17.
The magistrate states in the written reasons that, despite the fact
that she considered the counter-application not to be properly
before
her because it had been signed by a stamp and not by hand, she
considered the counter application and it does not raise
a valid
defence to the application for eviction.
18.
An examination of the counter-application reveals that, save for the
contempt prayer, none of the relief claimed is of any relevance
to
the parties any longer.
19.
It is clear that a spoliation order does not prevent a landlord from
applying properly for eviction of the occupier. The prayer
for
contempt, therefore, has no merit.
20.
The removal of the first respondent's belongings is irrelevant when
the applicants do not wish to return to the property, as
is the
reduction of the rental amount. As far as the action proceedings are
concerned, the first respondent stated in his answering
affidavit to
the counter-application that he had withdrawn them.
21.
There is therefore no live issue emerging from the
counter-application.
22.
Mr Snyman also submitted that there is a legal issue of importance to
be determined, that is, whether an occupier may be evicted
for not
paying his or her rent while he or she is withholding that rent
because the premises are allegedly not in a habitable condition.
However, Mr Snyman did not point to any uncertainty in the law
regarding the question, particularly in circumstances· such
as
the present, which include a provision in the contract that rent may
not be withheld.
23.
There is no appeal of the magistrate's dismissal of the recusal
application.
24.
The only issue between the parties in this particular matter, then,
is costs. Any claims for damages or other issues between
the parties
are not before this court.
25.
It is well established that, save where a matter of principle is
involved, an appeal will not be heard simply on the issue of
costs.
26.
The
Superior Courts Act, 10 of 2013
, provides in
section 16(2)(a)
that:
(i) When at the hearing
of an appeal the issues are of such a nature that the decision sought
will have no practical effect or result,
the appeal may be dismissed
on this ground alone.
(ii) Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.
27.
I am satisfied that the decision sought from this court will have no
practical effect or result. I am satisfied too that no
exceptional
circumstances exist which require this court to consider costs in
deciding this question.
28.
Taking into account that neither party is successful, as no
substantive decision is being made by this court, it is appropriate
that no order be made as to costs, which will have the effect that
each party will pay its own costs.
ORDER
29.
For the reasons set out above I order as follows:
1.
The appeal is dismissed.
2.
Each party is to pay its own costs pertaining to the appeal.
__________________
S.
YACOOB
ACTING
JUDGE OF THE HIGH COURT
I
concur and it is so ordered
__________________
R.G.
TOLMAY
JUDGE
OF THE HIGH COURT
Appearances
On
behalf of the appellant: ADV M SNYMAN
Instructed
by: MTHEMBU SIBIYA ATTORNEYS
Suite 144, First Floor
Burlington House
Burlington Arcade
235 Helen Joseph (Church
Street)
Pretoria
On
behalf of the respondent: ADV M JACOBS
Instructed
by: WWB BOTHA ATTORNEYS
446 Cameron Street
Brooklyn
Pretoria