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[2015] ZAGPPHC 549
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Hendricks v Van Niekerk and Others (15679/14) [2015] ZAGPPHC 549 (31 July 2015)
REPUBLIC
OF SOUTH AFRICA
INTHE
GAUTENG HIGH COURT DIVISION, PRETORIA
JUDGMENT
Case
no: 15679/14
DATE:
31 JULY 2015
Not
Reportable
In
the matter between:
JOHANNES
JURGENS
HENDRICKS
..................................................................................
Applicant
And
NICOLAAS
JACOBUS VAN
NIEKERK
......................................................................
1
st
Respondent
(ID
No. 370606 5041 088)
THE
NICK VAN NIEKERK FAMILY
TRUST
............................................................
2
nd
Respondent
(IT
No. 3859/04)
ICON
HUNTING
SAFARIS
...........................................................................................
3
rd
Respondent
TRINICK
BELEGGINGS (PTY)
LTD
.........................................................................
4
th
Respondent
(Reg
No. 2005/009194/07)
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant is seeking leave to appeal
against an order granted on default on 18 November 2014, in terms of
which an eviction
order on terms as set out
in
the notice of motion dated 18 February 2014. The only amendment to
the original prayers as set out in the notice of motion was
in prayer
4, wherein the respondents sought the eviction of the applicant
within 14 days of the order. The order granted allowed
for the
applicant to vacate the property within 30 days of the order.
[2]
The applicant further seeks condonation
for the late filing of the application for leave to appeal. With
regard to condonation,
the applicant claims that it only became aware
of the eviction order on 25 November 2014 when the order was served
on its attorneys.
The applicant filed its application on 15 December
2014 instead of 9 December 2014. As correctly pointed out by Mr De
Beer, counsel
for the respondents, the claim by the applicant that it
only got knowledge of the eviction order when it was served is
incorrect.
[3]
At the hearing of the eviction
application, the applicant sought a postponement of the hearing of
the application in that it had
not filed its answering affidavit
timeously as per an order granted on 30 July 2014 by Molopa-Sethosa
J. In terms of the order
of 30 July 2014, the eviction application
was postponed sine die and the applicant was ordered to file its
answering affidavit
within 10 court days of the order, where after
the normal rules of court pertaining to time periods, including
amongst others,
the filing of further pleadings. When the application
for a postponement was dismissed, the applicant, an attorney by
profession
was present in court. Mr Du Preez, the applicant’s
legal representative and the deponent to the applicant’s
founding
affidavit in the condonation application, decided to leave
court after the application for a postponement was dismissed.
Furthermore,
the applicant stayed in court and was present when the
order was granted. As appears from the confirmatory affidavit filed
by Mr
Steyn, the respondent’s attorney, as soon as the eviction
order was granted Mr Du Preez came back into the court and inquired
from the respondents” counsel about the t\period given for the
applicant to vacate the property. Therefore, the allegation
that the
eviction order was granted in the absence of the applicant is far
from the truth.
[4]
As appear from the affidavit deposed to
by Mr Du Preez, the applicant was under the impression that the
eviction order stipulated
that he should vacate the property after 30
days. It was only after the applicant was phoned by the sheriff of
the court on 11
December 2014 that they realised that there are
grounds to challenge the order on the ground that no date for
vacation has been
stipulated in the order in accordance with section
4(8) of the Prevention of Illegal Evictions from and /or Occupation
of Land
19 of 1998 (the PIE). Furthermore, Mr du Preez alleged that
it was the applicant’s intention to apply for the rescission of
the eviction order.
[5]
With regard to the application for leave
to appeal, the applicant contends that the court failed to determine
a just and equitable
date for the applicant to vacate the premises
and to consider the just and equitable conditions under which the
applicant should
vacate the property.
[6]
In
an application for condonation, a court has a discretion that is to
be exercised judiciously, taking into consideration all the
facts
before it. The onus is on the applicant to show that if condonation
is granted, it will not adversely affect the respondent.
The court in
exercising its discretion whether or not to grant condonation has to
take into account (i) the degree of lateness
or non-compliance; (ii)
the explanation thereof; (iii) the prospects of success; (iv) the
importance of the case; (v) the respondent’s
interest in the
finality of the matter
[I]
.
[7]
Having read the respondents’
founding affidavit in the eviction application, in the absence of an
answering affidavit from
the applicant, I am satisfied that the
requirements for the eviction of the applicant were satisfied and the
time within which
the applicant should vacate the property was
clearly stipulated in the order granted. I am of the view that there
is no reasonable
possibility that another court could come to a
different conclusion. Furthermore, I am satisfied that the applicant
has not shown
good cause why condonation should be granted.
[8]
Taking into account the distortions in
the applicant’s founding affidavit, in particular, the issue as
to when the applicant
became aware of the eviction order and the
allegation that the order was granted in the absence of the
applicant, and bearing in
mind that the applicant was in court and
his attorney came inside the court after the order was granted, the
applicant and his
attorney have not been honest with the court. To
show the court’s displeasure with the conduct of the applicant
and Mr Du
Preez, both of whom are officers of this court, a punitive
cost order is warranted.
[9]
Accordingly the following order is made:
1.
The application for condonation is
dismissed with costs.
2.
The application for leave to appeal is
dismissed with costs on an attorney and client scale.
MNGQIBISA-THUSI
J
Appearances:
For
Applicant: Mr L Du Preez Instructed by: Du Preez attorneys For
Respondent: Adv De Beer Instructed by: Steyn Strydom & Viljoen
Inc
[I]
Melanie
v Santam Insurance Company Limited
1962 (4) SA 531
(A) at 532 C-F; Dial Tech CC v
Hudson
& Another (2007) 28 ILJ 1237 (LC).