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[2014] ZAFSHC 153
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Moloi v Medi-Clinic (Pty) Limited (A38/2014) [2014] ZAFSHC 153 (11 September 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A38/2014
In
the matter between:-
ERNEST
JABULANI MOLOI
…............................................................................................
Appellant
and
MEDI-CLINIC
(PTY) LIMITED
….....................................................................................
Respondent
CORAM:
KRUGER, J
et
POHL, AJ
JUDGMENT
BY:
POHL,
AJ
HEARD
ON:
1
SEPTEMBER 2014
DELIVERED
ON:
11
SEPTEMBER 2014
JUDGMENT
INTRODUCTION
:
[1]
The appellant appeals against certain orders of the Magistrate’s
Court, Welkom, more specifically:
(a)
The order dated 14 November 2013 dismissing the appellant’s
application to postpone the hearing of the application for
eviction;
(b)
The order dated 28 November 2013 granting the respondent’s
application for the eviction of the appellant; and
(c)
The orders that the appellant pays the respondent’s costs on
the punitive scale as between attorney and client in respect
of the
application for the postponement of the matter and the eviction.
FACTUAL
BACKGROUND
:
[2]
The appellant is a specialist gynaecologist, who has been practising
as such in Welkom, Free State Province. The respondent
is the
Medi-Clinic (Pty) Limited, a private company with limited liability,
which conducts business as a registered private health
establishment
(hospital),
inter alia
in Welkom.
[3]
It is common cause that the appellant leased consulting rooms from
the respondent at its Welkom Hospital since the year 2000.
During
this time, the appellant also utilized the respondent’s
hospital for the admission of his patients, where required.
On or
about 1 March 2010, the appellant entered into a further three year
lease agreement with the respondent in respect of the
property that
he used as consulting rooms, which lease agreement terminated on 28
February 2013. Prior to the termination
of the lease agreement
the appellant requested a two month extension of this lease
agreement. The respondent agreed to this
and then signed a
further lease agreement on 10 February 2013. This lease
agreement terminated on 30 April 2013. Copies of
these lease
agreements were annexed to the eviction application which forms the
basis of this appeal.
[4]
The respondent decided not to extend the appellant’s lease
agreements any further and required the appellant to vacate
the
premises by 30 April 2013. The appellant’s attorney
confirmed that the appellant would vacate the property by 30
April
2013 and wrote a letter to that effect to the respondent. The
respondent also informed the appellant that his privilege
to admit
patients to the Medi-Clinic, Welkom terminates together with his
lease agreement on 30 April 2013.
[5]
Despite the lease terminating on 30 April 2013 through effluxion of
time, and despite the fact that the appellant’s attorney
gave
the assurance that the appellant would vacate the premises by 30
April 2013, the appellant refused to vacate the premises.
The
appellant’s refusal to vacate the premises, caused the
respondent to issue the eviction application against the
appellant on
10 May 2013. The eviction application was set down for hearing
for 7 October 2013, but was postponed to 14 November
2013, by
agreement between the parties.
[6]
In the meantime the appellant caused an application to be issued in
the High Court of South Africa, Free State Division, Bloemfontein,
for orders interdicting the respondent from interfering or preventing
the appellant from admitting patients to its hospital and
reviewing
its decision to evict the appellant from its premises. This
application was struck from roll after the duty judge ruled
that it
was not urgent. The High Court application does not form part of the
record of appeal before this court.
[7]
During the afternoon of 13 November 2013 and after the legal
representatives for the respondent had already flown from Cape
Town
to Bloemfontein and driven to Welkom, the attorney for the appellant
advised them, for the first time, that he would be asking
for a
postponement. On the morning of 14 November 2013, the
appellant’s attorney handed the respondent’s legal
representative a copy of the application for postponement. The
appellant had briefed counsel from the Johannesburg Bar, Adv
Greyling, to argue the postponement. Adv Greyling informed the
Court that she had no instructions to appear for the appellant
in the
eviction application. Adv Greyling moved the application for
the postponement of the eviction application. When
the Court
refused the postponement, she asked to be released, which she duly
was. The appellant was then left without counsel.
[8]
The Court
a quo
entertained argument from the respondent’s advocate and
thereafter postponed the matter for the preparation of reasons and
granted the eviction order against the appellant on 28 November 2013.
[9]
A proper reading of the application for the postponement reveals that
the only real and substantive reason why the appellant
sought the
postponement was the unavailability of both the senior counsel and
junior counsel the appellant briefed to assist him
in this matter.
It further reveals that both the advocates and the attorney, acting
for the appellant laboured under the
mistaken belief that the High
Court application would have the effect that the Magistrate’s
Court application for the eviction
would not be able to proceed.
THE
LEGAL PRINCIPLES - POSTPONEMENT
:
[10]
A Court entertaining an application for a postponement exercises a
discretion. It is a discretion in the narrow sense.
As
correctly conceded by Mr Snellenburg for the appellant, this requires
the appellant to establish that the magistrate exercised
the power
conferred on him capriciously or upon a wrong principle, or did not
bring his unbiased judgment to bear on the question,
or did not act
for substantial reasons -
Manong and
Associates (Pty) Ltd
v
City of Cape Town and
Another
2011 (2) SA 90
(SCA) par [92]. In the decision of
Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NmS) the court listed the applicable principles that
govern the adjudication of applications for postponements as well as
an appeal
against the court’s decision. At page 314 F to
page 315 J Mahomed AJA (as he then was) verbalized these principles:
“
The
legal principles of application
The
relevant legal principles of application in considering this appeal
may be stated as follows:
1.
The trial Judge has a discretion as to whether an application for a
postponement should be granted or refused (R v Zackey
1945 AD 505).
2.
That discretion must be exercised judicially. It should not be
exercised capriciously or upon any wrong principle, but for
substantial reasons. (
R v Zackey
(
supra
);
Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 398
- 9;
Joshua v Joshua
1961 (1) SA 455
(GW) at 457D.)
3.
An appeal Court is not entitled to set aside the decision of a trial
Court granting or refusing a postponement in the exercise
of its
discretion merely on the ground that if the members of the Court of
appeal had been sitting as a trial Court they would
have exercised
their discretion differently.
4.
An appeal Court is, however, entitled to, and will in an appropriate
case, set aside the decision of a trial Court granting
or refusing a
postponement where it appears that the trial Court had not exercised
its discretion judicially, or that it had been
influenced by wrong
principles or a misdirection on the facts, or that it has reached a
decision which in the result could not
reasonably have been made by a
Court properly directing itself to all the relevant facts and
principles. (
Prinsloo v Saaiman
1984 (2) SA 56
(O); cf
Northwest Townships (Pty) Ltd v Administrator, Transvaal, and
Another
1975 (4) SA 1
(T) at 8E - G;
Johannesburg Stock
Exchange and Another v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A) at 152.)
5.
A Court should be slow to refuse a postponement where the true reason
for a party's non-preparedness has been fully explained,
where his
unreadiness to proceed is not due to delaying tactics and where
justice demands that he should have further time for
the purpose of
presenting his case.
Madnitsky v Rosenberg
(
supra
at 398 - 9).
6.
An application for a postponement must be made timeously, as soon as
the circumstances which might justify such an application
become
known to the applicant.
Greyvenstein v Neethling
1952
(1) SA 463
(C). Where, however, fundamental fairness and justice
justifies a postponement, the Court may in an appropriate case allow
such
an application for postponement, even if the application was not
so timeously made.
Greyvenstein v Neethling
(
supra
at 467F).
7.
An application for postponement must always be bona fide and not used
simply as a tactical manoeuvre for the purposes of obtaining
an
advantage to which the applicant is not legitimately entitled.
8.
Considerations of prejudice will ordinarily constitute the dominant
component of the total structure in terms of which the discretion
of
a Court will be exercised. What the Court has primarily to consider
is whether any prejudice caused by a postponement to the
adversary of
the applicant for a postponement can fairly be compensated by an
appropriate order of costs or any other ancillary
mechanisms.
(Herbstein and Van Winsen
The Civil Practice of the Superior
Courts in South Africa
3rd ed at 453.)
9.
The Court should weigh the prejudice which will be caused to the
respondent in such an application if the postponement is granted
against the prejudice which will be caused to the applicant if it is
not.
10.
Where the applicant for a postponement has not made his application
timeously, or is otherwise to blame with respect to the
procedure
which he has followed, but justice nevertheless justifies a
postponement in the particular circumstances of a case, the
Court in
its discretion might allow the postponement but direct the applicant
in a suitable case to pay the wasted costs of the
respondent
occasioned to such a respondent on the scale of attorney and client.
Such an applicant might even be directed to pay
the costs of his
adversary before he is allowed to proceed with his action or defence
in the action, as the case may be.
Van
Dyk v Conradie and Another
1963 (2) SA 413
(C) at 418;
Tarry
& Co Ltd v Matatiele Municipality
1965
(3) SA 131
(E) at 137.
”
[11]
The non-availability of counsel is not, save in the most exceptional
of cases, a ground upon which to grant a postponement
of a matter in
the face of objection by the other party. As Ogilvie Tompson J
stated in
D’Anos v Heylon Court (Pty) Ltd
1950
(1) SA 324
(C) at 335 to 336:
“
...the
non-availability of counsel cannot be allowed to thwart the bringing
before the Court of the matter in issue. In all but
the rarest of
cases, other suitable counsel will be available. The test is not the
convenience of counsel; it is the reasonable
convenience of the
parties - and by that I mean both parties - and the requirement of
getting through the Court's work which must
be the dominant
considerations. The availability of counsel is a subsidiary
consideration. A party's predilection for a particular
counsel to
take his case can, in my view, seldom, if indeed ever, be regarded as
a decisive objection to a date of set down which
is in all other
respects reasonable and acceptable to both parties.
”
[12]
In
Shilubana and Others v Nwamitwa
[2007] ZACC 14
;
2007 (5) SA 620
(CC) at p. 625 in paragraph 15, the Constitutional
Court found as follows:
“
[15]
At the hearing counsel admitted that he was unprepared to present
his client’s case, should the application for postponement
be
denied. He appeared to presume that the application would be granted
– a presumption one makes at the peril of one’s
client.
In
National
Police Service Union
it
was stated:
‘
Ordinarily
. . . if an application for a postponement is to be made on the day
of the hearing of a case, the legal representatives
. . .
must
appear and
be ready to assist the Court both in regard to the application for
the postponement itself and if the application is
refused, the
consequences that would follow.’
”
APPEALABILITY
:
[13]
Mr Brown, for respondent, contended that the magistrate’s
ruling refusing the postponement is not appealable. He
relied
for this submission on a dictum of Conradie J in
Priday t/a
Pride Paving v Rubin
1992 (3) SA 542
(C) at 547D-G.
That case dealt with an application for leave to appeal against a
refusal of a postponement before the trial
started in the High Court
before Conradie J. Conradie J dismissed the application for
leave to appeal because the refusal
to grant the postponement was a
ruling and not appealable (at 543G-H; 549B-C). In that judgment
Conradie J also says (at
545H-I) that High Courts control their
procedure with a measure of flexibility. He also makes the
point that courts are reluctant
to permit piecemeal appeals (at
545E-F).
[14]
The crucial question before us is what the effect of the order was.
In this case counsel arguing the postponement before the
magistrate
made it clear that she had no knowledge of the merits (p116 lines
18-22). Thus the magistrate knew that if the
postponement was
refused, the appellant would be without a legal representative to
deal with the merits of the eviction application
(p146 line 24 - p147
line 15). The refusal of the postponement was substantial in
effect in the circumstances of this case.
The refusal of the
postponement led directly to the eviction order being granted.
The refusal of the postponement was in
this case appealable.
THE
REFUSAL OF THE POSTPONEMENT
:
[15]
Mr Snellenburg, who argued the appeal on behalf of the appellant
contended that in considering a request for a postponement,
the court
must take all the circumstances into account, with reference to
Everfresh Market Virginia (Pty) Ltd v
Shoprite Checkers (Pty) Ltd
2012
(1) SA 256
(CC) par [22]. In particular Mr Snellenburg says that the
magistrate should have taken into account that the appellant wanted
the
opportunity to argue the development of the common law in the
High Court. The question whether the respondent was entitled
to
couple a doctor’s right to admit patients into the respondent’s
facilities to the occupation of consulting rooms,
is distinct from
the contract of lease.
[16]
It is important to have regard to the fact that this particular date
when the eviction application served before the court
a
quo
, was prearranged by agreement
between the parties. The mistaken belief that the appellant’s
legal representatives may
have laboured under, namely, that the
magistrate’s court application will not proceed because of the
High Court application,
was a presumption they made at the peril of
the appellant -
Shilubana and Others
v Nwamitwa
,
supra,
at p 625 par. [15].
[17]
It is also important, to my mind, have regard to the fact that the
application for a postponement was that the application
be postponed
for a mere two weeks. Over and above that, the appellant
tendered to pay the applicants wasted costs occasioned
by the
postponement. The respondent in this matter utilized counsel
from Cape Town. It meant that this advocate had
to travel from
Cape Town to Welkom to be there on the 14
th
of November 2013, which in fact happened. The fact that the
14
th
of November 2013 was a prearranged date to entertain the eviction
application, must have meant that when the date was arranged,
it
suited both parties’ counsel. There is no indication on
the record that the appellant even attempted to find out
whether the
proposed date for the postponement,
to
wit
28
th
of November 2013, would suit the respondent’s counsel. On
the contrary, the appellant’s legal representatives
only
intimated that they will be seeking a postponement the day before the
application,
to wit
on the 13
th
November 2013. The application itself was only handed to the
respondent’s legal representatives on the 14
th
November 2013. In the circumstances, it is conceivable that the
respondent’s counsel may not have been available on
the 28
th
November 2013. Counsel is often booked well in advance.
If so, the tender of wasted costs would not have cured the
prejudice
suffered by the respondent.
[18]
An important aspect, which the magistrate correctly took into
account, is that the application was brought by the appellant
at the
last moment. It could hardly have been made at a later stage.
It must have been apparent to the appellant well
before the agreed
date for the hearing that the matter was proceeding and that the High
Court application, which was the apparent
reason for the
postponement, would not be ready in time. There was also no
suggestion that the respondent agreed that the
magistrate’s
court application would not proceed once such threatened application
was launched. Despite this, the first
suggestion that the
appellant may not be prepared to proceed on the agreed date was
provided on the afternoon before the hearing.
This does not
constitute timeous bringing of the application.
[19]
The contract expired, it came to an end. In the papers before
the court the appellant did not take the point that he
wished to
argue that the respondent was obliged to allow him to occupy the
rooms, despite his agreement of lease having come to
an end and
despite his concession on the papers that he had no problem in
vacating the rooms. The appellant’s attitude
illustrated
a pattern of being obstructive and wanting to buy time, trying to
find reasons to justify his continued occupation.
The
application for postponement was correctly refused.
[20]
Another important aspect with regard to the prejudice to the
respondent is the fact that by the time the eviction application
was
to be heard in the court
a quo
,
the appellant had been in unlawful occupation of the premises for
over six months. The fact that the application was, as
mentioned before, not made timeously, means that the explanation for
the appellant’s counsel’s non-availability was
neither
full nor satisfactory. The fact that there was significant
prejudice to the respondent and that the application for
the
postponement was properly opposed, leads this court to the conclusion
that the magistrate exercised his discretion judicially
and that the
appeal against the magistrate’s refusal of the application for
postponement should be dismissed.
THE
EVICTION ORDER
:
[21]
The basis of the appellant’s defence in his answering affidavit
was that the respondent cancelled the lease agreement
and that it was
not entitled to do so. The appellant relied on clause 21 of the
lease agreement, being a clause dealing with
cancellation. But
in this case the respondent did not cancel the lease agreement.
The lease agreement expired and terminated
ex lege
due to
effluxion of time. A lease that has a fixed period terminates
automatically, as a matter of law, upon the expiry of
the time
period. When a lease terminates due to the expiry of its fixed
period, all rights terminate immediately and no rights
to occupation
remain. The tenant is obliged to vacate immediately upon such
termination. It is not necessary for any
notice of termination
to be given as the lease terminates
ex lege
.
[22]
On behalf of the appellant it is now submitted that it was incumbent
upon the respondent to negotiate a new lease agreement
with the
appellant and that it ought not to have relied on the strict terms of
the existing lease agreement. It is submitted
on behalf of the
appellant that this court should develop the common law in order to
assist the appellant. This court is
however not prepared to do
so for the following reasons:
(a)
The court of appeal is confined to the evidence as contained in the
record of appeal. No factual basis is laid for such
a
contention in the papers that served before the court
a quo
.
It is a new argument that forms the basis of the heads of argument
before this court, but it did not form the basis of the
opposition
before the court
a quo
and has no factual basis in the papers.
(b)
The suggestion that the lease was renewed automatically and without
negotiations is without factual basis. It is common
cause that
when the lease expired at the end of February 2013, the appellant
requested the respondent to extend the lease for a
further two
months. This was duly done and a separate lease agreement was
entered into and signed by the parties. It
was these
negotiations that led to the term of the last lease agreement, being
only two months.
(c)
The above argument is in any event excluded by the specific terms of
the lease agreements to which the appellant has agreed.
The
lease agreements contain a clear “whole agreement”
clause, a non-variation and a “relaxation” clause,
that
exclude reliance on any latitude or other indulgence granted by the
respondent over time. The lease expressly deals
with the
renewal of the lease agreement and this is the clause that the
respondent followed. In the premises this is entirely
destructive of any argument that the respondent was contractually
obliged to renew the lease or to enter into negotiations with
the
appellant to renew the lease.
(d)
With regard to the submission that this court is obliged to develop
the common law it must be borne in mind that this court
sits as a
court of appeal. It is thus confined to the record of appeal,
which record of appeal in this instance emanates
from the
magistrate’s court. The magistrate’s court does not
have the power to develop the common law.
In any event, the
development of the common law requires careful consideration once the
issue has been fully ventilated, both on
the facts and in argument,
which did not happen in this case.
[23]
I am satisfied that the magistrate was correct to grant the eviction
order a
nd that the appeal
should
be dismissed.
COSTS
AWARD
:
[24]
The appellant negotiated an extension of the lease for a further two
months expressly so as to enable him to find other premises.
Having persuaded the respondent to give him this indulgence, he then
made no attempt to vacate and instead remained in occupation
unlawfully. The appellant provided an undertaking to the
respondent that he would vacate the premises by 30 April 2013.
He then elected to renege on this undertaking. It is
furthermore true that the appellant waited till the very last moment
before he informed the respondent about his intention to apply for a
postponement and he then, on the day of the hearing of the
eviction
order, only gave the respondent his application for the
postponement. From the replying affidavit to the application
for the eviction it appears that the respondent has also stated under
oath in the application brought in the High Court that he
has “no
problem” vacating the premises. The appellant furthermore
wasted a considerable amount of time and legal
costs by breaching the
legal obligation and his undertaking given to respondent to vacate
the premises. His defence to the
eviction application was
manifestly spurious.
[25]
Costs are in the discretion of the presiding officer. The
magistrate considered the abovementioned factors and it cannot
be
found that he failed to exercise his discretion judicially.
There is no reason for this court to interfere with the magistrate’s
order as to costs.
ORDER
:
1.
The appeal is dismissed with costs.
________________
L.
le R. POHL, AJ
I
concur.
_____________
A.
KRUGER,
J
On
behalf of appellant: Adv N. Snellenburg
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv A.D. Brown
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN