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[2011] ZAKZDHC 72
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Ramcheret v Ethekwini Municipality and Another (5219/2010) [2011] ZAKZDHC 72 (12 August 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case
No: 5219/2010
In
the matter between
A
Ramcheret
….................................................................................
Applicant
and
Ethekwini
Municipality
…....................................................
First
Respondent
Sheriff
of the High Court – Durban North
….................
Second
Respondent
JUDGMENT
12
August 2011
Steyn, J
[1]
This is an application for leave to appeal against the whole of my
judgment delivered on 1 June 2010.
Condonation
[2]
In my view it was necessary for the applicant to explain why the
application for leave was not lodged timeously with the office
of the
registrar of this Court. A substantial application was lodged on 22
July 2011 for condonation. I am not entirely convinced
that Ms
Naidoo’s affidavit explains all the problems surrounding the
delay in adhering to the rules. I will, however, give
the applicant,
as a lay person, the benefit of the doubt and grant condonation for
hearing the application. Such condonation, however,
does not relate
to the fact that the papers were not in order on 30
th
June
2011. The condonation does not relate, given the specific
circumstances, to the prospects of success on appeal.
Merits
of application
[3]
Mr Pillay SC, for the applicant, submitted that the applicant
succeeded in the burden of proof in applying for an interim interdict
and that the balance of convenience favoured her at the time of the
application. In addition, he argued that she had shown that
she had a
prima facie
right even if “open to some doubt”.
Accordingly, so it was argued, the probabilities of success favour
the applicant
and leave should be granted.
[4]
Mr Bedderson, acting on behalf of the first respondent, opposed the
application. He argued that applicant’s application
before this
court was premised on the existence of a valid agreement of lease
between the parties and never that the first respondent
waived its
right to evict the applicant.
[5]
It is trite in applications like the present that the founding
affidavit serves as the pleadings and evidence and neither the
founding affidavit nor the supplementary papers averred that the
municipality waived its right to evict through the order obtained
on
24 April 2009.
When
the application was heard, Ms Gates, representing the applicant,
merely raised the fact that a municipality could waive strict
compliance. She relied on the case of
Steenkamp v Perry Urban
Areas Health Committee
1946 (TPD) 424 at 429. It was never the
case of applicant that the municipality waived its right,
consequently the plaintiff in
my view failed to establish that any
waiver occurred.
When
asked to address the court on the relevance of the authority quoted
Ms Gates concluded: “M’Lady I would submit
it is but just
one point that a statute which is intended to protect a local
authority . . . [indistinct] for the benefit of the
public, that it
can be waived. M’Lady, just that.”
[6]
At the time when the application was heard the Court was asked to
adjudicate on the question whether or not a verbal agreement
was
entered into between the parties such being concluded after the order
as per annexure “A” was granted and whether
or not the
new verbal agreement of lease and the subsequent settling of the
indebtedness to first respondent, would have disentitled
the first
respondent to use the order for the purpose of ejecting the
applicant. (See page 6 of the transcribed record). Applicant’s
claim for the relief sought i.e., the interim interdict, was premised
on the existence of a valid lease agreement between the parties.
[7]
I have anxiously considered the submissions made by Mr Pillay
especially that KG9 proves convincingly that the municipality
waived
its rights. No case for such waiver was, however, made out on either
the papers or in argument when the matter was heard.
In light of the
aforesaid the argument of ‘waiver’ is unsustainable.
[8]
Having considered the submissions I am not persuaded that another
Court could reasonably come to a different conclusion, based
on the
papers. As the judgment shows the applicant failed to show
prima
facie
any entitlement to the relief sought.
[9]
The application for leave to appeal is hereby dismissed with costs,
such costs to include the wasted costs occasioned by the
adjournment
of the application on 30 June 2011.
____________________________
Steyn, J
Date
of Hearing of Application
for
leave to appeal: 27 July 2011
Date
of Judgment: 12 August 2011
Counsel
for the Applicant: Adv L Pillay S C
Instructed
by: PR Maharaj & Company
Counsel
for the first Respondent: Adv B Bedderson
Instructed
by: Linda Mazibuko & Associates