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[2008] ZAWCHC 267
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Perryvale Investments (Pty) Ltd v Patel NO and Another (13096/2005) [2008] ZAWCHC 267 (8 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAFE
OF GOOD HOPE PROVINCIAL DIVISION
)
CASE
NO
:
13096/2005
DATE
:
8
October 2008
In
the matter between:
PERRYVALE
INVESTMENTS (PTY) LTD Applicant
and
S
PATEL N.O.
1
st
Respondent
MICHAEL
KATZ 2
nd
Respondent
JUDGMENT
(Application
for Leave to Appeal)
DAVIS,
J
:
[1]
This is an application for leave to appeal against an order of this
Court of 16 April 2008 which arose out of a review which
was heard on
14 February 2008 As is set out in the judgment, this Court attempted
to have the matter settled between the parties,
unfortunately such
attempts proved to be unsuccessful. The order, having been granted on
16 April 2008 pursuant to a failure of
a settlement, reasons were
then given on 25 July 2008. it is against this order that the second
respondent has sought leave to
appeal from this Court.
[2]
The application for leave to appeal was heard only after hearing
submissions made by second respondent who appears in person.
Pursuant
to setting this matter down, this Court received a letter on 26
September 2008 from attorneys acting on behalf of the
applicant. I do
not propose to read the entire letter into the record but it is
relevant to set out aspects thereof. The letter
was written by Mr
Cameron-Dow on behalf of the applicant includes the following:
"Our
decision to not expend our client's funds irresponsibly by reacting
to the massive flood of documentation from Mr Katz
is the reason for
our not briefing counsel to comprehensively oppose Mr Katz's
application for leave to appeal...
The
learned Judge encouraged settlement and made settlement reasonably
possible but historically both our client and the writer
attempted to
settle this matter before the Magistrate's Court, summons for
ejectment was issued and at numerous stages and intervals
thereafter.
We have come to the conclusion that endeavouring to settle with Mr
Katz (which of necessity would mean all
matters and not
merely one or two at a time) is not reasonably possible We are
indeed of the view that in all probability
we wilt in due
course have to launch further proceedings to prevent the number
of actions and the scope of litigation from
continuing to expand".
In this letter, Mr Cameron-Dow documents his version of the
litigation which has taken place between
his client and second
respondent. Needless to say, second respondent rejects the
contents of this letter and takes
the view that he was entitled to
pursue his rights in this court. I only read part of the letter into
the record to explain why
no representation was forthcoming
this morning from applicant. I am now forever (eft with the duty
of deciding whether
there are reasonable prospects of success of a
kind which would mean that another Court may reasonably come to a
conclusion different
to that arrived at by this Court.
[3]
It is important to obtain clarity what it is that is now being
appealed. The order which was granted on 15 April 2008 has two
components: The first concerns the question of prosecution of the
applicant in terms of section 16 of the Rental Housing Act 50
of
1998, which decision has been taken by first respondent. That
decision was set aside and applicant was ordered within 60 days
from
the date of the order of this Court to provide first respondent with
a detailed report concerning the maintenance and repairs
done to the
roof of Shelbourne, Beach Road, Sea Point, subsequent to first
respondent's decision of 5 August 2005.
[4]
I have no information pfaced before me as to whether that was done
and what arose from such action, if any was so taken. First
respondent has not sought to intervene in these proceedings, save for
the affidavit to which I have already made reference in the
principal
judgment. However, this morning Mr Katz informs me that that is not
the subject of the appeal which he wishes to bring
against the order
of this Court Mr Katz wishes to appeal the second component of the
order. That component provided that the second
respondent shall be
entitled to 50% remission of rent from the applicant for the period
September 2002 until August 2004, less
certain amounts, and further
that applicant and second respondent should each be liable for 50% of
certain costs as set out in
the order. In essence, it is this
component of the order which is the subject of appeal, together with
the order that the ruling
that applicant shall pay a remission of
100% of rental for the period September 2004 to June 2005 being set
aside, which is the
subject of the dispute this morning.
[5]
I do not intend to get embroiled in the controversies between
applicant and second respondent in relation to whether this
litigation
constitutes vexatious litigation or not. I am prepared to
agree, that Mr Katz is an enthusiastic litigator. Before the reasons
given by this Court had been transcribed into writing, this Court
received an application for leave to appeal amounting to some
76
pages. Thereafter a further series of affidavits were lodged,
amplified on the grounds of appeal. In that sense the litigation
has
expanded way beyond that which could reasonably be expected in a
dispute of this nature. The essence of this Court's finding
was that
second respondent was entitled to the remission for the period
September 2002 until August 2004, less certain amounts.
In this, the
approach of the Court was not in essence different from the ruling of
first respondent. The key to difference concerns
the remission of
100% of the rental for the period September 2004 to June 2005.
[6]
As noted in the judgment, this Court based its finding on the offer
of alternative accommodation made by applicant to first
respondent so
that first respondent could be able to move from his apartment whilst
the necessary repairs were effected to it.
First respondent refused.
A series of reasons have been given for that refusal. The issue of
cockroach infestation was raised.
In the application for leave to
appeal, second respondent takes issue with this Court's finding by
contending that, if the record
is read carefully, it would reveal
that no concession had been made in relation to the lack of
cockroaches. The fact is that there
is no clear evidence that
apartment 701 was infested with cockroaches which was sufficient to
refuse the offer.
[7]
In amplification of the reasons given by second respondent, in his
written application for leave to appeal, namely that he had
other
reasons why he had refused the offer, he submitted this morning that
the offer had been linked to payment of arrear rental
and to various
other conditions which he found unacceptable. That may be, but in the
final analysis he had been made the offer,
he could have occupied
that particular apartment during the period and reserved any rights
that he claimed had been infringed.
He refused to do so.
[8]
On review, this Court found that first respondent had not taken
proper account of the evidence. Mr Katz may now seek to argue
further
points but it appears to me that there had been an error committed by
first respondent; secondly the offer was of alternative
accommodation
not an unreasonable one and should have been taken up by a party who
wished to settle the matter as expeditiously
as possible. Once that
finding is made, then the further costs of various reports which
flowed pursuant to the complaint had to
be borne by both parties as
opposed to one party, second respondent having persistently been the
driving force behind the complaint
[9]
For there reasons, I find that there is no prospect that another
Court would come to a conclusion different to this. Plainly
this is
not a matter that should bother any further court and accordingly the
application for leave to appeal is dismissed.
DAVIS, J