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[2024] ZANCHC 58
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Jacobs and Others v Zinvomax (Pty) Ltd and Others (1160/2021) [2024] ZANCHC 58 (18 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1160/2021
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
WIM
JACOBS
First Applicant
GAO
XIA
QIANG
Second Applicant
HUANG
FENG
Third Applicant
MIKE
BESTER
Fourth Applicant
And
ZINVOMAX
(Pty) Ltd
(Registration
Number: 2018/323652/07)
First Respondent
GA-SEGONYANA
LOCAL MUNICIPALITY
Second Respondent
COPY
CENTRUM JOINT VENTURE
(Joint
Venture between fourth and fifth
Respondents)
Third Respondent
BILY
PURUSHOTHAMAN
Fourth Respondent
BUILT-IT
GREEN CONSTRUCTION (PTY) LTD
(Registration
Number: 2017/492769/07)
Fifth Respondent
And
in the matter of:
ZINVOMAX
(PTY)
LTD
Applicant
And
WIM
JACOBS
First Respondent
GAO
XIA
QIANG
Second Respondent
HUANG
FENG
Third Respondent
MIKE
BESTER
Fourth Respondent
Coram: Lever J
JUDGMENT
Lever
J
1.
In this
matter, I have two applications before me, both brought under the
same case number. Firstly, an application for leave to
appeal a
judgment in an application for eviction handed down on the 19 January
2024. Secondly, an application for leave to carry
into effect the
order of eviction granted in terms of the judgment handed down on the
19 January 2024 under the provisions of section
18(1) and (3) of the
Superior Courts Act
[1]
(the Act)
despite the application for leave to appeal, any subsequent appeal or
petition for leave to appeal the eviction judgment.
2. For
the sake of convenience, I shall refer to the parties as they were
referred to in the eviction application.
In the eviction application
four of the named respondents, being the twelfth, twenty-first,
twenty-second and twenty-third respondents
opposed the eviction
application. They were referred to as the opposing respondents in the
original judgment, which is now the
subject of this application for
leave to appeal (the main judgment). These opposing respondents in
the eviction application are
respectively the first to the fourth
applicants in the application for leave to appeal.
3. The
first applicant in the eviction application is the applicant in the
section 18(1) and (3) application.
4. I
heard the application for leave to appeal and the application under
section 18(1) and (3) as separate applications
on the same day. It is
convenient to deal with both applications in one judgment.
5. The
main judgment in this matter sets out the factual background in much
greater detail. To make this judgment
readable I will summarise the
factual background to the extent required.
6. The
second applicant, being the Ga-Segonyana Local Municipality, is the
registered owner of a commercial property
being erf 2[...] K[...].
The property was bought from Transnet in 2011. The opposing
respondents occupied various premises in which
various businesses
were conducted on such property.
7.
Historically, various occupants had leases of one form or another.
However, it is clear from the papers that
at the time that the
eviction application was launched none of the respondents could claim
any form of lease. In fact, and with
particular reference to the
opposing respondents, none of them claimed any form of lease. It will
become relevant later that the
twenty-third respondent conducted a
business selling gas and petroleum products on a portion of this
premises.
8. The
second applicant issued a tender to develop the said property. At the
conclusion of this tender process,
the tender to develop the said
property was awarded to the third applicant. In return for developing
the property, the third applicant
was awarded a long-term lease that
was registered against the title deed of the property concerned. The
third applicant, being
a joint venture, then ceded such long-term
lease to the first applicant. This cession was reduced to a notarial
deed of cession
and was also registered against the title deed of the
said property.
9. The
application for eviction from the property concerned was launched on
the 8 June 2021. The twenty-third
respondent who has deposed to all
the main affidavits throughout this process then realised he would
have to take certain of the
second applicant’s decisions and
processes on review. The twenty-third respondent launched this review
application on the
21 June 2022.
10. Then the opposing
respondents were granted a stay of the eviction proceedings pending
the outcome of the review application.
The review application was
dismissed on the 10 March 2023.
11.
In the main
judgment I found: “As a direct consequence of the dismissal of
the said review application, the only basis upon
which the opposing
respondents could continue to oppose the eviction application was on
the question as to whether the three main
(applicants)
[2]
had
locus
standi
to bring this application for eviction. Indeed, this was the only
basis upon which the opposing respondents opposed the eviction
application at the hearing hereof.”
[3]
12. In the main judgment
I decided that the eviction order could be granted if any one of the
three main applicants established
their
locus standi
to bring
the said application. This finding in the main judgment has not been
challenged.
13. In the main judgment
I found that the second applicant had established its
locus standi
and the authority to launch the eviction application.
14. I did not decide the
locus standi
or the authority of the first and third
applicants in the eviction proceedings. It was not necessary to do
so.
15. Having set out the
relevant background facts, I now turn to dealing with the application
for leave to appeal.
16. The opposing
respondents (applicants for leave to appeal) filed a document titled
“SUPPLEMENTARY NOTICE OF APPLICATION
FOR LEAVE TO APPEAL”.
They also filed what was called an Interlocutory Application for
leave to file the supplementary Notice
of Application for Leave to
Appeal. Mr Venter who appeared for the applicants in the eviction
matter (current respondents in the
application for leave to appeal)
considered this to be an irregular proceeding, but in the interests
of proceeding did not oppose
the Supplementary Notice of Application
for Leave to Appeal.
17. Despite the
Supplementary Notice of Application for Leave to Appeal being filed,
Mr Moeng, who appeared for the opposing respondents
(current
applicants for leave to appeal) did not rely on any of the grounds
set out in the said Supplementary Notice. In fact,
Mr Moeng only
pursued two broad grounds as a basis for the opposing respondents’
application for leave to appeal. It was
clear from Mr Moeng’s
presentation that these were the only grounds that his clients
pursued in their application for leave
to appeal. Hence, I shall only
deal with the grounds argued by Mr Moeng.
18.
It was also
clear that in pursuing the application for leave to appeal that the
opposing respondents only relied upon section 17(1)(a)(i)
of the
Act
[4]
. In other words, the
opposing respondents, as a basis for their application for leave to
appeal, only rely on the contention that
“…the appeal
would have a reasonable prospect of success.” They do not rely
on the basis for leave to appeal
set out in section 17(1)(a)(ii) of
the Act, being that there “…is some other compelling
reason why the appeal should
be heard.”
19.
Having
regard to the change from ‘could’ to ‘would’
brought about by section 17(1)(a)(i) of the Act
there existed some
differing approaches on how ‘reasonable prospects of success’
would be determined. Such controversy
as might have existed appears
to have been settled in the case of RAMAKATSA & OTHERS v AFRICAN
NATIONAL CONGRESS & ANOTHER
[5]
,
where Dlodlo JA set out the position as follows:
“…
The
test for reasonable prospects of success postulates a dispassionate
decision based on the facts and the law that a court of
appeal could
reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in this matter
need to convince
this Court on proper grounds that they have prospects of success on
appeal. Those prospects of success must not
be remote, but there must
exist a reasonable chance of succeeding. A sound rational basis for
the conclusion that there are prospects
of success must be shown to
exist.”
[6]
(references
omitted)
20. The two grounds of
appeal relied upon by the opposing respondents in the argument
presented by Mr Moeng are: Firstly, in respect
of
locus
standi
and authority of the Municipal Manager to launch the
eviction application as asserted in paragraph 1.3 of the founding
affidavit
do not prove that the municipality resolved to institute
the eviction application; and Secondly, on a proper interpretation of
the Power of Attorney, being annexure “FA2” to the
founding affidavit of the eviction application, does not authorise
the launching of the application on behalf of the Ga-Segonyana Local
Municipality.
21. For the sake of
clarity, here we are really dealing with the authority of the
municipality’s agent to bind the municipality
to be a party to
the launching of the application for eviction. As owner of the
relevant property the
locus standi
of the municipality to
launch eviction proceedings against occupiers of such property ought
not to be an issue.
22.
The answers
to both grounds of appeal are, to a large extent, the same. The
opposing respondents, in the answering affidavits filed
on their
behalf, are obligated to admit or deny, or confess and avoid the
contentions set out in the founding affidavit. If the
opposing
respondents fail to do so, the court will, for the purposes of the
application accept the allegations made in the founding
affidavit.
[7]
Although the authority referred to is old, the obligation of a
respondent in dealing with material contentions set out in the
founding affidavit is so ingrained on our motion proceedings that it
can be regarded as trite. The reason for this is plain.
23. If respondents were
not forced to deal with contentions set out in the founding papers
explicitly and directly on pain of being
deemed to have admitted
contentions not explicitly denied or dealt with on the facts to show
that despite an admission of a contention
in the founding affidavit,
there exists some other basis to avoid the consequences of the
admission, then motion proceedings would
be stymied and courts would
be unable to make decisions on papers in motion proceedings.
24. In both grounds of
appeal set out above, the opposing respondents in the eviction
application, seek to challenge the authority
of the Municipal Manager
to be a party to launching such application after they have been
deemed to have admitted such authority
in the answering affidavit
filed in the eviction proceedings.
25. This can never be
allowed. A challenge to the authority of the Municipal Manager deemed
to be admitted in the answering affidavit
cannot be allowed. It
severely prejudices the applicants. The applicants have been deprived
of their right and opportunity to deal
with such challenge or chose a
different course of action before they invested years and much
expense in these legal proceedings.
To allow this would be to
sanction trial by ambush.
26. For the sake of
completeness, I will set out the relevant passages and to the extent
required deal with each one.
27. Paragraph 1.3 of the
founding affidavit reads as follows:
“
I
am duly authorised to depose to this affidavit on behalf of all the
Applicants by virtue of resolutions passed and authorities
granted,
copies of which are annexed hereto marked
Annexures “FA1”,
“FA2”
and “
FA3”
.”
28. In
response to this in the main answering affidavit in the eviction
application, the respondents state at paragraph
5:
“
AD
PARAGRAPHS 1.3 and 1.4
The
contents hereof are noted.”
29. Mr Moeng argued that
the deponent to the founding affidavit does not assert his authority
to bring the application on behalf
of the applicants but only claims
authority to depose to the founding affidavit. In my view reading
paragraph 1.3 of the founding
affidavit in context and having regard
to the powers of attorney annexed as “FA1”, “FA2”
and “FA3”,
it is clearly implied that the deponent claims
authority to bring the application for eviction on behalf of the
affected applicants
and asserts their authority to authorise him to
do so.
30. In any event, the
opposing respondents in the eviction proceedings, chose not to raise
this issue in the answering affidavit.
They have been deemed to have
admitted the authority of the deponent to launch the eviction
proceedings on behalf of the relevant
applicants.
31. Mr Moeng, also
referred to a response to paragraph 2.2 of the founding affidavit.
Paragraph 2.2 of the founding affidavit is
simply a citation of the
second respondent. The paragraph Mr Moeng seeks to rely on reads as
follows:
“
AD
PARAGRAPH 2
Save
to note the non-existence of a Counsel (sic) Resolution that gives
the Municipal Manager authority to sign the Special Power
of
Attorney, Annexure “FA2” on behalf of the municipality,
the rest of the contents hereof are noted.”
32. Mr Moeng argues that
this is an explicit challenge to the authority of the Municipal
Manager set out in the answering affidavit.
Firstly, this is raised
in relation to the mere citation of a party. Secondly, it is at odds
with the deemed admission in relation
to the authority of the
deponent to the founding affidavit already dealt with. Thirdly, the
opposing respondents claim no direct
knowledge of the non-existence
of the relevant resolution. At most, the opposing respondents can
only really be saying the relevant
Council Resolution is not annexed
to the founding affidavit.
33. Having regard to the
provisions of Rule 7(1) and Rule 35(12), as well as the earlier
deemed admission being at odds with this
assertion, the fact that
this issue is raised in the context of the citation of the
municipality, this does not amount to an explicit
challenge to the
authority of the municipalities agent (the municipal manager) to bind
the municipality to be a party to the application.
In short and in
the context set out herein and above, it does not call for an answer.
34. In these
circumstances, the opposing respondents ought to have invoked the
provisions of Rule 7(1) alternatively Rule 35(12).
Accordingly,
I do not believe that that the response to this paragraph of the
founding affidavit in the eviction application
can be classified as a
direct and explicit challenge to the authority of the Municipal
Manager to sign the relevant power of Attorney.
35. To allow them to
raise this issue in this manner is to deprive the applicants in the
eviction application of the opportunity
of dealing with this issue.
The opposing respondents were obliged to raise this issue pertinently
and explicitly in their answering
affidavit when dealing with the
applicants’ assertion of authority and
locus standi
.
They failed to do so. They cannot raise the issue or rely on it in
this application for leave to appeal.
36. Under the second
ground for leave to appeal argued before this court, the opposing
respondents referred to the wording of “FA2”
itself and
they assert this power of attorney does not bind the municipality as
an applicant in the eviction proceedings but in
fact refers to ‘Copy
Centrum’, the third applicant. This argument is also made after
the deemed admission dealt with
above. In these circumstances the
applicants in the eviction proceedings did not have an opportunity to
deal with this issue. At
this stage of the proceedings, this argument
cannot be allowed.
37. In these
circumstances I cannot find a rational basis to conclude that another
court would come to a different conclusion. Although
the opposing
respondents did not rely on section 17(1)(a)(ii) I cannot in any
event find any compelling reason why an appeal in
this matter should
be heard.
38. Accordingly, this
application for leave to appeal stands to be dismissed.
39.
On the
issue of costs Mr Venter argued that the opposing respondents had
deliberately delayed the applicant’s development
of the
relevant property at every turn and that I should follow the approach
set out BOOST SPORTS v SA BREWERIES
[8]
and award cost on an attorney and client scale despite the fact that
the proceedings might not be vexatious, but on the basis that
the
other party might have been put to unnecessary expense. Cost are in
the discretion of the trial court. After considering all
of the
circumstances of the case I believe the applicants in the eviction
application (Zinvomax
et
al
) be
awarded costs on the basis of scale C of rule 69.
40. I now turn to the
application to execute the relevant eviction order despite any
contemplated proceedings to appeal such order.
41. Zinvomax, the first
applicant in the eviction proceedings applies for an order under the
provisions of section 18(1) and (3)
that the order of the court
handed down on the 19 January 2024 be declared immediately executable
and not be suspended pending
the respondents’ application for
leave to appeal. It is necessary to refer to the exact wording as set
out in the Notice
of Motion dated the 7 May 2024, which reads:
“
That
the judgment granted by the Honourable Justice Lever J granted on the
19
January 2024 (“the Judgment”) be declared
immediately executable and not be suspended, pending the Respondents’
application for leave to appeal and/or any further appeal and/or
petition proceedings initiated by the Respondents in respect of
the
Judgment, or the relief granted in terms of this application.”
42. The last phrase of
prayer 1 of the said Notice of Motion, being “… , or the
relief granted in terms of this application.”,
is clearly
contrary to the provisions of section 18(4)(iv). Accordingly, I
cannot consider granting such relief.
43.
Requirements
to be established to declare an order immediately executable are in
fact set out in section 18 (1) and (3). The first
point to note is
that section 18(1) starts by reinforcing the ordinary common law
position that pending the outcome of appeal proceedings,
including
applications for leave to appeal, the order appealed against is
suspended.
[9]
That an order
allowing execution of an order of court pending an appeal will only
be allowed in exceptional circumstances.
[10]
44. The requirements to
establish a basis for declaring an order executable despite appeal
proceedings has been summarised by Sutherland
J (as he then was) in
the matter of INCUBETA HOLDINGS v ELLIS as follows:
“
[16]
It seems to me that there is indeed a new dimension introduced to the
test by the provisions of s 18. The
test is twofold. The requirements
are:
·
First, whether or not ‘exceptional circumstances' exist; and
·
Second, proof on a balance of probabilities by the applicant of-
o the
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order; and
o
the absence
of irreparable harm to the respondent/loser, who seeks leave to
appeal.”
[11]
45.
The
conclusion that ‘exceptional circumstances’ exist in a
particular case is not an exercise of judicial discretion,
but a
finding of fact.
[12]
It is not
possible to set out an all-encompassing definition of ‘exceptional
circumstances’.
[13]
The
SCA in the UFS v AFRIFORUM case endorsed the approach of Sutherland J
in the INCUBETA case where the approach to determine
‘exceptional
circumstances’ was described as follows:
“
Necessarily, in my
view, exceptionality must be fact-specific. The circumstances which
are or may be ‘exceptional’ must
be derived from the
actual predicaments in which the given litigants find
themselves.”
[14]
46.
The
prospects of success in the contemplated appeal plays a role in in
the analysis of the facts to determine if such facts disclose
‘exceptional circumstances’.
[15]
47. It seems to me that
the irreparable harm the applicant might suffer is also relevant in
determining if on the facts ‘exceptional
circumstances’
exist.
48. From the wording of
section 18(1) and 18(3) it is clear that the onus of establishing
‘exceptional circumstances’
and that the applicant would
suffer irreparable harm if the execution of the order is not put into
effect and conversely that the
respondent would not suffer
irreparable harm if the order were put into effect, clearly rests
upon the applicant (Zinvomax).
49. Zinvomax in its
founding papers makes the case that the opposing respondents have to
date hereof delayed its occupation and
development of the said site
for a period of approximately four years. In that time building costs
have gone up by a large percentage.
The price of structural steel
alone has gone up 60% in that period. If the delay had not been
caused by the opposing respondents,
the contemplated shopping centre
would have been built and operational already. Zinvomax would already
have been deriving rental
income from the property. It is contended
that Zinvomax would not be able to recover the increased building
costs or the loss of
rental income.
50. Further, Zinvomax
contends that due to the fact that a competing shopping centre is
being planned that Zinvomax had to secure
tenants and bind themselves
to leases to ensure a viable tenant mix to ensure the success of
their shopping centre development.
Zinvomax has to deliver occupation
of these premises to the secured tenants by a fixed date in 2025 or
suffer penalties or losing
the secured tenants and thereby suffer
reputational damage.
51. Opposing respondents
argue that Zinvomax is the author of its own prejudice or irreparable
harm, in that it participated in
an unlawful cession of the long-term
lease.
52. However, Zinvomax is
not seeking an order to enforce the unlawful contract. It is seeking
an order to evict the opposing respondents
in circumstances where
they clearly have no right of tenure to occupy the premises
concerned. This conclusion that the opposing
respondents do not have
a legitimate right to occupy the relevant premises is based on their
own version. It cannot be challenged.
In fact, it was not challenged.
53.
These
circumstances are analogous to the circumstances that prevailed in
the case of BITLINE SA 951 t/a SASOL ROODEPOORT WEST v
SASOL OIL
(PTY) LTD & AMRICH 58 PROPERTIES (PTY) LTD.
[16]
54. Any prospective right
the opposing respondents may have had in relation to the relevant
premises vanished when the review application
was dismissed. In these
circumstances, even if hypothetically they were to succeed on appeal
the opposing respondents would still
have no right to occupy the
relevant premises. In fact, Mr Venter described the opposing
respondents as ‘commercial squatters’,
on the facts of
this case, such description is fully justified.
55. Furthermore, for the
reasons set out above, the opposing respondents have no reasonable
prospects of success on appeal.
56. In all of these
circumstances, I find that the applicant (Zinvomax) has established
‘exceptional circumstances’
as contemplated in section
18(1). I also find that Zinvomax has established irreparable harm as
contemplated in section 18(3).
57. Furthermore, in these
circumstances, the opposing respondents cannot claim irreparable harm
if the execution of the eviction
order is not suspended. This must be
so if the opposing respondents have no right to occupy the relevant
premises even if they
succeed on appeal. Success on appeal won’t
conjure up for the opposing respondents a lease or some other right
to occupy
the relevant premises.
58. The twenty-third
respondent claims that he has certain environmental obligations in
decommissioning the filling station. That
evicting him before such
compliance will constitute irreparable harm. Firstly, the
twenty-third respondent has known since the
dismissal of the review
application that he would ultimately have to decommission and vacate
the relevant premises as he himself
does not assert a right to occupy
the relevant portion of the premises concerned. Yet, he has done
nothing to give effect to his
obligations to decommission the filling
station. Secondly, the twenty-third respondent does not have to be in
possession of the
premises to comply with his environmental
obligations in decommissioning the filling station. He merely has to
make appropriate
arrangements with Zinvomax. In these circumstances I
cannot find that the twenty-third respondent would suffer irreparable
harm
if the eviction order is put into effect. I also cannot find on
the facts set out in this application that any of the other
respondents
will suffer irreparable harm if the eviction order is
made executable immediately.
59. Accordingly, Zinvomax
has established all of the requirements for an order under the
provisions of section 18(1) and (3) of
the Act.
60. In respect of costs I
believe Zinvomax is entitled to its costs but not on an attorney and
client basis. In my view Zinvomax
is entitled to costs as provided
for on Scale “C” of Rule 69.
Order:
1)
The application for leave to appeal is dismissed.
2)
The applicants in the application for leave to appeal are to pay the
costs of the respondents in the application
for leave to appeal on
the basis of scale C of Rule 69.
3)
Insofar as it provides for the eviction of the respondents and all
persons occupying erf 2[...] K[...] through
the said respondents, and
the assistance of the Sheriff and South African Police Services (if
required), the judgment handed down
in the eviction application on
the 19
th
January 2024 is declared immediately executable
and is not suspended by any application or petition for leave to
appeal the said
eviction judgment and order, or any subsequent
appeal.
4)
The respondents in the application to execute the eviction judgment
in terms of
section 18(1)
and (3) of the
Superior Courts Act 10 of
2013
are to pay the applicant’s (Zinvomax’s) costs in the
section 18
application on the scale provided for in scale C of
Rule
69.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
Representation:
For
The Applicants:
Adv
LBJ Moeng
Instructed
by:
TAYLOR
INC ATTORNEYS
For
The Respondents:
Adv
JA Venter
Instructed
by:
ENGELSMAN
MAGABANE INC.
Date
of Hearing:
13
June 2024
Date
of Judgment:
18
June 2024
[1]
Act 10 of 2013.
[2]
I see from the main judgment that I erroneously referred to the
respondents at this point in the main judgment. The context makes
it
clear that it could only have been the applicants whose
locus
standi
to bring the application for eviction was in question. This is
consonant with the rest of my judgment and my finding on
locus
standi
.
Indeed, the parties hereto dealt with the matter as if it was the
locus
standi
of the main ‘applicants’ which was relevant. In these
circumstances, nobody can be prejudiced by my correcting this
obvious mistake for present purposes.
[3]
Main judgment paragraph 9 thereof.
[4]
Superior Courts Act 10 of 2013
.
[5]
RAMAKATSA & OTHERS v AFRICAN NATIONAL CONGRESS & ANOTHER
(Case No: 724/2019)[2021] ZASCA 31 (31 March 2021).
[6]
Ramakatsa case above., para [10].
[7]
Moosa & Another v Knox
1949 (3) SA 327
(N) at p. 331.
[8]
2015 (5) SA 38
(SCA) at para [27].
[9]
UFS v AFRIFORUM
2018 (3) SA 428
(SCA) at para [10] (p433 D-E).
[10]
UFS., above at p 433 E.
[11]
INCUBETA HOLDINGS v ELLIS
2014 (3) SA 189
(GJ) at para [16].
[12]
INCUBETA case., above., at para [18].
[13]
INCUBETA case., above., at para [18].
[14]
UFS v AFRIFORUM case., above at para [13].
[15]
UFS v AFRIFORUM case., above at paras [14] to [15].
[16]
BITLINE case., SAFLII., Case No: 2023/052612., 2024 ZAGPJHC390 (2
April 2024).