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2024
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[2024] ZANCHC 86
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Jacobs and Others v Zinvomax (Pty) Ltd (CA&R32/2024; 1160/2021) [2024] ZANCHC 86 (9 September 2024)
Latest amended version 18 September
2024.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY
Not
reportable
Appeal
Case no: CA&R32/2024
WIM
JACOBS
1
st
Appellant
GAO
XIA QIANG
2
nd
Appellant
HUANG
FENG
3
rd
Appellant
MIKE
BESTER
4
th
Appellant
and
ZINVOMAX
(PTY) LTD
Respondent
In
Re:
Case
no:1160/2021
ZINVOMAX
(PTY) LTD
Applicant
and
WIM
JACOBS
1st
Respondent
GAO
XIA
QIANG
2nd
Respondent
HUANG
FENG
3rd
Respondent
MIKE
BESTER
4th
Respondent
Neutral
citation:
Jacobs
and 3 Others v Zinvomax (Pty) Ltd
(Case
no. CA&R32/2024) (09 September 2024)
Delivered:
09
September 2024
Coram:
Tlaletsi
JP, Nxumalo J et Stanton J
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII.
The
time and date of hand-down is deemed to be 14h00 on 09 September
2024.
ORDER
Full
Bench Appeal:
1.
The appeal is struck from the roll in terms of
s16(2)
of the
Superior
Courts Act 10 of 2013
.
2.
The appellants are to pay the respondent’s costs jointly and
severally, the one paying the other
to be absolved.
3.Such
costs shall be party and party costs on scale C of
Rule 69.
JUDGMENT
TLALETSI
JP
INTRODUCTION
1.
The
appellants, (Wim Jacobs, Gao Xia Qiang, Huang Feng and Mike Bester)
are appealing against the order of this court in an application
brought by the respondent (Zinvomax (Pty) Ltd) to execute the
eviction judgment in terms of section 18(1) and (3) of the Superior
Courts Act 10 of 2013 (the Act).
[1]
They are dissatisfied with the part of the order authorising their
immediate eviction from certain property pending any appeal
process
they may embark upon.
THE FACTS
2.
The dispute has its genesis in an application
for the eviction of the
appellants from a commercial property known as erf 2[....] K[...].
The said property is owned by
the Ga-Segonyana Local Municipality.
The Municipality had purchased the said property from Transnet in
2011 for a purchase
price of just under R8 million (eight million
rand). Registration of the property in favour of the
Municipality happened
on 24 November 2014.
3.
The applicants are part of several persons
(about 23 in number) who
occupy certain premises on the said property and run various
businesses from such premises.
4.
A brief background on how the current respondent
came into the
picture is necessary for a proper understanding of the matter.
It is as follows. The Municipality invited
developers for the
development of the property. Copy Centrum is a joint venture between
Billy Purushotham and Built-IT Green Construction
(Pty) Ltd (the
Joint Venture). The Joint Venture submitted and won the tender
to develop the property on behalf of the Municipality.
There
was a condition that the Joint Venture would be awarded a long-term
lease of an initial period of thirty years with an automatic
extension of a further twenty years in exchange for developing the
property.
5.
On 9 September 2019 a notarial deed of cession
and assignment was
concluded and also registered between the respondent and the Joint
Venture. The Municipality was also
a party to such cession
agreement. The Joint Venture ceded to the respondent, its rights to
occupy the property in terms of the
said notarial lease agreement.
It is significant to note that with this transaction, the respondent
thus procured the rights
as a long-term tenant of the property,
protected in terms of the notarial deed of lease and cession
agreement registered against
the title deed of the property.
6.
On 8 June 2021 the respondent, the Municipality
and the Joint Venture
and its parties, launched an application to evict the applicants and
all other parties that occupied the
premises on the property to
enable the respondent to commence with the planned development of the
property. The application
was opposed by the current appellants
only. The opposing affidavit was filed by Mike Bester. The
other three appellants
only filed supporting affidavits, without
providing independent versions or defences to the eviction
application.
7.
The appellants, in their opposition to the
eviction application,
expressed an intention to launch a review application aimed at
setting aside certain of the decisions of
the Municipality. On
4 February 2022, the court a quo granted a stay of the eviction
proceedings pending the finalisation
of the intended review
application.
8.
On 21 June 2022, the fourth appellant (Mike
Bester) launched the
review application seeking orders on the following terms:
“
1.
That the decision of the first respondent that an invitation of
development proposals for Erf 2[....], K[....]
be expedited for long
term lease be declared constitutionally invalid, reviewed and set
aside;
2.
The decision of the first respondent to award the tender to the third
respondent be declared constitutionally
invalid, reviewed and set
aside;
3.
Further and/or alternative relief”
[2]
The review application
was dismissed by Mamosebo J and Chwaro AJ on 10 March 2023.
9.
The
application for eviction was subsequently heard by Lever J on 2 June
2023 and handed down his Judgment on 19 January 2024.
The
learned Judge granted orders essentially evicting the respondents and
all persons or entities occupying the property through
them and that
in the event that the respondents and persons occupying the property
refuses to immediately vacate the property,
that the Sheriff be
directed with the assistance of the South African Police Services (if
necessary) to give effect to the order.
The current appellants
were ordered to pay the applicants party and party costs, jointly and
severally, the one paying the other
to be absolved.
[3]
The order immediately came into operation and could be executed.
10.
Aggrieved by the order above, the appellants filed their application
for leave to appeal the eviction order. The filing of the application
for leave to appeal automatically suspended the operation
and
execution of the eviction order. Soon thereafter the respondent
launched a counter-application for leave to carry into effect
the
order of eviction granted in terms of the judgment referred to above,
under the provisions of s18(1) and (3) of the Act.
11.
The two
motions, namely the leave to appeal application by the appellants and
the counter-application to execute the eviction by
the respondent,
were heard by Lever J separately on 13 June 2024 and rendered a
judgment incorporating the two applications on
18 June 2024.
[4]
The
judgment of the court a quo
12.
In adjudicating the two applications, the court a quo made the
following
remarks:
“
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) 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.’
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.”
13.
As can be seen from the quoted excerpt of the judgment of the court
a
quo, when the eviction application was resumed after the dismissal of
the review application, the only basis upon which the eviction
application was resisted by the appellants was that the respondent,
the Municipality as well as the Joint Venture did not have
locus
standi
to launch the application for eviction of the appellants
from the property. Their resistance of their eviction was not
anchored
on any claim of their entitlement to occupy the premises.
The court a quo held that they could not claim any entitlement
because they failed to establish a valid and existing lease agreement
other than a month-to-month lease. In deciding the
locus
standi
objection, the court a quo held that the municipality as
the registered owner of the property had
locus standi
and the
authority to launch the eviction application. For the purpose
of eviction, the court a quo concluded that it was
not necessary to
decide the
locus standi
or the authority of the first
respondent and the Joint Venture. It is essentially on the
basis of the above reasons that
the court a quo granted the orders
evicting the appellants and other occupiers of the property in issue.
Application
for Leave to Appeal
14.
Having made the above remarks and observations, the court a quo
turned to consider the merits of the application for leave to appeal.
The Court made the following fundamental observations regarding
the
basis of the case for the appellants in seeking leave to appeal:
“
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.
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.”
[5]
15.
The
reasoning of the court a quo above makes it plain that in both
grounds of appeal, the appellants sought to challenge the authority
of the Municipal Manager to be a party to the launching the
application for eviction, as well as the wording of the power of
attorney
which in their view did not specifically authorise the
launching of the eviction application on behalf of the municipality.
The
court a quo reasoned that nowhere in the appellants’
answering affidavit did the appellant challenge the authority of the
Municipal Manager to act on behalf of the Municipality as well as the
wording of the power of attorney. What they did was only
to note the
averments made and as such were deemed to have admitted such
authority. Furthermore, the Court a quo arrived
at this
conclusion because the appellants did not invoke the provisions of
Rule 7(1), alternatively, Rule 35(12) of the Uniform
Rules
[6]
which were available to them.
16.
The court a quo found no merit in the grounds of appeal raised by
the
appellants and dismissed the application for leave to appeal which
was solely grounded on section 17(1)(a)(i) of the Act, namely
that
the appeal would have reasonable prospects of success. The
court a quo went further though, to find that there is no
compelling
reason why the appeal should be heard. It is significant that
the appellants did not seek to show that they were
or are entitled to
occupy the property. Neither did they seek to challenge the
findings of the court a quo that they have
not proved any right to be
in occupation of the property.
The
Counter-Application
17.
Having disposed of the application for leave to appeal the court
a
quo proceeded to adjudicate the respondent’s counter
application in terms of s18(1) of the Act. Section 18 of the
Act provides as follows:
“
18.
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise,
the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended
pending the decision of
the application or appeal
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation
and execution of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an
application for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied
to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if
the court does not so order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
(a) If a court orders otherwise, as contemplated in subsection
(1)—
(i) the court
must immediately record its reasons for doing so;
(ii) the
aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the court
hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order
will be automatically suspended, pending the outcome of such appeal.
(b) 'Next highest
court', for purposes of paragraph (a)(ii), means—
(i) a full
court of that Division, if the appeal is against a decision of a
single judge of the Division; or
(ii) the
Supreme Court of Appeal, if the appeal is against a decision of two
judges or the full court of the Division.
[S 18(4) substituted by
s. 29 of Act 15 of 2023 with effect from 3 April 2024.]
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.”
18.
It is
perspicuous that s18 restates the common law position that the noting
of an appeal automatically suspends the operation and
execution of
the order of the court pending the outcome of the appeal.
However, a party who the order is in his or her favour,
may apply to
the court to be granted an order that the operation and execution of
the order not be suspended but put in operation.
A court may
grant such an order in exceptional circumstances. The applicant
must show on a balance of probabilities that
it will suffer
irreparable harm if the order is not granted and that the other party
will not suffer irreparable harm if the order
for execution of the
order is granted.
[7]
Should the
court decide to order that the order should be executed, it is
required to immediately record the reasons supporting
such an order.
The aggrieved party is granted an automatic right of appeal to the
next highest court.
19.
The court a quo was alive to the onus resting on the respondent to
satisfy the requirements for the immediate execution of the eviction
order. The court analysed the parties’ averments
and
contentions and found the following circumstances to be exceptional:
-
19.1
The appellants have delayed the respondent’s occupation and
development of the said site
for approximately four years. This
has led to the construction costs escalating by a large percentage.
The price of
structural steel alone had gone up by 60% in that
period. Had it not been for the delay by the appellants, the
contemplated
shopping centre would have been built and operational
already. The respondent has lost rental income to be derived
from the
property which he would not be able to recover.
19.2
The respondent had to secure tenants and concluded lease agreements
with them. It had to
hand over occupation of the premises to
the tenants by a fixed date in 2025 failing which it would suffer
penalties. There
is also a competing shopping centre in the
area which adversely affects the interests of the respondent because
of the delays caused
by the appellants.
19.3
The respondent is not seeking to enforce an unlawful contract as
alleged by the appellants but
merely to evict them from the property,
where they have no right of tenure to occupy. The conclusion
that the appellant does
not have a legitimate right to occupy the
premises is based on their own version and cannot, and was not
challenged.
19.4
That any prospective right the appellants may have had in relation to
the relevant premises vanished
when the review application was
dismissed.
20.
With regard to the appellants suffering irreparable harm if the court
orders otherwise (that ordering execution of the order), the court a
quo reasoned that the appellants cannot claim irreparable
harm
because they have no right to occupy the relevant premises, even if
they succeed on appeal. And that success on appeal
won’t
conjure up for the appellants a lease or some other right to occupy
the relevant premises.
21.
Regarding Mr Bester’s claim that he will suffer irreparable
harm because he has certain environmental obligations in
decommissioning the filing station that he is operating on the
premises,
the court a quo reasoned that:
Mr
Bester 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. Furthermore, he
does not
have to be in possession of the premises to comply with his
environmental obligations in decommissioning the filing station,
and
he merely has to make appropriate arrangements with Zinvomax.
None of the appellants, the court a quo found, will suffer
irreparable harm if the eviction order is made executable
immediately.
22.
In the result the court a quo made an order on the following terms:
“
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 19th 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.
”
0c
m; line-height: 150%">
23.
It is against paragraphs 3) and 4) of the order and the conclusions
on which it is based that the current appeal is based. As pointed out
the appeal is in terms of s 18 of the Act.
The
Appeal
24.
The respondent raised a preliminary point to the effect that the
appeal has become moot and academic. This contention is based
on the fact that the appellants’ application for leave
to
appeal was dismissed on 18 June 2024 by the court a quo. In
terms of s17(2)(b) of the Act, the appellants were entitled
to apply
for leave to appeal to the Supreme Court of Appeal within one month
after their application for leave to appeal was refused.
Because of the failure to file any further application for leave to
appeal, the respondent contends, the court a quo’s order
evicting the appellants from the subject property has in any event
become final.
25.
In my view, it is necessary to determine the preliminary point
first.
Should the preliminary point be decided in favour of the
respondent, it shall not be necessary to determine the merits of the
appeal
namely, whether the court a quo was correct in finding that
there are exceptional circumstances justifying the granting of the
immediate execution of the eviction order.
26.
Section 16(2)(a) of the Act provides that:
“
(i) When at
the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect
or result, the appeal
may be dismissed on this ground alone.
(ii) Save
under exceptional circumstances, the question whether the decision
would have no practical effect or result
is to be determined without
reference to any consideration of costs.”
27.
It is important to re-emphasize the fact
that the Court a quo issued two orders: the first was the dismissal
of the Application
for leave to appeal the eviction order. This is
the order which necessitated the appellants’ approach to the
Supreme Court
of Appeal for leave if aggrieved thereby. The second is
the order for the immediate execution of the eviction order which was
sought
by Zinvomax. This is the order that results in an automatic
right of appeal accruing to the aggrieved party to approach the next
highest court. The “next highest court” in this context
would be the present Court as constituted.
28.
It is common cause that at the time of initiating the purported
automatic appeal proceedings against the order of the court a quo,
the appellants had not lodged an application for leave/petition
to
the Supreme Court of Appeal. They also did not make any such
allegation in the applicants’ papers. They only
mentioned
in the heads of argument that were filed on 22 July 2020 that the
“applicants [are] in the process of submitting
their
application for special leave to the Supreme court of Appeal…”
It was only after the respondent raised
the point that the appeal is
moot, that the appellants took steps to lodge their application for
leave accompanied by condonation
application for the late lodging of
the application to the Supreme Court of Appeal a few days
thereafter. This date was after
the one-month period prescribed
in s17(2)(b) of the Act.
29.
The
question to be considered at this stage is what is the effect of an
application for Leave to appeal to the Supreme Court of
Appeal which
is out of the prescribed one-month period. The issue similar to
the one at present was considered by the Full
Court in
Duduzile
Cynthia Myeni v Organisation Undoing Tax Abuse NPC and Another.
[8]
In that case Ms Myeni had been declared a delinquent director in
terms of
s162(5)
of the
Companies Act 71 of 2008
based on findings
that she had seriously misconducted herself during her tenure as the
former non-executive chairperson of South
African Airways SOC Ltd.
She filed her application for leave to appeal the order within the
prescribed period for lodging
such an application. The
respondents filed their counter-application in terms of s18 of the
Act for the enforcement of the
principal order pending the outcome of
the decision in the application for leave to appeal.
30.
The application for leave to appeal was subsequently dismissed and
simultaneously the respondents’ counter-application in terms of
s18(1) and 18(3) of the Act was upheld. Aggrieved,
Ms Myeni
brought an application in terms of s18(4) of the Act against the
order upholding the counter-application. It
was common
cause as in the present case, that the application for leave to
appeal to the Supreme Court of Appeal against the order
declaring her
a delinquent director had not been filed timeously in terms of the
one-month period.
31.
In dismissing Ms Myeni’s contention that the court should take
into account that the parties in that matter, had always anticipated
that there would be further appeals in the matter the fact
that the
application for leave to appeal to the Supreme Court of Appeal was
not filed in time should not stand in the way of the
Full Court
hearing the urgent appeal, the court held:
“
[18]
This argument is misconceived. Section 18(1) provides that
“…unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision which is
the subject of an application for leave to appeal or of an
appeal, is
suspended pending the decision of the application or appeal.”
The quoted passage denotes that the existence
of an application for
leave to appeal or an ongoing appeal process is a prerequisite for an
application in terms of section 18
to arise. Put differently,
the wording of section 18(1) signifies that in the absence of an
application for leave to appeal
or an appeal, the judgment and order
in question are not suspended and are in fact deemed final. The
fact that the noting
of an appeal suspends the execution of a
judgment appealed against logically means that in the absence of such
an appeal, the judgment
is not suspended and is in fact deemed
executable and thus, final. Given that section 18 exists to
regulate the position
when an application for leave to appeal or an
appeal against a judgment is pending, it stands to reason that where
no such application
for leave to appeal or appeal is pending, the
purpose of section 18 ceases to exist and as such, the judgment and
order are deemed
final and executable for all intents and purposes.
[19] As such, an
important question would then be what effect would the lodging of the
petition after the right to appeal has lapsed
then have on the
principal judgment’s order. Having regard to the case
law, in light of the belated petition now filed
by the appellant, the
principal judgment’s order continues to remain operational for
the mere fact that the service of an
application to condone the late
filing of the petition to the SCA does not suspend the operation and
execution of any order.
To conclude otherwise would give rise
to an untenable situation in law where, after an order has been
operational for a number
of months, a party could simply bring a
condonation application which would result in such an order suddenly
being suspended.
Such a situation would clearly give rise to
far reaching consequences that this court cannot condone.”
[9]
32.
In
Myeni
,
the Full Court referred to
Panayiotou
v Shoprite
Checkers
(Pty)
Ltd and Others
[10]
and held that:
“
The court in that
matter pointed out that, in terms of
section 18(5)
of the
Superior
Courts Act, and
as a matter of fact and of law, ‘a decision
becomes the subject of an application for leave to appeal or of an
appeal as
soon as an application for leave to appeal or a notice of
appeal is lodged with the registrar in terms of the rules’.
Section 18
thus contains “the conditions necessary for a
judgment of the High Court to be suspended, pending a petition to the
Supreme
Court of Appeal for leave to appeal...”
[11]
33.
Similarly, in the present case the one-month period for the
lodgement
of an application for leave to appeal has lapsed. It
is only when condonation is granted by the Supreme Court of Appeal
that
the application for leave, special leave to appeal will be said
to have been lodged. In that instance there will be compliance
with
s18(5)
which prescribes that a decision becomes the subject of
an application for leave to appeal or of an appeal as soon as an
application
for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the rules. Compliance with the rules
is
peremptory for it is to be said that a decision is a subject of an
application for leave to appeal or of an appeal. The only
exception is where failure to comply with the rules is condoned by
the court having jurisdiction over the matter. The granting
of
an automatic right of appeal to be heard urgently in terms of
s18(4)
does not exempt the appellants from complying with the time periods
necessary for the filing of the application for leave to appeal
to
the Supreme Court of Appeal.
34.
For the above reasons the appeal as it stands is moot. The
provisions
of s18 of the Act have not been triggered. There is
another aspect that makes the appeal moot. It is to be recalled
that the application to review and set aside the resolutions of the
Municipality awarding the tender to the Joint Venture and its
implications was dismissed. That decision is not the subject of
any further appeal and it stands.
35.
Furthermore, it is common cause that there are no proceedings that
have been
instituted by any of the appellants seeking to set aside
the cession by the Joint Venture to the respondent. The
notarial
cession gives the respondent certain rights to deal with the
property which is the subject matter of this appeal. In the
absence of the appellants asserting any rights to occupy the
property, they remain the so-called “Commercial Squatters”.
As the court a quo found, which is not challenged, even if the
Supreme Court of Appeal were to grant them condonation for the late
filing of their petition, and decide the locus standi point and the
appeal in their favour, they would still not acquire any right
to
occupy the property. It is evident that they are pursuing their
case only on the basis that it should not have been the
respondent,
but the Municipality who should have instituted the
counter-application to seek immediate execution of the eviction
order. The outcome of the appeal will in my view, have no
practical effect or result. It is also important to note
that
it was conceded on behalf of the appellants that they had not
challenged the respondent, in their answering affidavit to prove
its
locus standi to launch the counter-application. This issue was
only raised during argument on the appeal. The Supreme
Court of
Appeal would not in its adjudication of the intended appeal deal with
the legality or otherwise of the cession.
It is not a matter
that is the subject of the execution of the eviction order.
36.
It was
contended on behalf of the appellants that this court should exercise
its discretion by dealing with the appeal since it
is already before
court. There is no merit in this submission. Firstly, as
pointed out above, the provisions of s18(5)
are peremptory in so far
as it requires that the decision should be the subject of an
application for leave to appeal or an appeal.
That is not the
case here. Secondly, there is no discrete legal issue of public
importance that arises in this matter and
that will affect matters in
the future and on which the adjudication of this court is required.
The appellants have no right to
occupy the property and to conduct
their businesses therein. It has been stated that s16(2) of the
Act was enacted to avoid
overburdening appeal courts with matters
which are of no practical effect or result.
[12]
The appeal falls to be struck off the roll.
37.
What remains is the issue of costs. Both parties agree that costs
should follow
the result. However, the respondent contended that such
costs should be on attorney and client scale if the appellants are
not
successful. I am not persuaded that it can be said that the
appellants acted with mala fide or that the appeal is vexatious. We
are not at this stage deciding the merits since the conclusion is
that the appeal is moot. Punitive costs are therefore not warranted.
Party and party costs on scale C of Rule 69 would be appropriate in
the circumstances.
ORDER:
In
view of the above, the following order is made:
3.
The appeal is struck from the roll in terms of
s16(2)
of the
Superior
Courts Act 10 of 2013
.
4.
The appellants are to pay the respondent’s costs jointly and
severally, the one paying the other
to be absolved.
5.
Such costs shall be party and party costs on scale C of
Rule 69.
Nxumalo and Stanton JJ
concur in the judgment of Tlaletsi JP.
L P TLALETSI
Judge President
APPEARNCES:
For
Appellants:
Adv.
A. Swanepoel
Taylor
Inc. Attorneys
KIMBERLEY
For
Respondent:
Adv.
J.A Venter
Engelsman
Magabane Inc.
KIMBERLEY
[1]
Section 18 of the Act provides:
“
Suspension of
decision pending appeal
(1) Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the
operation and execution of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended
pending the decision of the
application or appeal;
. . .
(3) A
court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court
to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court
does not so order and that the
other party will not suffer irreparable harm if the court so
orders.”
[2]
Michael
Hendrik Van Niekerk Bester v Ga-Segonyana Local Municipality and
others
;
Case no 316/2022, Unreported: delivered on 10 March 2023.
Northern Cape, Kimberley.
[3]
Zinvomax
(Pty) Ltd and Others v Iga and Others
(1160/21)
[2024] ZANCHC 2
(19 January 2024).
[4]
Jacobs
and Others v Zinvomax (Pty) Ltd and Others
(1160/2021)
[2024] ZANCHC 58
(18 June 2024).
[5]
Ibid.
[6]
Rule 7(1) provides that: “
Subject
to the provisions of sub-rules (2) and (3) a power of attorney to
act need not be filed, but
the
authority of anyone acting on behalf of a party may, within 10 days
after it has come to the notice of a party that such a
person is so
acting, or with the leave of the court on good cause shown at any
time before judgement, be disputed, whereafter
such person may no
longer act unless he satisfies the court that he is authorised so to
act, and to enable him to do so the court
may postpone the hearing
of the action or application.”
Rule
35(12) (a) provides that: “Any party to any proceeding may at
any time before the hearing thereof deliver a notice.
. . to any
other party in whose pleadings or affidavits reference is made to
any document or tape recording to
—
(i).
produce such document or tape recording for inspection and to permit
the party requesting production to make
a copy or a transcription
thereof.”
[7]
See
Ntlemeza
v Helen Suzman Foundation
and
Another
2017 (5) SA 402
(SCA) wherein the SCA observed thus:
“
[23]
As can be seen, s 18(4)(ii) has made orders to execute appealable,
fundamentally altering the general position that
such being purely
interlocutory orders, they were not appealable. Moreover, it granted
to a party against whom such an order
was made, an automatic right
of appeal. In addition, s 18(3) requires an applicant for an
execution order to prove on a balance
of probabilities that he or
she ‘will’ suffer irreparable harm if the order is not
granted and that the other party
‘will not’ suffer such
harm.”
[8]
Myeni
v Organisation Undoing Tax Abuse and Another (15996/2017) [2021]
ZAGPPHC 56 (15 February 2021)
[9]
footnotes omitted.
[10]
2016 (3) SA 110 (GJ).
[11]
Myeni
(supra)
at para [23]
[12]
Panayiotou
v Shoprite Checkers (Pty) Ltd and Others
(248/2016)
[2017] ZASCA 12
(17 March 2017) at para [8]; see also
Legal
Aid South Africa and South v Magidiwana & Others
[2014] ZASCA 141
;
2015 (2) SA 568
(SCA) paras 2-3; Coin
Security
Group (Pty) Ltd v SA National Union for Security Officers &
Others
[2000] ZASCA 48
;
2001 (2) SA 872
(SCA) paras 7-8.