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[2025] ZAMPMBHC 30
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Swanepoel v Harris and Others (5718/24) [2025] ZAMPMBHC 30 (25 April 2025)
IN THE HIGH COURT OF
SOUTH AFRICA, MPUMALANGA DIVISION, (MBOMBELA MAIN SEAT)
Case No.: 5718/24
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
(3)
REVISED
YES/NO
DATE
25 April 2025
SIGNATURE
FOURIE AJ
In
the application between:
WERNER
SWANEPOEL
APPLICANT
and
ROSS
WEBBER HARRIS
FIRST RESPONDENT
ELOUISE
LORRAINE HARRIS
SECOND RESPONDENT
CITY
OF MBOMBELA LOCAL MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
FOURIE AJ
INTRODUCTION:
[1]
The Applicant in the current urgent application is the First
Respondent in an
eviction application brought by the First and Second
Respondents in the current application, being the First and Second
Applicants
in what I shall refer to hereinafter as the main
application. In order to avoid confusion, the parties are referred to
as in the
urgent application.
[2]
The Applicant makes application on an urgent basis seeking an order
in the following
terms:
[2.1.]
That the matter be heard as one of urgency and that the usual time
periods,
notice, and service in terms of the Uniform Rules of Court
be dispensed with;
[2.2.]
Staying/dispensing the execution of the Court Order granted by this
Honourable
Court on the 3
rd
of March 2025, pending
finalisation.
[2.3.]
The finalisation to which the Applicant refers is the finalisation of
Part
B of the Application, which this Court is not tasked with
currently, being an application that the Applicant wishes to move,
for
the rescission of the judgment granted by this Court on the 3
rd
of March 2025.
[2.4.]
The application is opposed by the First and Second Respondents who
seek the
striking of the matter from the roll insofar as it relates
to urgency, alternatively, the dismissal of the application together
with costs.
CRONOLOGY
OF EVENTS:
[3]
In what is to follow, the events need to be set out as they unfolded.
[3.1.]
On 12 February 2025, the main application is served by the First and
Second
Respondents on the Applicant.
[3.2.]
On 26 February 2025, the Applicant files his Notice to Oppose the
main application.
[3.3.]
On 3 March 2025, the matter, as set down on the unopposed Motion
Court roll
of this Court, is dealt with by Montsho-Moloisane AJ
granting the relief the First and Second Respondents sought on an
unopposed
basis.
[3.4.]
On 24 March 2025, the Applicant files an Answering Affidavit in the
main
application.
[3.5.]
On 8 April 2025, a Warrant of Ejectment is served by the First and
Second
Respondents on the Applicant.
[3.6.]
On 17 April 2025, the current urgent application is brought and set
down
to be heard on 22 April 2025.
[3.7.]
On 22 April 2025, at the hearing of the application, the Authority to
Act
of the Applicant’s legal representative is challenged by
the First and Second Respondents by the filing of a Rule 7(1)
Notice.
[3.8.]
The Applicant seeks an indulgence for the matter to stand down to be
heard
on 24 April 2025 to resolve any administrative issues in
respect of the matter, which indulgence is granted with the Applicant
being ordered to pay the wasted costs for 22 April 2025 on an
attorney and client scale.
[3.9.]
On 24 April 2025, the matter was heard via a virtual platform during
which
the Court found the matter to be urgent and proceeded to deal
with the merits of the application. The Court did not
provide reasons for finding the matter to be urgent, and deals with
such reasons in the current judgment.
URGENCY:
[4]
The uncontested evidence in respect of the matter is that, pursuant
to obtaining
the Order of 3 March 2025 the First and Second
Respondents proceeded to serve a warrant of Ejectment on 8 April 2025
on the Applicant.
[5]
Irrespective of the fact that the Respondents’ legal
representative allegedly
informed the messenger of the Applicant’s
legal representative on 24 March 2025 that the Order had been granted
in the main
application on 3 March 2025, 8 April 2025 was the date on
which the Applicant knew that the First and Second Respondents were
proceeding
to enforce the ejectment by way of warrant.
[6]
A litigant who approaches Court for leave on an urgent basis must
comply with
Rule 6(12)(b) of the Uniform Rules of Court.
The Rule reads as follows:
“
In every
affidavit or petition filed in support of any application under
paragraph (a) of this sub-rule, the Applicant shall set
forth
explicitly the circumstances which he avers render the matter urgent
and the reason why he claims that he could not be afforded
substantial redress at a hearing in due course.”
[7]___ The importance
hereof is that the procedure as set out in Rule 6(12) is not there
for the mere taking. An Applicant
has to set forth explicitly
the circumstances which he avers render the matter urgent. More
importantly, the Applicant must
state the reasons why it claims that
it cannot be afforded substantial redress at a hearing in due
course. The question of
whether a matter is sufficiently urgent
to be enrolled and heard as an urgent application is underpinned by
the issue of the absence
of substantial redress in an application in
due course. The Rules allow the Court to come to the assistance
of a litigant
because, if the latter were to wait for a normal trial
date, it would not obtain substantial redress. It is important
to
note that the Rule requires the absence of substantial redress.
This is not equivalent to the irreparable harm that is required
before the granting of an interim relief. It is something
less. He may still obtain redress in an application in due
course, but it may not be substantial. Whether an Applicant
will not be able to obtain substantial redress in an application
in
due course will be determined by the facts of each case. An
Applicant must make out its case in this regard
[1]
[8]._ There are thus two
requirements that must be outlined in the Founding Affidavit in order
to satisfy the requirements of the
Rule
[2]
.Whether
an Applicant has succeeded in satisfying the requirements for urgency
must be determined from the contents of the Founding
Affidavit
[3]
.
[9]
In
LUNA
MEUBELVERVAARDIGERS (PTY) LTD V MAKIN & ANOTHER
[4]
Coetzee
J held with reference to Rule 6(12)(b) the following:
“
Mere lip
service to the requirement of Rule 6(12)(b) will not do, and an
Applicant must make out a case in the Founding Affidavit
to justify
the particular extent of the departure from the norm which is
involved in the time and day for which the matter be set
down.”
[10]
In the current matter, the Applicant approaches the Court on an
urgent basis to stay a warrant, whereby
if executed, he will be
evicted from a residential premises.
[11]
The test in as far as it relates to urgency remains, at its core
whether, if the Court does not deal
with the matter at the current
junction, and the Court allows the matter to be heard in the normal
course, whether the Applicant
will be able to obtain substantial
redress. Substantial redress will depend on the facts of each
specific matter.
[12]
The Court takes judicial notice of the fact that should a matter be
enrolled to be heard on the opposed
Motion Court roll as at the date
of this judgment, the date obtained from the Registrar will be
approximately one year from the
date of such enrolment.
[13]
The papers filed by the respective parties are clear in that the
First and Second Respondents intend
not to wait for the adjudication
on the rescission of judgment before they proceed with the
enforcement of such order by proceeding
to have the Applicant evicted
by way of Warrant with the assistance of the Sheriff.
[14]
Under the circumstances, the Applicant would, in the normal cause,
have been evicted from the premises
for a period of approximately a
year by the time the rescission of judgment application is heard.
It is an unthinkable proposition
that the Applicant would receive
substantial redress if the matter were not heard as one of urgency.
[15]
The only aspect the Court ought to evaluate, following from the fact
that the Court has found that
the matter is urgent, is whether the
urgency was self-created.
[16]
If the Applicant was the reason for the matter being urgent the Court
will not come to the aid of the
Applicant as he would be the master
of his own demise.
[17]
The principles relating to self-created urgency are trite, and the
current matter is not one where
it is deserving to restate the trite
principles pertaining to self-created urgency.
[18]
The issue the First and Second Respondent by way of counsel appearing
for the First and Second Respondents
have raised is that the
Appellant had sat on his laurels or absconded from the litigious
process in the main application which
resulted in the initial order
being granted and after the Applicant became aware of the initial
order, he again unduly delayed
the bringing of the current
application.
[19]
From an evaluation of the chronology which the Court has already set
out, the proposition that the
Applicant sat idly by and did not
actively partake in the litigious process is incorrect.
[20]
Similarly, when confronted with the fact that the First and Second
Respondents were proceeding with
the enforcement of the eviction, the
current application followed without undue time delay.
[21]
As such the Court is not convinced by the argument of the First and
Second Respondents that the urgency
in respect of the matter is
self-created.
STAY
OF EXECUTION PROCESS:
[22]
The only issue remaining outstanding in respect of the matter was
whether the Applicant met the threshold
as per Rule 45A of the
Uniform Rules of Court to obtain the stay of the execution process
pending the finalisation of their rescission
of judgment application.
[23]
In the
matter of
STOFFBERG
N.O. AND ANOTHER v CAPITAL HARVEST (PTY) LTD
[5]
the Court stated the following regarding Rule 45A:
“
The
incorporation of Rule 45A suggests that it was intended to be a
restatement of the Court’s common law discretionary power.
The particular power is an instance of the Court’s authority to
regulate its own process. Being a judicial power, it
falls to
be exercised judicially. Its exercise will therefore be
fact-specific, and the guiding principle will be that execution
will
be suspended where real and substantial justice requires that.
Real and substantial justice is a concept that defies
precise
definition, rather like good cause or substantial reason. It is
for the Court to decide on the facts of each given
case whether
considerations of real and substantial justice are sufficiently
engaged to warrant suspending the execution of a judgment
and if they
are on what terms any suspension it might be persuaded to allow or
should be granted.”
[24]
The general principles for the granting of a stay in execution may
therefore be summarised as follows:
a.
A Court will grant a stay of execution where
real and substantial
justice requires it, or where injustice would otherwise result.
b.
The Court will be guided by considering the
fact that is usually
applicable to interim interdicts, except where the Applicant is not
ascertaining right but attempting a avert
injustice.
c.
The Court must be satisfied that:
i.
The Applicant has a well-grounded
apprehension that the execution is
taking place at the instance of the Respondent, and
ii.
Irreparable harm will result if execution
is not stayed and the
Applicant ultimately succeeds in establishing a clear right.
d.
Irreparable harm will invariably result if
there is a possibility
that the underlying
causa
may ultimately be removed i.e. where
the underlying
causa
is the subject matter of an ongoing
dispute between the parties.
e.
The Court is not concerned with the merits
of the underlying dispute
the sole inquiry is simply whether the
causa
is in dispute.
[25]
The Court
in
VAN
RENSBURG AND ANOTHER NNO v NAIDO AND OTHERS
[6]
stated
that:
“
A Court will
grant a stay of execution in terms of Uniform Rule 45A where the
underlying causa of a judgment debt is being disputed
or no longer
exists or when an attempt is made to use the levying of execution for
ulterior purposes As a general rule, Court
acting in terms of
this rule will suspend the execution of an order where real and
substantial justice compels such actions.”
[26]
I align myself further with the statement of Navsa JA in the matter
of
VAN RENSBURG
supra
where it was stated that:
“
Apart from the
provisions of Uniform Rule 45A, a Court has inherited jurisdiction in
appropriate circumstances to order a stay of
execution or to suspend
an order. It might, for example, stay a sale in execution or suspend
an ejectment order. Such discretion
must be exercised
judicially. As a general rule, a Court will only do so where
injustice will otherwise ensue.”
[27]
In the current matter, the Court needs to evaluate, on all the
principles previously stated whether
injustice would result if the
Court does not intervene and grant the stay of the execution
proceedings.
[28]
The well-grounded apprehension that the execution is taking place at
the instance of the First and
Second Respondents stands obvious and
same is not contested.
[29]
For the same reasoning as the Court has found in respect of whether
substantial redress in due course
could be had by the Applicant if
the matter is not heard on the Urgent Court roll, although the test
is different, it is abundantly
clear that irreparable harm will
result if execution is not stayed and the Applicant ultimately
succeeds in establishing a clear
right as the underlying
causa
between the Plaintiff and the First and Second Respondents are
obviously contested as is the exitance of the Court Order of 3 March
2025 and whether or not same ought to be rescinded.
[30]
This Court will not concern itself with the merits of the underlying
dispute and simply needs to take
notice whether the underlying
causa
is in dispute. The dispute between the Applicant and the First
and Second Respondents is not contested to be in existence.
Similarly, the fact that the Applicant wishes the Order of 3 March
2025 to be rescinded is also not in dispute, such an application
by
way of Part B of the current application is already pending.
[31]
This Court is neither called upon to finally find whether the Order
of 3 March 2025 ought to be rescinded
nor am I of the intention of
doing so.
[32]
I am however requested to exercise my judicial discretion to
evaluate, with the facts the Court is
faced with, whether real and
substantial justice dictates the staying of the execution and in
order to make a ruling on that principle,
the underlying dispute,
being the Order of 3 March 2025 and how the Order came into existence
needs to be evaluated and cannot
be ignored.
[33]
The crux of the issue that exist between the Applicant and the First
and Second Respondents upon which
the Court hearing the rescission of
the judgment would ultimately need to decide is whether, on 3 March
2025 when the matter served
on the unopposed roll and the Order was
ultimately granted, the matter ought to have been regarded as
unopposed or opposed.
[34]
If the Court is of the view that the matter ought to have been
regarded as unopposed and same is glaringly
obvious from the facts,
it could never be the contention that real and substantial justice
dictates the warrant of execution being
suspended.
[35]
If, however, the Court holds the view that the matter ought to have
been regarded as being opposed
when the matter was heard on the 3
rd
of March 2025, it would follow that real and substantial justice
dictates that the warrant of execution to be stayed and for the
Applicant to be afforded the opportunity to pursue a rescission of
such a judgment.
[36]
The Notice of Motion filed by the Applicant in the main application
and served on the Respondent on
12 February 2025 afforded the
Applicant in the current application the opportunity to oppose the
main application within 10 (ten)
days of the application so being
served on him. The last day for the filing of a Notice of
Intention to Oppose by the Applicant
was accordingly 26 February
2025. On 26 February 2025 the Applicant, totally compliant with
the Notice of Motion and the
time frames afforded to him therein
filed his Notice of Intention to Oppose.
[37]
In line with Rule 6(5)(d)(ii) which reflects the Notice of Motion,
the Applicant was afforded 15 (fifteen)
days from the date on which
his Notice of Intention to Oppose was filed to file his Answering
Affidavit in the main application.
[38]
The time for the filing of the Applicant’s Answering Affidavit
in the main application would
accordingly run its course on 19 March
2025. All of these timeframes were confirmed and conceded by
the First and Second
Respondents’ legal representatives at the
hearing of the matter.
[39]
The Notice of Motion filed in the main application by the First and
Second Respondents expressly states
that:
“
If no such
Notice of Intention to Oppose be given the application will be made
on 3 March 2025 at 09h00.”
[40]
Despite the
Notice of Intention to Oppose being given within the correct
timeframe and despite the Applicant having approximately
16 Calendar
days left to file his Answering Affidavit the Court granted the main
application in favour of the First and Second
Respondents in the
absence of the Applicant. At the hearing of the matter, the
legal representatives of the respective parties
were referred to the
matter of
VALUE
POOLS (PTY) LTD v COMMUNITY PROPERTY CO (PTY) LTD
[7]
.
For purposes of the current application and in order to avoid
proposing an order in respect of the rescission of judgment this
Court refrains from making a ruling that might influence in any way
the rescission of judgment application, pending in terms of
Rule 42
of the Uniform Rules of Court as brought by the Applicant. Simply
because, in such an application the Applicant has several
ancillary
hurdles to overcome other than that which is addressed in the current
judgment. I align myself however with the
set out of
Greyling-Coetzer AJ in stating that the Practice Directives of Court
can never override the Uniform Rules of Court.
The balance
between the Practice Directives and the Uniform Rules of Court
ensures the proper functioning of our Courts.
[41]
In the matter of
VALUE POOLS
supra,
the Respondent,
after the filing of a Notice of Intention to Oppose, failed to act in
line with the Uniform Rules of Court which
was the position the Court
was faced with when granting judgment against the Respondent in that
matter.
[42]
The Practice Directives of this Division indicate that a matter
remains to be regarded as unopposed
until the filing of an Answering
Affidavit by a Respondent. I find it important to clarify this
position in that the aforesaid
would be the position if, after the
expiring of the time allowed for the filing of Answering Affidavit,
the Respondent has, given
Notice of Intention to Oppose but has
failed to be compliant with the Rules of Court, specifically Rule
6(5)(d)(ii). Under
such a circumstance, an Applicant would be
justified in invoking the Practice Directives, which reflect how the
Uniform Rules of
Court are to be interpreted to regard a matter as
unopposed.
[43]
The position is, however, significantly different for the period of
15 (fifteen) days from the time
when a Respondent is requested to
provide his Notice of Intention to Oppose to the date on which he is
afforded the right to file
such an Answering Affidavit as he deems
appropriate. To reason that, for this 15 (fifteen) day period,
a matter ought to
be regarded as unopposed and not to grant a
Respondent the security of regarding a matter as opposed specifically
for this 15 (fifteen)
day period would lead to undesirable effects
and would not make any sense. To reason that the 15 (fifteen)
day period as
afforded in the Rules does not afford the Respondent
the security, specifically for this 15 (fifteen) day period of having
the
matter regarded as opposed, would lead to Respondents being
necessitated to file Answering Affidavits together or shortly after
the filing of Notices to Oppose which stands directly opposite to the
time that is provided to a Respondent to effectively prepare
their
Answering Affidavit per the Rules of Court.
The 15 (fifteen) day
period afforded in the Rules of Court has been included in the Rules
to allow a Respondent a reasonable amount
of time to prepare their
answer and to file same at Court.
[44]
If, at the lapse of the 15 (fifteen) day period the Respondent has
remained non-compliant and has failed
to file their Answering
Affidavit, it would be reasonable for the Respondent to forego the
security offered to him by Rule 6(5)(d)(ii)
and for the application
to be regarded as unopposed, to be dealt with as such.
[45]
Under circumstances where it was conceded by the First and Second
Respondents’ legal representative
that the Order was granted at
a time when the 15 (fifteen) day protection period as per Rule
6(5)(d)(ii) had not yet run out, I
am satisfied that substantial
justice requires that this Court intervenes in respect of the matter
and to Order that the warrant
of execution be stayed to afford the
Applicant an opportunity of applying to rescind the judgment of 3
March 2025.
[46]
In the main application, the Applicant in the current application has
already filed his Answering Affidavit
all be it after the Order of 3
March 2025 was granted against him. The opposition such an
Answering Affidavit contains and
whether such an opposition holds any
prospect of success is, for purposes of the current evaluation,
irrelevant.
[47]
Whether the Applicant ultimately succeeds in meeting the threshold of
Rule 42 of the Uniform Rules
of Court and succeeds with the
rescission of the judgment of 3 March 2025 is dependent on whether
the Applicant in such an application
will advance the relevant facts
to substantiate such relief.
[48]
With the facts this Court is faced with, however, to allow the
warrant of execution to proceed to be
executed would amount to an
injustice.
CONCLUSION:
[49]
For all the reasons
supra,
the application for the stay of
execution and the suspending of the Court Order of 3 March 2025 must
succeed.
COSTS:
[50]
The Applicant in the current application sought that the costs of the
application stand over for determination
at the hearing of Part B of
the application in the event of the application remaining unopposed.
The Applicant sought costs
on an attorney and own client scale
against any Respondent opposing the current application.
[51]
Although the Applicant has been substantially successful with his
urgent application, the ultimate
test of whether the Applicant was
justified in bringing his application would be whether the Applicant
succeeds in obtaining the
relief as per Part B of his application,
being the rescission of the judgment of 3 March 2025.
[52]
As such, the costs in respect of Part A of the Applicant’s
application shall be costs in the
cause and the party ultimately
successful at the hearing of Part B of the application, being the
rescission of judgment application,
will be entitled to the costs of
the current application forming Part A of such application.
ORDER:
[53]
In the premise, the following order is made:
1.
The matter is found to be urgent and dispensed with as an urgent
application.
2.
The Order of Court dated 3 March 2025 is suspended, and the Warrant
of Ejectment emanating from the Court Order of 3 March 2025 is stayed
pending the finalisation of the Applicant’s rescission
of
Judgment application as per Part B of his application.
3.
In order to Case Manage Part B of the Applicant’s application,
the parties are directed to approach the Registrar of Court by no
later than
30 April 2025 for the completion of Form B and to
obtain a date for the hearing of Part B of the Applicant’s
application on
the Opposed Motion Court roll.
4.
The costs of Part A of the application shall be costs in the suit
to
form part of the costs of Part B of the application.
H
F FOURIE AJ
ACTING
JUDGE OF HIGH COURT, MBOMBELA
Counsel for the
Applicant:
ADV LK NGCANGCA
Instructed by:
Counsel for the
Respondent:
ADV JJ VENTER
Instructed by:
HvH ATTORNEYS
Judgment reserved
on:
Date of delivery:
[1]
Eastrock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite
(Pty) Ltd & Others (11133767) [2011]
ZAGPJHC 196 (23 September
2011)
[2]
Salt & Another v Smith
1991 (2) SA 186
(NM) at 197 A
[3] Il
& B Marcow Caterers v Greatermans SA
1981 (4) SA 108
(C) at 111 A
[4]
Luna Meubelvervaardigers (Pty) Ltd v Makin & Another
1977 (4) SA
135
(W) at
137 F
[5]
Stoffberg N.O. and Another v Capital Harvest (Pty) Ltd 2021 JDR 1644
BCC
[6] Van
Rensburg and Another NNO v Naido and Others
2011 (4) SA 149
(SCA)
[7]
Value Pools (Pty) Ltd v Community Property Co (Pty) Ltd (496/2020)
[2022] ZAMPNBHC 5 (25 January 2022)