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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 10624/2024
GODWILL NANA TUFFO UR First Applicant
GODWILL PATI ENCE TUFFO UR Second Applicant
ALL THOSE HOLDING TITLE THROUGH Third Applicant
FIRST AND SECOND RESPONDENTS OR
OCCUPYING “THE PROPERTY” AT
2[…] O[…] H[…], FERNWOOD
NEWLANDS, CAPE TOWN
THE MUNICPALITY OF CAPE TOWN Fourth Applicant
And
ANTHONIUS WILHELM VAN RIJSWIJK N.O. First Respondent
JOHN GEORGE MELLITCHEY N.O . Second Respondent
CHRISTOFFEL JACOBUS BOTHA N.O. Third Respondent
IAN MAX VAN RIJSWIJK N.O. Fourth Applicant
JOHN DANIEL WASSERFALL N.O. Fifth Respondent
KNOX PROPERTY TRUST (IT 322/89) Sixth Respondent
Heard: 19 December 2024
Delivered: Electronically on 11 February 2025
JUDGMENT
LEKHULENI J
Introduction
[1] This is an urgent application brought by the first and the second applicants in
terms of Rule 45A of the Uniform Rules for an order to stay the execution of the
eviction order granted by the Ralarala AJ, as she then was, on 18 October 2024 , for
the eviction of the applicant s from the property described as Erf 1 […], situated at
2[…] O[…] H[…], Fernwood, Newlands, Western Cape , in the City of Cape Town .
The stay of execution is sought pending the determination of the reli ef in Part B.
[2] In Part B of this application, the applicants seek an order to rescind the
eviction order granted by Ralarala AJ on 18 October 2024 in respect of the above
case number. The applicants simultaneously filed a n application for condonation in
support of their application for the rescission of judgment. This court is only enjoined
to consider the application for the stay of execution in terms of Rule 45A of the Rules
of Court.
Background Facts
[3] The first applicant is an adult male who is a full -time employ ee at the
Consulate of Ghana in Cape Town and resid es in Fernwood , Newland s in the city of
Cape Town. The first and the second applicant are husband and wife. On 27 July
2020, the applicants, acting personally, entered into a written lease agreement with
the sixth respondent, referred to as “the trust”, which was duly represented by its
authorised property agent , Ms Charne Shipper of Jawits Properties. The
commencement date of the lease agreement and the occupation date thereof was
the 1 September 2020. The lease agreement would remain in effect for the duration
of 24 months , with an option for renewal, and therefore the termination date of the
lease was 01 August 2022. In exchange for the unfettered and undisturbed
possession of the leased property, the first and second applicants undertook to pay
the trust a monthly rental of R30,000. In addition, both the first and the second
applicants wo uld be liable for monthly expenses in respect of water, sewerage, and
refuse removal . Upon termination of the initial period, the lease would automatically
continue on a month -to-month arrangement.
[4] Pursuant to the conclusion of the lease agreement , and acting in terms
thereof, the trust provided the applicants with unfettered and undisturbed possession
of the leased property and fully performed its obligations in terms thereof. Following
the termination date of the lease agreement by efflu xion of time on 01 August 2022,
same continued automatically and subsequently transitioned to a month -to-month
arrangement. Notwithstanding, the applicants breached the lease agreement by
failing to pay the monthly rental and by failing to pay the amount s due for the
monthly water, sewerage and refuse removal costs since June 2021.
[5] Despite demand, the applicants failed to remedy their breach. As of 1 January
2024, the arear rental owed by the applicants in respect of the property was
R158 214.71 , and they also owed an outstanding balance in respect of unpaid
utilities. The applicants were afforded a final opportunity to pay the outstanding
amount by close of business on 9 February 2024. Notwithstanding, the applicants
failed to remedy the breach. The trust eventually cancelled the lease agreement and
demanded that the applicants vacate the property.
[6] In May 2024, the trust instituted eviction proceedings against the applicants in
terms of section 4 of the Prevention of Illegal Eviction from an d Unlawful Occupation
of Land Act 19 0f 1998 (“the PIE Act”) . The Notice of Motion and the founding papers
in the main application w ere served personally on the first and second applicant on
15 May 2024. The duly issued notice in terms of section 4(2) of t he PIE Act which
reflected that the matter was due to be heard on 16 July 2024 was also served
personally on the first and the second applicant on 19 June 2024.
[7] On 16 July 2024, the matter was on the motion court roll , and both the first
and the second applicants appeared in person. The application was postponed by
agreement between the parties to the opposed roll (semi -urgent roll) for hearing on
18 October 2024. The court, in its order postponing the matter, directed the
applic ants to submit their answering affidavit, if applicable, no later than 6 August
2024. The applicants were fully aware of the requirement to deliver their opposing
papers and the timeline for doing so. When the applicants failed to deliver their
answering affidavit by 6 August 2024, as required by the court order granted on 16
July 2024, the trust brought a chamber book application to compel the applicants to
deliver their answering affidavit. The order was granted.
[8] The order issued in terms of the cha mber book application directed the
applicants to file their answering affidavit within 5 days of such order being served on
them. The chamber book order was personally served upon the applicants on 10
September 2024 , directing them to file their answering affidavit within 5 days of
service thereof. The applicants failed to file their opposing affidavit as directed by the
court. On 18 October 2024, the applicants attended court in person, and the court
after considering the matter, granted an eviction order against them. In terms of that
order, the applicants were directed to vacate the property on Thursday 12 December
2024 failing which, the Sheriff was directed to evict them on 17 December 2024. The
applicants are seeking to stay this order in terms of Rule 45A of the Rules of Court.
[9] In their application , the applicants asserted that the order of Ralarala AJ,
should be stayed pending the rescission application in Part B of the application.
According to the applicants, the order was granted due to their failure to file an
answering affidavit. Furthermore, the applicants asserted that in the application for
eviction, the trust failed to inform the court that the applicants were interested part ies
to the leased property , particularly in that they have paid a deposit to purchase
same. The applicants further claimed that they possess the right of first refusal
concerning the aforementioned property.
[10] The applicants further averred that they intended to purchase the pr operty to
ensure their children would not face disruptions in their schooling or be removed
from the community that they are accustomed to. The applicant further stated that
they wanted the respondents to pr esent them with a new offer to purchase the
prope rty so that the full bond application can be initiated through the bank. According
to the applicants, in principle, the bank has agreed to advance the loan to purchase
the property. However, the respondents have refused to entertain further
communication r egarding the sale agreement and its finalisation .
[11] The applicants further explained that if the Motion Court had been aware that
the applicants had paid a deposit for the purchase of the property, the eviction order
would not have been granted by defa ult against them. Furthermore, the applicants
contended that they were not aware that an answering affidavit was not filed. As a
result, the applicants opine that the eviction order granted against them should be
stayed, pending the determination of the re scission application which will allow them
to ventilate the dispute relating to the payment of the deposit for the sale of the
leased property.
[12] In their application for the rescission of the eviction order, submitted
simultaneously with this applicat ion, the applicants provided their reasons for not
submitting an answering affidavit to the eviction application. The applicant stated that
they instructed Walker Inc to assist them in dealing with the eviction application.
They also instructed Walker Inc to assist them regarding the respondents’ claim for
arrear rental instituted in the Regional Court. The applicant asserted that they
believed that Walker Inc was attending to both Regional and High Court matters. It
was only when the attorney withdrew from the case that the applicants realised that
no action had been taken in respect of both cases.
[13] The applicant s asserted that they discovered that no answering affidavit was
served and filed opposing the eviction application. On 18 October 2024 , they
appeared in court without legal representation. H owever , they lacked the legal skills
to respond to the papers or co mprehend the proce edings. According to the
applicants , they requested an opportunity to seek legal representation, however, this
request was declined by the court. They now seek to challenge the order which was
granted in their presence without the assista nce of an attorney.
[14] On the question of urgency, the applicants averred that since the eviction
sought by the respondent s was imminent, the matter was sufficiently urgent for the
court to hear this application on an urgent basis. The applicant s also stated that they
became aware of the eviction order on 18 October 2024 and were informed of the
process that needed to follow a week before instituting this application. Furthermore,
they lacked the financial resources to instruct a legal practitioner to i nstitute this
application. T o this end, t he applicants implored the court to grant the application as
prayed for in the notice of motion.
Principal Submission by the Parties.
[15] During the hearing of this matter, the first applicant appeared in person and
pleaded with the court to grant the application to stay the order for eviction against
them. The first applicant submitted that they made monthly rental payments to the
trust. According to the first applicant , the rental am ount was also aimed to serve as
payment of the purchase price of the leased property. The first applicant submitted
that the lease agreement between them and the trust was a “Lease or Rent to buy
agreement”.
[16] According to the applicants, this means that the rental amounts payable was
also intended to serve as the purchase price of the property. They have paid a
deposit of R104 000 into the estate agent’s account and have paid a total sum of
R1 504 429 as renta l during the lease period . According to the applicants, the rental
amount also serve d as the purchase price of the property. The applicants refuted
any indebtedness and contended that the rental they paid formed part of the
purchase price of the property . The first applicant further submitted that although
they are tenants, they are the same buyers who paid the deposit. The first applicant
submitted that they seek an order staying the eviction order to ensure that issues
relating to the sale of the property to them can be properly ventilated in court.
[17] Conversely, Mr van der Merwe , Counsel for the respondents , challenged the
urgency with which this application was brought. Mr van der Merwe submitted that it
is trite in our law that an applicant cannot create its own urgency by simply waiting
until the normal rules can no longer be applied. However, w here an applicant first
seeks compliance from the respondent lodging the application , it cannot be asserted
that the applicant had been d ilatory in bringing the application or that agency was
self-created.
[18] Mr van der Merwe further submitted that the applicants not only delayed for
months to bring this application, but they also delayed the delivery of the founding
papers on the respondents , placing them in an invidious position as far as any
opposition thereof is concerned. According to Counsel, there can be no doubt that
any urgency herein is entirely self -created and of the applicants’ own making.
Counsel opined that this appli cation is brought in a manner that constitutes an abuse
of the process of court. Mr van der Merwe refuted the claims of the applicants that
the rental payable was meant to serve as part of the purchase price. The court was
referred to the lease agreement s igned by the parties, which clearly set out the rental
amount payable by the applicants.
[19] Mr van der Merwe further submitted that the applicants failed to pay the rental
as agreed and that the trust eventually cancelled the lease agreement. As far as the
purchase of the property is concerned, Counsel submitted that indeed an offer to
purchase was signed however, the applicants failed to raise funds within the required
period as stated in the agreement. As a resu lt, the intended agreement for the sale
of the property was cancelled due non -fulfilment of the suspensive condition. Mr van
der Merve concluded that the applicants’ application lacks merit and requested that
the court dismiss the application with costs.
Applicable Legal Principles and Discussion
[20] As discussed above, the trust challenged the urgency with which this
application was brought, asserting that the urgency is entirely and egregiously self -
created. The respondent’s Counsel argued that the u rgent application should be
struck from the roll purely on the grounds of urgency. I turn to consider this
preliminary point.
Urgency
[21] In terms of Rule 6(12) of the Uniform Rules of Court, an applicant is in law
required to set out the circumstances which justify the hearing of an application on
an urgent basis as well as the basis upon which it contends that it would not obtain
substanti al redress at a hearing in due course. Rule 6(12)(b) stipulates two
requirements for an applicant in an urgent application. First, the applicant must set
forth explicitly the circumstances that he avers render the matter urgent and,
secondly, the reasons w hy he claims that he would not be afforded substantial
redress at a hearing in due course.1 Rule 6(12) of the Uniform Rules of Court confers
upon courts a wide discretion to decide whether an application justifies enrolment on
the urgent court roll based on the facts and circumstances of each case.2
[22] In the present matter, t he order that the applicant s seek to impugn was
granted on 18 October 2024 in their presence. The applicant has been aware of the
terms of the order against the m since it was granted . In terms of that order, the
applicants and all individuals claiming occupation through them were directed to
vacate the property on Thursday 12 December 2024. In the event they failed to
vacate as directed , the Sheriff of this court was directed t o evict the applicants and
all those holding title under them from the leased property . The applicants brought
this application on an urgent basis on 13 December 2024. Evidently, the applicants
waited until the 13 December 2024, to institute the applicatio n on an urgent basis for
the stay of the eviction order. The applicants waited nearly two months following the
granting of the eviction order to bring this application.
1 Karino Homeland Distribution (Pty) Ltd v Commissioner for South African Revenue Services
(21279/2023)[2023] ZAWCHC 329 (27 December 2023) at para 16.
2 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII SA 67 (GP) at
para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
[23] The applicant advanced two reasons for bringing this application on an urgent
basis. Firstly, the eviction sought to be stayed is eminent. The applicants asserted
that the matter is sufficiently urgent for the court to hear it on an urgent basis and
condon e the noncompliance with the rules of court with regard to time frames and
service. Secondly, the applicants argued that they did not have the necessary funds
to bring the urgent application with the assistance of a legal practitioner.
[24] The explanati on proffered by the applicants, when closely examined, does not
hold up or withstand scrutiny. Importantly, t he judgment in respect of the unpaid
rental and municipal charges was granted in the Cape Town Regional Court on the
18 October 2024. Subsequent th ereto, t he applicants immediately brought an
application to rescind the judgment on 31 October 2024. However, they waited two
months to bring the application to stay the eviction order. They provided no plausible
explanation for their delay beyond assertin g that they lacked funds to bring this
application.
[25] I repeat, the applicants were in court at the time when the eviction order was
granted. They were informed in court of the order that was granted against them ,
and further, that they must vacate the leased property on 12 December 2024.
Notwithstanding , they took no action. As the deadline approached for them to vacate
the property, they brought this application on an urgent basis. Concernedly, the
applicants did not only wait until 13 Decem ber 2024 to bring this application, but they
also delayed for four court days after sign ing the founding affidavit before serving it
on the respondent s.
[26] The applicants were required by Rule 6(12)(b) of the Uniform Rules of Court
to set forth explicitly in their founding affidavit the circumstances which they averred
rendered this matter urgent , as well as the reasons they claim ed that they would not
be afforded substantial redress at a hearing in due course.3 In my view, the urgency
asserted by the applicants is entirely a self -created urgency.4 There is no justification
3 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers)
1977 (4) SA 135 (W) at 137E -G.
4 Big Blue Marketing CC v King Sabata Dalindyebo Local Mu nicipality 2017 JDR 0302 (ECM) at para
10; Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd 2013 JDR 1989 (ECM) at para 9.
for the applicants’ failure to bring this application earlier. On this basis alone this
matter should be struck off the roll.
Should the eviction order be stayed?
[27] In the interest of completeness, I deem it appropriate to consider the
applicant’s application on the merits. Rule 45A provides that the court may , on
application , suspend the execution of any order for such period as it may deem fit.
As a rule, the court will grant a stay of execution where injustice will otherwise be
done if the suspension of the order is not granted . The court has, apart from the
provisions of this rule, a common law inherent discretion to order a stay of execution
and to suspend the operation of an ejectment order granted by it.5
[28] The expansive and open -ended language of rule 45A suggests that it was
intended to serve as a restatement of the courts’ common law discretionary power.
The particular power is an instance of the courts’ authority to regulate its own
process. Being a judicial power, it falls to be exercised j udicially with careful
consideration . Its exercise will therefore be fact specific, and the guiding principle will
be that execution will be suspended where real and substantial justice necessitates
it. It is for the court to decide on the facts of each gi ven case whether considerations
of real and substantial justice are sufficiently engaged to warrant suspending the
execution of a judgment . If so, it must also decide the terms under which any
suspension should be granted.6
[29] In Gois t/a Shakespeare's Pub v Van Zyl,7 the court summari sed the general
principles for the granting of a stay in execution as follows :
(a) A court will grant a stay of execution where real and substantial justice
requires it or where injustice will otherwise result .
5 Lovius and Shtein v Sussman 1947 (2) SA 241 (O) .
6 Stoffberg N.O and Another v Capital Harvest (Pty) Ltd (2130/2021) [2021] ZAWCHC 37 (2 March
2021) at paras 15 and 28.
7 2011 (1) SA 148 (LC) at para 7 .
(b) The court would be guided by considering the factors usually applicable to
interim interdict s, except where the applicant is not asserting a right, but
attempting to 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 (s); 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 caus a may ultimately be removed, i.e. where the underlying
caus a 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 enquiry is simply whether the c ausa is in dispute.
[30] As discussed above, the applicants seek a stay of th e eviction order against
them pending the outcome of the rescission of judgment application. It is well -
established that a n application for the rescission of judgment does not suspend the
execution of an eviction order. The applicants brought an applicatio n to suspend the
operation of the eviction order pending the outcome of their rescission application.
The relief the applicants seek is interdictory in nature. In other words, the applicant
seeks an interlocutory relief pending the outcome of the rescissio n application.
[31] In the determination of the factors that must be taken into account in the
exercise of its discretion under rule 45A, it is instructive for this court to reference the
requirements for the granting of an interlocutory interdict . The applicant must show
(a) that the right , which is the subject of the main action and which he seeks to
protect by reason of the interim relief , is clear or, if not clear, is prima facie
established though open to some doubt; ( b) that if the r ight is only prima facie
establish ed, there is a well -grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted; ( c) that the balance of convenience
favours the granting of the interim relief; and ( d) that the applican t has no other
satisfactory remedy.8 I now turn to briefly discuss these factors ad seriatim in this
matter.
Prima facie right.
[32] In determining whether a prima facie right has been established, the right
need not be shown by a balance of probabilities. If it is prima facie established
though open to some doubt, that is sufficient.9 In cases where a factual dispute
arises, the proper approach is to take the facts prese nted by the applicant, together
with any facts provided by the respondent which the applicant cannot dispute, and
to consider whether, having regard to the inherent probabilities, the applicant should
on those facts obtain final relief. The facts set up i n contradiction by the respondent
then fall to be considered. If serious doubt is thrown upon the case of the applicant,
he cannot succeed in obtaining temporary relief.10
[33] In the present matter, the applicants assert that they only became aware that
their legal representative had failed to submit an answering affidavit on 18 October
2024 , at the time the matter was heard and concluded. Pursuant thereto, an eviction
order was granted. The applicants also assert ed that they have filed an application
for rescission of judgment , as they have an interest in purchasing the property they
currently occupy. They have paid a deposit and made partial payment towards the
purchase price . According to the applicants , the monthly payment in respect of the
rental also constituted part payment towards the purchase price.
[34] I find the argument put forth by the applicants markedly difficult to follow. The
difficulty is compounded by the fact that on 16 July 2024, the applicants were
present in court when the matter was postponed in their presence and by agreement
8 Setlogelo v Setlogelo 1914 AD 221 at 227; Olympic Passenger Service (Pty) Ltd v Ramlagan 1957
(2) SA 382 (D) at 383A -C; Pietermaritzburg City Council v Local Road Transportation Board 1959 (2)
SA 758 (N) at 772C -E.
9 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189; Knox -D’Arcy Ltd v Jamieson 1995 (2) SA 579 (W)
at 592H – 593B.
10 Fourie v Uys 1957 (2) SA 125 (C) at 127H – 128D; LF Boshoff Investments (Pty) Ltd v Cape Town
Municipality 1969 (2) SA 256 (C) at 267E -F.
to the opposed roll for hearing on 18 October 2024. The postponement was
specifically intended to enable the applicants to file their answering affidavit by 06
August 2024. Notwithst anding, the applicants failed to file their answering affidavit as
directed by the court. Pursuant thereto, on 23 August 2024, the respondent brought
a chamber book application seeking an order that would compel the applicants to file
their answering affid avit.
[35] On 28 August 2024 , an order was once again issued directing the applicants
to file the ir answering affidavit within five days of the order. On 10 September 2024 ,
the Sheriff duly served a copy of the order personally on the first applicant .
Notwithstanding, the applicants failed to file their answering affidavit. Whilst I accept
that the applicants are not legally qualified and may be unfamiliar with the rules and
time limits established by the court rules , however, their conduct in this matter is
inexcusable. They were afforded ample opportunity to articulate their case in court ,
and yet they failed to do so. When the eviction order was granted on 18 October
2024, the applicants were present in court, and it is reasonable to assume, that the
court considered all pertinent facts placed before it prior to issuing the order.
[36] Importantly, the applicants do not impugn the order per se, but the fact that
the court was not apprised that they were purchasing the leased property in
question , which was being financed through the monthly rental that they were
making. I must stress tha t the applicants’ assertion that the rental payments to the
trust were intended as partial payments towards the purchase price of the property is
fundamentally misguided and flawed. It is devoid of substan tive merit and must be
rejected outright.
[37] The lease agreement executed by the parties explicitly stipulate d that the
monthly rental amount payable by the applicants to the trust is R30,000. There is no
indication in the lease agreement suggest ing that the rental payable was also
intended to serve as part payment of the purchase price. In my view, t he claim by the
applicants that the rental payments served a dual purpose is a n unfounded
fabrication that lacks any supporting evidence from objective facts. This conclusion,
in my view, is fortified by the fact that when the parties subsequently entered into an
agreement of sale of the said property, the applicants had to secure a bond for the
purchase of the property. The sale agreement is silent on the alleged part payment
made by the applicants through the rental agreement. The applicants were unable to
secure a bond approval for the purchase the property in question, leading to the
cancellation of th e intended sale agreement.
[38] The applicants additionally pinned their case on the grounds that they had the
right of first refusal. However, from the record it is evident that the applicants
intended to buy the leased property as well as the adjacent property belonging to the
trust. However, they failed to obtain the necessary bond approval with the result that
the suspensive conditions in both sale agreements were not fulfilled. Both
agreements were thus extinguished ex tunc.
[39] Furthermore, pursu ant to the applicants ’ failure to pay their monthly rental, the
respondent cancelled the lease agreement and demanded the applicant s to vacate
the property. The applicants are indebted to the trust for arrear rental and municipal
charges in the sum of R437 270, 21 excluding interest and legal cost s. The trust
secured a judgment against the applicant s in respect of this amount in the
Magistrate’s Court. The court was informed that the applicants have brought and
application for the rescission of this order a t the Magistrate ’s Court.
irreparable harm
[40] The applicants are obliged to demonstrate that they have a well -grounded
apprehension of irreparable harm if the interim relief is not granted, and the ultimate
relief is eventually granted. In my view, they failed to do so. From the record, the
applicant s do not deny their indebtedness to the respondent. They only contend ed
that they have the right of first refusal to buy the property and that the rental amount
that they paid was part payment for the purchase price. This contention with respect
is un sustai nable.
[41] While I accept that in terms of the addendum to the lease agreement , the
applicant had the right of first refusal, however that agreement was cancelled as a
result of breach of cont ract committed by the applicants. As discussed earlier, the
allegation that the rental would form part of the purchase price is a sheer fabrication
invented by the applicants as a stratagem to remain in the property.
[42] The applicant’s application for the rescission of judgment filed simultaneously
with this app lication is based on the reasons stated above. In my view, in the
exercise of my discretion whether to grant the stay of the execution in terms of Rule
45A, I must consider the prospect s of success in the applicant's application for the
rescission of judgm ent upon which this application is hinge d. This application as well
as the rescission application in my view w ere filed to delay proceedings and to
enable the applicants to occupy the leased property for free. At the hearing of this
matter, the first applicant argued from his written submission s that they stopped
paying rent because the trust took them to court. I n other words, to date the
applicants are living at no costs to them a t the respondents’ property. This position is
quite troubling and unsettling, to put it mildly .
[43] By contrast, the respondents encounter significant and tangible prejudice. The
trust and its beneficiaries are suffering prejudice, particularly, given t hat the
applicants are indebted to the trust in the total sum of R437 270.21 excluding interest
and legal costs. Furthermore, the trust is continuously enduring hardship as the
applicants are not paying rental notwithstanding that they are in occupation of the
property. The respondents asserted that the beneficiaries of the trust possess no
additional income. They rely on distributions received from the trust for their survival .
[44] Significantly , by not receiving any rental income from the premises for a n
extended period of time , the trust has been unable to make distributions to the
beneficiaries from any income it has received. I find this unconscionable, particularly
when one takes into account that the beneficiaries of the trust are elde rly couples
who depend entirely on the distribution of the trust for their survival. Simply put, if no
rental payment is made, the trust is unable to distribute payment to the beneficiaries.
Concernedly, one of the beneficiaries is 89 years old (the husban d), whilst the wife is
74 years. Their general health is poor, and they urgently require financial support for
their medical expenses , particularly for the cancer treatment of the wife.
Balance of Convenience
[45] In evaluating the balance of convenience, the Court must assess the harm
that the trust may suffer if the suspension order is granted , along with the prejudice
the applicants will face if it is refused. In my view, in an application for a stay of an
order in terms of Ru le 45A, the balance of convenience demands considering and
weighing several factors , namely, the prospects of success of the applicant’s
rescission application; the harm to be endured by an applicant if the order is not
granted. The harm borne by the trust if the interim relief is granted. The weaker the
prospects of success in the pending rescission application on which this application
is pinned, the more the balance of convenience favours the respondent.
[46] The applicants are indebted to the responde nt for a substantial amount in
unpaid rent. They are in occupation of the property, and they are not paying rental to
date. They are currently residing free of any rental payment in the respondent’s
property. The beneficiaries of the trust who are elderly couples are suffering
prejudice in that they require financial support for their wellbeing and medical
expenses. The respondent s asserted that as a direct consequence of the non -
payment of rental, the trust was compelled to sell the premises to one Jurgen and
Sonya Kuhnel (“purchasers”) for the sum of R5.8 million to obtain funds to maintain
the beneficiar ies.
[47] Clause 10 of the sale agreement clear ly states that unless the trust can
imminently give vacant transfer of the premises to the purchasers, they will res ile
from such sale agreement. Evidently, in such a case, the trust may not only have to
face a claim for damages from the purchasers, but it will als o have to again market
and sell the property , which cannot be achieved overnight. In the interim period, the
beneficiaries will be suffering prejudice.
Alternative Remedy
[48] The applicants have an alternative remedy. The applicant s should seek
altern ative accommodation and still proceed with their rescission application should
they wish. Ostensibly, the applicants are affluent tenants occupying luxurious
premises and are currently holding over without making any rental payments . Their
true complaint i s no t that they will be rendered homeless , but that they will be
prevented from remaining on the property of their choosing. In my view this conduct,
and attitude confirm that this application constitutes an absolute and incontrovertible
abuse of court pro cess.
Conclusion
[49] In summary, in addition to the fact that the urgent application should be struck
from the roll purely on the grounds or urgency, it is equally clear that the application
is devoid of merit. In fac t, real and substantial justice demands, let alone require that
the relief sought be refused.
Order
[50] Given all these considerations, the following order is hereby granted:
50.1 The applicants’ application is hereby dismissed.
50.2 The applicants are ordered to pay the costs of this application including
the costs of Counsel on Scale B.
_____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant s: In person
For the respondents: Mr van der Merwe
Instructed by: Wayne Hufkie Attorneys