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
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 20009/2017
In the action between:
CITY MISSION TRADING AS CAPE TOWN MISSION PLAINTIFF
AND
CITY MISSION EDUCATION SERVICES TRADING AS FIRST DEFENDANT
CMES
MEMBER OF THE EXECUTIVE COUNCIL FOR SECOND DEFENDANT
EDUCATION, WESTERN CAPE
CENTRE FOR CHILD LAW AMICUS CURIAE
THE SCHOOL GOVERNING BODY OF
CITY MISSION EDUCATION t/a CMES THIRD DEFENDANT
And, i n the application for leave to appeal and related matters:
CITY MISSION EDUCATION SERVICES FIRST APPLICANT
TRADING AS CMES
THE SCHOOL GOVERNING BODY OF SECOND APPLICANT
THE CITY MISSION EDUCATION
And
CITY MISSION TRADING AS FIRST RESPONDENT
CAPE TOWN MISSION
MEMBER OF THE EXECUTIVE COUNCIL SECOND RESPONDENT
FOR THE DEPARTMENT OF EDUCATION,
WESTERN CAPE
CENTRE FOR CHILD LAW THIRD RESPONDENT
DATE OF HEARING (Application for leave to appeal): 28 MARCH 2025
DATE OF JUDGMENT: Judgment was handed down electronically by
circulation to the parties and their representatives by email and released to
SAFLII. The date for handdown is deemed to be 11 April 2025.
JUDGMENT : APPLICATION FOR LEAVE TO APPEAL AND RELAT ED
MATTERS
[1] This is the return date of an order granted at the conclusion of the trial. The
first and third defendants in the trial also applied for leave to appeal together
with further ancillary relief. The parties will be referred to as cited in the action
and at t rial.
PARTIES, LITIGATION HISTORY AND RELIEF APPLIED FOR
[2] The plaintiff served a combined summons on the first defendant as long ago
as 8 November 2017. In the aforementioned action , the plaintiff seeks the
eviction of the first defendant from the property situated at 6 […] T[…] Road,
Bridgetown, Cape Town, Western Cape (“ the property ”). After several
postponements, interlocutory applications and other intermediary skirmishes,
the trial proceeded and was finalised on 3 and 4 November and 2, 5, 6 and 9
December 2024 .
[3] On 9 December 2024, the Court gave ex tempore reasons for finding that the
first defendant is in unlawful occupation of the property. The eviction order
was, however, immediately suspended pending finalisation of a draft order
that I requested the parties to prepare. Counsel for the plaintiff, Mr Coston
and the MEC, Mr Mayosi, provided a proposed draft order , which I granted on
Monday afternoon, 9 December 2024, incorp orating certain amendments in
the terms as set out in my judgment dated 13 December 2024 .
[4] The order of 9 December 2024 read together with the judgment of 13
December 2024 provide inter alia that the eviction of the first defendant (only
in terms of its sc hooling activities and in respect of the learners who are
currently enrolled according to the Education Department’s records with the
first applicant) is suspended pending the return date on 28 March 2025. The
order further encouraged and required the par ties to interact with learners and
their guardians and parents about the eviction order granted and the
placement of learners by the Department of Education in different schools.
[5] The purpose of the order was to minimise any possible prejudice for learners
and to put their interests first. However, this could only be achieved with the
bona fide cooperation of all involved . The Department of Education provided
uncontested evidence t hat the best time for transferring students with minimal
disruption is during the December holiday before the new academic year
starts.
[6] The operation of the eviction order was therefore suspended so that the
learners would have the opportunity to relocate to a new school, with or
without the assistance of the Department of Education, during December and
January before the start of the new academic year and the execution of the
eviction order. The first and third defendants were further interdicted from
enrolling any new students for the 2025 academic year at the property.
[7] As will be set out hereinafter in greater detail the first defendant, City Mission
trading as CMES applies inter alia for leave to appeal. However, the school
has also failed to comply w ith any part of the order granted on 9 December
2024. The school is still occupying the property and has enrolled almost
double the number of learners it had during the preceding year.
Approximately 1 35 learners are currently enrolled in the schoo l.
[8] It is therefore necessary to record in some detail how the parties complied
with the order of 9 December 2024 :
[8.1] On 11 December 2024 the plaintiff caused the Court order to be
served on the first defendant by affixing the Court order to the Admin
Block Class Room Block, Hostel Block with living quarters and a
classroom . A copy of the order was affixed at the entranc e of the
property and served personally upon Mr Nathan Ramedies as
Director of the first defendant and representative of the school
governing body.
[8.2] On 10 December 2024 , there were no school children in the hostel
or on the property as everyone had left fo r the school holidays. The
only people still occupying the premises were teachers or their
families. The Court order was similarly served upon these persons.
[8.3] On 17 December 2024 the plaintiff’s attorney of record sent an email
to the first to third defe ndants recording the the Court order was
served by Sheriff on 11 December 2024, drawing their attention to
paragraph 6 of the order in terms of which they were ordered to
inform the parents or legal guardians of learners at school by 13
December 2024 that the school is being evicted from the property
and requesting a copy of the written notice to be delivered to the
parents and guardians .
[8.4] The first to third respondents were also reminded that they were
directed in terms of the Court order to provide the De partment of
Education with an updated contact list of the parents and guardians
by no later than 20 December 2024.
[8.5] On 17 December 2024 Mr van Reenen confirmed per email that he
received the Court order.
[8.6] On 19 December 2024 there were some indications that the school
intended to vacate the property.
[8.7] On 13 January 2025 , Mr Nathan Ramadies, a member of the School
Governing Body and principal, attended the property, and parents
came to enrol and register the children with the school.
[8.8] On 15 January 2025 the school re -opened and the school continued
to operate as normal.
[9] Mr Nathan Ramadies , who is the principal of the school and a member of the
school governing body, filed inter alia an affidavit titled “ Condemnation
Affidavit ”. In this affidavit he explains that upon receipt of the judgment on 13
December 2024 he approached attorney Johnny Millet practicing as Milijiet
and Associates. Mr Millet was provided with a complete copy of the Court file
and instructed to proceed to file an appeal. It transpired that Mr Millet
according to Mr Ramadies failed to execute his mandate and on 7 February
2025 the Board of directors of City Mission Education purportedly resolved
that an appeal be instituted against the judgment of 13 Decemb er 2024 and
that Mr Nathan Ramadies in his capacity as Director of City Mission Education
Services be authorised to sign all documents and commit all acts necessary to
give effect to this resolution . The application for leave to appeal was only filed
on 14 February 2025. I will assume, for the purposes of the judgment, that the
filing of the application for leave to appeal suspended the operation of the
order and judgment without getting entangled in any debate over whether the
order was interim or final. H owever, there is no evidence or explanation for
why the school enrolled new learners at the premises in clear breach of the
order.
[10] The plaintiff as well as the Department of Education filed detailed compliance
affidavits in accordance with the provisions of the 9 December Court order.
The Department of Education explains in their compliance affidavit that the
first and third defendants were required to provide the Department with an
updated contact list of parents and/or legal guardians. The Department
received email correspondence from the first defendant but the information
provided to the Department was incomplete and was not sufficient for the
purpose envisaged by the Court order. Attached to the Department’s
compliance affidavit appears an email da ted 20 December 2024 sent by Mr
Nathan Ramadies to Mr Malcolm Williams of the Department of Education.
The email reads as follows and I quote:
“Good day Mr Williams
This is the updated list of parents who received notices.
Most of notices was sent via our chat as only a few parents can collect
hard copies.”
[11] The aforesaid is the highwater mark of the school’s attempts at complying with
the Court order. The plaintiff further states in its compliance affidavit that the
copies of the order and notices that were affixed to the entrances to the
property were promptly removed after it was placed there.
[12] The Department of Education makes it clear that , to their surprise, the school
was operating as before when they visited it on 22 January 2025. It became
clear to the Department after making an investigation that more children
enrolled at the school than before. The Department discovered that the
school had at 14 March 2025 135 learners. According to the Department’s
statistics, there are therefore 45 new learners. It is evident from the
observations by the Department of Education that the first defendant was
going to continue using the premises as a school despite the Court order , and
the efforts of the Department to assist with the placement of learners were
going to be futile.
[13] The Department confirmed that it received no enquiries from any parents
since it is doubted that the parents were properly informed of the
arrangements that were put in place as per the Court order.
PROCEEDINGS AND HEARI NG ON 28 MARCH 2025
[14] On the return day on 28 March 2025, it transpired that the first and third
defendants were still unrepresented. Mr Ramadies was not present, and Mr
van Reenen appeared again in person on behalf of the school, but also in his
personal capacity. It is unclear why Mr. Ramadies, the authorised
representative of the school according to the resolution adopted on 7
February 2025, did not attend court.
[15] It transpired that the first and third defendants, being the school and the
governing body, filed the following papers:
[15.1] A notice of appeal dated 12 February 2025 and served on the 13th of
February 2025;
[15.2] A bond of security dated 12 February 2025 and served on the 13th of
February 2025;
[15.3] A condemnation affidavit dated 12 February 2025 and served on the
13th of February 2025;
[15.4] An application to stay the execution of the eviction order dated 13
February 2025 served on the 14th of Februa ry 2025;
[15.5] A notice of leave to appeal dated 14 February 2025 and served on
the 14th of February 2025.
[16] At the beginning of the proceedings, Mr. van Reenen requested a
postponement without prior notice to allow the school to secure legal
representation.
[17] I allowed Mr van Reenen more than sufficient time to motivate the
postponement. Mr Coston and Mr Mayosi on behalf of the plaintiff and the
Department opposed the postponement. Of significant concern to me was the
fact that the outcome of the application for a postponement may affect the
learners' interest. At the hearing on 28 March 2025, Western Cape schools
were about to break for the Easter holiday. This is a brief holiday, which
raises the issue of a possible eviction being enforced if a postponemen t is
denied and the application for leave to appeal is dismissed.
[18] After having heard the parties at length on the application for postponement I
granted an ex tempore judgment refusing the postponement. The old saying
is that the more things change, the more they stay the same. This is not the
first time Mr. van Reenen has applied for a postponement at the eleventh
hour, without any reasonable explanation . The school knew since the end of
January 2025 and at best for it by 7 February 2025 that it would need to
appoint new attorneys of record. Despite the indication that a new attorney
has been “on boarded” no evidence was provided to substantiate this
allegation. Th ere is no new attorney of record and no legal practitioner
appeared at the hearing. More than seven weeks have passed since the
adoption of the resolution mandating Mr. Ramadies to take all reasonable
steps on behalf of the school, with no progress. I am not convinced that the
application for postponement is bona fide and it is probably nothing more but
a further attempt to delay the finalisation of this matter.
APPLICATION FOR LEAVE TO APPEAL
[19] The first and third defendants filed two documents titled “LEAVE TO APPEAL”
and “Notice of Appeal” . For purposes of the argument , all parties involved
accepted that the first and third defendants intended to apply for leave to
appeal against the whole of the order of 9 December 2025 and the judgment
of 13 December 2024. Both the aforementioned documents essentially repeat
the defences raised at trial. No new grounds or reasons are provided to
challenge the Court’s finding that the school is unlawfully oc cupying the
premises, and no new factual or legal grounds are stated in support of the
request for leave to appeal.
THE LEGAL POSITION IN DECIDING IF LEAVE TO APPEAL SHOULD BE
GRANTED
[20] Section 17(1) of the Superior Courts Act provides that leave to appeal may
only be given where the Judge is of the opinion that:
[20.1] The appeal would have reasonable prospects of success; or
[20.2] There is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration.
[21] The prospect of success required in terms of Section 17(1)(a)(i) is to be
decided without reference to the parties’ wishes.1 In Mont Chevaux Trust v
Goosen2 the Court held that:
“It is clear that the threshold for granting leave to appea l against a
judgment of a High Court has been raised in the new Act. The former
test whether leave to appeal should be granted was a reasonable
1 Rail Commuter Action Group v Transnet Limited trading as Metrorail (Number 2) 2003 (5) SA
593 (C)
2 2014 JDR 2325 (LCC)
prospect that another court might come to a different conclusion, ...The
use of the word "would" in the new stat ute indicates a measure of
certainty that another court will differ from the court whose judgment is
sought to be appealed against. ...”3
[22] The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law, that a Court of Appeal could
reasonably arrive at a conclusion different to that of the trial Court. In order to
succeed, the applicant must convince the Court on proper grounds that he
has prospects of success on appeal and that those prospects are not remot e
but have a realistic chance of succeeding. There must be a sound, rational
basis for the conclusion that there are prospects of success.4
[23] Leave to appeal is further granted not in respect of the reasons for the
judgment but in respect of the order its elf. Therefore, the success of the
application for leave to appeal must be related to the outcome of the case and
not an argument that fails to dispose of the case in the Appellant's favour.5
[24] In the matter of Tecmed Africa v Minister of Health6 the Supreme Court of
Appeal held:
“[17] First, appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus, whether or not a
court of appeal agrees with a lower court’s reasoning would be of no
consequence if the result would remain the same (West ern
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA 353
(A) at 354).”
FINDING – LEAVE TO APPEAL
3 At para 6
4 S v Smith 2012 (1) SACR 567 at 570, para 7
5 Goodwin Stable Trust v Duohex (Pty) Ltd (2) [1996] 3 All SA 119 (C)
6 [2012] 4 All SA 149 (SCA)
[25] I have considered all of the defences raised by the first and third defendants
during the trial based upon the evidence presented by both the plaintiff and
the first , second and third defendants.
[26] In the premises, there is no reasonable prospect of another Court coming to a
different conclusion on the totality of the evidence before the Court or as a
matter of law.
[27] The Court cannot enquire into details that fall outside the scope of the
pleadings or the admitted facts. The grounds of appeal and the argument
presented do not demonstrate that the legal issues raised are of substantial
importance or of public importance. There is no compelling reason why an
appeal should be heard or that it is necessary to attain legal certainty
regarding these issues.
APPLICATION TO STAY E XECUTION
[28] Paragraph 1 of the Notice of Motion filed in the stay of execution application
provides that the execution of the eviction order granted in favour of the first
respondent/plaintiff under the above case number be stayed pending the final
determina tion of the appeal.
[29] In light of the fact that the application for leave to appeal was unsuccessful,
the application to stay execution is stillborn. There is no appeal pending.
[30] Despite this, I have considered the application to stay execution. It contains ,
in main, a repetition of the grounds upon which the first and third defendants
attempted to defend the claim against them at the trial as well as that on
which leave to appeal was sought. In paragraph 8 of the affidavit filed in
support of the a pplication the following is stated regarding the balance of
convenience and irreparable harm:
“8. The balance of convenience strongly favours the Applicant, as:
8.1. The students who rely on the Applicant’s facilities will be
severely affected by an eviction, whereas the First Respondent
will suffer no material prejudice if the execution is suspended
until the finalisation of the appeal.
8.2. The public interest in ensuring access to education outweighs
any financial or procedural prejudice the First Respondent may
claim.
8.3. The Applicant has a strong legal case on appeal and allowing
the eviction to proceed before the appeal is adjudicated would
render the appeal moot and unjustly prejudice the Applicant.
8.4. If the eviction order is carried out, the harm to the students and
academic program will be irreparable, and reinstating the status
quo post eviction would be impractical and disruptive.”
[31] It would serve no purpose to gaze into a crystal ball to try and predict when
and how the di fferent role players in this matter may take any further steps ,
albeit with regard to the execution of the order or a possible appeal.
[32] I have dealt in detail with the interest of the child in the judgment of 13
December 2024, but also the interest of the plaintiff. Justice denied remains
justice denied , and there needs to be finality in litigation. Certainty needs to be
attained regarding the school’s presence at the property in the interest of the
learners, their guardians and parents.
[33] The doctrine of p recedent is an intrinsic feature of the rule of law. Rule 45A
provides that the Court may, on application, suspend the operation and
execution of an order for such period as it may deem fit; provided that in the
case of an appeal, such suspension is in co mpliance with section 18 of the
Act.
[34] In Janse van Rensburg v Obiang and another7 this Court held and I quote:
“In addition to Rule 45A, the Superior Courts have inherent power, in
terms of s 173 of the Constitution, to protect and regulate their own
process, taking into account the interest of justice. Such power includes
the inherent discretion to order a suspens ion of execution of any order.
The SCA confirmed the court’s power to order a stay of execution in Van
Rensburg NO and Another v Naidoo NO and Others; Naidoo and Others
NNO v Van Rensburg NO and Others when it held:
“[51] Apart from the provisions of Uniform rule 45A a court has
inherent 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 exer cised judicially. As a general rule, a court will only do
so where injustice will otherwise ensue.
[52] 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 exis ts, or when an attempt is made to use
the levying of execution for ulterior purposes. As a general rule,
courts acting in terms of this rule will suspend the execution of an
order where real and substantial justice compels such action.”
[35] The aforesaid prin ciples were explained by Binns -Ward J in Stoffberg NO
and another v Capital Harvest (Pty) Ltd8 as follows:
“[26] The broad and unrestricting wording of rule 45A suggests that it
was intended to be 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 po wer, it falls to be
exercised judicially. Its exercise will therefore be fact specific and the
7 2023 (3) SA 591 (WCC) at 40
8 [2021] ZAWCHC 37 (2 March 2021) para 26
guiding principle will be that execution will be suspended where real and
substantial justice requires that. ‘Real and substantial justice’ is a
concept that d efies 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 o f a judgment;
and, if they are, on what terms any suspension it might be persuaded to
allow should be granted.”
[36] The plaintiff has been awaiting justice since 2017. It obtained a final eviction
order , the operation of which was in part suspended pending the return date.
The plaintiff is entitled to execute upon the order. However, I must not lose
sight of the interests of the learners, who are innocent and merely exercising
their constitutional right to basic education. As the upper guardian of children,
I am obliged to consider their best interest , which outweighs those of any of
the other parties.
[37] As was the case during the trial , I again debated with Counsel the most
opportune time to evict the school. I cannot accept the plaintiff’s submission
that this can be done successfully during the Easter holiday. Mr Mayosi on
behalf of the Department of Education submitted that prejudice to learners
could be circumvented by suspending the execution of the eviction order until
the end of the June winter holidays. This will again afford learners, their
parents and guardians almost three months during which they could consider
alternatives.
[38] From a practical point of view it would further mean that sh ould there be any
step taken in seeking leave to appeal from the Supreme Court of Appeal, that
any application in terms of section 17(1) of the Superior Courts Act read with
Uniform Rule 49 would have had to be filed during May which would in turn
again tr igger the suspension of the Court order.
[39] Mr Mayosi further referred me to the Western Cape Provincial School
Education Act 12 of 1997 and the regulations published in terms of the
aforesaid Act in the provincial notice number 341/2011 with specific refere nce
to Regulation 8 which deals with the withdrawal of registration and closure of
independent schools. The Head of Department may, subject to the provisions
of regulation 8 withdraw the registration of an independent school if he/she is
convinced on reas onable grounds that such an independent school is not
complying with all the registration requirements or conditions referred to in
regulation 2. Before withdrawing the registration of an independent school,
the Head of Department shall follow the procedu re outlined in regulation 8(2).
In terms of regulation 2 an independent school must in accordance with
section 28 of the Act have buildings and grounds that offer the space, design
and facilities which conform to the standards appropriate to the context i n
which the school will operate taking into account comparable standards at
public schools.
[40] In particular regulation 2(c)(ii) reads as follows:
“... Tenure of the school buildings and grounds must be secured for a
period of twelve months following the registration of the school.”
[41] It goes without saying that should an eviction order be executed against the
school, the first and third respondents could find themselves in breach of
regulation 2(1)(c)(ii).
[42] Compliance with the provincial regulations is however not anything upon
which this Court expresses any view. It is however of relevance in deciding
upon the stay of execution. According to the Western Cape Education
Department’s website , schools close at the end of the second school term on
27 June 2025 to re -open on 22 July 2025.
[43] If the eviction order is not executed before the end of the current academic
year, it would mean that the first and third defendant s succeeded in delaying,
if not frustrating, the plaintiff for one additional year. In the circumstances, I
am satisfied that, given the safety measures I intend to include in the order, it
would be reasonable to stay the execution of the eviction order until Monday,
21 July 2025.
COSTS DE BONIS PROPRIIS
[44] Mr van Reenen was called upon to show cause on 28 March 2025 why he
should not be ordered to be liable jointly and severally with the first and third
defendants for the plaintiff’s costs de bonis propriis on the scale as between
attorney and client . In this regard I refer to paragraphs 58 to 60 of my
judgment in which I dealt with the issue of costs which should be read
together with the evaluation of Mr van Reenen’s testimony and conduct during
the trial as set out in the judgment of 13 December 2024.
[45] Regarding the joinder of persons in their personal capacity to proceedings in
which costs orders de bonis propriis are sought, the Court held in Cawood
NO, and Another v Claassen and Another9 that:
“...[31]If the main application is dismissed with costs, it would mean
that Joluza, in business rescue, would have to pay such costs. That
would be an inappropriate order as there is no reason why the creditors
of Joluza or any of the affected persons should be prejudiced indirectly.
Mr Cawood cannot avoid an o rder against him personally on the basis
that he was not cited in his personal capacity. The issue was clearly
and patently raised by the respondents under oath and he had full
opportunity to respond thereto. He was duly warned that a punitive
costs order would be sought against him as will be shown hereunder.
Mr Reinders pointed out that Joluza should not be prejudiced by
granting costs against it. According to him, Mr Cawood knew that his
locus standi was in dispute. Mr Van Zyl, on the other hand, submitt ed
that Mr Cawood did not want to be guilty of a dereliction of duties and
did what was required of him in accordance with the Companies Act.
Therefore, he shall not be penalised with a costs order as requested.
9 2022 JDR 1321 (FB) at para 31 to 34
[32] Orders de bonis propriis are punitive orders and are not usually
made except in exceptional circumstances. There must have been
egregious conduct on the part of the party acting in a representative
capacity to attract such an order of costs. The assessment of the
gravity of the conduct is obje ctive and lies at the discretion of the court.
Such orders are made as a mark of the court's displeasure with the
conduct of the particular party.
[33] It is also appropriate to refer to Herbstein & Van Winsen. I quote:
"An award of costs de bonis propri is may be made only when a
person acts or litigates in a representative capacity.
It is unusual to order a litigant in a fiduciary position to pay
costs de bonis propriis, and good reason for such a course
should be shown, such as want of bona fides, negligent or
unreasonable action, or improper conduct by a trustee or
executor. The bas ic notion is material departure from the
responsibility of office, which includes absence of locus standi.
Other litigants who institute or defend proceedings in a
representative capacity, such as executors, guardians, sureties
or agents, or public officer s such as a mayor, are in a similar
position. Thus, costs have been awarded de bonis propriis
against a trustee whose conduct was actuated by an ulterior
motive, and because he did not believe it was for the benefit of
the estate, and against an executor w ho was clearly pursuing
his personal interest, the estate having no funds. In Kohlberg v
Burnett, where the executor's real reason for deciding to appeal
was a personal interest (intestacy, being to his financial
advantage), the court dismissed the appeal with costs, as it
would have been inequitable to have ordered that the
executor's costs of appeal should come out of the estate of the
deceased.
A representative litigant whose conduct is so unreasonable as
to justify this special order can, despite actin g in good faith, be
ordered to pay the costs de bonis propriis. The court will not,
however, make such an order lightly, and mere errors of
judgment will not be sufficient. It has been held that such an
order should not be granted in the absence of some re ally
improper conduct, and that the fairness or unfairness of
proceedings honestly brought should not be scrutinised too
closely. The criterion has been stated to be actual misconduct
of any sort or recklessness, and the reasonableness of the
conduct shoul d be judged from the point of view of the person
of ordinary ability bringing an average intelligence to bear on
the issue in question, not from that of the trained lawyer.
Costs de bonis propriis, if sought, should be specially asked for,
or an applicati on for an order for the payment of costs de bonis
propriis should be made at the hearing, but the court may
entertain a subsequent application if made within a reasonable
period.
In a proper case the court will also order company directors,
liquidators, a dministrators or even insolvents to pay costs de
bonis propriis." (footnotes omitted)
[34] An order de bonis propriis shall not be made against a person or
party unless he or she had been afforded an opportunity to respond to
the allegations in question a nd to state his or her case... ”
[46] Mr van Reenen again repeated the same submissions that he made at trial.
He could not explain why the school or , for that matter, himself had not sought
any legal advice since December 2024. He again applied for a postpon ement
without providing a good reason and did not present any objective evidence
regarding the learners' interests, their financial and day -to-day needs, or any
other facts that could have persuaded me. His argument that he is motivated
by the interests of “poor children' is merely paying lip service to a very
important matter that should have required far greater consideration and
effort. I find it ironic that Mr van Reenen himself repeatedly referred me to the
advice given to him by Justice Steyn earlier in the proceedings regarding the
appointment of legal representation and that he “should not let the ball drop” .
Mr van Reenen clearly decided that he would not pass the ball, or rely upon
legal advice but that he would persist in the course on which he started out
on. The old saying goes that the path to hell is paved with good intentions.
Not all good intentions are reasonable viewed in context . I again allowed Mr
van Reenen more than sufficient time to address the Court and to convince
me of the merits of the application for postponement, the application for leave
to appeal, the stay of execution and the reasons why he should not be
ordered to pay costs.
[47] I was again left disappointed since he could not convince me of his good
intentions but rather , through his actions, cemented my dissatisfaction in the
manner in which he conducted himself in these proceedings. Having
considered the evidence presented at trial and the submissions made to me at
the hearing on 28 March 2025, I am not convinced that the learners' interests
were paramount to the school's defence and Mr. Van Reenen’s actions in this
matter . Far too little, if any , substantive evidence was presented by Mr. Van
Reenen regarding the plight of poor chi ldren and the role that the school
purportedly fulfils as an independent school. Yet again, Mr. Van Reenen did
not speak to the new learners who were enrolled, the school and their
financial means, or any realistic engagement with the reality that the leas e
agreement was cancelled or terminated due to the effluxion of time and that
the school will need to find alternative accommodation. Mr. Van Reenen
presented no reason why my findings were incorrect , nor did he explain why
his participation in the trial a nd the apparent defences relied upon by the
school were motivated, in essence, by his own personal vendettas unrelated
to the real issue at hand . Mr. Van Reenen is not uneducated and again
emphasised during his address on 28 March 2025 his experience, fina ncial
qualifications (including some legal knowledge), and business and social
connections. I find his actions during the trial and at the hearing of 28 March
2025 unreasonable. He conducted himself recklessly without regard for the
unavoidable facts and c lear contradictions in his testimony. The school does
not employ Mr. Van Reenen. He chose, of his own volition, to represent the
school. By his own will, he persisted in associating himself with the meritless
defences presented.
[48] In the premises , the foll owing Court order is granted:
(1) The application for postponement is refused.
(2) The application for leave to appeal is refused.
(3) The application for the stay of execution of the Court order dated 13
December 2024 is refused.
(4) The operation of the order dated 9 December 2024 is postponed and
suspended until 21 July 2025.
(5) The plaintiff’s legal representatives are requested and directed to take
the following steps forthwith to info rm all learners, their parents and
guardians of the confirmation of the eviction order in the following
terms:
(a) A permanent notice board is to be erected at the main entrance
of the premises and maintained until the eviction order is
executed, on which the notice referred to hereunder must be
displayed along with a copy of this order informing all learners,
their parents and/or guardians that :
(i) The first defendant is in unlawful occupation of the property.
(ii) That the eviction of the first defendant is postponed and
suspended until 21 July 2025.
(iii) That the Sheriff of the above Honourable Court is authorised
to effect the eviction order dated 9 December 2024 if so
instructed by the plaintiff on any date after 21 July 2025.
(b) The plaintif f’s attorney is requested to prepare a notice
addressed to the school’s learners, their guardians and parents
providing adequate information regarding the order dated 9
December 2024 and this order including the contact details of
the Department of Education , Western Cape should they which
the department to assist with the placement of learners in
alternative school (“the notice”) .
(c) Copies of the notice must also be distributed at the property's
entrance between 07:00 and 09:00 on three school days in the
first week of the academic term after the Easter school holiday .
(d) The plaintiff’s attorneys are directed to send a copy of the notice
by electronic means, including email and/or WhatsApp, as per
paragraph 6 hereunder.
(e) A copy of this judgment and order must be served upon the first
and third defendants.
(6) The first and third defendants are directed to cooperate with the plaintiff
in providing access to and/or details of any email list, the contact
details or user details of any WhatsApp group or electronic chat group
to which learners, their parents and/or guardians may belong through
which notice c an be given of this order.
(7) The plaintiff’s attorneys are directed to file a service affidavit regarding
the steps taken in compliance with this order by no later than 9 May
2025.
(8) The first and third defendants along with Mr Andrew Charles van
Reenen (Identity number 6 […]) are ordered to pay the costs of the
action as well as the costs of the application for postponement,
application for leave to appeal, application for the stay of execution and
the argument on 28 March 2025 on the scal e as between attorney and
client.
BY ORDER
VAN DEN BERG AJ