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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

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

 

                                                                                                CASE NO: 215/2014

                                                                                                DATE HEARD: 13/02/2014

                                                                                                DATE DELIVERED: 20/02/2014

 

 

In the matter between

BONGIWE BRENDA STUURMAN                                                                         APPLICANT

and

LIESL ERASMUS N.O.                                                                                      RESPONDENT

JUDGMENT

ROBERSON J:-

[1] This is an application for an order interdicting the respondent from executing a warrant of execution issued out of the Magistrate’s Court for the district of Bathurst, held at Port Alfred, pending the outcome of an appeal against the judgment of the magistrate granted on 22 October 2013, ordering, inter alia, the eviction of the applicant from the property described as E [……] (the property).  The application was brought on an urgent basis, and was opposed by the respondent.

[2] The applicant was appointed by the Master of the High Court as the executrix of the deceased estate of the late B.T., who died on [……] (the deceased).  The appointment was in terms of the deceased’s will executed during October 2009, in which will the deceased bequeathed [….] entire estate to the applicant.  The deceased subsequently executed another will on 24 November 2009 whereby [….] revoked all earlier wills, appointed the respondent as executrix of [….] estate, and bequeathed [….] entire estate to [….] two daughters.  The Master accordingly appointed the respondent as executrix of the estate.   According to documentation annexed to the respondent’s answering affidavit, the Master called upon the applicant to return [….] Letters of Authority for cancellation and thereafter informed [….] that the Letters of Authority had been cancelled.  The property is the only asset in the estate. 

[3] The respondent issued a summons in the Magistrate’s Court against the applicant, in which she alleged that the applicant and the deceased had concluded a lease agreement in terms of which the applicant leased the property from the deceased at a monthly rental of R300.00, and operated a tavern from the property.  It was further alleged that the applicant was in arrears with the rent and had also failed to pay certain municipal charges which she was obliged to pay.  The respondent cancelled the agreement and claimed payment of the amounts owing, confirmation of the automatic rent interdict, and ejectment from the property.  The applicant entered an appearance to defend the action and the respondent applied for summary judgment.  The applicant opposed the application, but summary judgment was granted against her on 22 October 2013.  A warrant for ejectment was issued on 25 October 2013 and on 6 November 2013 the applicant noted an appeal against the judgment.  The respondent thereafter applied in terms of s 78 of the Magistrate’s Court Act 32 of 1944 for an order that the ejectment of the applicant from the property be carried into execution pending the appeal.  That application was granted and the order of the magistrate remains in force.  The applicant has not noted an appeal against that order (there is authority that it is not appealable[1]) nor has she indicated that she intends to apply to have it reviewed and set aside.

[4] It emerged during argument, that the appeal has lapsed because it has not been prosecuted within the prescribed time period.  Ms Watt, who appeared for the respondent, submitted that in the light of the lapsing of the appeal, the application fell to be dismissed on that ground alone.  The relief sought was not competent because there was no appeal.  I think this submission was correct.  If there is no appeal, the judgment can be carried into execution.  In Sabena Belgian World Airlines v Ver Elst and Another 1980 (2) SA 328 (W),  the applicant had applied for an order staying a warrant of execution and suspending execution of a judgment pending the outcome of an application for condonation of the late prosecution of an appeal and the appeal itself.  In considering the argument that the application was in the nature of an application for an interdict, Vermoten J, after setting out the requisites for an interdict, said the following at 243B-D (authorities omitted):

“The right which Sabena seeks to protect is to stay the writ and suspend execution of the judgment.  It is true that, at common law, noting appeal suspends execution automatically.  But here the appeal has lapsed.  In such event execution is no longer suspended, but the judgment can be carried into execution.  It is for that reason that the clerk of the court issued the warrant of execution on 12 June 1979.  It follows that Sabena has not proved that it has a right to a stay of execution, not even a prima facie right open to some doubt.”

[5] Mr. Mpahlwa who appeared for the applicant, submitted that it was open to the applicant to bring an application for condonation for the late prosecution of the appeal and that this court should put the applicant to terms to bring such an application.  My difficulty with this submission is that the reason why the appeal has not been prosecuted was not dealt with at all in the applicant’s affidavits, nor did she ask in her notice of motion that execution be suspended pending an application for condonation as well as the appeal itself.  In fact, it was only during argument that it was brought to my attention by Ms Watt that the appeal had lapsed.  An application for condonation was apparently not contemplated until it was learned that the appeal had lapsed.  Mr. Mpahlwa submitted that the reason for the lapsing was the s 78 application which, as I understood his argument, diverted attention from the timeous prosecution of the appeal.  I have no evidence before me that this was the case, and in any event, the s 78 application and its outcome was no bar to the prosecution of the appeal.  I am of the view that to accede to Mr. Mpahlwa’s request would leave the matter in the realms of uncertainty and speculation and I decline to do so.

[6] The appeal having lapsed, the applicant has shown neither a clear right nor a prima facie right to suspend execution and on this ground alone the application cannot succeed. 

[7] A further difficulty which I believe faces the applicant, also in relation to a clear right or a prima facie right, is the existence of the s 78 order granted by the magistrate.  In Jasat v Moosa 1949 (1) SA 883 (N) judgment had been granted against the applicant in the magistrate’s court for eviction from certain premises.  The applicant noted an appeal against this judgment.  The respondent thereafter obtained an order in terms of s 78 allowing the judgment to be carried into execution.  The messenger of the court executed the writ of ejectment and on the same day the applicant noted an appeal against the s 78 order.  The applicant applied to the Supreme Court (now the High Court) for an order interdicting the execution of the two judgments, pending the hearing of the appeals in the two judgments.  In refusing the application, Carlisle J said the following at 884:

“Now the relief asked is for a temporary interdict and I propose to deal with the application on that footing although I have doubts whether that form of procedure is appropriate where what is really applied for is a stay of the execution of a writ which has been authorised by the magistrate.  In an application for an interdict the applicant must satisfy the Court that the essentials necessary to obtain it exist.  He has not done so.  In the first place, he has no clear right to remain in possession since the magistrate’s judgment negatives it.  If he possesses a prima facie right, he does not allege so nor does he allege any facts which would establish it.”

[8] In Kuruman Cape Blue Asbestos (Edms) Bpk v Boshoff 1973 (2) SA 663 (NC), summary judgment for eviction had been granted against the respondent in the magistrate’s court.  He noted an appeal against this judgment.  The appellant thereafter obtained an order in terms of s 78 to carry the judgment into execution.  The respondent approached the Supreme Court and was granted an interim interdict suspending the execution of the warrant of execution until the judgment of that court in the appeal against the summary judgment and in the review of the s 78 order.  In an appeal against the granting of the interim interdict, the court found that there were no prospects of success of a review of the s 78 order.  At 670D-E the following was said:

“Waar daar geen vooruitsig van sukses van die landdros se bevel kragtens art. 78 bestaan op die enigste gronde en moontlike gronde wat die dokumente waarop Boshoff om ‘n interdik aansoek gedoen het openbaar, volg dit dat hy geen prima facie reg getoon het wat deur ‘n interdik beskerming regverdig nie.  Dit is dan onnodig om daarop in te gaan of hy die ander vereistes vir ‘n interdik bewys het.”

[9] As already mentioned, in the present case the applicant has not noted an appeal against the s 78 order nor does she indicate an intention to apply to have it reviewed and set aside.  It follows from the above two authorities, that she has demonstrated neither a clear right nor a prima facie right deserving the protection of an interdict, and on this ground too, the application cannot succeed.

[10] It is therefore not necessary for me to consider the submissions from both Counsel concerning a prima facie right to occupy the property and the other requisites for an interim interdict.

Costs

[11]      In her answering affidavit, the respondent stated that the applicant was mala fide in noting an appeal and that her intention was to delay execution for the purposes of benefiting from the asset in the estate at the expense of the deceased’s children.  The respondent alleged that the unpaid municipal charges are mounting daily and the property cannot be transferred to the children without a rates clearance certificate.  The value of the property is R40 000.00 and municipal charges to date exceed R35 000.00.  The respondent also criticised the applicant for not disclosing in her papers that she was aware that her Letters of Authority had been cancelled.  The applicant was further criticised because she only mentioned in this application that the property was her primary residence, whereas this was not a ground of opposition to the summary judgment application.  It was therefore submitted that because of her conduct costs should be awarded against the applicant on the attorney and client scale.  While some of this criticism is warranted, I do not think I can go as far as finding that the applicant has acted mala fide and that her motives were as alleged.  In the circumstances a punitive costs order is not warranted.

[12] The application is dismissed with costs.  

________

J M ROBERSON

JUDGE OF THE HIGH COURT 

Appearances: 

For the Applicant: Adv M Mpahlwa, instructed by Coltman Attorneys and Notaries, Grahamstown

For the Respondent:  Adv K L Watt, instructed by McCallum Attorneys, Grahamstown

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