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Adams v Communicare (1853/2013) [2013] ZAWCHC 26 (19 February 2013)

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JUDGMENT: 19 FEBRUARY 2013

R. ML NYMAN A.J.

[1] This matter concerns an application to stay an Eviction Order brought on an urgent basis, pending the outcome of an appeal brought by the Applicant, who appeared in person.

Background

[2] On 5 November 2010 the Respondent launched an application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) against the Applicant, in the Magistrate’s Court for the District of Goodwood, which application was set down for hearing on the unopposed roll on 9 December 2010..

[3] On 7 December 2010 the Applicant filed a notice of intention to oppose the application which application was accordingly postponed sine die. At this time, the Applicant was represented by Mr Rushad Khan of M R Khan & Associates Attorneys.

[4] On 22 December 2010 the Respondent’s attorneys sent a letter to Mr Khan, requesting him to file an opposing affidavit.

[5] At the end of January 2011 the Respondent’s attorneys attempted to serve a notice of set down on Mr Khan, but he had moved offices without due notice of the change in address and accordingly, the notice of set down could not be served on him.

[6] On 22 February 2011 Mr Khan sent a fax to the Respondent’s Attorneys containing his change of address. A notice to this effect was delivered during March

2011.

[7] The Applicant failed to file an opposing affidavit and the eviction application was set down for hearing on the opposed roll on 18 March 2011, the Applicant having been given ten (10) days’ notice of the date of the hearing.

[8] On 18 March 2011, neither Applicant nor Mr Khan made an appearance in Court. Accordingly, the Magistrate granted an Eviction Order, giving the Applicant two (2) months’ notice to vacate the premises. The Order was served on Mr Khan’s Correspondent in Goodwood.

[9] On 6 June 2011 the Applicant noted an appeal against the Eviction Order which resulted in the Magistrate providing reasons for his Order. This appeal was never withdrawn.

[10] On 10 June 2011 the Applicant brought an application to stay his eviction, pending the outcome of a rescission of the Eviction Order.

[11] This application was granted by Binns-Ward J and thereafter, the Applicant delivered an application to rescind the Eviction Order.

[12] Respondent opposed the rescission application and set the matters down for hearing. No replying affidavit was delivered. The rescission application was set down for hearing on the opposed roll on 13 October 2011.

[13] At the hearing of the rescission application proceedings, Mr Khan requested the Magistrate to recuse himself on the basis that he was biased. In consequence, the Magistrate postponed the proceedings to 8 December 2011, in order to allow the Applicant to bring a formal recusal application which would be argued on that day, the rescission application having been postponed to 9 December 2011.

[14] No recusal application was launched on 8 December 2011, on which day, the Magistrate informed the Respondent’s attorney and Mr Khan that there were no magistrates available to hear the rescission application on 9 December 2011. The parties agreed to postpone the rescission application to 24 January 2012.

[15] On 24 January 2012 there was no appearance for the Applicant and after hearing argument from Respondent’s counsel, the application for rescission was dismissed with costs and Respondent was given leave to set the matter down again if it sought an order de bonis propriis against Mr Khan.

[16] On 25 January 2012 the Applicant noted an appeal against the Order in terms of which the application for rescission was dismissed. Consequently, the Magistrate provided reasons for his Order.

[17] On 28 March 2012 the Applicant filed an application condoning his failure to prosecute the appeal and requested an extension which extension was refused. This matter was never set down.

[18] The Respondent set the de bonis propriis costs issue down for hearing on 13 April 2012 but no order as to costs was made and the matter was postponed sine die.

[19] The respondent issued a warrant of ejectment and in response thereto, the applicant launched an application to this Court to stay the warrant of ejectment, pending the outcome of his appeal on the basis that the dies for the appeal had not started to run because the question of costs remained outstanding.

[20] The matter was heard on 28 September 2012 and judgment was handed down by Bozalek J on the same day with with an Order, inter alia, restoring possession of the premises to the Applicant, pending the outcome of the appeal against the decision to dismiss the rescission application. The following Order bears relevance:

“3. For the purposes of the rules governing the aforesaid appeals the decisions appealed against or to be appealed against will be regarded as having been taken once the magistrate determines whether a costs order de bonis propriis should be made against attorney M R Khan or when the first respondent advises the applicants¹ legal representative in writing that it no longer seeks any such costs order against attorney M R Khan,”

[21] On 28 September 2012 the Respondent’s attorney sent a letter to Mr Khan advising him that the Respondent was no longer seeking a costs order de bonis propiis and accordingly, delivered a notice of withdrawal to this effect on 29 September 2012.

[22] On the 19 December 2012, letters were addressed to Mr Khan and the Applicant, via registered post, advising them of the lapsing of the appeal on 24 December 2012 and of the Respondent's intention to proceed with the eviction process thereafter. The Applicant failed to prosecute his appeal, the dies having expired on 24 December 2012.

[23] The Respondent’s attorney sent by registered post a letter advising the Applicant that the Respondent would proceed with his eviction on 19 February 2013. No track and trace report was annexed to the papers as confirmation of receipt of the tetter by the Applicant.

Application to stay

[24] In his founding affidavit in support of the application to stay the execution of the Order, the Applicant states that he is married and lives with his wife and minor child on the premises. He states that he is unemployed and he receives a monthly grant due to his heart problems and the loss of his left eye.

[25] The Applicant contends that he has been staying on the premises for thirteen (13) years and that he is up to date with his rent. He furthermore alleges that the reason for his eviction is not because of his failure to pay the rent, but for the costs of the utilities that had to be paid to the City of Cape Town. He states that he had corresponded with the Respondent and had informed it that he had made arrangements with the City of Cape Town in terms of the indigent policy to pay his account, but the Respondent was not interested. The Applicant states that the National Minister had made it public that the water would be written off up until 2009 and that the balance of arrears amounts to R2 584.27. As a result of the meeting that he had with Mayor de Lille, the water arrears were written off as well.

[26] The Applicant explains the conduct of Mr Khan in the following paragraphs of his founding affidavit:

“16. My attorney carried on with this case and up until now he has done nothing but to postpone matters. I asked him on numerous occasions when is my case being settled and his reply was "don’t worry” just pay your rent and not the legal fees. And this has been going on for the last 3 years.

17. I know the court can’t hold the attorney liable, but the court must take into consideration that we are not learned as the attorney’s are that is why we listen to their advise.

18. I have read the judgement of Mr De Beer and M.S. du Toit and it clearly states that our attorney failed In all aspects of the case, that he was not applying by the court rules and he did not present none of our circumstances before Judge De Beer. That is why the merit was only one sided Magistrate De Beer took only the merits of the 1st Respondent Judgement page 22 paragraph 20 where it states that Judge De Beer and M.S. du Toil says that we have not looked for any other accommodation. Page 23 paragraph, page 24 paragraph 5,10,15, and 2.0 I do not agree what Judge De Beer says, because mine is not rental but utilities.

Judgement page 25 paragraph 5,10,15, and 20

Judgement page 26 paragraph 20, Judgement page 27 paragraph 5,10,15,20.

Mr. Khan withdrew from myself and some other tenants we have signed a Letter stating that we are not using him anymore, I plead with the Honourable Judge to take In consideration to a stay the eviction for the 19th February 2013 and to take In consideration that I have a daughter in matrix and this eviction is already effecting her school work and I am at the court’s mercy.

The reason why I cannot get alternative accommodation is because I only receive a disability of R1200,00. We have looked for accommodation and I cannot afford the rent of other places. My wife has been diagnose as a diabetic and other chronical illnesses. She is also waiting for her forms to apply for disability as well.

So please we are pleading your mercy to stay the eviction on the 19^th February 2013.

The reason for late filling is that Mr. Khan received the letter on the 1/02/2013 and I was battling to get the letter from him where only on the 7/02/2013 he left the letter at a friend of his place and I must pick it up from there. His son Rushdi Khan s.m.s. me to collect the letter there”.

[27] In its opposing affidavit, the Respondent contends that the application to stay the execution is yet another delaying tactic amounting to an abuse of process. The Respondent furthermore contends that the Applicant had been aware of Khan’s “tardy and unprofessional conduct for some time and that he has not provided any explanation for why Mr Khan’s conduct “should not be imputed to himself. The Respondent furthermore contends that the Applicant has failed to explain his failure to prosecute the appeal and more specifically, why the record to proceed with the appeal had not been delivered.

[28] The Respondent concedes that an amount of R 13 501.37 was written off, but states that it only occurred after the lease had been cancelled and accordingly, has no bearing on the matter. In any event, on the Applicant’s version, there was still a remainder of R 2 584.72 due and owing in respect of utilities.

The law

[29] It is agreed law that the Court has a discretion to order the stay of execution and in the exercise of such discretion the Court may take into consideration the balance of convenience and justice. (See: Tromp u Tromp 1956 (3) SA 114 (N) at

667).

[30] In Anderson & Co v Byron 1955 (4) SA 395 (N) at 597 Henochsberg, A.J. expressed the view that the onus rests upon an applicant to establish that it is just and equitable that execution be stayed. The determination of what is just and equitable, depends on all the circumstances of the particular matter. A relevant factor that has to be taken into account where stay is sought of an ejectment order, is the balance of convenience as summed up in the following passage:

“Hence if there were no other considerations to be taken into account, obviously, in the present instance, the balance of convenience would clearly be served by maintaining the status quo - that is to say by suspending execution of the judgment pending the decision on appeal.”

Reasons

[31] The background in this matter illustrates that the matter has been dragging on for a considerable period of time, due to no fault of the Respondent. The Respondent was diligent in prosecuting the eviction application and was reasonable in giving indulgences and notification to the Applicant. It is understandable that the Respondent wants finalisation of these proceedings.

[32] On the other hand, it is evident that most of the delays were caused by the poor legal representation given by Mr Khan, the Applicant’s former attorney. He failed to make an appearance on the day when the eviction application was argued, and hence the Eviction Order was granted by default and he also failed to make an appearance on the day when the rescission application was set down. At the hearing of these proceedings, the Applicant stated from the Bar that he had reported Mr Khan to the Cape Law Society (CIS) on two occasions. He also stated that he had paid Mr Khan to represent him. I should therefore ensure that Mr Khan’s conducted is investigated by the CLS.

[33] Ms Liebenberg, appearing on behalf of the Respondent, submitted that there is a limit to the extent that a litigant may advance the negligence of his attorney, as a reason for his tardiness, in prosecuting his or her case, i do not find merit in this argument, given the common cause fact of the case pertaining to the conduct of Mr Khan.

[34] In my view, the applicant was not afforded the opportunity to ventilate his defence, as a result of the conduct on the part of his former attorney. In circumstances where the applicant had already given his attorney instructions to represent him, it would not be just to close the door to the Applicant, to have his defence aired in Court. In my view, the possible inconvenience that may be caused to the Respondent if the eviction Order is not executed, does not outweigh the balance of convenience that would be served by maintaining the status quo until the appeal is decided. In my view, it would result in a substantial injustice to have the Applicant evicted from the premises, given his personal circumstance. Furthermore, an important consideration that influences my decision is that it seems, through the conduct of his attorney, the Applicant was denied the right to have his say in Court. I also take into account that the right of access to housing, constitutes a fundamental human right. In my view it would be just and equitable to grant the stay of execution.

[35] For the afore-going reasons and taking all the circumstances into account, to my thinking, no substantial injustice will result if I grant a stay of execution, pending the decision on appeal. Given the undue delay already caused in the proceedings, in my view, the appeal should be prosecuted expeditiously and without undue delay. I propose to make an Order staying execution upon terms set out hereafter.

Orders

I therefore make the following Orders:

1. Execution of the Eviction Order issued by Magistrate J.A. de Beer of Goodwood Magistrate’s Court on 18 March 2011 is hereby stayed, pending the outcome of the appeal by the Applicant against the decision of Magistrate J.A. de Beer of Goodwood Magistrate’s Court taken on 24 January 2012 to dismiss the application to rescind the abovementioned Eviction Order.

2. In the event that the Applicant fails to prosecute his appeal within four (4) from the date of this Judgment, the magistrates court is authorised to issue a fresh warrant of ejectment after two (2) days’ notice to the Applicant or his legal representative, if any.

3. That the Applicant serves copies of this judgment and papers of ail the relevant proceedings relating to this matter, upon the Cape Law Society, within four (4) days of the date of this Judgment.

4. The Cape Law Society is ordered to investigate the conduct of Mr R. Kahn in his capacity as the former attorney of record of the Applicant.

5. That the costs of this application, abide the result of the said appeal, but if such appeal is not duly prosecuted then and in that event, the Applicant is to pay the costs of this application.

R. M. NYMAN A.J.

ACTING JUDGE OF THE HIGH COURT