(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No, 1853/2013 

In the matter between:

and

JUDGMENT: 19 FEBRUARY 2013

[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

[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

[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 This appeal was never withdrawn.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.

[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:

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

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.

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”.

The law

667).

Reasons

[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

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