Betlane v Shelly Court CC

• Jurisdiction: South Africa
• Judgment Date: 24 November 2010
• Citation: 2011 (1) SA 388 (CC)

Betlane v Shelly Court CC
2011 (1) SA 388 (CC)

2011 (1) SA p388

Citation	2011 (1) SA 388 (CC)
Case No	CCT 14/10
Court	Constitutional Court
Judge	Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Brand AJ
Heard	August 24, 2010
Judgment	November 24, 2010
Counsel	A Friedman (with S Wilson) for the applicant.; JF Roos SC (with N Smit) for the respondent.

Flynote : Sleutelwoorde F

G Execution - Application for leave to execute pending appeal — Operation and execution of order suspended pending appeal — Application to execute pending appeal to be made to same court that gave order — Writ issued by appeals registrar of same court unlawful — Uniform Rules of Court, rule 49(11).

Headnote : Kopnota

H Following a dispute over arrear rental, Shelly Court CC approached the High Court and obtained an eviction order against one of its tenants. The tenant applied for leave to appeal against the eviction order. While the application for leave to appeal was pending, Shelly Court CC secured a writ of execution, on the strength of which the tenant was evicted.

I Held, that an application for leave to appeal suspended the execution of an order, unless leave to execute was sought and obtained, not from a registrar, but from the court that granted the order. In the present case the respondent had obtained the writ of execution and executed the eviction order, while aware of the pending application for leave to appeal; and, in addition, the writ had been issued by the appeals registrar of the same High Court in J which the application for leave to appeal was pending. All this flew in the

2011 (1) SA p389

face of rule 49(11) of the Uniform Rules of Court. (Paragraph [34] at 398E – F.) A

Held, accordingly, that the warrant of eviction should not have been granted while the applicant's application for leave to appeal was pending, and hence the execution of that order was unlawful. The writ was unlawful and fell to be set aside. (Paragraph [35] at 398G – H.)

Cases Considered

Annotations: B

Reported cases

Bayat and Others v Hansa and Another 1955 (3) SA 547 (N): referred to

Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others 2010 (5) BCLR 422 (CC): dictum in paras [21] – [24] applied C

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415): referred to

Campus Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd and Another 2006 (6) SA 103 (CC) (2006 (6) BCLR 669): dictum in para [26] applied D

Director of Hospital Services v Mistry 1979 (1) SA 626 (A): referred to

Dormehl v Minister of Justice and Others 2000 (2) SA 987 (CC) (2000 (5) BCLR 471): referred to

Geanotes v Geanotes 1947 (2) SA 512 (C): referred to

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78): dictum in para [34] applied E

Langeberg Ko-operasie Beperk v Folscher and Another 1950 (2) SA 618 (C): referred to

Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) (2009 (8) BCLR 767): dictum in para [26] applied

Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action F Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150): dictum in para [11] applied

Mpange and Others v Sithole 2007 (6) SA 578 (W): referred to

National Council of Societies for the Prevention of Cruelty to Animals v Openshaw G 2008 (5) SA 339 (SCA): referred to

Port Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C): referred to

Pountas' Trustee v Lahanas 1924 WLD 67: referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): H referred to

Registrar of Insurance v Johannesburg Insurance Co Ltd 1962 (4) SA 546 (W): dictum at 547A – B applied

S v Twala (South African Human Rights Commission Intervening) 2000 (1) SA 879 (CC) (1999 (2) SACR 622; 2000 (1) BCLR 106): referred to

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd I 1977 (3) SA 534 (A): dictum at 544H – 545A applied

Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) (2007 (11) BCLR 1167): referred to

Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O): referred to

Xinwa and Others v Volkswagen of South Africa (Pty) Ltd 2003 (4) SA 390 (CC) (2003 (6) BCLR 575): dictum in para [13] applied. J

2011 (1) SA p390

Unreported cases A

Betlane v Shelly Court CC (GSJ case No 2007/13744A, 15 June 2009, 27 January 2009 and 6 October 2009): referred to

Shelly Court CC v Betlane (GSJ case No 2007/13744A, 2 June 2009): referred to

Shelly Court CC v Betlane (GSJ case No 2007/13744A, 17 October 2007) order in set aside on appeal: order in set aside on appeal. B

Rules Considered

Rules of Court

The Uniform Rules of Court, rule 49(11) : see The Supreme Court Act and C the Magistrates' Courts Act and Rules (2009) at 74.

Case Information

An application for direct access where the applicant had been barred by the High Court from appealing an eviction order.

A Friedman (with S Wilson) for the applicant.

JF Roos SC (with N Smit) for the respondent. D

Cur adv vult.

Postea (November 24).

Judgment

Mogoeng J: E

Introduction

[1] Several orders were made by the South Gauteng High Court, F Johannesburg [1] (High Court), which effectively restrained the applicant from petitioning the President of the Supreme Court of Appeal for leave to appeal [2] against the eviction and costs orders made by the High Court against him. [3] These restraining orders would cease to apply only if the applicant paid the costs or furnished security for them.

2011 (1) SA p391

Mogoeng J

[2] The applicant approached this court primarily on the ground that A those orders constituted an infringement of his right of access to court. [4]

[3] About three weeks before the date of hearing this application, the respondent, for whose benefit the restraining orders were made, abandoned the orders. The question then arises whether there is a live constitutional issue remaining and, if so, whether it is in the interests of B justice for this court to pronounce on it.

Parties

[4] The applicant is Mr Kabelo Betlane, a lay litigant and former tenant of premises belonging to Shelly Court CC, which is the respondent in this matter. The applicant and the respondent are collectively referred to C as 'the parties'.

Factual background

[5] The parties entered into an oral lease agreement in terms of which the applicant rented residential premises from the respondent. His rental D obligations were about R1100 per month.

[6] A dispute arose between the parties about arrear rental. As a result, the respondent instituted an action in the Johannesburg magistrates' court (magistrates' court) in November 2004 against the applicant for the recovery of the rental owing, and for his eviction. The applicant E opposed the action on the basis that the rental had been remitted, owing to the premises' poor state of repair and the damage to his appliances caused by an electrical surge.

[7] It is common cause that the parties entered into a settlement agreement on 15 August 2005. In terms of this agreement, they would F conclude a written lease agreement by 17 August 2005, the respondent would abandon its action, and repair or replace the applicant's damaged appliances.

[8] Another dispute arose between the parties in 2007. Again it was about arrear rental. The applicant contested these allegations on the basis that his rental payments were up to date. The parties attempted to G resolve this dispute, but failed.

[9] Eventually, the respondent launched an application in the High Court for the applicant's eviction. It came before Bhika AJ, who issued the eviction order with costs on an attorney and client scale. [5] In terms of this order, the applicant was to vacate the premises by 18 November 2007, H failing which he would be evicted.

[10] The applicant later applied for leave to appeal against the eviction order. Although this application was launched in November 2007, it was only heard, and dismissed, by Bhika AJ on 15 June 2009, in these terms: I

2011 (1) SA p392

Mogoeng J

'1.

A That the application for condonation is not properly before the court. Application for leave to appeal is dismissed with costs.

2.

That the Applicant must provide proof of payment of the Respondent's costs before being allowed to proceed further.

2.1

The Respondent must provide proof thereof;

2.2

The Applicant must lodge security for costs with the Registrar before B he is allowed to proceed further in the matter.' [Emphasis added.]

[11] On 13 May 2008, while the application for leave to appeal was pending, the respondent secured a writ of execution on the strength of which the applicant was evicted from the premises on 23 May 2008.

C [12] Aggrieved by the eviction, the applicant brought an application for a spoliation order on 2 June 2008. He challenged the lawfulness of the execution of the eviction order on the basis that it was unlawful to execute an eviction order in circumstances where leave to appeal against that eviction order is pending. Essentially, the applicant challenged the D writ of execution, as a result of which he was ejected from the premises, on the same basis as in this court. Satchwell J dismissed the application with costs. [6] The applicant then brought an application for the review of the dismissal of his application for a spoliation order. It was dismissed by...