Daniels and others v M&Y Tombstone Granite Works (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ncube J
• Judgment Date: 23 March 2023
• Citation: 2023 JDR 2051 (LCC)
• Hearing Date: 23 January 2023
• Docket Number: LCC161/2022

Ncube J:

Introduction:

[1]

This is an application for restoration of residence in terms of section 14 of the Extension of Security of Tenure Act, Act 62 of 1997 ("the Act"). The application is opposed. It was brought on urgent basis. I dispensed with the rules relating to form, service and time lines and issued directives for filing of affidavits. In terms of the directives, the first respondent was supposed to file and deliver its Notice to Oppose and the answering affidavit on or before 23 November 2022. The answering affidavit was only filed on16 December 2022, hence the application for condonation.

Condonation:

[2]

The first respondent filed its answering affidavit 21 days late. It was filed on 14 December 2022. In terms of the Rules, the court may, on sufficient cause shown, excuse the parties from compliance with the Rules. The legal principles relating to condonation were analysed in Melane v Santam Insurance Co Ltd [1] :

Holmes JA said:

"In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts, are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate the rule of thumb would only

2023 JDR 2051 p3

Ncube J

serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a light delay and good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interests in finality must not be overlooked."

[3]

In casu, the first respondent avers that the delay was caused by the fact that the first respondent first attempted a settlement agreement with the applicants. The applicants rejected the agreement. Secondly, the first respondent assisted, the applicants to find alternative accommodation; which accommodation was also rejected by the applicants. The representatives of the first respondent Beverley Janine Naidoo ("Ms Naidoo") avers firstly that the first respondent, as a church and a grave yard, is extremely busy with burials and exhumations and did not have time to consult with her legal representative. This is not acceptable explanation. It is proof that Ms Naidoo does not take this court seriously.

[4]

There was not even a need for her to engage into negotiations with the applicants before she could respond to court directives. It seems Ms Naidoo's funerals and exhumations were more important than this court. The rule of law requires citizens to respect the authority of the courts. This condonation application is opposed by the applicants and rightly so and it should be dismissed. However, as I want to deal with the merits of this application once and for all, I shall exercise my discretion and condone the late filing.

2023 JDR 2051 p4

Ncube J

Factual Background:

[5]

The second applicant ("Mr Daniels") was employed by the first respondent in 2018 as a grave digger and for the manufacturing of tombstones. Mr Daniels was given consent to reside on the premises described as Farm 821 Erf 821 Portion 3, Williston Road, a Division of Cape Road, Cape Town. He moved into the premises with members of his family being the first, third, fourth and fifth applicants. The first respondent subsequently became aware of the fact that Mr Daniels was then staying with his family members on the property. Mr Daniels' initial employment period was for six (6) months.

[6]

When the period of six months expired and the employment terminated, Mr Daniels and family continued residing on the property as occupiers. This was with the consent of Ms Naidoo who gave them the additional period of ten (10) months. In October 2021, the first respondent commenced proceeding in this court for the eviction of Mr Daniels and his family members. The eviction application is opposed and it still pending, in this court.

[7]

On 23 October 2022, the applicants were threatened at gunpoint by certain people and forced to leave the property. Realizing that their lives were in danger, the first applicant ("Mrs Daniels") requested Mr Daniels to try and seek alternative accommodation for the family the following day. On the following day, the same people returned at night and informed the applicants that it was the last warning and they had to leave the property. On 25 October 2022 the applicants left the property. They went to a friend's ("Mr Peter")...