John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (In Liquidation) and Another

• Jurisdiction: South Africa
• Judge: Shongwe ADP, Willis JA, Mocumie JA, Mothle AJA and Rogers AJA
• Judgment Date: 08 March 2018
• Citation: 2018 (4) SA 433 (SCA)
• Docket Number: 245/2017 [2018] ZASCA 12
• Hearing Date: 08 March 2018
• Counsel: JP Broster for the applicant. GME Lotz SC for the first respondent.
• Court: Supreme Court of Appeal

Rogers AJA (Shongwe ADP, Willis JA, Mocumie JA and Mothle AJA A concurring):

[1] This is an application for leave to appeal which has been referred to open court for argument. I shall refer to the applicant, John Walker Pools, as JWP; the first respondent, Consolidated Aone Trade & Invest 6 (Pty) Ltd (in liquidation), as CAT; and the second respondent, Imperial B Crown Trading (Pty) Ltd (in liquidation), as ICT. The order of the court a quo was for the eviction of JWP, at CAT's instance, from shop premises in Ballito Bay Mall (the Mall) plus costs. The court a quo dismissed JWP's application for leave to appeal. JWP applied to this court for leave to appeal and it is this application which is now before us. C

[2] At the commencement of the hearing before us the presiding judge raised with the applicant's counsel whether the proposed appeal had not become moot. Subject to the question of mootness, the test we must apply is not whether JWP's proposed appeal should succeed but whether there are reasonable prospects of success in the proposed appeal. The active parties before us were JWP and CAT. D

[3] To understand the question of mootness, I must provide some brief background. CAT's application for eviction was based on an allegation that it was the owner of the premises and that JWP was in unlawful occupation of the premises. This sufficed to place on JWP the onus of E setting up a right of occupation. [1] JWP's defence was that it was entitled to occupy the shop by virtue of an alleged lease with ICT. In his first answering affidavit, the deponent on behalf of JWP, Mr Dharman Rajoo, the sole proprietor of the business, did not attach a copy of the lease. In its replying affidavit the deponent for CAT contended that the answering affidavit did not disclose a defence because the lease was not F attached and no particulars thereof were furnished. CAT alleged, further, that since ICT's right to occupy the premises had been terminated, any rights JWP might have against ICT did not give it a defence against CAT.

[4] In a supplementary answering affidavit Mr Rajoo attached the lease, explaining why he had not been able to do so earlier. The attached G document purported to be a lease between ICT and JWP for the period October 2012 to September 2017.

[5] The matter came before Steyn J on 16 August 2016. JWP failed to file heads of argument. Mr Rajoo appeared in person. He told the judge that his attorneys had withdrawn the previous week and that his new attorney H was not available on that day. The court a quo refused a postponement and granted the eviction order.

[6] The application in this court does not raise, as a ground of appeal, that the court a quo wrongly refused the postponement or that JWP should be permitted to adduce further evidence on appeal. In the circumstances, facts and documents in the application for leave which I

Rogers AJA (Shongwe ADP, Willis JA, Mocumie JA and Mothle AJA concurring)

were A not before the court a quo must be disregarded in assessing whether JWP has reasonable prospects of success.

[7] The question of mootness arises from the fact that JWP's alleged entitlement to occupy the premises terminated at the end of September 2017. We were told from the bar that JWP did not then vacate the B premises and that, as was the case when the eviction application was launched, it has persisted in its failure to pay rent. Be that as it may, it is clear that a decision on appeal would have no...