Juyn NO and others v Batho and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ncube J
• Judgment Date: 08 March 2023
• Docket Number: LCC163/2022
• Hearing Date: 30 January 2023
• Court: Land Claims Court

Ncube J:

Introduction:

[1]

This is an application in which the applicants seek an urgent eviction of the first respondent in terms of section 15 of the Extension of Security of Tenure Act, Act 62 of 1997 ("the Act"). The affected land is portion 7 of Kromdraai 509, Registration Division IQ North West ("the farm") The application is brought in two parts Part "A" is the urgent removal of the first respondent from the farm pending finalization of part "B". Part "B," on the applicant's papers is the interdict application. Whilst part "A" is alleged to be urgent, part "B" is to be heard in ordinary course. The application is opposed by the first respondent. Part "A" is interim in nature pending finalization of part "B." The parties agreed that part "A" was to be dealt with first. However, for reasons which will become clear later in this judgement, part "B" cannot stand.

[2]

The applicants filed their urgent application on 15 November 2022. The application was indeed treated as one of urgency. I condoned non-compliance with rules pertaining to service and filing time lines. I issued directives giving dates on which Answering and Replying Affidavits were to be filed. I also directed that any of the parties were still free to dispute the urgency of the application. I issued Rule Nisi calling upon the first respondent to show cause by 25 January 2023 why orders prayed for could not be granted. The first respondent failed to file his answering affidavit on time as directed hence his condonation application which I shall deal with hereinafter.

Condonation:

[3]

In terms of the directives issued on 15 November 2022, the first respondent was supposed to have filed his answering affidavit on 23 November 2022 and his heads of argument on 12 December 2022.The first respondent failed to comply with the time frames. He filed his answering affidavit on 07 December 2022. He filed his heads of argument on 19 December 2022, hence the application for condonation. Rule 32 (4) of the Land Claims Court Rules provides:

"The court may upon application and on good cause shown at any stage of the proceedings-

a.

. . . .

b.

condone any irregular step or any non-compliance with these rules or with an order or direction of the court; or

c.

. . . . ."

2023 JDR 0687 p3

Ncube J

Therefore, the applicant for condonation must show good cause why his non-compliance with the rules or court directions must be condoned.

[4]

The legal principles on condonation were succinctly analysed in Malane v Santam Insurance Co Ltd [1] Holmes JA (as he then was) expressed himself in the following terms:

"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 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 a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. . ."

In casu, the answering affidavit was late by ten days and heads of argument were late by seven days. However, the first respondent has given a reasonable explanation. The first explanation is that the first respondent thought that he had ten days to file an answering affidavit. The problem is that the first respondent was served with the notice of motion separately from the court directives. The notice of motion gave him ten days to file notice of opposition. The first respondent was confused when he got court directives giving him 23 of November 2022 to file his answering affidavit. He then started applying for legal aid. For this reason, couple with good prospects of success, the application for condonation should succeed.

URGENCY:

[5]

The first respondent disputes urgency. He has a right to argue that the application is urgent. Urgency is dealt with in Rule 34 of the Rules of the Land Claims Court. Rule 34 (2) provides:

"The applicant must set out in his or her founding affidavit the circumstances which he or she aver render the matter urgent and the reason why he or she cannot obtain substantial redress at a hearing in due course."

2023 JDR 0687...