Khoza and Others v Body Corporate of Ella Court

• Jurisdiction: South Africa
• Judge: Notshe AJ
• Judgment Date: 11 November 2008
• Citation: 2014 (2) SA 112 (GSJ)
• Docket Number: 2007/22463
• Hearing Date: 11 November 2008
• Counsel: Applicants in person represented by Mrs E Mokoena. NF Masenamela (attorney) for the respondent.
• Court: Witwatersrand Local Division

Notshe AJ:

[1] On 20 August 2008 the applicants, residents of premises controlled D by the respondent, brought an application before me without any papers. Fortunately they had served papers on the respondent and the latter was represented by attorneys, Messrs NF Masenamela Inc.

[2] As a result of the urgency of the matter I allowed the applicants to lead viva voce evidence. E

[3] The applicants appeared in person represented by Mrs E Mokoena and the respondent was represented by Mr Masenamela. After hearing the evidence and argument I made the order appearing at the end of the judgment. I then said that the reasons for the order would follow. The following is my judgment. F

[4] As stated above, the applicants are the residents of Ella Court, premises that are under the control of the respondent.

[5] On 16 April 2008 the respondent obtained an order evicting the applicants from the premises. The applicants were directed to vacate the G aforesaid premises on or before 15 May 2008.

[6] The applicants did not vacate the premises.

[7] Instead they brought an application for the rescission of the order made against them. H

[8] On 20 August 2008 the respondent sought to execute the eviction order. It sought to forcibly remove the applicants from the aforesaid premises.

[9] As a result thereof the applicants seek an order restraining the respondent from continuing with the eviction process. The respondent relies on the order granted on 16 April 2008. I

[10] I raised with the respondent the issue of whether the eviction order could be executed in view of the rescission application instituted by the applicants. In this regard I referred the respondent to the provisions of rule 49(11) of the Uniform Rules of Court. J

Notshe AJ

A [11] It was submitted on behalf of the respondent that the institution of a rescission application does not have the effect of suspending the order sought to be rescinded. They relied on the decision of this court in the matter of United Reflective Converters (Pty) Ltd v Levine. [1]

[12] The question that falls to be decided is whether an application for B rescission of a judgment suspends the operation of that judgment and/or order. Rule 49(11) of Uniform Rules provides as follows:

'Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be C suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.'

[13] In the United Reflective Converters case this court held that the provisions of rule 49(11) have no force and effect insofar as they relate to D the rescission application, save insofar as it relates to the noting of an appeal.

[14] The decision of the court in the United Reflective Converters case is a decision of this court. As a result thereof, I, as a judge of this court, sitting alone, am bound to follow that decision, unless I am of the view E that it is clearly wrong. The Constitutional Court has recently commented on the doctrine of stare decisis and judicial precedent.

'What is at issue here is not the doctrine of stare decisis as such, but its applicability in the circumstances of this particular case. A brief comment on the doctrine will therefore suffice. The words are an abbreviation of a Latin maxim, stare decisis et non quieta movere, which F means that one stands by decisions and does not disturb settled points. It is widely recognised in developed legal systems. Hahlo and Kahn describe this deference of the law for precedent as a manifestation of the general human tendency to have respect for experience. They explain why the doctrine of stare decisis is so important, saying:

G "In the legal system the calls of justice are paramount. The maintenance of the certainty of the law and of equality before it, the satisfaction of legitimate expectations, entail a general duty of Judges to follow the legal rulings in previous judicial decisions. The individual litigant would feel himself unjustly treated if a past ruling applicable to his case were not followed where the material facts were the same. This authority given H to past judgments is called the doctrine of precedent.

. . .

It enables the citizen, if necessary with the aid of practising lawyers, to plan his private and professional activities with some degree of assurance as to their legal effects; it prevents I the dislocation of rights, particularly contractual and proprietary ones, created in the belief of an existing rule of law; it cuts down the prospect of litigation; it keeps the weaker Judge along right and rational paths, drastically limiting the play

Notshe AJ

allowed to partiality, caprice or prejudice, thereby not only A securing justice in the instance but also retaining public confidence in the judicial machine through like...