Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: 633/11

In the matter between:
CECIL CARL BURGHER							Applicant
And
BASIL CHARLES BURGHER N.O. 				First Respondent
NAWAAL CLOETE 					          Second Respondent
SHERIFF WYNBERG SOUTH 					 Third Respondent
NIGEL WALTERS, N.O. 						 Fourth Respondent
NADEEM JACOBS							 Fifth Respondent

JUDGMENT

HENNEY, AJ:

INTRODUCTION

This Application was heard on 10 February 2011. The Applicant requested that the Fifth Respondent. Nadeem Jacobs, be joined as a Respondent. There was no objection to this and it was so ordered I will now deal with the merits of this Application.

[1] An order for the eviction of the Applicant from a property known as 20 Blende Road, Crawford, was handed down by the Magistrate's Court, Wynberg. on 3 December 2010.

As a result of the order, the Applicant was ordered to vacate the said property by no later than 15h00 on 5 January 2011, failing which the Sheriff was authorised to evict the Applicant the following day on 6^ January 2011.

[2] The Applicant on 14 December 2010 filed a Notice in terms of Rule 51 (1) of the Rules regulating the conduct of the proceedings in the Magistrate's Court in terms of Act 32 of 1944 - The Magistrate s Court Act ("the Act').

[3] The Applicant failed to vacate the property as ordered on 7 January 2011, and was finally evicted on 13 January 2011.

BACKGROUND

[4] The said property belonged to the deceased estate of the mother of the Applicant, was sold on 3 July 2010 to the Fifth Respondent, later joined in this matter. The Master of the High Court, notwithstanding the Applicant's objection thereto had given its consent for the property to be sold. Mainly due to the fact that the Applicant who lived alone in the home, and who could stay in his house for as long as he could, failed to contribute towards paying for municipal service. The Will of his late mother stipulated that in such an event, the house should be sold. The Applicant failed to vacate the property after it had been sold.

[5] As a result of this, thereafter proceedings for the eviction of the Applicant were initiated by the Respondents, which resulted in the order being given by the Magistrate
Wynberg. on 3 December 2010.

[6] The Applicant desisted an attempt by the Sheriff !o evict him on 6 January 2011 and 13 January 2011. the Sheriff returned and in fact evicted the Applicant.

The Applicant seeks an order from this court that:-
a)	declaring that the execution is stayed pursuant to the order handed down by the Magistrate Wynberg on 3 December 2010, pending reasons given to in terms of Rule 51{1) of the Rules in terms of the Magistrate's Court Act 32 of 1944.
b)	ordering that the Respondent s restore possession to the Applicant of the said property.
c)	the Respondents be interdicted from taking steps and/or action whether directly or indirectly, to interfere with the Applicants peaceful and undisturbed possession of the property mentioned.
d)	that the Respondents be ordered to pay the costs on a punitive scale to be determined by the Court.

The crisp issue for determination in this matter is whether a request for written reasons from a Magistrate in terms of Rule 51(1) of the Magistrates Court Rules, automatically suspends the execution of the order of the Magistrate Wynberg, handed down on 3 December 2010.
The Applicant contends that the Rule 51(1) notice constitutes a step in the course of noting an appeal and as such automatically suspends the operation of the eviction order until the finahzation of the appeal.

case, it seems, concerns the following:

The Respondent was the owner of property over which the Applicant bank had registered a mortgage bond to secure a loan to the Respondent The Respondent defaulted and the Applicant bank obtained judgment against the Respondent. On the day that the Magistrate found against the Respondent, the Respondent filed a Rule 51(1) Notice, requesting the Magistrate's written reasons. The Respondent's attorney notified the Applicant bank that they were instructed to note an appeal in due course. The Applicant bank proceeded to sell the property at a sale in execution. It did however not proceed immediately with evicting the Respondent. The Applicant bank sought to do so in terms of Section 78 of the Magistrate's Court Act 32 of 1944 after the property had been sold. This section permits a court in the exercise of its discretion to direct that a judgment shall be suspended pending a decision upon appeal (where an appeal has been noted) or application (where an application to rescind, correct or vary a judgment has been made).

It would be appropriate for the purposes of this decision to once again have a closer look at Rule 51(3) and Rule 51(4) of the rules relating to conduct of proceedings in the Magistrate's Court.

“(1) Upon a request in writing by any party within 10 days after judgment and before noting an appeal and upon payment by such party of a fee of R70, which shall be affixed to such request in the form of a revenue stamp, the judicial officer shall within 15 days hand to the clerk of the court a written judgment which shall become part of the record showing -
(a) the facts he found to be proved; and
(b) his reasons for judgment
Provided that the fee referred to herein shall not be payable by a party who, together with his request in writing., also lodges a document in which he is, authorised by an officer or agent of a legal aid board, established by statute, to make such request

[SubrulQ (3) amendod by GN R2407 of 1991.]

[Subrule (4) amended by GN R947 of 1972. by GN R2221 of 1977, by GN R1449 of 1979
and by GN R2409 of 1991.]

[12] The rules furthermore clearly distinguish between a written request for reasons and a noting of an appeal.

[13] In the case of a request for reasons, in terms of Rule 51(1). such a request must be made in writing to the judicial officer concerned within 10 days after the judgment. In this process, only the judicial officer concerned and the party requesting the reasons are involved, there is no need to inform the opposing party about it. Any of the parties it seems can request such reasons

[14] In the case of the noting of an appeal, there must be a delivery of notice in terms of the rules of court which means that it shall be served with the Clerk of the Court and a copy shall be served on the opposing party (see Rule 2(1 )(b)).

[15] A further requirement that has to be satisfied is that unless the court order's otherwise, the Appellant shall furnish security for the costs of the Respondent to the amount of R1000.00.
[16] The Rules of Court prescribes different procedures when a request for written reasons from the judicial officer is made, in terms of Rule 51(1) and the noting of an appeal in terms of Rule 51(4).

[17] It is therefore clear that the legislature intended that there be two different and distinct processes when wntten reasons are requested and when an Appellant notes an appeal

[18] In my view therefore, the two processes cannot be meant to be the same especially if regard is to be had to the provisions of Section 78. which gives the court, discretion whether execution of a judgment should be suspended.

"(When to give the plain words of the statute their ordinary meaning would lead to an absurdity so glaring that it could be never have been contemplated by the legislature, or where it would lead to a result contrary to the intentions of the legislature, as shown by the context and such other considerations as a court is justified to take into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.'
(See also Carolus Kraal Farms (Edms) Bpk v Eerste Nasionale Bank van Suider- Afrika 1994 (3) SA 407 (A))
It is trite that only in cases where the ordinary meaning of words would lead to absurd results that could never have been contemplated by the legislature and that would result in an intention contrary to the legislature, that a deviation would be permissible.

Section 62(3) of 'the Act' states:

It is also trite law that when an appeal is noted, it may constitute good cause shown as contemplated in the subsection, to suspend the execution of a judgment.

[21] It is clear that the Appellant in this matter after having requested the written reasons of the Magistrate also could have made an application in terms of Section 62(3) to have stayed the execution of the order of court, whilst awaiting the reasons of the Magistrate.

The intention of the legislature and the common law rule is to prevent irreparable harm to an Appellant pending the appeal. This is adequately protected and catered for by other provisions of 'the Act' as stated, especially section 62(3).

It follows therefore in this matter that there being no appeal noted, that the order of execution against the Applicant, was therefore not suspended as envisaged in Section 78 of the Magistrate's Court Act 32 of 1944. The Third and Fourth Respondent were therefore entitled to execute the order of the Magistrate. Wynberg. dated 3 December 2010.

[23] The next issue for determination is whether the Applicant is entitled to the further relief sought in his Notice of Motion and that is:
a) that possession be returned of his property known as 20 Blende Road. Crawford, Western Cape.
b) that the Respondents be interdicted from taking any steps and/or actions, either directly or indirectly, to interfere with the Applicants peaceful and undisturbed possession of his said property.
[24]    In essence, the Applicant is requesting the court for a mandament van spolie.
in order for this to succeed, the Applicant must prove that:
(a) he was in peaceful and undisturbed possession of the property:
(b) he was deprived unlawfully of possession;

Insofar as the further relief is concerned, it is trite law that there is no spoliation if the Respondent acted lawfully in depriving the Applicant of his possession. In this regard, see Kleinsake Ontwikkelingskorporasie Bpk v Santambank BPK1988 (3) SA 266 (C), and also Ntai & Others v Vereeniging Town Council & Another 1953 (4) SA 579 (A) These cases are on point and are similar to the issue at hand in this matter I am of the view that the Applicant had failed to prove that he was unlawfully dispossessed of his property.

The mere fact that he believed that the Magistrate erred in granting the eviction order, does not make the actions by the Sheriff unlawful, merely because he had requested written reasons as a step in the prosecution of an appeal.

“

ontneem was. Lee en Honore (op cit para 262) se
'there is no spoliation if the respondent acted lawfully in depriving the applicant of his possession, eg ... if the messenger of the court attaches property in accordance with a writ of execution: Kemp v Roper NO (1886) 2 BAC 141; Sillo v Naude 1929 AD 21

It therefore follows that the Third and Fourth Respondent were legally entitled as a result of a court order to evict the Applicant.

In summary therefore, the application is dismissed with costs