Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 13008/2012 
Before: The Hon Mr Justice Binns-Ward
In the matter between:

And
GERALD BLOEMBERG							Respondent
JUDGMENT DELIVERED: 9 NOVEMBER 2012
BINNS-WARD J:
[1] On Friday, 6 July 2012, sitting after hours, Henney J granted an order directing the respondent to restore the applicants to possession and occupation of certain immovable property at 6 Northumberland Close, Milnerton. The order was made in the following terms (adopting a draft handed in by the applicants’ counsel):
1. Applicants be restored to their rightful use and occupation of the property situated at 6 Northumberland Close, Parklands, Table View with immediate effect.
2. That respondent hand over the keys of the residence to applicants, as he has changed the locks to the premises. Immediately upon receipt of this order.
3. The cost of the application should be (sic) awarded on the attorney and client scale.
4. Further and/or alternative relief, (sic)
[2] The application had been brought before the judge as one urgency in terms of rule 6(12). According to the notice of motion, it was set down for hearing at 18h00. It is not apparent at exactly what hour the matter came before the judge. In any event the papers were telefaxed to the respondent’s telefax number only at 18hl4. There is no proof of service of any sort in the court file. It is thus perhaps no cause for surprise that the order was made in the absence of the respondent. He first became aware of the proceedings later that evening when the order was served on him at his home by the sheriff, who was accompanied by a number of policemen. Nothing in the terms of the order provided for the sheriff to be assisted by the police in serving it. This was not the first occasion on which the police had been involved in the litigation between the applicants and the respondent. The other occasion, to be mentioned below, was also in questionable circumstances.
[3] The respondent applied on Monday, 9 July, in terms of rule 6(12)(c), for a setting aside or reconsideration of the order. Pursuant to that application, Henney J made an order on 13 July postponing the hearing of the matter to 27 August 2012 on a timetable which allowed for the filing of affidavits by the respondent showing why the order should not have been granted and for affidavits in reply thereto by the applicants. I shall come back to the terms of the order made on 13 July 2012 at the end of this judgment.
[4] The respondent duly delivered papers in terms of the directions made by Henney J. The applicants did not reply to those papers. The matter could not be heard on 27 August 2012 and was then postponed to 5 November 2012, when it came before me.

[6] I do not find it necessary to particularise the numerous incidences, but the applicants’ non-compliance with the court’s directions and the applicable procedures has been characteristic of their conduct of litigation with the respondent over an extended period both in this court and in the magistrate’s court. Suffice it to say that the impression given upon a consideration of the entire history of litigation between the parties is one of delay, tardiness and non-compliance by the applicants. The object of this behaviour appears to be to prolong their occupation of the property in issue, while avoiding the timely proper determination of the underlying issues they have raised to justify such occupation.

[9] The property was transferred to the respondent in due course and the applicants made a number of ‘rental’ payments to the respondent. They very shortly fell into arrears, however. The respondent thereafter instituted proceedings in the magistrate’s court for the eviction of the applicants from the property. Those proceedings were instituted and prosecuted in accordance with the requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’). In terms of that Act a court will grant an order, at the instance of the owner or person in charge of the land, for the eviction of a person from his or her home only in the event that it is satisfied that the person’s occupation of the property is unlawful and that it is just and equitable in the circumstances for them to be evicted. The Act is structured so as to promote and give effect to the rights of everyone in terms of s26 of access to adequate housing, and in particular with reference to the requirement of s 26(3) of the Constitution that no-one may be evicted from their home without an order of court made after consideration of all the relevant circumstances.
[10] The applicants raised a number of defences in the proceedings brought against them in terms of PIE. One of them was that the registration of transfer of the property out of their names had been effected pursuant to a forgery of their signatures on the relevant power of attorney. The applicants had first made this allegation in correspondence with the respondent during April 2011. The significance and materiality of the allegation was not explained because it has at no stage been suggested that the applicants had not sold the property, or that the purchase price had not been paid, or that the respondent had not been entitled to take transfer of the property. The applicants also took no steps, at least until much later, to have the registration of transfer out of their names set aside. The respondent instituted the eviction proceedings against them three months later in July 2011. During one of the scheduled court appearances a member of the police force sought to remove the respondent from the court to take him in for questioning on the fraud or forgery allegations made by the applicants. The timing and circumstances of this intervention was odd to say the least. It is the other of the two questionable involvements of the police mentioned earlier.

[11] The onus of establishing that the property had not been validly transferred to its current registered owner was on the applicants. The magistrate held that the applicants had failed to discharge this onus. Judgment in favour of the respondent for the payment of outstanding rental and the eviction of the applicants was granted by the magistrate on 23 February 2012. In terms of that judgment the applicants were directed to vacate the property by 24 May 2012, failing which the sheriff might evict them. The applicants did not appeal against the judgment. The correctness or otherwise of the judgment given against the applicants in the magistrate’s court is not an issue in these proceedings. That is a question that could properly be entertained only in the context of an appeal against the judgment, or possibly a review application.
[12] The applicants ascribed their failure to appeal to their inability to speak to their legal representatives between 25 February 2012, when they say they learned of the judgment, and ‘mid-April’. They averred that their legal representatives failed to take their calls, ‘always being out of office or consulting’. When they eventually saw their attorney they were informed that the time within which an appeal could be lodged had expired. They brought an application for a stay of the judgment concerning their eviction before the magistrate’s court on 23 May 2012 (that is one day before the date by which they were required in terms of the judgment to vacate the property). The magistrate was persuaded that it would be fair to grant a stay of judgment until 4 July 2012, being the date by which the applicants indicated that they would bring proceedings in the High Court to set aside the transfer of the property.
[13] It is neither necessary, nor appropriate to express any view on whether the magistrate was correct in granting the stay order. Even were the grant of the order susceptible to criticism or attack, those considerations would not derogate from the legality and effectiveness of the order because it was within the magistrate’s power to make it; see s 62(2) of the Magistrates’ Court Act 32 of 1944. The order stands until and unless it is competently set aside.
[14] It also bears mention that the applicants had in any event during the course of the proceedings in the magistrate’s court brought parallel proceedings in the High Court, in October 2011, in case no. 21315/2011, in which they sought relief setting aside the transfer of the property out of their names. The respondent delivered answering papers in those proceedings, which included a report from a well-known handwriting expert setting out in detail why the expert had concluded that the signatures on the power of attorney were probably executed by the same persons who had executed signatures on other documents that had undisputedly been signed by the applicants. The applicants did not reply to the respondent’s answering papers in case no. 21315/2011 and took no steps to set their application down for hearing. For reasons that will become apparent shortly, it needs mentioning that the respondent gave as his address for the service of documents in case no. 21315/2011, the offices of Thabiet Conrad at 1 Mostert Street, Cape Town. It was also apparent from the notice of opposition, however, that the respondent’s personal address (and he acted in person) was at 22 Albemarle Street, Hazendal, Athlone. In their application for a stay the applicants indicated that they would withdraw proceedings in case no. 21315/2011 ‘if necessary’ so as to be able to prosecute the fresh proceedings that they intended to institute by 4 July. As at 5 November 2012, those proceedings had not been withdrawn despite the institution of the fresh proceedings to be described below.
[15] The applicants did not properly motivate in the proceedings for a stay of ejectment why they required until 4 July to institute the High Court proceedings. Those proceedings were after all predicated on allegations they had made as early as April in the previous year and essentially indistinguishable from those advanced in case no. 21315/2011, which they had failed to prosecute to any conclusion and persist in leaving in abeyance.
[16] The effect of the stay order granted by the magistrate was that the respondent was prohibited from enforcing the judgment that he had obtained in his favour until at least 4 July. I think it may be inferred, notwithstanding the absence of any express provision to that effect in the stay order, that if the contemplated High Court proceedings had been instituted by that date, the stay would remain in effect pending the determination of those proceedings. If the effect were not to be implied as a provision of the stay, the grant of the stay order would have been senseless. An interpretation that would give sensible effect to the stay order is obviously to be preferred over one that does not.
[17] The applicants procured the issue of papers in an application launched under case no. 12750/2012 in the High Court on 4 July 2012. In that application they sought orders nullifying the transfer of the property to the respondent and to the latter’s successor as registered title holder, one Chris Jan Louw and declaring the ‘sale agreements’ entered into between them and the respondent to be cancelled. (The contractual arrangement between the respondent and his successor as registered title-holder preserved the respondent’s rights as ‘lessor’ against the applicants.) These were plainly the fresh proceedings contemplated in the stay application. The supporting affidavit deposed to by the first applicant on 4 July stated that the respondent’s ‘principal office’ was at 22 Hazendal Street, Athlone. (That address appears to be a misrendered version of the respondent’s actual address at 22 Albemarle Street, Hazendal, Athlone.) The notice of motion, however, provided for service on the respondent at ‘c/o Thabiet Conrad, 1 Mostert Street, Cape Town’.

[19] In response to questions directed by me to her counsel at the hearing as to when the application in case no. 12750/2012 had been served, the first applicant made an affidavit averring that she had served the application herself on 4 July at 1 Mostert Street. The affidavit did not set out any particulars of the service, such as the time at which it was effected, the manner in which it was effected, and, if served on a person, rather than merely being attached to the door or left in a post-box, the identity of the person concerned and the nature of the person’s connection to the premises. The purported service was non-compliant with the prescribed procedures in a number of respects. The most the applicants were able to say was that the respondent had become aware of the application in case no. 12750/2012 by 9 July at the latest when he launched his application for a reconsideration of the order made by Henney J.

[23] It is convenient to quote van der Byl AJ’s discussion and rejection of the argument, at para. 24 of the judgment in full:
As to the first of these issues, it was contended on behalf of the fifth respondent that an application can only be initiated when it is properly served by the sheriff, as provided by the provisions of rule 4.

In my opinion the circumstances of that case are distinguishable from the circumstances in this matter, insofar as the applicant was required in terms of a court order to 'initiate', as opposed to the requirement in that matter, in terms of a particular legal provision, to make application within a prescribed period, proceedings not later than a particular date.

Applications on the other hand may, depending on the kind of application, commence in various ways. I can, however, on the analogy of actions, see no reason why an application cannot be regarded as having commenced when lodged or filed with (or issued by) the registrar. The lodging, filing or issuing of an application by an applicant can, in my opinion, by no means be of no consequence. I can see no reason why the issue of an application or the lodging or filing of the application papers with the registrar should not be regarded as the initiation of the proceedings envisaged in the application.

1 am accordingly satisfied that the applicant indeed, initiated the review proceedings in question at the time it was issued by or lodged or filed with the registrar, being a first step in a process to commence the proceedings.
[24] Upon a consideration of the Appellate Division authority cited by the learned acting judge, I am persuaded that his reasoning cannot be faulted, with respect. The result is that the question of the lawfulness of the execution of the writ of ejectment against the applicants on 5 July 2012 falls to be determined by the import of the wording of the stay order made by the magistrate.

[26] The magistrate who made the stay order did not give a reasoned judgment. The note endorsed on the case file by the magistrate (annexure GBA16 at p. 409 in the papers before me) recorded the following:
 ‘Application to have the warrant of ejectment stayed. OPJ Digitally recorded.

No order as to costs'
[27] In the absence of a reasoned judgment by the magistrate, one needs to have regard to the context in which the order came to be made to determine its proper meaning. The respondent produced his own transcript of the mechanical recording of the proceedings at
which the order was made. The applicants have not suggested that the transcript is not accurate. The transcript reflects the arguments of the parties and what the magistrate actually said in court at the conclusion of the proceedings. It is apparent from what the magistrate is recorded as having said that the order endorsed in writing on the record, as quoted above, was no more than an acceding to the terms of applicants’ application. The magistrate in fact did not read out the order made in court in the terms that he endorsed it on the record. He concluded the proceedings by making the following statement:
Yes, I’m not going to give a long technical judgment pertaining to this application before me. Suffice to say the following. Having heard argument from both Mr Lawrence and Mr Bloemberg and having a look at the papers before me I am of the view that you hold the balance between the applicants’ request and the opposition of Mr Bloemberg. Fairness demands from this court to have this stay of warrant of ejectment stayed (sic). The application is granted, I make no orders of cost (sic).

[33] In the result the following orders are made:
1. The spoliatory relief granted by Henney J in terms of the orders made on 5. July 2012 and 13 July 2012 is confirmed. The deletion in terms of the order made on 13 July 2012 of the costs order made on 6 July 2012 is also confirmed.
2 .So as to give effect to the provisions of paragraph 1, the order of the court in case no. 13008/2012 is hereby reformulated in terms of rule 6(12)(c) to read as follows:

3. The costs, if any, of the proceedings in terms of rule 6(12)(c), as well as in the initially determined spoliation proceedings, shall stand over for determination by the court which decides the application in case no. 12750/2012.

A.G. BINNS-WARD