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IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: A562/2014

DATE: 10 FEBRUARY 2016

In the matter between:

WALDSKI BELEGGINGS CC...............................................................................................Appellant

And

ANDREAS WILLEM NEL.............................................................................................1st Respondent

MARLE NEL..................................................................................................................2nd Respondent

MUNICIPALITY OF MOSSEL BAY............................................................................3rd Respondent

Coram: BINNS-WARD J et KOEN AJ

Heard: 5 FEBRUARY 2016

Delivered: 10 FEBRUARY 2016

JUDGMENT

KOENAJ:

[1] On 20 May 2014 the appellant launched an application in the Magistrates’ Court at George against Mr A. M. Nel and Mrs M. Nel, cited as the first and second respondents, respectively, in which it sought their eviction and that of "all other persons claiming through them” from erf [4…….], [G……..], [G…….] (“[erf 4……]”)- The Municipality of Mossel Bay was cited as the third respondent, but it has played no role in the proceedings. Nothing more need be said about it. I shall for convenience refer to the first and second respondents simply as “the respondents”.

[2] The cause of action set up by the appellant in the court below is, in summary, as follows. In the founding affidavit, deposed to by Mrs M M Van Der Merwe, the appellant claimed that it was the owner of erf [4…..]. The founding affidavit went on to allege that the respondents, Mr and Mrs Nel, had occupied erf [4……..] with its permission in terms of "an informal verbal agreement ” which had been concluded during June 2011.

[3] Precisely what the terms of this agreement were is difficult to ascertain from the papers. Although the transaction was structured as a series of purchase and sale agreements, the founding affidavit reveals that what the parties in fact had contemplated was an exchange of immovable properties, using companies owned and controlled by what I shall call for convenience the Van der Merwes, of the one part, and the Nels on the other. Thus, the appellant had, through a company known as Cloudshelf Properties (Pty) Ltd, acquired ownership and taken occupation of a farm belonging to Water Leaf Properties (Pty) Ltd (“Water Leaf’), a company owned and controlled by the respondents’ son, Mr Kemp Nel. And the respondents, so it was alleged, in terms of a contemplated sale agreement forming part of the overall exchange transaction, had taken occupation of erf [4…….]. A copy of this sale agreement, incomplete as to particulars of the purchaser, and signed only on behalf of the appellant, was attached to the founding affidavit.

[4] The affidavit filed in support of the eviction application went on to say that because the respondents had not done anything to complete the incomplete agreement by inserting the purchaser’s particulars, as had been intended, their right of occupation had been terminated by way of a letter sent to the respondents during September 2013.

[5] The respondents opposed the application. The opposing affidavit was deposed to by their son, Kemp Nel. He stated that he was the occupant of the property and that he claimed “indirect ownership to the property” and the right to transfer of the property to Water Leaf. He also stated that he deposed to the opposing affidavit on behalf of his parents, an allegation not placed in issue by the appellant in its replying affidavit.

[6] In support of his claim to take transfer of erf [4…….] through Water Leaf, Kemp Nel denied that the sale agreement relating to erf [4……..] was incomplete. He attached to his affidavit an agreement for the purchase and sale of erf [4……] which is identical to the incomplete agreement attached to the founding affidavit, save for the fact that it shows that it was entered into by Water Leaf as the purchaser. He also testified to the fact that he had, on 21 May 2014, caused an action to be launched in the Free State Division of the High Court, in which he and Water Leaf, amongst other things, claimed transfer of erf [4…..]. Kemp Nel furthermore averred that it is he, and not his parents, who currently occupies the property.

[7] It is not necessary for the purposes of this judgment to conduct a more detailed analysis of the issues at stake in the eviction application. It is enough to say that it is quite apparent from the affidavits filed in the application that the alleged unlawfulness of the current occupation of erf [4…..] is disputed. The dispute would be difficult, if not impossible, to resolve on the papers.

[8] In his opposing affidavit Kemp Nel stated that if he would, if the magistrate found that the appellants had made out a case for the eviction of himself and his parents, by way of a conditional counter application, seek the postponement of the eviction application pending the determination of the proceedings he and Water Leaf had instituted in the High Court. The record does not reflect that any finding concerning the merits of the eviction claim was made. Be that as it, confronted with the circumstances outlined above, and after hearing argument, the magistrate made an order postponing the eviction application sine die, pending the determination of the action which Kemp Nel and Water Leaf had instituted in the High Court. It is necessarily implicit in the order that the magistrate must have concluded that it was desirable that the eviction should be deferred until the High Court action was determined, but, despite request, the magistrate did not give any reasons for the order. It is against that order that this appeal lies.

[9] The first question which arises is whether the order made by the court below is appealable. In the heads of argument filed on behalf of the appellant the submission was made that authority for the proposition that the granting of the postponement by the magistrate was appealable is to be found in Van Loggerenberg, Jones and Buckle, The Civil Practice of the Magistrates' Courts in South Africa, 10th Edition, Vol 2, at Rule 31-2. Rule 31 of the Rules of the Magistrates’ Courts deals with adjournments and postponements. In discussing the legal principles applicable to these, the learned author makes the point that the granting or refusal of a postponement involves the exercise of a judicial discretion, and that if the discretion is not exercised judicially, the granting or refusal of a postponement may be set aside on appeal.

[10] I doubt very much that the passage in Jones and Buckle was intended to suggest that an appeal lies against an order granting or refusing a postponement before a final judgment has been pronounced. The relevant passage makes no reference to section 83 of the Magistrates’ Court Act 32 of 1944 (“the Act”), which deals with appeals against orders made in those courts. The passage relied upon does not state that an appeal against the granting or refusal of a postponement has ever been held to have the effect of a final judgment. Furthermore, in none of the cases cited there as authority for the proposition that the granting or refusal of a postponement may be set aside on appeal, was the court concerned with an appeal against the granting (or refusal) of a postponement by a magistrate.

[11] All of the cases referred to, save for Prinsloo v Saaiman 1984 (2) SA 56 (0), had to do with postponements which had been granted or refused in High Court proceedings. Prinsloo was concerned with an appeal against a costs order which had been made pursuant to a successful application to a magistrate for a postponement. In Prinsloo, the order which postponed the matter was not the subject of the appeal. Orders as to costs are, of course, separately appealable under section 83(b) of the Act. This was made clear in De Vos v Cooper and Ferreira 1999 (4) SA 1290 (SCA) at 1298 H-I. Prinsloo does not therefore assist the appellant.

[12] In terms of section 83 of the Magistrates’ Court Act 32 of 1944 (“the Act”), if there is no agreement between the parties that an appeal shall not lie,

“a party to any civil suit or proceeding in a Court may appeal to the provincial or local

division of the Supreme Court having jurisdiction to hear the appeal, against-

(a) any judgment of the nature described in section 48;

(b) any ride or order made in such suit or proceeding and having the effect of a final judgment, including any order under Chapter IX and any order as to costs;

(c) any decision overriding an exception, when the parties concerned consent to such an appeal before proceeding further in an action or when it is appealed from in conjunction with the principal case, or when it includes an order as to costs. ”

[13] Section 83(a) and section 83(c) of the Act do not apply to this case. This is because section 48 of the Magistrates’ Court Act makes no provision for appeals against orders postponing pending proceedings and this case is not concerned with a decision overruling an exception. Orders under Chapter IX have to do with the circumstances under which execution of a judgment may be postponed, and can thus be left out of account. What remains then is to decide whether the order postponing the application has *7he effect of a final judgment ” as contemplated by section 83 (b) of the Act.

[14] In order to overcome the hurdle thus presented counsel for the appellant contended that what made the order one with final effect was the recognition by the court below, without a formal joinder of Kemp Nel to the proceedings, that he had locus standi to make the counter application. If the contention is correct, is it sufficient to imbue the order ultimately made with the degree of finality required to make it appealable?

[15] In Zweni v Minister of Law and Order 1993 (1) SA 523 (A) an order which is of final effect was said to have three characteristics. One of these is that it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. In Steenkamp v South African Broadcasting Corporation 2002 (1) SA 625 (SCA), a case concerned with the meaning of the words “having the effect of a final judgment ” in section 83(b) of the Act, it was affirmed that an order which did not have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings, did not have the effect of a final judgment, and consequently was not appealable (at 6301 - 63IB).

[16] It cannot be said of the order of the magistrate that it disposes of at least a substantial portion of the relief claimed in the main proceedings. On the contrary, the order does not touch upon any part of the relief claimed by the appellant in the main proceedings. It is not a final, or indeed any, determination of the rights of the parties in regard to the eviction claim. All that the magistrate did was to defer the decision in regard to the alleged right of the appellant to have the respondents evicted from erf [4…….], until the High Court had determined the case before it. As described above, the determination of the case before the High Court, in which the pertinent disputes of fact will be resolved by oral evidence, will clarify whether the appellant is entitled to the eviction of the respondents from its property.

[17] It became clear in oral argument that an important part of the appellant’s complaint was that the magistrate dealt with the matter on the basis of the intervention of Kemp Nel notwithstanding that he had not been formally joined as a party in the proceedings. Counsel regarded this as an irregularity that had led the magistrate into the error of not affording the appellant the substantive relief to which counsel submitted it had been entitled. As a second leg to his argument, and in the event that the order of the court below was found not to be appealable, counsel for the appellant invited this Court to exercise its review powers, and to set aside the postponement order and refer the matter back to the magistrate to be dealt with correctly.

[18] This Court’s power to review the proceedings of a magistrate’s court is primarily regulated by the provisions of section 22 of the Superior Courts Act 10 of 2013. The only relevant basis for the review of the proceedings made by the magistrate is if this court was to be persuaded that there had been a “gross irregularity in the proceedings ” (see section 22 (1) (c)). The wider common law powers of review that the High Court enjoys do not seem to be pertinent in the circumstances. It has been held that 11 the Court will not set aside proceedings on review if it is satisfied that no substantial wrong was done to the applicant, ie that the irregularity was not likely to prejudice the applicant ” (see Building Improvements (Pty) Ltd v Additional Magistrate, Johannesburg 1978 (4) SA 790 (T) at 793A). Moreover, the general rule is that the High Court will be slow to review proceedings which have not been finalised and then only when justice cannot be done by other means (see Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A) at 5G-6).

[19] It seems to me that it would be unduly formalistic to hold that Kemp Nel ought not to have been heard in the proceedings in the court below. Whilst it is correct that he was not formally joined as a party to the proceedings, the eviction order was sought not only as against the respondents, but also against all those who claimed a right of occupation though them. The magistrate would have been hard pressed to refuse to hear a person who claimed to be an occupant, as did Kemp Nel, in the knowledge that the order it was being asked to make might significantly impact upon his alleged rights. It seems to me, then, that if any irregularity occurred in the proceedings before the magistrate, they cannot be said to have been of a sufficiently gross nature so as to warrant intervention on review at a time before the proceedings were finalised.

[20] Another reason which militates against a review at this stage, in my view, is that it does not appear from the record what actually took place, and whether or not the magistrate made the order pursuant to the conditional counter application being moved. In the normal course review proceedings would entail the bringing of an application in which any irregularity relied upon would be explained on affidavit. A record of the proceedings, directed at a review remedy, would be produced. In addition, the magistrate would have the opportunity at addressing the alleged irregularity. This would facilitate an understanding of what transpired and enable a court better to assess whether or not a gross irregularity, causing prejudice, has taken place. This Court has before it only a record on appeal, not a record directed at a possible review of the proceedings. This would make it unwise, in my opinion, for this Court to entertain the appellant’s counsel’s request to exercise its review powers in the context of the current appeal proceedings.

[21] I add that in any event, if the proceedings were to be set aside on review and referred back to the court below it seems likely that Kemp Nel would apply for and be granted leave to intervene, and that he would again seek the postponement of the matter pending the finalisation of the action pending before the High Court. I am not persuaded that the magistrate, in postponing the eviction application, was misdirected in the exercise of his discretion. For the reasons discussed above it was convenient, and eminently sensible, for the eviction application to be deferred pending the determination of the High Court action. If a postponement were again to be granted a review would have served no useful purpose, and occasioned only further delays in the resolution of the dispute between the parties.

[22] In the circumstances, I conclude that there is no merit in the submission that the order of the magistrate postponing the proceedings before him is appealable. The order does not, for the reasons given above, have the effect of a final judgment as contemplated by section 83(b). And, for the reasons given above, 1 do not think that this is a matter where the proceedings before the magistrate should be set aside on review on the record that is before us.

[23] As to costs I see no reason why they should not follow the result.

[24] The appeal is dismissed with costs.

KOEN AJ BINNS-WARD J:

I agree.

BINNS-WARD J

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