Jantjies v Jantjies and Another (295/2015) [2015] ZAECPEHC 26 (30 April 2015)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: 295/2015

DATE HEARD: 16/04/2015

DATE DELIVERED: 30/04/2015

In the matter between

CATHERINE JANTJIES...................................................................................................APPLICANT

and

SINCLAIR JANTJIES............................................................................................1ST RESPONDENT

SAMANTHA JANTJIES........................................................................................2ND RESPONDENT

JUDGMENT

ROBERSON J:-

[1] This is an application for the setting aside of a judgment delivered by the Magistrate Port Elizabeth on 18 January 2010 dismissing an application for the eviction of the respondents from the applicant’s immovable property, and an order that the applicant is entitled to bring an application for eviction against the respondents de novo. The application was on the opposed motion court roll and was heard by me sitting alone. The prescribed procedures for setting aside a magistrate’s judgment either by way of appeal or review were not followed.

[2] The application is opposed by the first respondent who was formerly married to the second respondent, but they are now divorced and the second respondent is no longer occupying the applicant’s property.

[3] The circumstances leading up to this application are quite unusual. In the eviction application both parties were represented by attorneys other than their present attorneys. These former attorneys no longer have their files pertaining to the eviction

application. The court file cannot be found and the disc of the recording of the proceedings before the magistrate is blank.

All that remains by way of a record is the magistrate’s judgment and the applicant’s notice of appeal.

[4] In her founding affidavit the applicant asserted that she is the owner of Erf 1260 Bethelsdorp, Port Elizabeth (the property).

Following the death in 1996 of her husband Henry Jantjies to whom she was married in community of property, during 1997 the property was transferred into her name, in accordance with the law of intestate succession. During 2000 she entered into a lease agreement with the first respondent, who is the son of Henry Jantjies by a previous marriage. The building leased was a granny flat on the property. The first respondent failed to honour his obligations to pay rent and she instructed her attorney to institute proceedings for payment of the arrear rental. She obtained judgment against the first respondent in 2008 but did not recover the money from him. During 2009 she instructed another attorney to institute eviction proceedings. The application was heard on 16 April 2009. During 2010 she was informed by her former attorney that the application was unsuccessful. He told her that he intended to appeal the judgment but informed her later that the disc containing the record of proceedings was missing.

[5] During 2011 she approached her present attorneys who delivered a notice of appeal. Thereafter, as already mentioned, it was discovered that all the relevant files were missing and the disc containing the recording of the proceedings was blank.

[6] Currently, according to the applicant, the first respondent is still in occupation and is not paying rent. He is also utilising municipal services for which the applicant must pay as owner. The first respondent has also to date not contested her title to the property.

[7] The first respondent admits that the applicant is the registered owner of the property and that a lease agreement had been concluded.

He declined to answer the allegations that he had failed to pay rent in the past or presently, that he was using municipal services for which the applicant is liable, and that he had not contested the applicant’s title to the property. His reason for declining to answer these allegations was that they were not relevant to the relief sought. In view of his election not to answer these allegations, I must accept the version of the applicant in these respects.

[8] The situation between the parties appears not to have changed since the eviction application. The first respondent is still in occupation and is still not paying rent.

[9] The applicant submits that this court should develop the common law because the applicant’s rights in terms of s 33 and s 34 of the Constitution[1] have been breached and she is unable to pursue the appeal because of the missing files.

[10] In my view the applicant is not without a remedy and has not been deprived of her statutory right to appeal. It appears there has been no attempt between the parties to reconstruct the record, with the involvement of the magistrate. This was an application. According to the judgment of the magistrate the parties deposed to affidavits and their respective attorneys argued the application. The magistrate said in her judgment that:

“The application is premised on the basis that the Respondents occupation in the premises is illegal and against the wishes of the owner.

The facts in the matter are that – Plaintiff and Defendant entered in lease agreement. It is common cause that the defendant

defaulted in paying rent in terms and conditions of the agreement. Thereafter lease agreement was cancelled and the applicant claimed the arrear rental and sought an application evicting him at his home.”

[11] The applicant’s grounds for claiming the eviction at the time were therefore uncomplicated and she should have no difficulty in remembering what was contained in her affidavit for the purposes of reconstruction. Although the first respondent has not disclosed the basis of his opposition to the eviction application at the time, he should also have no difficulty in remembering what it was, particularly if he is still in occupation and not paying rent. It appears from the magistrate’s judgment that the first respondent claimed some right to the property because he was entitled to a child’s share in his father’s estate. The magistrate appears to have decided the application on that basis. She stated in her judgment:

“It follows therefore that the contract of lease has not overturned the law which vests the defendant with a child’s share.”

[12] The first respondent’s counsel placed on record that the first respondent was prepared to co-operate in an attempt to reconstruct the record. The magistrate would also have to be involved in this regard. Reconstruction is therefore a possible solution to the applicant’s predicament. Once the record is reconstructed it is open to the applicant to apply to the appropriate court of appeal for an extension of time within which to note an appeal and condonation for the late prosecution of the appeal.

[13] If reconstruction is not possible or is incomplete, again the applicant is not without a remedy. She could approach the

appropriate court of appeal for the same relief as well as for condonation for lodging a defective record and directions with regard

to a solution to the missing record.[2] I am careful not to advise the applicant on what course to take or on her prospects of success in taking such a course.

[14] I do not think that this case is distinguishable because there is no record at all, as was submitted. The judgment of the magistrate and the notice of appeal are available and re-construction has not been demonstrated at this stage as being impossible.

[15] It follows that it would not be competent for this court to grant the relief claimed. It would effectively bypass the prescribed appeal procedure, which includes the requirement in s 14 (3) of the Superior Courts Act 10 of 2013 that two judges hear an appeal from the magistrate’s court. It is hardly necessary to add that the first respondent presently has a judgment in his favour and it cannot be set aside without the merits of the appeal being properly canvassed before a properly constituted court.

[16] The first respondent submitted that costs should be ordered de bonis propriis against the applicant’s attorneys. I do not think that the circumstances warrant such an order.

[17] The application is dismissed with costs.

_____________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Mr V Naidu, instructed by Port Elizabeth Justice Centre, Port Elizabeth

For the Respondents: Adv M Morgan, instructed by Brendan Weldrick Attorneys, Port Elizabeth

[1] Respectively the right to just administrative action and the right of access to courts

[2] (See for example the orders made in Beaumont v Anderson 1949 (3) SA 562 (N) and Department of Justice v Hartzenberg [2001] 9 BLLR 986 (LAC). See also JMYK Investments CC v 600 SA Holdings (Pty) Ltd 2003 (3) SA 470 (WLD) where condonation was granted for failure to lodge a correct and complete record and the appeal was heard on the record as it was, at the request of the appellant. In this case the respondent had submitted that the appeal could not be heard

on the incomplete record but Cloete J said, at para [5], with reference to Beaumont v Anderson (supra), that a party has a statutory right to appeal.)