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South Africa Judgment

South Gauteng High Court, Johannesburg

Khwela and Others v Imalenai and Others (48512/ 2021) [2023] ZAGPJHC 419 (4 May 2023)

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Professional case brief

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Source document

01

Holding and result

The court found that the applicants had complied with the eviction order and vacated the premises, rendering the dispute between the parties moot. The applicants were unable to provide security for costs, which is a critical requirement for pursuing an appeal. In terms of the Superior Courts Act, leave to appeal may only be granted if the appeal would have a practical effect or result. As the applicants had already vacated the property and the respondents had taken occupation, there was no longer a live dispute. The court concluded that granting leave to appeal would serve no practical purpose and dismissed the application for leave to appeal.

Court disposition

Application for leave to appeal dismissed; costs awarded against applicants.

Orders

  • The application for leave is dismissed.
  • The applicants shall pay the respondents' costs on a party to party scale.

02

Material facts

Parties

Stanley Khuta Khwela

Applicant Counsel: Self-represented

Maria Khwela

Applicant Counsel: Self-represented

Buysile Maureen Masuku

Applicant Counsel: Self-represented

Julius Imalenai

Respondent Counsel: Adv Muza

Theresa O Eghonoghon

Respondent Counsel: Adv Muza

City of Johannesburg

Respondent Counsel: Adv Muza

Amounts and remedies

  • Outstanding Taxed Costs: ZAR 245,462.29

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Eviction Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants argued that they vacated the premises as ordered and now lease a home in the same area, but struggle to pay the rental. The first applicant stated he is unable to pay the security for costs as required, and disputed the amount claimed by the respondents, suggesting it should be lower. He sought condonation for the late filing of the application for leave to appeal, arguing it was in the interest of justice and not an inordinate delay.
Respondent
The respondents, represented by Advocate Muza, confirmed that his client has taken occupation of the property and has made renovations. He highlighted that the applicants have complied with the eviction order and that the dispute is no longer extant. He also pointed out the outstanding taxed costs of R245,462.29 and the applicants' inability to provide security for costs, which is a critical requirement for an appeal.

05

Court’s reasoning

  1. 01

    Section 17(1) of the Superior Courts Act 10 of 2013

    Leave to appeal may only be granted where the judge is of the opinion that the appeal would have a practical effect or result.

  2. 02

    Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013

    If the issues on appeal will have no practical effect or result, the appeal may be dismissed on this ground alone.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants had complied with the eviction order and vacated the premises, rendering the dispute between the parties moot. The applicants were unable to provide security for costs, which is a critical requirement for pursuing an appeal. In terms of the Superior Courts Act, leave to appeal may only be granted if the appeal would have a practical effect or result. As the applicants had already vacated the property and the respondents had taken occupation, there was no longer a live dispute. The court concluded that granting leave to appeal would serve no practical purpose and dismissed the application for leave to appeal.

Obiter and limits

  • The court granted condonation for the late filing of the application, noting it was in the interest of justice and not an inordinate delay.
  • The respondents do not suffer prejudice as the applicants have complied with the eviction order.

Court disposition

Application for leave to appeal dismissed; costs awarded against applicants.

  • The application for leave is dismissed.
  • The applicants shall pay the respondents' costs on a party to party scale.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment reading view

Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2023] ZAGPJHC 419

IN THE HIGH COURT OF SOUTH

AFRICA

GAUTENG LOCAL DIVISION,

JOHANNESBURG

Case No.48512/ 2021

NOT REPORTABLE

NOT OF INTEREST TO OTHER

JUDGES

REVISED

In the matter between:

STANELY

KHUTA KHWELA 1stApplicant/Appellant

MARIA

KHWELA 2ndApplicant/Appellant

BUYSILE

MAUREEN MASUKU 3rd Applicant/Appellant and

JULIUS

IMALENAI 1st Respondent

THERESA

O EGHONOGHON 2nd Respondent

CITY

OF JOHANNESURG 3rd Respondent

Neutral citation: Stanley Khuta Khwela & Another v Julius Imalenai & Others (Case No. 48512/2021) [2023] ZAGPJHC 419 (04 May 2023)

JUDGMENT LEAVE TO

APPEAL

MAHOMED, AJ

The applicants seek leave to appeal a judgment I handed down on 26 October 2022, in which I found it was just and equitable that they be evicted from the property they unlawfully occupied and within 14 days of the order.

I noted the grounds of appeal and the respondent’s notice for security for costs[1]. I noted the 1st applicant’s and Advocate Muza’s submissions for the respondent. I granted an application for condonation for the late filing of this application, it being in the interest of justice that a party be heard, and it was not an inordinate delay.

Furthermore, the respondents do not suffer prejudice, in that I noted that the applicants have complied with the order.

1. The applicants vacated the premises as ordered and Advocate Muza confirmed that his client has taken occupation of his home and has in fact effected renovations to the property.

2. Mr Muza alerted the court to his clients notice for the filing of security for costs, where the taxed costs still outstanding and due by the applicants, is in the amount of R245 462.29 under case number 2016/24341.

3. The 1st applicant submitted that he vacated the premises and is leasing a home in the same area, however he struggles to pay the rental.

4. The first applicant confirmed that he is unable to pay the security for costs as per the notice, which was served on him in April 2023. In response to the court’s question, as to whether he could dispute the amount, he proffered that the costs should be in the region of R40 000, despite this being his fifteenth appearance in court in this dispute.

5. Advocate Muza agreed with the court that the dispute is no longer extant before this court.

Section 17(1) provides:

Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a) …

(b) the decision sought on appeal does not fall within the ambit of section 16(2) (a)

and

1.25cm; margin-bottom: 0cm; line-height: 150%"> s16(2) (a)(i) of the Superior Courts Act 10 of 2013, provides:

“When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

7. The applicants have complied with the order and therefor there is no dispute between the parties on the issue.

8. The applicants will not afford to file security as per the notice and this is a critical requirement for any matter that is taken on appeal.

9. This application for leave fails and is refused.

Accordingly, I make the following order:

1. The application for leave is dismissed.

2. The applicants shall pay the respondents costs, on a party to party scale.

MAHOMED AJ

Date of hearing: 3 May 2023

Date of judgment: 4 May 2023

Appearances:

For Applicant: Mr Stanley Khuta Khwela Self-represented For Respondent: Adv Muza Instructed by Nandi Bulabula Inc Tel: 012 342 6456

[1] Caselines 046

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Authorities

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Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act 10 of 2013

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