Labuschange and Another v Van Straaten (819/2019; 4623/2019) [2021] ZAFSHC 290 (22 November 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: 819/2019

Case Number: 4623/2019

In the matter between:

MAUREEN

LABUSCHAGNE

First Applicant

WILLEM

ADRIAAN LABUSCHAGE

Second Applicant

and

ELLA

VAN STRAATEN

Respondent

In re

Case Number: 4623/2019

In the matter between

ELLA

VAN STRAATEN

Applicant

MAUREEN

LABUSCHAGNE

First Respondent

WILLEM

ADRIAAN LABUSCHAGE

Second Respondent

CORAM: NAIDOO, J

HEARD ON: HEADS of ARGUMENT filed 12 August 2021

DELIVERED ON: 22 NOVEMBER 2021

JUDGMENT - APPLICATION FOR LEAVE TO APPEAL

[1] This is an application by the applicants for Leave to Appeal to the Full Bench of this court, alternatively to the Supreme Court of Appeal, against the whole of the judgment in this matter, which was delivered on 20 February 2020. I point out that an application for rescission of the judgment in case number 819/2019 and application for the eviction of the applicants (respondents in the main application), under case number 4623/2019 were placed before this court on the said date, and orders were made in respect of both matters.

[2] The applications for condonation and for leave to appeal were dealt with in one document and filed simultaneously in both matters before me and my colleague, Molitsoane J. The latter granted, by default, the order under case number 819/2019 dated 12 September 2019 for rectification of the instalment sale agreement and cancellation thereof. A more detailed exposition of the facts is set out in the judgment of Molitsoane J, who heard the applications for condonation and for leave to appeal on 20 August 2021. His judgment was delivered on 28 October 2021. I pause to mention that the application for rescission before me on 20 February 2020 related to the order made by Molitsoane J on 12 September 2019, and the application for the eviction of the appellants arose from the granting of the same order, although the respondent chose to proceed separately in respect of the eviction matter. The legal representatives of both parties agreed and it was directed that the leave to appeal in respect of the orders made on 20 February 2020 would stand over pending the outcome of the applications to be heard by Molitsoane J.

[3] The judgment of Molitsoane J and this court were assailed on a number of grounds. Molitsoane J dealt with the grounds of appeal relevant to his order. After hearing the applications for condonation and leave to appeal, he ordered as follows:

“1. The applicants are granted condonation for the late filing of the application for leave to appeal.

2. The application for leave to appeal is granted to the full court of this Division.

3. The costs of this application shall be costs in the appeal.”

[4] This judgment consequently follows upon that order. The enforceability of the orders made on 20 February 2020 by this court are dependent on the validity of the order made by Molitsoane J on 12 September 2019. He succinctly dealt with the facts and the history of the matter, the grounds of appeal and the applicable law in arriving at the order set out above. It would be unnecessarily repetitive for this court to undertake that entire exercise again, as it would have to deal with exactly the same papers and arguments raised before Molitsoane J. I can do no better than my colleague. I am of the view that both matters should be dealt with simultaneously by the Full Court. If it is found that the order of Molitsoane J ought to be set aside, then the orders of this court would also fall to be set aside. It would therefore be expedient for this court to echo the orders made by Molitsoane in his judgment on 28 October 2021.

[5] In the circumstances I make the following order:

5.1 The applicants are granted condonation for the late filing of the application for leave to appeal;

5.2 The application for leave to appeal to the Full Court of this Division is granted;

5.3 The costs of this application shall be costs in the appeal.

S

NAIDOO J

On Behalf of the Applicant:

Adv A Le Roux

Instructed By:

Van Eeden Attorneys

1st Floor Langebaan Building

15th Street

Bloemfontein

(REF: LAB9/0001)

On Behalf of the Respondent: Adv KN Peterson

Instructed By: Horn and Van Rensburg

4 Nobel Street

Brandwag

(Ref; MJ Van Rensburg/VM2153)