Moipone Fleet (Pty) Ltd v Vimla Engines Gearbox Diff and Suspension (Pty) Ltd and Another (86552/2019) [2020] ZAGPPHC 427 (12 August 2020)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

CASE NO: 86552/2019

12/8/2020

In the matter between:

MOIPONE FLEET (PTY) LTD

Applicant

and

VIMLA ENGINES

GEARBOX DIFF AND SUSPENSION

(PTY) LTD

First Respondent

ABANDONED SOLUTIONS (PTY)

LTD

Second Respondent

SHERIFF OF THE COURT: JOHANNESBURG EAST

Third Respondent

NATIONAL COMMISSIONER: SOUTH AFRICAN

POLICE

SERVICE

Fourth Respondent

JUDGMENT

D S FOURIE, J:

[1] This is an urgent application in terms whereof the applicant applies for an order declaring that the “judgment and order of this honourable Court, under case number 86552/2019, and delivered on 11 February 2020 be operational with immediate effect" with certain ancillary relief. The application is opposed by the first and second respondent.

BACKGROUND:

[2] The applicant had a business relationship with the first respondent in terms whereof it would submit motor vehicles to the first respondent for repairs. On 11 November 2019 it was discovered that the second respondent had taken possession of 21 motor vehicles in terms of a cession agreement entered into between the first and second respondent.

[3] During November 2019 the applicant approached this Court for an order that the said vehicles be returned to the applicant, that the applicant provide security to the respondents for the fulfilment of

any debt owed and due to them and that the respondents should institute action against the applicant to prove any debt owed to

them. On 28 November 2019 such an order was granted by Teffo J and the second respondent was ordered to forthwith surrender and return to the applicant the said motor vehicles. According to the applicant this order it was granted by agreement between the parties, but the second respondent disputes the agreement. According to the applicant security was provided, but this is also denied by the second respondent.

[4] The first and second respondents thereafter gave notice, dated 21 January 2020, of their intention to apply for leave to appeal against the order granted by Teffo J. On 11 February 2020 the applicant applied for an order in terms of section 18(3) of the Superior Courts Act, No 10 of 2013 for an order that the order granted by Teffo J on 28 November 2019 be executed pending the finalisation of the application for leave to appeal.

[5] On 11 February 2020 Van der Westhuizen J granted such an order (although his judgment is dated 14 February 2020), the relevant part whereof

reads as follows:

''The judgment and order delivered by Judge Teffo on 28 November 2019 shall operate and be operational pending the outcome of the leave to appeal application instituted by respondents on 24 January 2020, including future appeals to be instituted. "

[6] On 12 February 2020 the first and second respondents once again filed a notice of appeal against the judgment and order by Van der Westhuizen J. According to the applicant the respondents have failed

to take steps to prosecute either the application for leave to appeal filed on 24. January 2020 or the notice of appeal filed on 12 February 2020 against the judgment and order of Van der Westhuizen J. The alleged failure to prosecute the appeals is denied by the second respondent who refers "to the application for condonation which has been served and filed simultaneously with this answer which deals with this issue in detail and be read as if incorporated herein".

DISCUSSION

[7] The second respondent has raised two points in limine. The first is that the founding affidavit is not that of OJ Nhlapo as stated in the notice of motion, but RB Lechaba. There is no merit in this defence. In any event, the notice of motion has been amended to take care of this issue.

[8] The second point in limine is that the second respondent has brought an application for condonation in terms of the Rules of Court "and states that the said application for condonation ought to be heard before this application brought by the applicant and this application ought to be postponed pending the outcome of the application for condonation".

[9] The applicant points out in its replying affidavit that there is no application for condonation before this Court. I was also unable to find such an application. In any event, and even if there were such an application, it is not for the Urgent Court to decide such an application. The request that the applicant's application be postponed is also without any merit as the applicant is not to be blamed for the late filing of the Respondents' condonation application. Furthermore, the applicant is entitled to have its application be heard and adjudicated. For these reasons the second point in limine cannot be upheld.

[10] That brings me to the substance of the relief sought by the applicant. Section 18 of the Superior Courts Act, No 10 of 2013 provides for the suspension of a decision pending an appeal. Sub-section (1) stipulates that, unless the Court under exceptional

circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal

or of an appeal, is suspended pending the decision of the application or appeal. Sub-section (3) provides that a Court may order otherwise under certain circumstances.

[11] Section 18(4) provides as follows:

"If a Court orders otherwise, as contemplated in ss (1) -

(i) the Court must immediately record its reasons for doing so;

(ii) the aggrieved party has an automatic right of appeal to the next highest Court;

(iii) the Court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv) such order will be automatically suspended, pending the outcome of such appeal."

[12] In terms of sub-section (5) and for the purposes of sub-sections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a 11otice of appeal is lodged with the Registrar in terms of the Rules.

[13] According to the founding affidavit the application which served before Van der Westhuizen J was launched in terms of section 18(3) of the'' Superior Courts Act. According ,to the judgment and order of the Learned Judge it also appears that he dealt with the application in terms of section 18(1) and (3) of the Superior Courts Act.

[15] Rule 49(6) of the Uniform Rules of Court provides as follows:

"(a) Within 60 days after delivery of a notice of appeal, an appellant shall make written application to the Registrar of the Division where the appeal is to be heard for a date for the hearing of such appeal ... If no such application is made by either party the appeal and cross-appeal shall be deemed to have lapsed ... .

(b) The Court to which the appeal is made may, on· application of the appellant ... and upon good cause shown, reinstate an appeal .. . which has lapsed".

[16] The respondents are faced with two problems: First, in terms of section 18(4) of the Superior Courts Act the appeal must be dealt with as a matter of extreme urgency and, second, the time period provided for in Rule 49(6)(a) has long ago lapsed. It was the duty of the respondents to have ensured that the appeal was timeously prosecuted. The failed to do so. Furthermore, during oral argument counsel for the respondents conceded, rightly so in my view, that the respondents ' appeal against the order of Van der Westhuizen J has indeed lapsed, "subject to an application for condonation". No condonation has yet been granted and therefore, I am of the view, that the applicant is entitled to an order as requested in paragraph 2 of the notice of motion.

[17] The applicant also applies for certain ancillary relief. It is alleged that the vehicles concerned are being kept "under lock and key in a storage facility" and that the Sheriff who attended to the premises where the vehicles are being stored, was prevented from executing the order. It is therefore necessary, in my view, to also grant the additional relief as prayed for.

ORDER

In the result I make the following order:

1. It is declared that this matter is to be heard as an urgent application in terms of the provisions of Rule 6(12) of the Uniform Rules of Court;

2. It is declared that the appeal noted by the respondents on 12 February 2020 against the judgment and order of Van der Westhuizen J, be deemed to have lapsed in terms of Rule 49(6)(a), read with section 18(4)(iii) of the Superior Courts Act, No 10 of 2013;

3. That the Sheriff be authorised to execute a warrant of execution dated 20 May 2020;

4. That members of the South African Police Service be authorised to accompany the Sheriff to the premises where the execution of1he court order has to be effected;

5. That a locksmith be authorised to accompany both the Sheriff and members of the South African Police Service to the premises where execution of the warrant of execution referred to above, will be effected;

6. That the first and second respondents be ordered to pay the costs of this application, jointly and severally.

D S FOURIE

JUDGE

OF THE HIGH COURT

PRETORIA