Tshiki v Shean and Others (CA249/2019; 304/2020) [2020] ZAECGHC 83 (28 July 2020)

Tshiki v Shean and Others (CA249/2019; 304/2020) [2020] ZAECGHC 83 (28 July 2020)

The appellant failed to provide a full and reasonable explanation for the delay in prosecuting the appeal, as required by law. His explanation was vague, did not cover the entire period of delay, and lacked specificity regarding his health and ability to work. The appellant's defences to the eviction were without merit: service of the eviction application was valid, and the respondents, as owners, had locus standi to evict him once the lease was terminated. The refusal of summary judgment in the earlier action did not constitute res judicata. The appellant did not deny rental arrears and failed to apply for costs of the withdrawn action within the prescribed period. Given the absence of...

Citation
[2020] ZAECGHC 83
Parties
Appellant: Mpeleki Tshiki; Respondent: Peter James Shean; Respondent: Gary James Peckham; Respondent: Tony Buchalter; Respondent: Suzanne Buchalter
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 July 2020
Case Number
CA249/2019; 304/2020
Procedural Posture
Civil Appeal / Application for Condonation for Late Prosecution of Appeal, Late Filing of Security, and Declaration of Appeal Lapsed
Outcome
All applications by the appellant are dismissed. The appeal is declared lapsed. Punitive costs awarded to the respondents.
Judges
J M Roberson, B R Tokota
Legal Topics
Eviction Proceedings, Condonation, Locus Standi, Service of Process, Res Judicata, Costs Orders
Civil Procedure Land and Property Eviction Proceedings Condonation Locus Standi Service of Process Res Judicata Costs Orders

Case Brief

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Parties

Mpeleki Tshiki

Appellant

Peter James Shean

Respondent

Gary James Peckham

Respondent

Tony Buchalter

Respondent

Suzanne Buchalter

Respondent

Procedural Posture

Civil Appeal / Application for Condonation for Late Prosecution of Appeal, Late Filing of Security, and Declaration of Appeal Lapsed

Legal Issues

  1. 1 Whether the appellant provided a sufficient explanation for the late prosecution of the appeal.
  2. 2 Whether the appellant has prospects of success in the appeal against the eviction order.
  3. 3 Whether the service of the eviction application was valid and whether the eviction order was void ab origine.

Ratio Decidendi

The appellant failed to provide a full and reasonable explanation for the delay in prosecuting the appeal, as required by law. His explanation was vague, did not cover the entire period of delay, and lacked specificity regarding his health and ability to work. The appellant's defences to the eviction were without merit: service of the eviction application was valid, and the respondents, as owners, had locus standi to evict him once the lease was terminated. The refusal of summary judgment in the earlier action did not constitute res judicata. The appellant did not deny rental arrears and failed to apply for costs of the withdrawn action within the prescribed period. Given the absence of...

Court Disposition

All applications by the appellant are dismissed. The appeal is declared lapsed. Punitive costs awarded to the respondents.

Orders

  • The application for condonation of the late prosecution of the appeal is dismissed with costs on the attorney and client scale.
  • The application for condonation of the late giving of security is dismissed with costs on the attorney and client scale.