THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  232/11

In the matter between:

Not Reportable

GERT THOMAS VAN DER MERWE
First Appellant

ANDRIES PETRUS JACOBUS ELS
Second Appellant

SHERIFF PRETORIA EAST
Third Appellant

and

SIMON MOLEFE PITJE
First Respondent

NELLY PITJE
Second Respondent

Neutral citation:  Gert Thomas van der Merwe v Simon Molefe Pitje (232/11) [2012]
ZASCA 50 (30 March 2012)

Coram:
MPATI P, NUGENT, HEHER and LEACH JJA and PLASKET AJA

Heard:

17 February 2012

Delivered:

30 March 2012

Summary:              Practice and procedure – interlocutory orders – execution order
suspended pending finalisation of application to rescind it –
suspension order lapses on abandonment of rescission
application.

______________________________________________________________________
ORDER
____________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Makgoka J sitting as court of first
instance).

1.
It is declared that the order made by Potterill AJ on 30 October 2009 authorising
the eviction of the respondents is of full force and effect and has not been

superseded by any further orders.
2.
The respondents are ordered to pay appellants costs of the proceedings before

Webster J and before the court a quo, as well as the costs of this appeal.
3.
Save for the above the appeal is dismissed.
______________________________________________________________________
JUDGMENT
____________________________________________________________________
MPATI P (NUGENT, HEHER, LEACH JJA, and PLASKET AJA CONCURRING):

[1] This appeal is against an order of the Pretoria High Court (Makgoka J) varying an
earlier order made by Webster J, dismissing an application to vary an even earlier order
made by Potterill AJ, granting leave to execute on an eviction order.

[2] The respondents, who are husband and wife, were the registered owners of certain
mortgaged fixed property situated at 22 Verbenia Street, Lynnwood Ridge, Pretoria (the
property). Subsequent to the mortgagor foreclosing, the first and second appellants
purchased the property at a public auction on 22 August 2007. (Since the third appellant
has no interest in the appeal I shall refer to the first and second appellants as ‘the
appellants’.) Transfer of the property into the names of the appellants was effected on 7
March 2008. The appellants thereafter sought, and obtained, an eviction order in the
Pretoria High Court on 30 October 2009 against the respondents who, since the
mortgagor foreclosed on 12 January 2004, had remained in occupation of the property.
On 20 November 2009 the first respondent lodged an application for leave to appeal
against the eviction order. The appellants countered by bringing an application on 25

November 2009, in terms of Uniform rule 49(11), for leave to execute on the eviction
order. Both applications were set down for argument on 2 December 2009, but on that
day the respondents’ application for leave to appeal was removed from the roll, while the
court (Potterill AJ) granted the appellants leave to execute on the eviction order (the
execution order).

[3] However, as appears from the judgment of the court a quo, the respondents
launched two applications on 3 December 2009, both on an urgent basis. In the first, so it
seems, they sought rescission of the execution order and other ancillary relief. In the
second, an order was sought suspending the operation of the execution order pending
the finalisation of the rescission application.1 (Like the court below, I shall refer to the
second application as ‘the suspension application’.) The suspension application came
before Webster J on 4 December 2009 and after hearing argument the learned judge
dismissed it with costs.

[4] But the respondents were not about to surrender for, on 5 December 2009, they
brought yet another urgent application seeking the following order:

‘1  . . .

That the judgment and order made by the Honourable Mr Justice WEBSTER on the 4th
December 2009 be varied to read as follows:

2.1 That it is hereby declared that the execution granted by Acting Justice POTTERILL on the
2nd December 2009 is suspended, pending the finalisation of the rescission application
launched by the Applicants on the 3rd December 2009;

2.2   That the Respondents are hereby interdicted and restrained from executing on the order
made by Acting Justice POTTERILL on the 2nd December 2009 in any manner

1 In their founding affidavit in the present matter the respondents (the first respondent being the
deponent) aver that the first respondent ‘served our Notice of Motion in terms of which we are seeking a
variation and/or rescission of the judgment and order made by Acting Justice POTTERILL on the 2nd
December 2009’.No reference is made to a further application.

whatsoever, pending the finalization of the rescission application launched by the
Applicants on the 3rd December 2009;

2.3 That the Respondents are hereby directed to immediately return [the property] to the
Applicants; . . .

. . ..’
The application was ultimately argued before Makgoka J on 24 March 2010. On 10 June
2010 the learned judge granted prayers 2, 2.1 and 2.3 of the order sought and ordered
further that the costs of the proceedings before Webster J and before him ‘be costs in the
rescission application’. He subsequently refused leave to appeal. This appeal is with
leave of this court.

[5] One of the grounds upon which the appellants sought leave to appeal against
Makgoka J’s order was that the learned judge ‘erred by finding that the Applicants [were]
entitled to a variation of an interlocutory order because the court of first instance erred in
law or in fact on the evidence before it’. This ground was elaborated upon in the
appellants’ heads of argument and their counsel’s submissions before us that the
respondents’ variation application before Makgoka J was a disguised appeal against the
order made by Webster J dismissing their application for variation of the execution order.
The question, therefore, is whether Webster J’s order was capable of being varied. Put
simply, did the court below have jurisdiction to vary Webster J’s order? In view of what
follows, however, it is not necessary to consider that question.

[6] In response to enquiries from the registrar of this court the respondents’ Pretoria
attorneys, Messrs F S Kabini and Associates Inc (Kabini Attorneys), advised, by letter
dated 3 February 2012, that the respondents’ application for leave to appeal against the
eviction order was dismissed by Claasen J; that a petition to the President of this court
was refused and that a further application for leave to appeal to the Constitutional Court
was likewise refused. The application for rescission of the execution order was never
finalized. Thus, as to the eviction order, the respondents have reached the end of the
road. The appellants’ rights of ownership and possession of the property have now finally
been confirmed by the refusal of leave to appeal by the Constitutional Court. The

respondents have no claim to it.

[7] The application for rescission of the execution order was lodged on 3 December
2009, more than two years ago. The decision of the Constitutional Court refusing leave to
appeal to it was conveyed to the respondents on 28 September 2011,2 according to the
letter from Kabini Attorneys. Nothing has been done to bring the rescission application to
finality. Consequently, we are at large to assume that it has been abandoned. In any
event, there would be no point in pursuing it now that the proprietary rights in respect of
the property have been settled. The respondents have no rights in the property. There
was never any rental agreement between them and the appellants.

[8] It follows that since leave to appeal has been refused and the application for
rescission abandoned, the order of the court a quo has lapsed and the execution order no
longer suspended. That order of the court a quo was purely interlocutory and its life was
dependent on the finalization of the rescission application. This appeal has thus become
academic. No order will therefore be made on the merits of the appeal. I need to stress,
though, that the route I have taken in dealing with this appeal must not be construed to
mean that I agree with the court a quo’s assumption of jurisdiction and consequent
variation of what appears to be an order that was final in effect. Moreover, in order to
dispel any uncertainty, I propose making a declaratory order relating to the present
efficacy of Potterill AJ’s order made on 30 October 2009.

[9] There is another matter that requires mention. When the matter was called in this
court the respondents were absent and there was no legal representation on their behalf,
although heads of argument had been lodged timeously. We were informed from the Bar
by the appellants’ counsel, a fact later confirmed by the registrar of this court, that the
respondents’ erstwhile Pretoria attorneys, Messrs Mkhabela Attorneys, had withdrawn as
attorneys of record, but that the new attorneys, FS Kabini Attorneys, were still using the
same local attorneys, Messrs Mphafi Khang Inc (Khang Attorneys), as their
correspondents. Proceedings were thus adjourned and Mr Khang of Khang Attorneys was
summoned to explain to this court why there was no representation on behalf of the

2 The order was made on 5 August 2011.

respondents.

[10] Upon resumption of the proceedings Mr Khang informed us that although he was
the local correspondent attorney for the respondents he had never received any
instructions other than to act as a ‘postbox’; that on 29 November 2011 he faxed the
notice of set down of the appeal to the respondents’ erstwhile attorneys, Mkhabela
Attorneys, and thereafter sent it by registered post the next day and that he had been
under the impression that someone from the respondents’ new attorneys would be
present at court. He applied for a postponement of the appeal for the reason that he was
not in a position to argue the appeal. Because it was clear that Mr Khang had no
instructions even to apply for a postponement, he was afforded an opportunity to contact
Kabini Attorneys for instructions in respect of the further conduct of the matter. When the
court reconvened Mr Khang informed us that he had spoken to Mr Kabini, who was
unable to give him instructions. He, however, received a telephone call from the first
respondent who advised him that he (first respondent) was not aware of the date of the
hearing of the appeal and that Mr Khang should seek a postponement. Mr Khang
accordingly moved for a postponement, submitting that the respondents would be
prejudiced if the appeal were to proceed in their absence.

[11] Counsel for the appellants opposed the application for a postponement. He
submitted that at least by 8 February 2012 Kabini Attorneys knew of the date of set down
of the appeal. The appellants’ attorneys had received a copy of a letter from Kabini
Attorneys dated 3 February 2012 and addressed to the registrar of this court requesting,
inter alia, a copy of the notice of set down of the appeal. On 8 February 2012 the
appellants’ attorneys sent a copy of the notice of set down3 to Kabini Attorneys by
facsimile under cover of a letter of the same date, the third paragraph of which reads as
follows:
‘We attach in any event the notice of set down hereto for your attention as well as
correspondence received from the Constitutional Court. Seeing that you are still utilising the
services of the same correspondent … we find it strange that you have not requested the notice
from them. They are your correspondents.’4

3 The date of set down was 17 February 2012.
4 Proof of a successful facsimile transmission was made available to the court.

[12] In my view, it is quite clear from the above that Kabini Attorneys were aware of the
date on which the appeal was to be argued, at the latest by 8 February 2012. If that was
not the case, Mr Kabini would have said so when Mr Khang spoke to him on the
telephone. Instead, he was simply unable to give instructions for the further conduct of
this appeal. In my view, the attitude displayed by the respondents and their legal
representatives, including Khang Attorneys, is unacceptable and indeed contemptuous
towards this court. As the respondents’ local attorneys Khang Attorneys should have
established from their Pretoria correspondents before the date on which the appeal was
to be argued, whether or not the respondents would be represented in this court. If not,
they should have dispatched someone from their offices or obtained the services of
counsel to be present when the matter was called so as to explain the absence of the
respondents and why they were not legally represented. In the prevailing circumstances, I
could find no reason why the appeal should be postponed to the obvious prejudice of the
appellants, who would have to endure yet further delay, through no fault of theirs, before
the ultimate finalisation of the matter.

[13] Moreover, the respondents sought an order before Webster J suspending the
execution order pending the finalization of an application for its rescission. From the
record of proceedings before Webster J (excluding the application papers), which formed
part of the record before the court a quo, it is clear that the order suspending the
execution order was sought on the basis that the execution order was granted in the
respondents’ absence. Assuming that the respondents’ case that the execution order was
granted in their absence was true,5 it does not appear that any attempt was made to show
’good cause’,6 which Webster J could consider in deciding whether or not to vary or
suspend the execution order. No substantial defence was disclosed.7 In the opposing
affidavit in the court below the appellants, averred that ‘[t]o date [respondents] have not
disclosed any defence to the merits of the main application’. There was no response to
this averment in the respondents’ 21-page replying affidavit. On the face of it, therefore, it

5 Webster J dismissed the application on the ground that the order was not granted in the respondents’
absence because the first respondent was present even though it was argued that he did not make any
submissions.
6 See Rule 31(2)(b).
7 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352F-H.

appears that there was no proper case for the order sought before Webster J. For these
reasons the application for a postponement was refused. And because Mr Khang had no
further instructions his request to be excused was exceeded to.

[14] What remains is the question of costs. As I have mentioned above, the court a quo
ordered that the costs of the proceedings before Webster J and itself be costs in the
rescission application. There is no reason why the respondents should not be ordered to
pay those costs.

[15] In the result I make the following order:

1.
It is declared that the order made by Potterill AJ on 30 October 2009 authorising
the eviction of the respondents is of full force and effect and has not been
superseded by any further orders.
2.
The respondents are ordered to pay appellants costs of the proceedings before
Webster J and before the court a quo, as well as the costs of this appeal.
3.
Save for the above the appeal is dismissed.

___________________

L Mpati

President

APPEARANCES

For the Appellants:

N F de Jager

Instructed by:

Van der Merwe & Associates, Pretoria

Rossouws Attorneys, Bloemfontein

For the Respondents:

M J Khang

Instructed by:

F S Kabini Attorneys, Pretoria

Mphafi Khang Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 March 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

GERT THOMAS VAN DER MERWE v SIMON MOLEFE PITJE

The Supreme Court of Appeal (SCA) today upheld an appeal against an order of the North
Gauteng High Court, Pretoria (Makgoka J) suspending an earlier order made by Potterill AJ
authorising the eviction of the respondents from the appellants’  property, and directing the
appellants to immediately return the property to the respondents. The SCA declared that the
order by Potterill AJ was of full force and effect and had not been superseded by any
further orders.

The appellants had sought, and obtained, an eviction order against the respondents after
they had failed to vacate certain fixed property which the appellants had bought at a public
auction. The property had been registered in the name of the respondents but was sold by
public auction subsequent to the mortgagor foreclosing. The respondents then lodged an
application for leave to appeal against the eviction order, and the appellants lodged a
counter-application for leave to execute on the eviction order. On the day of hearing the

respondents’ application for leave to appeal was removed from the roll, while Potterill AJ
granted the appellants leave to execute on the eviction order. The application for leave to
appeal against the eviction order was later dismissed and the further applications for leave
to appeal to the SCA and the Constitutional Court were likewise dismissed.

The respondents subsequently launched two applications on an urgent basis in which they
sought rescission of the execution order (rescission application) and an order suspending
the operation of the execution order pending the finalisation of the rescission application
(the suspension application), respectively. Webster J dismissed the suspension application.
The rescission application was never finalised. The respondents then brought an urgent
application in which they sought an order varying the order made by Webster J. The matter
came before Makgoka J, who made the order referred to above. The appellants appealed to
the SCA against that order.

In upholding the appeal, the SCA held that it was at large to assume that the rescission
application had been abandoned and that since that is the case, and that since leave to
appeal had been refused, the order appealed against, which was purely interlocutory and its
life dependent on the finalisation of the rescission application, had lapsed and the execution
order was no longer suspended. The appeal had therefore become academic. But to dispel
any uncertainty relating to the efficacy of Potterill AJ’s order, the SCA made the
declaratory order referred to in the first paragraph above.