Download Report

1
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH
Case no: 676/2013
Date heard: 14.8.2013
Reasons made available: 14.10.2014
In the matter between:
ROYDEN EDWARD MINTO THOMPSON
JEANETTE THOMPSON
First Applicant
Second Applicant
PAMBILI PROPERTY DEVELOPMENT CC
(REGISTRATION NUMBER 2005/144906/23)
PAMBILI SESCTIONAL TITLE MANAGEMENT CC
(REGISTRATION NUMBER 2007/199052/23)
Third Applicant
Fourth Applicant
PAMBILI DEVELOPMENTS CC
(REGISTRATION NUMBER 2003/025045/07)
Fifth Applicant
PAMBILI ESTATES CC
(REGISTRATION NUMBER 2001/038778/23)
Sixth Applicant
vs
LEYLA LIMBADA
Respondent
REASONS FOR JUDGMENT
___________________________________________________________________
TSHIKI J:
[1]
This matter is no different from the other two in respect of which the
applicants in case no 2122/2013 and case no 1230/2013 seek an indulgence from
this Court to be granted a postponement of their eviction applications from the
premises.
2
[2]
It seems to me that although the applicants herein became aware of the facts
which gave rise to the need to apply for, not only the postponement but to file the
application for rescission of judgment on the 25th September 2013, yet the affidavit
for rescission of judgment was only commissioned on the 13th August 2014. In my
view, it is not surprising that this application for postponement was in my view,
conveniently filed on the 14th August 2014 the day of the set down of the eviction
proceedings. There is no valid explanation why it was not filed earlier than the 14th
August 2014. This to me shows the laxity displayed by the applicant in conducting
their case and to the prejudice of the respondent herein. This Court only became
aware of these papers in Court when the application for leave to postpone the matter
was moved.
The laxity displayed by the applicant in conducting its own affairs
especially this application for postponement does not show seriousness and cannot
be condoned by this Court.
[3]
In any event, these proceedings including those that pertain to the application
for the rescission of judgment as well as the postponement sought herein have been
the subject of the application for leave to appeal which was dismissed by this Court
but not prosecuted in the Supreme Court of Appeal in terms of section 17 (2)(b) of
the Rules of that Court.
What that means is that case proceedings which have
travelled that long cannot be reversed for the purposes of an application for
rescission of judgment especially in this case wheret there are no prospects of
success in taking that route.
[4]
The matter has come to a final stage which is the final judgment on the merits
and cannot now be brought by the back door for a rescission of judgment. I mention
3
this with a view to illustrate not that I am now dealing with the merits of the
application for rescission but with a view to deal with the merits of the application for
postponement. In other words, if the applicant has a good case in his application for
rescission of judgment it may as well be granted leave to have the matter postponed.
Should its case lack good cause in the application for rescission of judgment there
would not be a need for this Court to grant it a postponement. As I have mentioned
above, a postponement is an indulgence which can only be granted on good cause
shown especially in a case where the applicant has been involved in the matter
throughout and from the beginning of the proceedings.
[5]
In my view, there are no prospects of success on the merits of the rescission
of judgment and for that reason I have no grounds for granting the postponement of
this matter.
[6]
There has been no challenge on the merits of the eviction by the respondents.
I agree with Mr Scott’s contentions on the merits of the eviction.
[7]
It is for the above reasons that the application for the postponement was
dismissed with costs.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
4
For the applicants
Instructors by
:
:
Ms Carruthers
Carruthers Attorneys
PORT ELIZABETH
Ref: Ms Carruthers
Tel: 041 373 3812
For the respondent
Instructed by
:
:
ADV PWA Scott SC
BLC Attorneys
PORT ELIZABETH
Ref: Mr Schoeman
Tel: 041 506 3700