In this matter, an eviction order of the KwaZulu-Natal Division, Pietermaritzburg (the “Court a Quo”) was granted against John Walker Pools (Pty) Ltd (“JWP”). In terms of the eviction order JWP were to be ejected from occupying the shop premises. The Court a Quo dismissed JWP’s application for leave to appeal. Subsequently, the application for leave to appeal was referred to the Supreme Court of Appeal (“SCA”) for argument in open court.
The first respondent was Consolidated Aone Trade & Invest 6 (Pty) Ltd (“CAT”) and the second respondent was Imperial Crown Trading (Pty) Ltd (“ICT”) who were parties from the outset in the matter for reasons that will be apparent below.
CAT brought an eviction application against JWP in the Court a Quo. The eviction application was based on an allegation that CAT was the owner of the shop premises and that JWP was occupying the premises unlawfully. JWP thus had the onus of proving the existence of a right of occupation.
JWP’s opposing papers in the eviction application did not disclose a defence. Save to say that it was entitled to occupy the shop by virtue of an alleged lease with ICT. JWP did not dispute that CAT was the owner of the premises. Furthermore, JWP did not allege facts to show that a lease with ICT gave JWP any rights of occupation as against the owner.
The application in the SCA did not raise, as a ground of appeal, whether or not the Court a Quo wrongfully refused JWP the permission to adduce further evidence on appeal. In the circumstances, the SCA held that facts and documents in the application for leave to appeal which were not before the Court a Quo were disregarded in assessing whether JWP had reasonable prospects of success.
A major consideration for the SCA was the question of mootness arising from the fact that JWP’s alleged entitlement to occupy the premises terminated at the end of September 2017. Notwithstanding JWP’s failure to pay rent and the subsequent eviction proceedings, it was clear that a decision on appeal would have no practical effect. Even if the appeal court found that JWP was, at best, entitled to occupy the premises until the end of September 2017, the entire process would have remained an academic exercise. The proposed appeal thus enjoyed no prospects of success on the merits.
The application for leave to appeal was dismissed with costs.
Litigants and their legal representatives are under a duty, where an appeal or proposed appeal becomes moot during the pendency of appellate proceedings, to contribute to efficient use of judicial resources by making sensible proposals so that an appellate court’s intervention is not needed.
Written by Ntobeko Maphanga and Nicola du Toit