IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN GAUTENG DIVISION, PRETORIA

(1)	NOT REPORTABLE
(2)	NOT OF INTEREST TO OTHER JUDGES
(3)	NOT REVISED
CASE NO: 45703/2017
16/3/2018

In the matter between:

3JR PROPERTIES CC 						Applicant

and
MALANA BELEGGINGS (PTY) LIMITED			First Respondent
WELLNESS WORL-D (PTY) LIMITED 				Second Respondent

JUDGMENT
VAN VUUREN AJ:

Introduction
[1]	The first and second respondents. Malana Beleggings (Propriatary) Limited and Wellness World (Propriatary) Limited launched an application for leave to appeal (and condonation for its late filing) against the judgment and order handed down on 29 September 2017 in terms whereof it was declared that the agreement of sale entered into between the applicant, 3JR Properties and Malana Beleggings dated 3 December 2013 had been cancelled and that both Malana Beleggings and Wellness World be evicted from the property situated at Section 8, Building 3, Businesspark@Zambezi, 860 Milkplum Street, Montana, Pretoria.
[2]	Mr Ellis SC on behalf of the applicants for leave to appeal, during argument. relied on the following grounds which can be summarised as follows:
[2.1]	3JR Properties has not proven that it is the owner of the property;
[2.2]	The guarantee provided by Malana Beleggings in terms of the agreement complied with the terms thereof:
[2.3]	The cancellation notices did not give rise to cancellation of the Deed of Sale; and
[2.4]	In view of a pending action, the relief on motion ought not have been granted - lis alibi pendens.

[3]	3JR Properties launched a conditional counter-application for rendering the 29 September 2017 order effective pending a further application for leave to appeal, should leave be refused.

Condonation
[4]	The applicants for leave to appeal, Malana Beleggings and Wellness World sought condonation for the late filing of their application for leave to appeal. The explanation was offered that the court file was not located and that the Registrar was unable to accept service of the application for leave to appeal in the absence of the file. 3JR Properties did not persist with any opposition to the application for condonatio11 which I am accordingly inclined to grant.

Ownership
[5]	In the application for leave to appeal a new point was raised on behalf of Malana Beleggings that it was neither alleged nor proven that 3JR Properties was the owner of the property which it sold to Malana Beleggings and from which it sought to evict the respondents .
[6]	The Deed of Sale described 3JR Properties as the seller of the property and Malana Beleggings was in turn defined as the purchaser of the property. The property referred to above, as defined in the Deed of Sale, formed the subject of the sale agreement. In paragraph 1 of the Deed of Sale the parties agreed that "The Seller sells the property to the Purchaser who purchases same from the Seller."
[7]	Clause 6 of the agreement arranges the " risk of ownership" as follows:

“AII advantages and risks of ownership shall pass to the Purchaser on the date of registration of the properly in the Purchasers name."

[8]	Malana Beleggings, as purchaser of the property, at no time took issue with or attacked the understanding and premise that 3JR Properties was the owner or seller of the property. Such an issue was neither raised in the answering papers in the motion proceedings nor in the action under case no. 94602/2016.
[9]	Mr Ellis SC did not argue that evidence existed that 3JR Properties was not the owner of the property when it sold the property to Malana Beleggings.
[10]	Moreover, and irrespective of the new issue raised on ownership, Malana Beleggings' obligation to vacate the property in the event of cancellation of the Deed of Sale arises from clause 12 of the Deed of Sale. Malana Beleggings' obligation was circumscribed as follows:

"In the event of the Seller cancelling this agreement in terms of this clause 10 , the Purchaser shall immediately vacate the property and shall not have any right of retention in regard to the property."

[11]	The latter contractual provision agreed to between the parties, in clear terms, provides for Malana Beleggings vacating of the property.

Lis alibi pendens
[12]	The onus of pleading and proving the requisites of a defence of lis alibi pendens rests upon the party who seeks to raise the defence.
[13]	A defence of lis alibi pendens has not been pleaded specifically nor has it been relied upon during the hearing of the matter. In the absence of a party specifically pleading and raising the issue of lis alibi pendens, it is not open to the Court to raise the defence.
[14]	Mr Ellis SC correctly pointed out that, although reference was made to the action proceedings instituted and subsequently withdrawn by 3JR Properties, no plea of lis alibi pendens was entered in the present proceedings. It is so that the counterclaims of the respondents for relief distinguishable from that sought by 3JR Properties in the present proceedings in the action remain extant.

The guarantee requirement and cancellation of the deed of sale
[15]	 These matters were raised and fully ventilated during the hearing of the matter and judgment was consequently given on the absence of a guarantee as is required in terms of the Deed of Sale and the consequent cancellation of the contract.

Conditional counter-application
[16]	3JR Properties brought a conditional counter-application, in the event of leave to appeal being granted, for an order that the operation of the judgment of 29 September 2017 be of immediate force and effect pending any further application for leave to appeal.
[17]	This application was only served on 7 December 2017 during the week preceding the hearing of the application for leave to appeal. I agree with the submissions made by Mr Ellis SC who explained that, as at the date of hearing of the application for leave to appeal, it was not possible for the representatives of Malana Beleggings and Wellness World to respond meaningfully to such an application brought on short notice. Mr Ellis correctly pointed out that the application did not constitute an urgent application and could have been brought by 3JR Properties soon after it had gained knowledge of Malana Beleggings and Wellness World's intention to seek leave to appeal.
[18]	In the circumstances it would be unjust to make any finding on 3JR Properties' provisional counterapplication at this stage. Should 3JR Properties in future be advised to seek the relief claimed in its provisional counter-application dated 7 December 2017, such application ought be set down with due notice to Malana Beleggings and Wellness World to afford them an opportunity to answer to the application if so advised.

Conclusion
[19]	In the circumstances, and having considered the application, I am of the opinion that the applicants do not have reasonable prospects of success on appeal.

In the premises the following order is made:

[1]	Condonation is granted for the late filing of the first and second respondents' application for leave to appeal.
[2]	The application for leave to appeal is dismissed with costs, which costs shall include the costs of two counsel.
[3]	3JR Properties CC's counter-application dated 7 December 2017 is removed from the roll.
[4]	3JR Properties CC is granted leave to re-enrol its provisional counter­ application, if so advised, on due notice to the respondents and upon having afforded the respondents an opportunity to answer thereto as provided for in the Rules of Court.

E Van Vuuren AJ
ACTING JUDGE OF THE HIGH COURT

APPEARANCES:
For the Respondents
(Applicants for leave to appeal):		Adv P Ellis SC
Adv J Moller
Instructed By:				F Hartzenberg of 
Hartzenberg Inc. 
Pretoria
For the Applicant
(Respondent in leave to appeal):		Adv AJH Bosman SC
Adv ZF Kriel
Instructed By:				E Champion of
E Champion Inc. 
Pretoria