John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in liquidation) & another

The applicant, John Walker Pools (JWP), operated from shop premises in Ballito Bay Mall. The first respondent, Consolidated Aone Trade & Invest 6 (Pty) Ltd (CAT), which was the owner of the premises and in liquidation, applied for JWP's eviction on grounds of unlawful occupation. JWP defended on the basis that it had a lease agreement with the second respondent, Imperial Crown Trading (Pty) Ltd (ICT), also in liquidation, for the period October 2012 to September 2017. JWP initially failed to attach the lease to its answering affidavit but attached it in a supplementary affidavit. When the eviction application was heard on 16 August 2016, JWP's attorneys had withdrawn the previous week, the new attorney was unavailable, and JWP failed to file heads of argument. Mr Rajoo appeared in person. The court a quo (Steyn J) refused a postponement and granted the eviction order with costs. JWP applied for leave to appeal, which was refused by the court a quo on 14 February 2017. JWP then applied to the Supreme Court of Appeal for leave to appeal on 15 March 2017. During the pendency of the application, JWP's alleged lease entitlement expired at the end of September 2017, but JWP did not vacate and continued to fail to pay rent.

• Whether the proposed appeal had become moot by the time it was heard in the Supreme Court of Appeal
• Whether exceptional circumstances existed to justify an appeal on the basis of costs alone when the substantive appeal had become moot
• Whether JWP's opposing papers in the eviction application disclosed a defence
• Whether a sub-lessee can raise a lease with the owner's lessee as a defence against the owner
• The appropriate costs order where an appeal becomes moot during the pendency of appellate proceedings

The application for leave to appeal was dismissed with costs.

1. Under s 16(2)(a)(ii) of the Superior Courts Act 10 of 2013, the question whether a decision would have practical effect or result is, save under exceptional circumstances, to be determined without reference to costs. 2. Where an appeal or proposed appeal becomes moot during the pendency of appellate proceedings, litigants and their legal representatives are under a duty to contribute to the efficient use of judicial resources by making sensible proposals inter se so that an appellate court's intervention is not needed. 3. On ordinary principles, a sub-lessee cannot raise, against the owner, a lease which it has with the owner's lessee, unless the lessee concluded the lease as agent for the owner. 4. In eviction proceedings based on ownership and unlawful occupation, the onus falls on the occupier to establish a right of occupation.

The court observed that where an appeal or proposed appeal has become moot by the time leave to appeal is first sought, it will generally be appropriate to order the appellant or would-be appellant to pay costs, since the proposed appeal was stillborn from the outset. The court also commented that litigants should take into account various factors when an appeal becomes moot, including: the extent of costs already incurred; the additional costs that will be incurred if appellate proceedings are not promptly terminated; the size of the appeal record; and the likely time it would take an appellate court to form a view on the merits of the moot appeal. There must be a proper sense of proportion when incurring costs and calling upon judicial resources. The court noted that if in October 2017 JWP had withdrawn its application and tendered costs, that would no doubt have been acceptable to CAT. The court also remarked on JWP's conduct in buying itself time by pursuing an unmeritorious application while failing to pay rent and not vacating at the end of September 2017, although it declined to award punitive costs partly because these facts were communicated informally from the bar rather than being canvassed in affidavits, and CAT did not give notice that it would be seeking a punitive costs order.

This case is significant in South African law for its consideration of when an appeal becomes moot and the appropriate approach to costs in such circumstances. It clarifies the application of s 16(2)(a)(ii) of the Superior Courts Act 10 of 2013, which provides that the question whether a decision would have practical effect or result is, save under exceptional circumstances, to be determined without reference to costs. The case also emphasizes the duty of litigants and their legal representatives, where an appeal becomes moot during pendency, to contribute to the efficient use of judicial resources by making sensible proposals to avoid the need for court intervention. The judgment reaffirms the principle from Chetty v Naidoo that where eviction is based on ownership and unlawful occupation, the onus falls on the occupier to establish a right of occupation. It also confirms established principles regarding sub-lessees and their inability to raise a lease with the owner's lessee as a defence against the owner, absent agency. The case serves as a warning against pursuing unmeritorious appeals and emphasizes the importance of proper legal representation and compliance with procedural requirements.