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[2021] ZAGPJHC 1
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Dale v Newey and Another (42594/2019) [2021] ZAGPJHC 1 (28 January 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
Case
No.: 42594/2019
In
the matter between:
DALE,
JAYCEN
TREVOR Applicant
and
NEWEY,
MICHAELA SARAH
First Respondent
CITY
OF JOHANNESBURG
Second Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down about such circulation.
Gilbert AJ
1.
The applicant seeks an eviction order against the
first respondent who resides at [….].
2.
The first respondent has opposed the relief and
full sets of affidavits have been exchanged.
3.
The applicant applied on 13 October 2020 to the
registrar for a hearing on the opposed roll. On 26 October 2020 the
Registrar allocated
25 January 2021, and the matter was set down
for hearing.
4.
Thereafter, on 28 November 2020 the first
respondent launched an urgent application under case number
40638/2020 for the restoration
of electrical supply to the property.
It appears that such an urgent application was resolved save for the
incidence of costs,
which the parties agreed to be argued on the same
day as this eviction application.
5.
As matters now stand, the applicant seeks final
relief against the first respondent in the form of an eviction, which
the first
respondent opposes. The second respondent has not
participated in the proceedings.
6.
After
I had been allocated the matter and during the week preceding the
hearing, I through my registrar drew the attention of the
parties to
the decision of the Full Court of this Division in
ABSA
Bank Limited v Molotsi
[1]
as to the election, and the timing thereof, to be made by an
applicant when seeking relief by way of motion proceedings whether
to
persist with seeking such final relief by way of motion or whether
instead to seek a referral of the matter either to trial
or to oral
evidence.
7.
At the commencement of argument, I enquired of Nr
Nel, counsel for the applicant as to the applicant’s position
having considered
ABSA Bank v Molotsi
.
Mr Nel elected to seek a referral rather than, to use his words, “run
the risk” that if the court found that there
was a dispute of
fact that could not be resolved on affidavit that the application was
dismissed.
8.
After having been stood down the matter on
various occasions during the course of the day to enable the
applicant and the first
respondent to engage with each other on the
formulation of an appropriate order (such as to whether to oral
evidence on certain
issues or to trial), the parties became
ad
idem
that there should be a referral to oral
evidence on the limited issue whether there was and remains an oral
agreement in place
between the applicant and the first respondent
that entitles the first respondent to remain in occupation of the
premises.
9.
The parties left it in the hands of the court to
formulate the precise ambit of such issue to be decided by way of
oral evidence.
After I reserved judgment, the parties again
considered their position and with my leave placed before me their
proposed formulation
of the issue to be referred to oral evidence. I
adopt that formulation, and add the usual ancillary relief.
10.
The parties also made submissions as to the
incidence of costs that should follow upon such a referral,
particularly in relation
to the hearing of 25 January 2021. The
applicant submitted that the costs should be costs in the cause as
that was, Mr Nel submitted,
the usual costs order. Mr Riley for
the first respondent submitted that the applicant should be ordered
to pay the costs in
relation to the hearing of 25 January 2021.
Mr Riley submitted that the applicant had only made the election
to seek
a referral on the day of the hearing and should have taken
cognisance of
Molotsi
earlier
and so should have made the election earlier for a referral to oral
evidence.
11.
It may transpire, with the benefit of hindsight
following oral evidence, that the defence raised by the first
respondent of an oral
agreement was opportunistic and had no merit.
It may also transpire after the benefit of oral evidence that the
defence was well-founded.
Or it may transpire after the benefit of
oral evidence that although the defence fails, it was nonetheless of
sufficient merit
that it warranted a referral to oral evidence.
Accordingly, the outcome of oral evidence will inform the incidence
of costs and
so it would be premature at this stage to make any order
relating to the incidence of costs.
12.
I also take into consideration that Mr Nel
did, albeit only at the commencement of argument, make the election
and did not
persist in seeking to argue the matter on its merits. The
applicant, in the present circumstances, should not be faulted for
adopting
the more cautious approach that he did.
13.
Costs is a matter of discretion. I am reticent to
grant a costs order in the context of the present matter where it is
common cause
that the parties resided together from August 2001
until November 2017. The present application is fallout of that
long-term
relationship of some seventeen years. There may be more at
play that commercial concerns as between lessor and lessee. To grant
a costs order at this stage may further embitter the parties and
prove to be an obstacle to conducively resolving the dispute.
14.
The
parties in their formulation of the referral also seek that the costs
of the urgent application be determined by the court hearing
the oral
evidence. The court hearing the oral evidence on the issue as
referred would not only determine that issue after hearing
evidence,
but will consider whether to grant the eviction order after a
consideration of all the affidavits together with the oral
evidence.
[2]
There does not
appear any reason why that court would not be able to also determine
the incidence of costs in relation to the urgent
application, as the
parties have already agreed. A specific order in relation thereto
appears unnecessary. Nonetheless, I make
provision for the parties’
agreement in my order.
In the
circumstances, the following order is granted:
1.
The issue of whether or not an oral lease
agreement exists between the applicant and the first respondent, the
terms thereof, and
whether the termination thereof was lawful, in
respect of the premises situated at 1 Marquise Place, Jukskei Park,
Randburg, Johannesburg,
Gauteng is referred to oral evidence on a
date to be arranged with the Registrar.
2.
Unless this court otherwise directs,
in
relation to the issue referred to oral evidence
:
2.1.
the applicant and the first respondent will be
entitled to call any witness who deposed to any affidavit in the
application proceedings;
2.2.
the applicant and the first respondent are
obliged to make available for cross-examination such witnesses who
deposed to affidavits
in these proceedings to the extent that such
party persists in seeking to place any reliance on that person’s
evidence in
the affidavits;
2.3.
the applicant and the first respondent are
entitled to call any further witnesses who were not deponents to
affidavits in these
application proceedings:
2.3.1.
provided that such party has at least thirty
court days’ before the date of the hearing of the oral evidence
served on the
other party a statement of the evidence in-chief to be
given by such person;
2.3.2.
but subject to the court, at the hearing of the
oral evidence, permitting such further witnesses to be called
notwithstanding that
no such statement has been served in respect of
his or her evidence;
2.4.
the applicant and the first respondent may
subpoena any witness to give evidence at the hearing or to furnish
documents whether
such person has consented to furnish a statement or
not in relation to the issue referred to oral evidence;
2.5.
that a party has served a statement in terms of
sub-paragraph 2.3 above or has subpoenaed a witness shall not oblige
such party
to call the witness concerned;
2.6.
Uniform Rule 35 will be applicable to the
discovery of documents on the issue referred to oral evidence.
3.
The incidence of costs, including any costs
arising from the hearing of this application on 25 January 2021,
will be determined
after the hearing of oral evidence.
4.
It is recorded that the parties have agreed
that the costs of the urgent application of 28 November 2020
under case number
40638/2020 are to be determined by the court
hearing the application under this case number 42594/2019.
Gilbert
AJ
Date of
hearing:
25 January 2021
Date of judgment:
28 January 2021
Counsel for the
Applicant:
J C J Nel
Instructed
by:
D L Wilson Attorneys
Counsel for the
First Respondent: N Riley
Instructed
by:
Bolus Attorneys
[1]
Reported on SAFLII as [2016] ZAGPJHC36 (8 March 2016), paragraphs 25
to 27, applying
Law
Society, Northern Provinces v Mogani
2010 (1) SA 186
(SCA) para 23 and
De
Reszke v Maras and others
2006 (1) SA 401
(C) para 33.
[2]
Lekup
Prop Co No 4 (Pty) Ltd v Wright
2012
(5) SA 246
(SCA) at 258I.