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[2021] ZAGPJHC 484
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Purple Primula 80 CC v Vodacom (Pty) Ltd (A5012/19) [2021] ZAGPJHC 484 (12 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A5012/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE
:
12/04/2021
In
the matter between:
PURPLE
PRIMULA 80 CC
Appellant
and
VODACOM
(PTY)
LTD
Respondent
Appeal
has become moot. Costs in issue.
JUDGMENT
DE
VILLIERS, AJ:
[1]
This is an appeal against the refusal of a rescission application of
a
default judgment. Shirilele AJ ordered the eviction of the
appellant from a business premises on 10 November 2017. The appellant
was thereafter evicted on about 14 November 2017. Nkosi-Thomas AJ on
20 August 2018 dismissed the appellant’s application
for
rescission of the order for the eviction. The appeal against this
refusal serves before this court with leave from the Supreme
Court of
Appeal having been obtained on 15 March 2019. In the interim the
appellant’s application for interim relief was
struck from the
roll on 24 October 2018 as Mashile J found the matter not urgent. On
13 October 2020 Molahlehi J dismissed a Rule
30 application, brought
by the respondent due to the late provision of security for costs,
for lack of prejudice. The appeal in
the application for rescission
of the order for the eviction came before this court on 1 March 2021.
[2]
In addressing the “
good cause
” requirement in a
rescission application, it is common cause that the application for
eviction, although properly served,
never came to the appellant’s
notice. An accountant at its registered address received it, but did
not inform the member
of the appellant that he had received the
application. The appellant’s defence on the merits of the
application for eviction,
is that it, as a franchisee, was in
occupation of the premises in terms of an agreement. That agreement
is in dispute, but it is
common cause that it would have terminated
on 31 May 2020, had it existed. The appeal is thus moot on both
versions, no matter
what its merits once were. The appeal stands to
be dismissed.
[3]
The
remaining matter is one of costs. When only costs remain for
decision, the matter is determined in broad general lines, and
not by
full judgment on the merits of, as in this case, the appeal. In this
division, see
Jenkins
v SA Boilermakers, Iron and Steel Workers & Ship Builders Society
1946 WLD 15
at 17-18,
[1]
and
Roupell
v Metal Art (Pty) Ltd and Another
1972 (4) SA 300
(W) at 302D-H. Although these judgments did not
expressly address the issue of a moot appeal, the principle is the
same on how
the matter is to be approached. Regarding the treatment
of costs in a looming moot matter, see further:
Wholesale
Provision Supplies CC v Exim International CC and Another
1995 (1) SA 150
(T) at 159B-C (underlining added):
“
Such
an order at this stage will, however, be of no real practical value
because the restraint relied upon by the appellant will
in any event
expire in a few weeks at the end of October 1992. No action
instituted now can sensibly be determined before that
date. The trial
would therefore at best become relevant simply to determine the
proper liability for costs. A costly trial,
simply to determine
who shall pay the costs of proceedings which have been rendered
academic when the trial is set down, must be
avoided.
The
Court must simply make a proper allocation of costs on the material
at its disposal
.
(See Jenkins v South African Boilermakers, Iron & Steel
Workers' & Ship Builders' Society 1946 WLD 15; Gans
v
Society for the Prevention of Cruelty to Animals
1962 (4) SA 543
(W).)
”
[4]
A matter where the costs of
a moot appeal had to be decided, is
John
Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in
liquidation) and Another
2018 (4) SA 433
(SCA). The Supreme Court of Appeal held as follows in
para 10 (underlining added):
“
[10]
The remaining question is what to do about the costs of the
application in this court. 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. Different considerations apply where the appeal or proposed
appeal becomes moot at a later time. The appellant or would-be
appellant may consider that the appeal had good merits and that
it
should not be mulcted in costs for the period up to the date on which
the appeal became moot. The other party may hold a different
view.
As
a general rule, 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 the efficient use
of judicial resources by making sensible proposals so
that an
appellate court’s intervention is not needed
.
If a reasonable proposal by one of the litigants is rejected by the
other, this would play an important part in the appropriate
costs
order.
Apart from
taking a realistic view on prospects of success, litigants should
take into account, among other factors, the extent
of the costs
already incurred; the additional costs that will be incurred if the
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
.”
[5]
Accordingly, the duty to
have brought this matter to an end, with sensible costs proposals
rested on both parties. In the end this
court raised the issue, after
all the costs of an appeal were incurred.
[6]
Ultimately
in
John
Walker Pools
,
the appellant was ordered to pay the costs of the appeal. It
had
bleak prospects of success, and seemed
[2]
to have acted deplorably in pursuing an appeal with no merit, whilst
remaining in occupation of the premises without paying rent.
The
facts of this matter are different.
[7]
Our courts do not easily
close the door to the courts on litigants at the rescission stage if
the requirements for rescission are
met. They have always enjoyed a
wide discretion to ensure that justice is done. See
De
Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1042G-10143A. In general terms the
appellant had to show good cause for the rescission, which usually
consists of
three elements: (a) A reasonable explanation for the
default, (b) showing that the application is made
bona
fide
, and (c) showing
a
bona fide
defence
which
prima
facie
has some
prospect of success. See
Colyn
v Tiger Food Industries Ltd T/A Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para 11.
[8]
In my view, the appeal
prima
facie
carried prospects
of success. The appellant proffered a reasonable explanation for the
default. On the merits of the defence, the
appellant was in
occupation of the business premises, seemingly trading as a
franchisee of the respondent. At certain stages, it
so traded in
terms of a formal agreement and thereafter occupied the premises in
circumstances where a renewal of a formal agreement
was at least
pursued in part and in fact, on its version, on the respondent’s
terms agreed to by the appellant. Under those
circumstances, the
appellant has demonstrated that it was
bona
fide
in pursuing its
defence. Further, under the circumstances a court should be slow to
decide a rescission application in making findings
on the existence
(or not) of a formal, signed agreement. With respect, another court,
with the full facts available, should make
the finding on the
existence of an agreement, or not. It would have weighed heavily with
me that
audi alteram
partem
principle had
failed, through no fault of the sole member of the appellant.
[9]
My
overall view would point to the appellant being awarded the costs of
the appeal at least until the matter became moot. However,
that is
not the only matter to consider in a costs decision. The appeal
record was in such a poor state, that an order striking
the mater
from the roll would have been appropriate. Costs would have followed
that result in the normal course. On the other hand,
in terms of
John
Walker Pools,
the
respondent (no matter its own submissions about the appeal having
become moot at an earlier date, as it had given occupation
of the
premises to a third party)
[3]
too should have alerted the appellant and the court that the matter
has become moot on all versions. Instead, three judges were
unnecessarily called upon to prepare for an appeal.
[10]
Further, none of this would
have happened had the person on whom the respondent properly served
the original application (an accountant
at the registered address)
informed the appellant of the application. A judgment by default
would not have followed, and the first
decision would have been on
the merits of the application for eviction after due compliance with
the
audi
principle.
In that sense both the appellant and the respondent are victims of
consequences not under their control.
[11]
Fairness
to both parties is the test to apply in the exercise of this court’s
discretion on costs.
[4]
After
reflection, the fairest order in this matter is for each party to pay
its own costs.
[12]
Accordingly, I propose that
the following order be made:
1.
The appeal is dismissed;
2.
Each party is to pay its own costs, including
all reserved costs.
DP
de Villiers AJ
ACTING
JUDGE OF THE HIGH
COURT,
GAUTENG DIVISION,
JOHANNESBURG
I
agree and it is so ordered.
A
Maier-Frawley J
JUDGE
OF THE HIGH COURT,
GAUTENG
DIVISION,
JOHANNESBURG
AK
Ramlal AJ
ACTING
JUDGE OF THE HIGH
COURT,
GAUTENG DIVISION,
JOHANNESBURG
Heard
on:
1 March 2021
Delivered
on:
12 April 2021 by uploading on CaseLines
On
behalf of the Appellant:
Adv T Seroto
Instructed
by:
Nwaila Attorneys Inc
On
behalf of the Respondent:
Adv K Tsatsawane SC
Adv Ri Ramatselela
Instructed
by:
Farah and Parker Attorneys
[1]
“…
When
a case has been disposed of by an offer which concedes the main
claim and the costs of the whole case have still to be decided,
I
think the Court must do its best with the material at its disposal
to
make a fair allocation of costs
,
employing such legal principles as are applicable to the situation
.
This
is much to be preferred to laying down a principle which requires
Courts to investigate dead issues to see who would have
won on such
issues
.
In most such cases the litigants would be required to incur far
greater costs than those at stake.
In
my view the costs must be decided on broad general lines and not on
lines that would necessitate a full hearing on the merits
of a case
that has already been settled
.”
(underlining
added)
[2]
Although
this matter was not finally determined;
[3]
I make no finding on the validity of the defence.
[4]
The
principle is trite, see
Gelb
v Hawkins
1960 (3) SA 687
(A) at 694A.