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South Africa: South Gauteng High Court, Johannesburg
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2023
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[2023] ZAGPJHC 909
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Line Metals (Pty) Ltd v Shi and Others (03126/2022) [2023] ZAGPJHC 909 (14 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case No. 003126 / 2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
SIGNATURE
DATE:
14 August 2023
In the matter between:
LINE
METALS (PTY) LTD
Applicant
and
WEI
SHI
First
Respondent
CHINGQING
QINGXING INDUSTRY SA (PTY) LTD
Second Respondent
THE
SHERIFF OF THE HIGH COURT, BOKSBURG
Third Respondent
JUDGMENT
WILSON
J:
1
The applicant, Line Metals, let premises to the second
respondent, Chingqing. Chingqing fell behind with its obligations
under the
lease. Line Metals issued summons in the Boksburg
Magistrates’ Court for the arrear rent. The summons included an
automatic
rent interdict of the type envisaged in
section 31
of the
Magistrates’ Courts Act 32 of 1944
. The effect of such an
interdict, once included in a summons, is that “any person
having knowledge” of it is interdicted
from removing such
“furniture and effects” from the rented property as are
subject to the landlord’s tacit hypothec
over a tenant’s
goods.
2
Meanwhile, the first respondent, Mr. Shi, sought and obtained
an order from this court directing Chingqing to transfer some of the
goods presently at the rented premises to Mr. Shi, in execution of an
acknowledgement of debt made out by Chingqing in Mr. Shi’s
favour. Line Metals was not joined to those proceedings, and
obviously takes the view that the order authorising the transfer of
Chingqing’s goods affects its interests.
3
Line Metals now seeks to rescind that order, and to oppose Mr.
Shi’s claim. It has already been given leave to intervene in
the proceedings that led to the order being granted.
4
When the matter was called before me, Mr. Bellin, who appeared
for Mr. Shi, advanced Mr. Shi’s opposition to the recission
application by reference to 43-page heads of argument containing a
rather complex diagram. The point of the diagram was apparently
to
persuade me that Line Metals had no prospects of success in opposing
the relief Mr. Shi seeks in the main case.
5
As interesting as Mr. Bellin’s diagrammatic submissions
were, they seemed to me to be beside the point. The order granting
Line Metals leave to intervene in the main case could not have been
granted if Line Metals had not shown a direct and substantial
interest in the relief Mr. Shi obtained. It follows that Mr. Shi’s
order was erroneously sought and granted in Line Metals’
absence, because Line Metals was a necessary party to the proceedings
and ought to have been joined to them before any order was
made. That
is reason enough to rescind it. It does not matter that neither the
Judge who granted the order nor Mr. Shi apparently
knew of Line
Metals’ interest at the time the order was issued. All that
matters is that the interest objectively existed
at that time.
6
Even if Line Metals’ prospects of success in the main
case were directly relevant (they are not), I find it hard to see
how,
armed with a statutory rent interdict, Line Metals does not have
at least some prospect of persuading a court that its rights in
the
goods to which the order applies trump those of Mr. Shi. However,
that is not a question that I need to decide.
7
The recission application should obviously succeed. On the
question of costs, Mr. Cowley, who appeared for Line Metals, all but
conceded that the application ought to have been resolved under
Rule
42
(the applicability of which I raised
ex
mero motu
)
rather than by engaging in the far more complex and costly common law
inquiry, which embraces Line Metals’ prospects of
success and
its
bona fides.
8
On the other hand, Mr. Shi ought to have recognised, as soon
as Line Metals became a party to the main action, that the recission
application could not reasonably be opposed, whatever he thought of
Line Metals’ prospects in the main case.
9
Given the misapprehensions under which both parties appear to
have laboured in this case, I think it would be best if the costs in
the recission application are costs in the main application.
10
For all these reasons –
10.1
The judgment granted in the action proceedings sued out of this
court
under case no. 32045/2021 is rescinded.
10.2
The costs of this application will be the costs in the main action.
S
D J WILSON
Judge
of the High Court
This
judgment was prepared by Judge Wilson. It is handed down
electronically by circulation to the parties or their legal
representatives
by email, by uploading it to the electronic file of
this matter on Caselines, and by publication of the judgment to the
South African
Legal Information Institute. The date for hand-down is
deemed to be 14 August 2023.
HEARD
ON: 7 August 2023
DECIDED
ON: 14 August 2023
For
the Applicant:
HH Cowley
Instructed by Brasg and
Associates
For
the First Respondent:
P Bellin
Instructed by Huang
Attorneys Inc