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2024
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[2024] ZAGPJHC 207
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Engen Petroleum Limited v DAV Distribution CC t/a Willowcrest Convenience Centre (39461-2020) [2024] ZAGPJHC 207 (1 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No:39461/2020
1.REPORTABLE:
YES
/ NO
2.OF
INTEREST TO OTHER JUDGES:
YES
/NO
3.REVISED:
NO
1
March 2024
In
the matter between:
ENGEN PETROLEUM
LIMITED
Applicant
And
DAV DISTRIBUTION CC
t/a WILLOWCREST CONVENIENCE CENTRE
(registration No.:
1995/020132/23)
Respondent
In re:
ENGEN PETROLEUM
LIMITED
Applicant
And
DAV DISTRIBUTION CC
t/a WILLOWCREST
CONVENIENCE
CENTRE Respondent
JUDGMENT
NOKO
J
Introduction
[1]
The respondent launched an application for leave to appeal the
judgment and order I granted for the eviction of the applicant
from
the applicant’s immovable property,
to wit
, Erf 59,
Cresta Ext 1 Township, situated at cnr Judges street and Republic
Avenue, Cresta, Randburg. The applicant in turn launched
an
application in terms of section 18(3) of the Superior Court Practice
Act (“
the Act”
) to execute the eviction order
pending leave to appeal and/or appeal.
[2]
The respondent has subsequent to receiving section 18(3) application
decided to withdraw its application for leave to
appeal and tendered
costs. As a result of the withdrawal the application in terms of
section 18(3) of the Act becomes superfluous.
The respondent refused
to make a tender for legal costs in respect of the section 18(3)
application and the parties appeared before
me to argue the question
of costs.
[3]
The
respondent contends that the application in terms of section 18(3) is
about the creation of rights and not necessarily to exercise
the
existing rights. In such an instance, so the respondent’s
counsel continues, the applicant is therefore asking for an
indulgence or condonation and such an applicant must as a matter of
course make a tender for costs. The counsel contended further
that
the argument she is advancing is novel and is therefore precedent
setting. Further that it is akin to application to uplift
the bar in
terms of rule 27 where a party is seeking an indulgence from court.
The respondent argued that it would justifiably
be mulcted with an
order for costs where the court held that the application was opposed
vexatiously or frivolously.
[1]
[4]
The
applicant in retort contended that section 18(3) application was
triggered by the respondent’s application for leave to
appeal.
The applicant is now out of pocket and the respondent should be
ordered to pay the legal costs associated with the application
for
section 18(3).
[2]
In addition,
the withdrawal of the application for leave to appeal without any
explanation being proffered is evidence of malice
on the part of the
respondent and a confirmation that the application for leave was
without merits and only launched with the sole
purpose of frustrating
the applicant in executing the eviction order.
[5]
The respondent’s counsel contended that the section 18 (3)
application just like the application for leave to appeal
brought by
the applicant creates procedural rights which must be exercised by a
party who satisfies the requirements set out in
the relevant rules.
If the respondent can satisfy the court that the requirements set out
in 18(3) are met, then the respondent
would therefore be entitled to
be exercise those rights.
[6]
I struggled
to fathom the
raison
d’tre
underpinning the contention that the provisions of section 18(3) of
the Act do not provide for a procedural right
[3]
which a party would exercise if such a party satisfies the
requirements. This applies to all other provisions of the rules which
makes provision for a party to approach court for a specific remedy.
[7]
The respondent’s argument could not be substantiated with any
authority or the argument advanced could not lay good
basis for me to
conclude that the time has come that procedural rights established by
section 18(3) of the Act should be viewed
differently to other rights
created by the rules.
[8]
The arguments by the respondent are unsustainable and bound to fail.
Costs
[9]
The applicant contends that the legal costs in terms of the lease
agreement between the parties should be on attorney
and client scale.
There are no reasons presented to unsettle the general principle that
the costs should follow the results.
Order
[10]
In the premises I grant the following order:
That
respondent is ordered to pay the applicant’s legal costs in
respect of section
18(3)
application on attorneys and client scale.
Mokate
Victor Noko
Judge
of the High Court
This
judgement was prepared and authored by Noko J is handed down
electronically by circulation to the Parties / their legal
representatives
by email and by uploading it to the electronic file
of this matter on CaseLines. The date of the judgment is deemed to be
1 March 2024.
Date
of hearing: 15
February 2024
Written
submissions
20 February 2024
Date
of judgment:
1 March 2024
Appearances
For
the Applicant: Adv
S Aucamp
Attorneys
for the Applicant:
DM5 Incorporated Attorneys.
For
the Respondent:
Adv JM Butler
Attorneys
for the Respondent
Des and Naidoo Attorneys
[1]
The
parties were requested, and they submitted written submission to
guide the court with relevant authorities and respondent
referred to
Mers
v Abramson
1951
(3) SA 438
(C) which confirmed cost would be ordered where
opposition was frivolous.
[2]
Applicant
referred to
In
re: Alluvial Create
1929 CPD 532
and
Boost
Sports v South African Breweries
2015 (5) SA 38
(SCA) to buttress the argument that a party who is
out of pocket should be allowed to recoup the loss.
[3]
The
word right is being used loosely.