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[2023] ZAKZPHC 135
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Shannin and Ulisha Investments (Pty) Limited t/a Fast Spares v Mahomed and Another (16524/2022P) [2023] ZAKZPHC 135 (16 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
16524/2022P
In
the matter between:
SHANNIN
AND ULISHA INVESTMENTS (PTY) LIMITED
APPLICANT
t/a
FAST SPARES
and
ASHRAF
DAWOOD MAHOMED
FIRST RESPONDENT
CATHAY
COMMERCIAL ENTERPRISES CC
SECOND RESPONDENT
REG.
NO: 2000/064225/23
Coram
:
Mossop J
Heard
:
16 November 2023
Delivered
:
16 November 2023
ORDER
The
following order is granted
:
1.
Each party is directed to pay its own costs.
JUDGMENT
MOSSOP
J
:
[1]
The commercial business premises with a street address of 91/93
Church
Street, Pietermaritzburg (the premises) are situated in the
same street as the High Court. The premises are owned by the second
respondent, a close corporation. The first respondent is the guiding
mind behind that close corporation and, by all accounts, owns
and
controls an extremely large commercial property portfolio in this
city.
[2]
The first respondent, in his personal capacity, entered into a lease
agreement
in respect of the premises with one Shannin Ponnusami and
Ulisha Ponnusami (individually referred to by their full names and
collectively
referred to as ‘the Ponnusamis’). A copy of
the lease agreement has, understandably given that this is a
spoliation
application, not been put up by the applicant but has been
put up by the first respondent. The Ponnusamis were to conduct a
motor
vehicle spares business from the premises. In the event, that
business was conducted not under their names, but under the name of
the applicant. Nothing turns on this, however, as it is not
challenged that the applicant and the Ponnusamis were in occupation
of the premises.
[3]
On Friday, 2 December 2022, the applicant moved an urgent application
before this court arising out of an alleged act of spoliation
committed either by the first or the second respondent, or both. The
applicant, represented by Shannin Ponnusami, alleged in its founding
affidavit that it had been in peaceful, undisturbed possession
of the
premises on 15 November 2022 when three males attended the premises,
threatened those there present with physical violence,
removed them
forcefully from the premises and then welded shut the front gate to
the premises to prevent them from re-entering
the premises. It was
alleged that this had been done at the behest of the first
respondent. Although unnecessary to be stated given
the nature of the
application, it was alleged that the reason why the first respondent
had caused this to occur was because the
applicant was in arrears
with its monthly rental for its occupation of the premises.
[4]
The spoliation application was opposed by the respondents when it
came
before Olivier AJ, but a rule with interim relief was
nonetheless granted by the acting judge restoring the applicant’s
possession
of the premises pending finalisation of the application.
The matter was subsequently adjourned to 7 March 2023. On that date,
Mlaba
J discharged the rule previously granted by Olivier AJ and
adjourned the matter sine die, reserving the question of costs. It
does
not appear from the order whether this was by consent or not,
although Mr Indrajith, who appears for the respondents, asserts in
his heads of argument that the order was taken by consent.
[5]
After an interregnum of some eight months, the matter is now before
me
on the issue of costs only. The matter has not been set down by
the applicant, who appears to no longer have any interest in the
matter, having not delivered heads of argument and having not
appeared this morning. It has, rather, been set down by the
respondents
for the sole purpose of obtaining a costs order against
the applicant.
[6]
The basic
rule on the question of costs was set out in
Kruger
Bros and Wasserman v Ruskin
,
[1]
and is to this effect:
‘
the
rule of our law is that all costs – unless otherwise enacted –
are in the discretion of the Judge. His discretion
must be judicially
exercised, but it cannot be challenged, taken alone and apart from
the main order, without his permission.’
The
granting of a costs order is therefore a matter for the discretion of
the court, regard being had to all the circumstances of
the matter in
question.
[2]
Costs are
accordingly to be awarded on a fair and just basis.
[3]
[7]
The
discretion possessed by a court to determine the issue of costs is a
true discretion as opposed to a loose discretion. In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa
,
[4]
Khampepe
J said that:
‘
A
discretion in the true sense is found where the lower court has a
wide range of equally permissible options available to it. This
type
of discretion has been found in this Court in many instances,
including matters of costs, damages and in the award of a remedy
in
terms of section 35 of the Restitution of the Land Rights Act. It is
‘true’ in that the lower court has an election
of which
option it will apply and any option can never be said to be wrong as
each is entirely permissible.’
[8]
What does
it mean when a discretion must be exercised judicially, as was stated
in the extract from
Kruger
Bros
?
The answer to this question has been formulated in different ways. It
has been held to mean that the decision should not be arrived
at
‘capriciously but for substantial reasons.’
[5]
In
Merber
v Merber
,
[6]
the court referred with approval to the English matter of
Ritter
v Godfrey
,
where the following was said on this issue:
‘
The
discretion must be judicially exercised and therefore there must be
some grounds for its exercise, for a discretion exercised
on no
grounds cannot be judicial. If however there be any grounds, the
question of whether they are sufficient is entirely for
the Judge at
the trial and this Court cannot interfere with his discretion.’
[7]
The
learned judge in
Ritter
, Atkin L.J., went on to state the
following:
‘
In
the case of a wholly successful defendant, in my opinion, the Judge
must give the defendant his costs unless there is evidence
that the
defendant (1) brought about the litigation or (2) has done something
connected with the institution or the conduct of
the suit calculated
to occasion unnecessary litigation and expense or (3) has done some
wrongful act in the course of the transaction
of which the plaintiff
complains.’
[8]
[20]
Thus, while
the
spoliation application is not to be determined by me because the rule
nisi has already been discharged, it seems to me that
I must
nonetheless have regard to the facts relating thereto in order that I
should properly, and judicially, exercise my discretion
when
determining the issue of costs. I make it plain at the outset that I
do not adopt the view that because the applicant is not
present
before me this morning I should automatically award costs against it.
I take the view that all the facts must be considered
and not just
the fact of the absence of the applicant today.
[9]
That the
premises were occupied at the time that this application was brought
is beyond dispute. This is demonstrated by the fact
that after the
bringing of this application, the first respondent, on his own
admission, instituted action against the Ponnusamis
out of the
Pietermaritzburg Regional Court and included in his action a rent
interdict summons pertaining to the premises. That
would have been
unnecessary had they not occupied the premises. There is some
uncertainty on the papers as to who was entitled
to be in occupation
of the premises: the lease agreement put up by the first respondent
indicates that the lease was concluded
by the Ponnusamis in their
personal capacity and not by the applicant, which is a company. I
need not resolve this because of the
nature of spoliation
proceedings, which are predicated solely upon physical possession and
not the right to possession, and the
deprivation of that possession
other than through legal procedure.
[9]
[10]
The first respondent has attempted to suggest that he did not send
the three men to the
premises to evict the occupants in an unlawful
fashion, or at all. He has suggested that this is a matter that is
best referred
to the South African Police Services to resolve by way
of an investigation. In my view, that is unnecessary and not in
keeping
with the resolution of spoliation proceedings in an
expeditious manner without undue delay.
[11]
The applicant’s legal representative, Mr Indrajith, has
mentioned five grounds in
his heads of argument and in argument this
morning as constituting justification for the costs order that the
respondents seek.
The first is that the applicant ought to have
delivered a letter of demand, or complied with Uniform Rule 41A,
before seeking the
assistance of a court. Had it done so, so the
submission continues, this application would have been avoided. The
second ground
advanced is that the proceedings should have been
brought in the magistrate’s court and not in the high court.
The decision
to litigate in the high court has thus increased the
costs for the respondents. The third ground advanced is that the
costs of
litigating have been increased by the applicant when the
primary issue ultimately became academic. The thrust of this
submission
is that the applicant vacated the premises on 24 January
2023 but the respondents were compelled to deliver an answering
affidavit,
and thereby incurred the cost of doing so, only to have
the matter partially resolved later by the discharge of the rule
nisi.
The fourth ground advanced relates to the content of the
founding affidavit. The first respondent alleges that he has been
referred
to in less than complimentary terms by the deponent thereto,
Shannin Ponnusami. The final ground advanced is that the applicant
would not have been successful had final relief been sought from this
court. I shall briefly consider each of these submissions.
[12]
As regards
the first submission, our society and legal order deprecates
self-help. The taking of possession other than in accordance
with law
is prohibited, based upon the underlying philosophy that no-one
should resort to self-help. By prohibiting self-help public
order is
preserved.
[10]
Where
self-help, or spoliation, occurs, the person despoiled is entitled to
take immediate steps to stop it and that may result
in an act of
counter spoliation but more likely will result in an urgent
application to court.
[13]
Rule 41A(2)(a) provides as follows:
‘
In
every new action or application proceeding, the plaintiff or
applicant shall, together with the summons or combined summons or
notice of motion, serve on each defendant or respondent a notice
indicating whether such plaintiff or applicant agrees to or opposes
referral of the dispute to mediation.’
Rule 41A(2)(b) provides
that:
‘
A
defendant or respondent shall, when delivering a notice of intention
to defend or a notice of intention to oppose, or at any time
thereafter, but not later than the delivery of a plea or answering
affidavit, serve on each plaintiff or applicant or the plaintiff’s
or applicant’s attorneys, a notice indicating whether such
defendant or respondent agrees to or opposes referral of the dispute
to mediation.’
[14]
This application was presented as an urgent application with the
necessary prayer for the
dispensing of the forms and service required
by the Uniform Rules in terms of the provisions of Uniform Rule
6(12). This was accepted
by Olivier AJ, who granted the interim
relief sought by the applicant. The judge thus found the
application to be urgent.
In the circumstances of an urgent
application, it would appear to me to be obvious that the applicant
does not agree to the referral
of the issues to mediation.
[15]
The confidence with which the first respondent asserts that the
application would have
been avoided had a letter first been sent to
him, or a Rule 41A notice delivered, or even if he had first been
approached, is remarkable.
He claims that he was not behind the
ejectment of the occupants from the premises so how he could warrant,
as he does in his answering
affidavit, that the occupants could
remain in the premises, and thereby resolve the dispute, is not clear
to me. Sight must not
be lost of the fact that the applicant believes
that the respondents are the cause of it being dispossessed of the
premises. The
suggestion that the first respondent makes that he
should therefore have first been approached to resolve the matter is
misplaced.
[16]
It does not
appear that there is any sanction for non-compliance with Rule 41A,
and courts
have
thus far been disinclined to uphold technical objections of
non-compliance with that Rule.
[11]
That
having been said, Rule 41A(9)(b) provides that where an order for
costs of the action or application is considered, the court
may have
regard to the notices referred to in sub-rule 49A(2) or any offer or
tender referred to in sub-rule 49A(8)(d) and any
party shall be
entitled to bring such notices or offer or tender to the attention of
the court. The inference is thus where such
a notice is not given,
there may be a consequence on any costs order granted.
[17]
The
sincerity and impact of the respondents’ submission in this
regard is lost when it is accepted that there was service
of the
papers on them before the application was considered by Olivier AJ.
Had the respondents truly believed all was a misunderstanding
and was
capable of speedy and sensible resolution, why then did the first
respondent not simply pick up the telephone after he
received the
application papers and call the Ponnusamis and explain that he was
shocked by what had been revealed in those papers
and advise them
that the matter could be amicably resolved? He makes no suggestion
that he did this. While on the subject of the
conduct of the
respondents, Rule 41A makes it plain that a respondent is also
obliged to deliver such a notice, regardless of the
applicant’s
failure to comply with the Rule. Neither party did so and it does not
lie in the mouth of the respondents to
complain about the applicant’s
non-compliance. In any event, w
hile
the Rules are meant to be complied with, they were meant for the
court, and not the other way round.
[12]
Neither party complied. I am consequently not much attracted by the
merits of this submission by the respondents.
[18]
The second
submission advanced is a complaint about the forum chosen by the
applicant. It is contended that the magistrate’s
court should
have been the forum chosen by the applicant. The fact of the matter
is that the high court
is obliged by law to hear any matter that falls within its
jurisdiction and has no power to exercise a discretion to decline to
hear such a matter on the ground that another court has concurrent
jurisdiction.
[13]
A
litigant is therefore entitled to choose whichever court suits his
needs. The applicant chose the high court and it was its right
to do
so. Had the matter finally been determined, and any costs awarded to
the applicant, they may not have been on the high court
scale. But
all that is speculation. The point lacks any legal merit.
[19]
The third submission is that the costs of litigating were increased
when the issue became
moot. This, presumably, refers to the fact that
the applicant vacated the premises after the first respondent
commenced legal proceedings
against the Ponnusamis out of the
Pietermaritzburg Regional Court. The respondents gave the applicant
four days to withdraw the
application with no order as to costs,
being the period from 27 January to 31 January 2023. When it did not
do so, the answering
affidavit was delivered. The essence of this
submission accordingly relates to the costs of preparing the
answering affidavit.
[20]
It is quite ironic that the first respondent complains about the
costs of preparing his
answering affidavit for it is he that has
peppered his answering affidavit with comments about his wealth: he
states that he has
a ‘vast’ property portfolio, that due
to his ‘affluency’ he is able to employ rental agents and
that he
is ‘not a man of straw’.
[21]
Ultimately, what the first respondent sought occurred: the rule nisi
was discharged and
costs were reserved. It just was not done when he
wanted it done. The applicant did not deliver a replying affidavit
and, to an
extent, costs were thereby curtailed. The respondents
have, again ironically, increased the costs of the matter by setting
the
matter down solely on the issue of costs. I asked Mr Indrajith,
who appears for the respondents, why the issue of costs had not
been
resolved when the consent order was taken on 7 March 2023. He
indicated that Mlaba J was not prepared to hear argument on
the
question of costs on that day. That would explain why the issue was
not dealt with then.
[22]
I do not intend dealing in any great detail with the fourth ground,
namely that the first
respondent has been referred to in less than
flattering terms by the deponent to the founding affidavit. I refer
simply to what
was stated in
S v Tromp
:
‘
He
who enters the lists must be prepared to take verbal knocks; a
contest in the courts is not to be equated to the proceedings
of a
young ladies' debating society
.’
[14]
[23]
The final ground advanced by the respondents is that the applicant
was unlikely to obtain
final relief had the matter ultimately been
argued. I find myself unable to agree with this bold assertion.
In my view, the
applicant had good prospects of succeeding. When the
facts are viewed dispassionately, there is but a single person who
would be
interested in seeing the occupants vacate the premises, and
that is the first respondent. This is rendered even more likely if
there was a default in the monthly payment of rental arising out of
that occupation.
[24]
The arrival of the three men at the premises was not a random act of
criminality or an
attempt at robbery. What criminals go out to commit
a crime carrying with them welding equipment? It is plain that what
occurred
was a means of getting the occupants out of the premises,
for nothing was stolen. The only thing achieved was their ejectment.
That the purpose behind the intervention of the three men was to
ensure that the occupants did not return to the premises once they
were put out is evidenced by the photographs put up by the applicant
showing that the gates to the premises had, indeed, been welded
shut
by the three men. I asked Mr Indrajith to address me on this aspect
this morning. He said that the respondent’s version
was that it
was a set of facts put up by the applicant itself to avoid its area
rental payments. I simply cannot accept this to
be the case. If it
were so, why would they bring the application as an urgent
application for it would be in their interests to
maximise the time
that they were out of the premises and thus increase the quantum of
any damages claim that they might contemplate
bringing.
[25]
The respondent has attempted to muddy the waters, and thereby
attempted to improve his
position, by making reference to the
Pietermaritzburg Regional Court proceedings that he instituted
against the Ponnusamis on 14
December 2022. That, in fact, is where
his narration of events begins in his answering affidavit. That
litigation has nothing to
do with the issues before me. The action
was, in any event, only instituted after the rule nisi had been
granted by this court
on 2 December 2022.
[26]
I
consequently find no merit in any of the grounds advanced by the
respondents. On a balanced consideration of the allegations in
this
matter, it appears to me that the applicant was entitled to approach
this court on an urgent basis, as it did. The act of
spoliation had
been clearly pleaded in the founding affidavit and in my view can
only have been carried out at the instance of
the first respondent.
In my view this conduct falls clearly within the ambit of at least
the first category referred to by Atkin
L.J. in
Ritter
,
in that the first respondent’s conduct
brought
about the litigation.
Had the rule nisi not been discharged, the applicant’s
prospects of obtaining final relief were therefore good, given the
very limited defences open to a respondent in spoliation
proceedings.
[15]
The
applicant, however, has not appeared this morning and asked for its
costs.
[27]
In my view, and after a conspectus of all the competing allegations,
a just and equitable
order would be the following in all the
circumstances of the matter:
1.
Each party is directed to pay its own costs.
MOSSOP
J
APPEARANCES
Counsel
for the applicant:
No
appearance
Instructed
by:
Padayachee
and Partners
485
Jabu Ndlovu Street
Pietermaritzburg
Counsel
for the respondent:
Mr
Pranesh Indrajith
Instructed
by:
Pranesh
Indrajith Attorneys
41
Lahore Road
Pietermaritzburg
Date
of argument:
16
November 2023
Date
of judgment:
16
November 2023
[1]
Kruger
Bros and Wasserman v Ruskin
1918 AD 63 69.
[2]
Cronje
v Pelser
1967 (2) SA 589 (A) 593.
[3]
City of
Cape Town v Rudolph
2004 (5) SA 39
(C) 89C.
[4]
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa
2015
(5) SA 245
(CC)
para 85.
This
approach was followed in
Hotz
and Others v University of Cape Town
2018
(1) SA 369
(CC)
para 28.
[5]
Rex v
Zackey
1945 AD 505
at 513.
[6]
Merber
v Merber
1948
(1) SA 446
at 452-3.
[7]
Ritter
v Godfrey
(1920) 2.K.B. 47.
[8]
Ibid, page 60.
[9]
Eskom
Holdings SOC Ltd v Masinda
2019 (5) SA 386
(SCA) para 8.
[10]
Ngqukumba
v Minister of Safety and Security and Others
2014
(7) BCLR 788
(CC)
para 10.
[11]
Growthpoint
Properties Ltd v Africa Master Blockchain Company (Pty) Ltd
[2022]
ZAGPJHC 836 para 27.
[12]
Nomandela
v Nyandeni Local Municipality
2021 (5) SA 619
(ECM).
[13]
Standard
Bank of SA Ltd and Others v Thobejane and Others; Standard Bank of
SA Ltd v Gqirana
NO
and Another
[2021] ZASCA 92; [2021] 3 All SA 812 (SCA); 2021 (6) SA 403 (SCA)
(25 June 2021).
[14]
S
v Tromp
1966
(1) SA 646
(N) at 655-656.
[15]
Umcebo
Properties (Pty) Limited and another v Mokwena and others
[2020]
ZAMPMHC 31, para 44.