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[2022] ZAFSHC 135
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Michael Nicolas Georgiou NO and Others v Blacktrade (Pty) Ltd (1364/2022) [2022] ZAFSHC 135 (2 June 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No.: 1364/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MICHAEL
NICOLAS GEORGIOU
N.O.
First
Applicant
ANDRIANA
GEORGIOU
N.O.
Second
Applicant
JOSEPH
REYNOLDS CHEMALY
N.O. T
hird
Applicant
(In
their capacities as the Trustees for the
Michael
Family Trust, TMP [....])
and
BLACKTRADE
(PTY) LTD t/a BOSS FABRICS
Respondent
(Registration
Number: [....])
Coram:
Opperman,
J
Date
of hearing:
30 May
2022
Order
Delivered:
31
May
2022;
Amended on 2 June 2022
The
order was handed down electronically by circulation to the parties’
legal representatives by email. The date and time
for hand-down is
deemed to be 31 May 2022 at 15h00 and 2 June 2022 at 15h00.
Reasons
for Judgment:
8
June 2022.
The
reasons for judgment were handed down electronically by circulation
to the parties’ legal representatives by email. The
date and
time for hand-down is deemed to be 8 June 2022 at 15h00.
JUDGMENT
INTRODUCTION
[1]
The case is a glaring and distasteful reminder of the conduct of
parties to a contract
that culminated into a bitter feud. The feud
caused them to lose sight of the reality of the Rule of Law, the Law
of Contract,
the Rules of Court and a basic standard of courteously
towards each other and the Court.
[2]
These are the reasons for the order I made on 31 May 2022 and 2 June
2022. I ordered
:
Coram:
Opperman,
J
Date
of hearing:
30 May
2022
Order
Delivered:
31
May
2022;
Amended on 2 June 2022
The
order was handed down electronically by circulation to the parties’
legal representatives by email. The date and time
for hand-down is
deemed to be 31 May 2022 at 15h00 and 2 June 2022 at 15h00.
Reasons
for Judgment:
Reasons
for judgment will follow in due time
ORDER
IN
TERMS OF RULE 42 OF THE UNIFORM RULES
2
JUNE 2022
Having
heard Counsel for the parties, with due cognizance to the papers
filed on record, the Heads of Argument and a letter from
the
applicants for clarification of the costs dated 31 May 2022; it is
ordered that:
ORDER
1.
The issue
in
limine
that the applicants are not properly before Court, is dismissed;
2.
The
cancelation of the Rental Agreement is confirmed;
3.
The respondent
and all persons holding occupation through the respondent is evicted
from the premises situated at Shop 15 known
as Showgate Centre, Curie
Avenue, Bloemfontein, also known as S-ROOM-01 & G-SPA1, Curie
Avenue, Showgate Centre, Bloemfontein
(“the premises”)
with effect from Monday: 6 June 2022 at 24h00.
4.
The Sheriff or
his/her Deputy are authorized and directed to take the necessary
steps to evict the respondent and all persons holding
occupation
through the respondent from the premises in the event that the
respondent or any others do not do so on
6
June
2022
at 24h00;
5.
The costs of
this application are to be paid as follows:
5.1
Each party to
carry their own costs for the hearing on the 19
th
of May 2022;
5.2
the respondent
to pay the wasted costs for the 26
th
of May 2022 on an attorney-and-client scale; and
5.3
costs for the
remainder of the application to be paid by the respondent.
[3]
It is imperative to emphasize from the start that this case is about
the alleged non-compliance
by the respondent to the contract entered
into between the parties freely and voluntary and without any
constitutional impediments.
The breach lies in the withholding of
monthly rental installments by the respondent of a business premises.
This is common cause.
[4]
On the basis of the non-compliance to the stipulations in the
contract the applicants
now applied for the eviction of the
respondent. The application for the eviction to be on the terms of
the contract as well. The
issue is pure; did the respondent breach
the contract and are the applicants allowed to enforce the remedies
contracted to when
the breach occurred?
[5]
This case is not about the quantum of rental in arrears and any claim
therefore, it
is not to adjudicate alleged damages suffered by the
respondent because the applicants allegedly did not maintain the
rental property
in accordance with acceptable standards, it is not to
adjudicate whether the applicants acted lawfully when they
disconnected the
electricity supply to the business premises of the
respondent or whether the electricity bills were exorbitant. Lastly
is it not
about the identification of the litigants to the dispute;
they are clear. There is apparently separate concurrent litigation
ongoing
on some of the issues.
THE
LAW
[6]
On signing a contract, the
parties become servants to the terms thereof and they acknowledge and
concede to the Law of Contracts.
(The principle of
pacta
sunt servanda
decrees
agreements, freely and voluntarily concluded, must be honoured.) They
pledge themselves to the Rule of Law and an
open and democratic
society based on human dignity, equality and freedom; constitutional
integrity within the facts and circumstances
of their case.
[7]
Parties to a contract are barred from believing themselves to be
above the law and
the contract they committed to. Integrity is
vital to ensure business efficacy and democratic commercial certainty
and security.
Lawlessness will have punitive repercussions.
Anarchistic parties must accept the legal consequences of
non-compliance to contracts;
rogue arrogance towards law and contract
shall not be tolerated by courts.
[8]
That said; the courts must act with perspective restraint. Parties
are servants to
the contract, not slaves. If the facts are clear
courts may stray from
pacta
sunt servanda
.
The principle of ubuntu forms the core of contracts. Ubuntu “provides
a particularistic context in the law of contract when,
for example,
addressing the economic positions or bargaining powers of the
contracting parties”.
[1]
[9]
In casu
the parties were represented by legal representatives
throughout the process and feud that already started in 2021.
[10]
I would add that aside from the idiosyncrasies contracting parties
often commit and cause, the
adjudication of a case must acknowledge a
need for understanding not vengeance, ubuntu and not victimization of
parties; a court
should do simple justice between citizens. This is
easier said than done. The above was decreed in the cases referred to
hereunder.
[11]
The Law of Contracts was stated through the years to be the
following:
In
Basson v Chilwan and others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 762H
Eksteen JA referred to: “The paramount importance of upholding
the sanctity of contracts, without which all trade
would be
impossible …” Further, “if there is one thing that
is more than public policy requires, it is that
men of full age and
competent understanding shall have the utmost liberty of contracting,
and that their contracts when entered
into freely and voluntarily
shall be held sacred and shall be enforced by courts of justice.
Therefore, you have this paramount
public policy to consider - that
you are not lightly to interfere with this freedom of contract.”
[12]
Justice Ackermann in
Ferreira v Levin NO; Vryenhoek v Powell NO
1996 (1) SA 984
(CC) at paragraph 26 described it as “a central
consideration in a constitutional state.” These statements aim
for
reasonable certainty, so that parties can go about their business
knowing the rules of the game; constitutional economic integrity
is
vital.
[13]
Moseneke J (as he then was) pointed out in his dissent in
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at paragraph 98 that: “Public
policy cannot be determined at the behest of the idiosyncrasies of
individual contracting
parties. If it were so, the determination of
public policy would be held ransom by the infinite variations to be
found in any set
of contracting parties.”
[14]
In
Beadica 231 CC and others v Trustees, Oregon Trust and others
2020 (5) SA 247
(CC) (“Beadica 231 CC”) an intricate
academic researched expose was given on the modern Constitutional Law
of Contract
in South Africa to guide courts in the adjudication of
these matters. It was concluded that the impact of the Constitution
on the
enforcement of contractual terms through the determination of
public policy was profound. As was stated in Barkhuizen, it
required that courts employ (the Constitution and) its values to
achieve a balance that strikes down the unacceptable
excesses of freedom of contract, while seeking to permit individuals
the dignity and autonomy of regulating their own lives. Public
policy
imported values of fairness, reasonableness, justice and ubuntu.
[15]
Pacta sunt servanda
(agreements must be kept) and “perceptive
restraint” must be balanced on the facts of each case.
Nonfulfillment of
the
pacta sunt servanda
should only be in
the clearest of cases and as Victor AJ stated:
[231]
This approach leaves space for courts to scrutinize contractual
autonomy whilst at the same time allowing courts to refuse
enforcement of contractual terms that conflict with constitutional
values, even though the parties may have consented to them.
Public
policy must take all these considerations into account and not
implement contractual autonomy at the expense of transformative
constitutionalism. The appropriate balance can readily be achieved
upon a recognition of an 'underlying moral or value choice'
in which
the constitutional values of ubuntu feature in this constitutionally
transformative space.
[16
]
The onus is on the party that claims a court must
deviate from the
pacta sunt servanda
to proof that the facts of the case justify this grave divergence.
THE
CONTRACT
[17]
The respondent
withheld rent payments of R34 782.61 per month in disregard of the
unambiguous terms of the contract that rent may
not be withheld or
set off in any circumstances. Specifically, not when a dispute exists
between the parties to the contract as
to whether the leased premises
can be beneficially occupied or due to alleged exorbitant electricity
charges.
“
8.17
NO WITHHOLDING PAYMENTS
(THE
LESSEE) Shall not be entitled to withhold or delay payment of any
amounts due to the LESSOR in terms of this LEASE AGREEMENT
and the
LESSEE hereby abandons all or any rights of set off.”
[18]
Disputes must be dealt with in terms of clause 12.3:
“
12.3
DISPUTES
Should
any dispute arise between the parties:
12.3.1
as
to whether the BUILDING or LEASED PREMISES can be beneficially
occupied by the LESSEE at any time such dispute shall be referred to
the LESSOR’S architect acting as an expert and not as
an
arbitrator, whose decision in regard to such dispute shall be final
and binding on the parties and not open to challenge. Any
expenses
which may be incurred in referring such dispute to the LESSOR’S
architect shall be borne by the LESSOR and the LESSEE
in equal
shares; and
12.3.2
in regard to the reduced amount of MONTLY RENTAL payable at any time
or from time to time by the LESSEE in terms of Clause
12.2.2 hereof,
then such dispute shall be referred to the LESSOR’S architect,
acting as experts and not as arbitrators and
their decision in regard
to such dispute shall be final and binding on the parties and not
open to challenge; any expense which
may be incurred in referring
such dispute to the LESSOR’S architect shall be borne by the
LESSOR and LESSEE in equal shares.”
[19]
“12.2 PARTIAL DESTRUCTION
Should
any part (but not whole) of the LEASED PREMISES be destroyed or
damaged by any cause whatsoever then:
12.2.2
the MONTHLY
RENTAL payable by the LESSEE shall be reduced
pro rata
and to
the extent to which the LESSEE is deprived of the beneficial
occupation of that part of the LEASED PREMISES;”
[20]
“21. PAYMENT OF RENTAL
The
rental shall be paid in advance on the first day of each and every
month, without deductions or demand …”
[21]
“15. BREACH
Should
the LESSEE
15.1
fail to pay any amount owing by the LESSEE in terms of this lease on
due date thereof and fail to remedy that breach
within 3 (THREE) DAYS
of receipt of written notice from the LESSOR calling on the LESSEE to
rectify the breach;
15.2
commit any other breach of any terms of the LEASE AGREEMENT and fail
to remedy that breach within a period of 7 (SEVEN) DAYS
after receipt
of written notice from the LESSOR calling on it to do so (provided
that should that breach be one which cannot be
reasonably be remedied
within 7 (SEVEN) DAYS, then the LESSEE shall be allowed such
additional time as is reasonably required therefor);
or
15.3
should the LESSOR notify the LESSEE in terms of 15.1 or 15.2 to
remedy any breach of this LEASE AGREEMENT more than twice
during any
year of this LEASE AGREEMENT, then in any of such events, the LESSOR
shall be entitled but not obliged, notwithstanding
any previous
waiver or anything to the contrary herein contained, either –
15.3.1
forthwith and without notice cancel this LEASE AGREEMENT and to
resume possession
of the LEASED PREMISES, without prejudice to its
claim for arrears rent and other amounts owing hereunder or for
damages which
it may have suffered by reason of the LESSEE’S
breach of contract or of the said cancellation; or
15.3.2
to re-enter the LEASED PREMISES and to remove all persons and/or
property
from the LEASED PREMISES. Any property so removed shall be
stored at the costs and risk of the LESSEE. The LESSEE hereby
irrevocably
constituted the LESSOR as its agent for effecting this
sale of any such goods and for effecting of any of the aforegoing
purposes.”
[22]
“16. HOLDING OVER
16.1
Should the LESSOR cancel this lease; and
16.2
The LESSEE disputes the LESSORS’ right to do so and remain in
occupation of the LEASED PREMISES then –
16.2.1
the LESSEE shall continue to pay all amounts due by the LESSEE in
terms of this LEASE AGREEMENT on the due dates of the same;
16.2.2
the LESSOR shall be entitled to recover and accept those payments;
16.2.3
the acceptance by the LESSOR of those payments shall be without
prejudice to and shall not in any manner
whatever affect the
LESSORS’S claim to cancelation the in dispute.
16.3
Should the dispute be determined in favor of the LESSOR,
the payments made and received in terms of Clause 16.2
hereof shall
be deemed to be amounts paid by the LESSEE on account of damages
suffered by the LESSOR by reason of the cancelation
of the LEASE
AGREEMENT and/or the unlawful holding over by the LESSEE.
16.4
The provisions of this Clause will apply should the
LESSEE have vacated the LEASED PREMISES
mutatis mutandis
without
prejudice to the LESSOR’S right to claim damages.”
[23]
The lease agreement also stipulates that the respondent shall be
liable for and shall pay for
electricity, water and other utilities
used on the leased premises for any cause whatsoever; (Clause 7.1)
and the respondent shall
not be entitled to withhold or delay payment
of any amounts due to the applicants in terms of the lease agreement
and the Lessee
(respondent) abandons all or any rights to set off.
(Clause 8.17)
THE
FACTS THAT CAUSED THE LITIGATION
[24]
The respondent was placed on terms by a Letter of Demand dated 23
February 2021 addressed and
delivered to the respondent as well as
Naazia Suliman in her capacity as Surety/Guarantee and co-principal
debtor as well as the
attorney of record, Hasina Bismilla. This was
also done by way of further written demands as time progressed. This
fact is common
cause. The arrears continued to accumulate hereafter.
[25]
The respondent adamantly refuses to pay the rent due. They claim to
have paid it into a Bank
Account and will only pay the applicants
should their demands be met in regard to the alleged,
but not
proven
, damages and electricity accounts. This might be
tantamount to illegal blackmail during the non-compliance with the
contract.
[26]
The respondent took no steps to enforce specific performance. The
respondent furthermore alleged
that there has been a long-standing
dispute between the parties, however, the respondent failed to take
steps in terms of the lease
agreement to refer the purported disputes
for arbitration as provided for in the contract.
[27]
The respondent acted outside the scope of the law and the contract to
achieve their own sense
of justice; they became “judge, jury
and executioner”. The respondent did not revert to the dispute
resolution prescribed
in the contract nor did they obtain any court
orders to condone their actions and adjudicate the unlawfulness of
the conduct alleged
to have been perpetrated by the applicants.
[28]
Slotting in with the above is
fact that in the constitutional epoch the judicial authority vests in
courts. The Constitution, 1996:
Section
165. Judicial
authority. —
(1)
The judicial authority of the Republic is vested in the courts.
(2)
The courts are independent and subject only to the
Constitution and the law, which
they must apply impartially and
without fear, favour or prejudice.
(3)
No person or organ of state may interfere with the functioning of the
courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the courts
to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons to whom and
organs of state to
which it applies.
[29]
On the 1
st
of February 2022 the applicants proceeded to
disconnect the respondent’s electricity. This was in terms of
Clause 7.8 of
the Lease Agreement. The clause also dictates referral
of the issue to an electrical engineer.
“
Should
the LESSEE fail to pay the charges for the electricity or any other
amounts (including but not limited to MONTHLY RENTAL)
due in terms of
this LEASE AGREEMENT within 3 (THREE) DAYS of the written demand,
then, without prejudice to any other rights it
may have, the LESSOR/
utility management company shall be entitled to terminate the supply
of electric and or water current to
the LEASED PREMISES.”
“
In
the event of a dispute between the LESSEE and the utility management
company, the same shall be determined by the LESSOR’S
electrical engineer who shall decide the same as an expert and not as
an arbitrator and whose decision in the absence of manifest
error
shall be final and binding on the parties. The costs of the
electrical engineer shall be borne by the LESSEE.”
[30]
Upon disconnection of the electricity the respondent’s attorney
requested that it be restored,
failing in which they will proceed
with an urgent application to have the power supply restored.
The respondent thereafter
issued and served an urgent application
upon the Trust (applicants) on the 10
th
of February 2022
whereby they claimed that the electricity to the leased premises be
restored immediately and whereby the Trust
must be interdicted from
further terminating the electricity supply to the premises. The
application was to be on the 11
th
of February 2022.
[31]
The respondent afforded the Trust (applicants) less than 24 hours to
respond to the founding
papers.
[32]
After the urgent matter, under case number: 541/2022, was heard on
the 11
th
of February 2022 it was ordered that the matter
is not urgent and that the matter be struck from the roll with
costs.
[33]
On the 17
th
of February 2022 a final letter was addressed
to the respondent’s attorney. In the letter the attorney
conveyed that
cognizance was taken of the disputed amount in terms of
electricity and interest. The applicants disputed the amounts. The
respondent
remained in arrears in terms of the rental which is not
disputed and is currently due.
[34]
The respondent was informed that they are indeed in breach of the
terms of the Agreement of Lease,
specifically clause 15.3.1 and that
the applicants are thus lawfully entitled to cancel the agreement,
which they did. Finally,
the respondent was, in writing,
awarded a period of 7 days to vacate the premises, failing which the
applicants will bring an eviction
application to the court. They
noticeably did not want to take the law into their own hands and
evict on the contract only.
[35]
At the time the application was filed the respondent continued to
occupy the premises without
payment of any rental, which amount has
accrued to R815 383.63.
THE
PERIPHIRAL MISFORTUNES OF THE CASE
[36]
The disregard for Rules and respect for the administration of justice
hopefully ended on 2 June
2022 with a letter addressed to the
Presiding Officer directly
via
email:
We
refer to the abovementioned judgment for which purpose the Applicant
Attorneys have requested you to amend for interpretation
purposes.
We
request that you kindly, simultaneously
let
us have reasons
for your aforementioned
judgment, as we hold instructions to take this matter on appeal.
(Accentuation added)
[37]
First of all was the order on the case issued and not the reasons for
the order. This was to
expedite a solution to the case and cause an
end to the ongoing litigation. The heading of the order clearly
pointed out that reasons
for judgement will follow in due time.
Secondly must an application for reasons not be addressed to the
Presiding Officer directly
via
email; it must be done in terms
of Rule 49 and properly so in terms of the Rule. I requested the
Registrar of this Court to assist
the attorneys to draft the correct
papers for the application.
[38]
I now turn to a description of the other instances wherein the rules
were not followed by both
parties and whereby the handling of the
case was disrupted and contaminated by their conduct. This is an
awkward case indeed.
1.
The Notice of
Motion was issued on 23 March 2022 for court appearance on 14 April
2022.
2.
The
Notice of Motion was served on 30 March 2022
[2]
with the appearance date noted to be 14 April 2022.
3.
The
Notice to Oppose was to be served within 5 days of the service of the
application. There is not any record of a Notice to Oppose
on the
record/bundle supplied by the applicants. The respondent’s
answering affidavit was filed at Court on 20 April 2022
[3]
but without proof of service on the applicants as is reflected on
page 79 of the document.
4.
It is not
clear what happened on the 14
th
of April 2022.
5.
There is a
Notice of Set Down filed on record dated 13 April 2022 for the 21
st
of April 2022 by the applicants but it was not served on the
respondent. Pages A and B of the record are proof hereof.
6.
On the 13
th
of April 2022 an Index to the papers were filed and served at Court
by the applicants. There was no service on the respondent of
this
document.
7.
The next
document is a bizarre Notice of Removal from the Roll filed by the
respondent with regard to the date of the 21
st
of April 2022. Again, with no proof of service on the applicants as
per page 90. The applicants are
dominis
litis
.
8.
Hereafter
followed the order of Snellenburg, AJ on 21 April 2022 from the
unopposed motion court that the matter be postponed to
the opposed
roll of the 19
th
of May 2022. The respondent was ordered to pay the wasted costs
because they were apparently at fault by not complying with the
Rules
of Court.
9.
From the order
it appears as if there was no appearance for the respondent on the
21st of April 2022. It is not known from the papers
how the date of
the 19
th
was decided upon and by whom.
10.
Important is
the fact that an Index was filed at Court on the 10
th
of May 2022 and on the corresponding attorneys in Bloemfontein on the
9
th
of May 2022 by the applicants. The respondent had to be aware that
the matter was on the role and should have taken steps to inform
themselves of the position of the case on the roll. The court rolls
of this division are readily available for inspection on several
platforms.
11.
On the 19
th
of May 2022 the matter appeared before me on the opposed motion court
roll. There was no appearance for the respondent. The Court
Order
dated the 21
st
of April 2022 was clearly not served on the respondent.
12.
I refused for
the matter to proceed without representation for the respondent as
was demanded by the applicants and ordered that
the matter stand down
for the legal representatives of the respondent to be contacted
telephonically to come to court. I deemed
it my judicial
responsibility to protect the right of the respondent to appear and
present their case if their legal representatives
would not do so.
13.
The offices of
the correspondent of Cassims Attorneys situated in Durban; RC Ismail
Attorneys, in an honorable attempt to salvage
the situation, send a
clerk that did not have right of appearance in the High Court. Mr.
Ismail was out of town with prior engagements.
14.
Patiently and
to protect the respondent I requested Counsel for the applicants to
consult with the clerk and endeavor to reach an
agreement that will
relief the quagmire the case has landed in. I was informed that the
respondent wants for the matter to be postponed
to the 30
th
of June 2022. The request could not be granted because the Court is
in recess then and the matter had to be expedited. Both parties
realized very well that the litigation was ongoing, seemingly from
the 23
rd
of February
2021
when the first Letter of Demand was issued by the applicants against
Naazia Suliman and Hasina Bismilla for rental in arrears.
15.
I ordered that
the matter be postponed to the 26
th
of May 2022 for hearing of the matter on the opposed motion court
roll. The respondent, again, was well aware of the litigation
serving
in Court. It was further ordered that the respondent must file their
Heads of Argument on 23 May 2022. The costs of the
day stood over for
later adjudication to give the respondent the opportunity to address
the Court on the issue. An order ignoring
the
audi
alteram partem
dictum would have been illegal.
16.
The applicants
unreasonably so, wanted for the Court to order punitive costs orders
for the day against the respondent notwithstanding
that the delay was
caused by the applicants by not properly notifying the respondent of
the date of the 19
th
of May 2022. The wayward instructions by the attorney for the
applicants to his Counsel did not end here as the record will show.
17.
The respondent
gracefully filed their Heads of Argument on 23 May 2022. But, in the
Practice Note, casually informed the Court that:
“Counsel for
the Respondent is Advocate NG Winfred who is not available on 26
th
May 2022 because of short notice.” There was no indication
whether the matter will proceed with alternatively appointed Counsel
or whether there will serve an application for a postponement before
Court on the 26
th
of May 2022.
18.
The Court
prepared the file just to be confronted by the correspondent attorney
Mr. Ishmail, with an application for postponement
of the case because
the preferred Counsel is not available. The insolence of the
instructing attorneys of the respondent clearly
caused Mr. Ishmael
grave embarrassment. The instructing attorneys caused the Court to be
held hostage by their conduct. Their “counsel
of choice”
was not available and the Court must abide by the situation that they
caused. A whole court day and much preparation
was wasted. Other
cases could have been accommodated if only the respondent, in the
least as an act of courtesy, informed the Court
and the other parties
involved that the matter will not proceed.
19.
Mr. Ishmail
and Advocate Sander are commended for the manner in which they
endeavored to have sanity and the sanctity of the Rules
of Court
prevail. The attorneys for the applicants wanted for the matter to be
heard there and then; Mr. Ishmail was not instructed
and prepared to
do so and it would have caused a grave injustice to the respondent to
allow the application. The attorneys for
the applicants indicated to
the Court that their client already has a new tenant lined up from
the beginning of June 2022 and that
the postponements allowed by the
Court costs their clients in revenue.
20.
The
haughtiness of the applicants to assume that the respondent would be
evicted by the Court before both parties were given the
opportunity
to address the Court and the
audi
alteram
rule
complied with is of concern; they procured tenants whilst the matter
is
sub
judice
and
for the 1
st
of June 2022 and want to blame the Court for any losses due to their
conduct. If it was an attempt to intimidate the Court it was
unsuccessful. Their opportunistic claim for a
de
bonis propriis
costs
order against the respondent for a situation that the applicants
created by not properly having notified the respondent of
the date of
hearing of the 19
th
of May, was dismissed and the issue of costs was ordered to stand
over to be properly addressed.
21.
On the other
hand, did the conduct of the attorneys for the respondent create
their own predicament. They could have briefed many
of the tens, if
not hundreds, of Counsel available in the country. The law is clear
on this issue and will I not burden the judgment
with case law that
must be known to the parties. I postponed the matter to the 30
th
of May 2022 to give the attorneys of the respondent opportunity to
engage the service of Counsel. They did do so and the matter
proceeded on the 30
th
of May 2022.
22.
At long last
were the real issues addressed and did the administration of justice
prevail on 30 May 2022. I am indebted to the graceful
conduct of
Advocate Hendriks, Adv I Sander and Ms. Knipe on this day.
Unfortunately did the attorneys for the respondent from Durban
not
ensure that their attorneys were available in Court to instruct their
Counsel. Mr. Ishmail did inform them that he will be
otherwise
engaged and is not available.
23.
It is
noteworthy to mention that opposed motions are as a rule only heard
on Thursdays but did I, slot this case in among other
engagements and
cases to be attended to on Monday 30 May; this to accommodate the
parties to expedite the matter and hopefully
bring an end to the
feud.
THE
ISSUE OF THE APPLICANTS NOT BEING PROPERLY BEFORE COURT, THE RULE
42-AMENDMENT AND COSTS
[39]
The objection that the applicants are not properly before court in
that they are not properly
described in the founding affidavit is
true. It is just many of the mishaps of the case that seemed to
snowball from the applicants
to the respondent to an erroneous order
by the court on costs whilst trying to steer the case as best as
possible to the most acceptable
result.
[40]
Rules are for the court not the other way round. It is, nonetheless,
important to respect the
purpose and sanctity of the Rules.
[41]
In
Tusk Construction Support Services (Pty) Ltd and Another v
Independent Development Trust
(364/2019)
[2020] ZASCA 22
(25
March 2020) it was ruled that citation of a trust as a party to legal
proceedings does not render the summons a nullity simply
because the
trust lacks juristic personality; such summons is capable of
amendment to reflect the trustees as parties in their
representative
capacity. In this instance the applicants submitted that there is a
resolution which authorized the institution
of the proceedings on
behalf of the applicants. All the trustees are well aware of the
litigation and the relief sought. This is
correct. The trustees are
indicated in the headings and the respondent knows exactly who the
applicants are; the failure relied
upon is over technical and not
fatal to the case. The point
in limine
stands to be dismissed.
[42]
On 31 May 2022 I erroneously ordered that: “5.3 costs for the
remainder of the application,
if any,
to be in the cause
.”
The matter was finalized and the words: “to be in the cause”;
wrong. The meaning remained substantive that
the respondent that was
the unsuccessful party, shall carry the costs. The applicants brought
the mistake to my attention
via
a letter I requested and I
amended the mistake
mero moto
in terms of Rule 42 of the
Uniform Rules immediately.
[43]
On the issue of costs; the wasted costs on the 19
th
of May
2022 were due to the actions of the applicants and the respondent
alike as I described above. The 26
th
of May 2022 is for
the account of the respondent. Their conduct was unacceptable; hence
the costs orders.
[44]
To reiterate; the order is as follows:
ORDER
1.
The issue
in
limine
that the applicants are not properly before Court, is dismissed;
2.
The
cancelation of the Rental Agreement is confirmed;
3.
The respondent
and all persons holding occupation through the respondent is evicted
from the premises situated at Shop 15 known
as Showgate Centre, Curie
Avenue, Bloemfontein, also known as S-ROOM-01 & G-SPA1, Curie
Avenue, Showgate Centre, Bloemfontein
(“the premises”)
with effect from Monday: 6 June 2022 at 24h00.
4.
The Sheriff or
his/her Deputy are authorized and directed to take the necessary
steps to evict the respondent and all persons holding
occupation
through the respondent from the premises in the event that the
respondent or any others do not do so on 6 June 2022
at 24h00;
5.
The costs of
this application are to be paid as follows:
5.1
Each party to
carry their own costs for the hearing on the 19
th
of May 2022;
5.2
the respondent
to pay the wasted costs for the 26
th
of May 2022 on an attorney-and-client scale; and
5.3
costs for the
remainder of the application to be paid by the respondent.
M
OPPERMAN, J
APPEARANCES
FOR
THE APPLICANTS ADVOCATE
I SANDER
FREE
STATE SOCIETY OF ADVOCATES
051
430 3567
R
OOSTHUIZEN
EG
Cooper Majiedt Incorporated
77
Kellner Street
Westdene
BLOEMFONTEIN
EMAIL:
simone@egc.co.za
REF:
RO/SK/MW5552
FOR
THE RESPONDENT ADVOCATE
HENDRIKS
FREE
STATE SOCIETY OF ADVOCATES
051
430 3567
HASINA
BISMILLA t/a HB ATTORNEYS
c/o
RC ISHMAIL ATTORNEYS
Unit
4 Reid Plaza
Westdene
BLOEMFONTEIN
TEL:
051 430 0187
EMAIL:
Ryan@rcilaw.com
REF:
RI-CIV-311-1
EMAIL:
frontdesk@cassimlegal.com
[1]
Beadica
231 CC and others v Trustees, Oregon Trust and others
2020 (5) SA 247
(CC) at paragraph [208].
[2]
Page
1 of the Bundle dated 10 May 2022.
[3]
Supra
at Page 78.