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[2022] ZAFSHC 323
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Varymix Nineteen (Pty) Ltd t/a Domani Builders v Motheo Tvet College and Others (4101/2022) [2022] ZAFSHC 323 (16 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4101/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
VARYMIX
NINETEEN(PTY) LTD
APPLICANT
t/a
DOMANI BUILDERS
[Reg
No: 2011/ 025604/07]
And
MOTHEO
TVET COLLEGE FIRST
RESPONDENT
LEBOHANG
MICHAEL MOKHELE
SECOND
RESPONDENT
SERVICES
SECTOR EDUCATION
THIRD RESPONDENT
AND
TRAINING AUTHORITY (Services SETA)
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
13
OCTOBER 2022
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII on 16
NOVEMBER 2022. The date and time for hand-down is deemed to be
on 16 NOVEMBER 2022 at 11H30.
[1]
The Applicant instituted an application against the First Respondent
seeking an order
to restore its possession of the property situated
at 3 St Georges Street, Central Bloemfontein. The Applicant seeks
further orders
that (1) this court refer the alleged conduct of the
Second Respondent to the Legal Practice Council for investigation and
(2)
that the Second Respondent be mulct with punitive costs
de
bonis propriis
.
[2]
The First Respondent had initially expressed the intention to oppose
the application
but on 13 September 2022 it signalled its intent to
withdraw its opposition by filing the Notice of Withdrawal. The First
Respondent
and the Applicant thereafter entered into settlement
negotiations. The said negotiations were partly successful but it
appears
that not all issues were settled. The Applicant was, however,
restored of its possession of the building and the keys and locks
were handed back. This was in essence the main relief sought by the
Applicant. It is submitted by the Applicant; which submission
is not
disputed by the First Respondent, that the relief sought has become
moot save for the issue of costs;
[3]
At all material times the Second Respondent was the attorney and
Director in the firm
LM Mokhele Incorporated. He was also the
attorney of the First Respondent in the dispute between the Applicant
and the First Respondent.
It is contended that the First Respondent
spoliated the Applicant on the advice of the Second Respondent.
[4]
It is necessary to set out the background to this dispute. The
Applicant is one of
the sub-contractors appointed by Khato Consulting
Engineers Consortium to perform certain building works on the
premises of the
First Respondent. Khato was later dissolved as one of
the partners and resiled from the consortium. It is the case of the
Applicant
that the Third Respondent took the place of Khato and
funded the remaining of the building works on the premises of the
First Respondent.
[5]
During 2020 at the request of the Third Respondent, the Applicant
performed maintenance
and building works on the premises of the First
Respondent. The Applicant contends that no payment came forth at the
stage for
works rendered. As a result, the Applicant as it was in
possession of sixteen buildings for which it had rendered work,
elected
to exercise its right of lien over those buildings it
constructed or improved. The remaining buildings on the area that the
Applicant
had not performed work on, remained open and accessible to
the general public.
[6]
At all relevant times, the Applicant was in possession of the chains
which locked
the doors of the premises and the keys to these chains
of the First Respondent and thereby denying the employees, students
and
the general public to certain sections of the premises of the
First Respondent. To this end, the Applicant effectively had control
of who entered the premises and who left at any given time. It seems
this prompted action by the First Respondent which led to
correspondence by the Second Respondent to the Applicant as more set
out below.
[7]
On 26 July 2022 the Second Respondent on behalf of LM Mokhele
Attorneys Incorporated
wrote to the Applicant as follows:
“
1….
2.
We confirm hereto that we have since instructed Our Client to cut all
the barricades (sic) placed on their buildings so as to
afford them
an opportunity to render their duties as an educational institution.
3.
Take notice further that, we have advised them that, your client has
no right in law to lock (sic) out Our Client’s staff
as well as
its students and your client’s conduct continues to greatly
prejudice Our Client’s in carrying out their
Constitutionally(sic) guaranteed mandate.
4…”
[8]
It is the case of the Applicant that as a result of the advice of the
Second Respondent
all the locks and chains on the premises of the
First Respondent were removed and the Applicant’s retention
over the buildings
was unlawfully deprived off. This, according to
the Applicant constituted spoliation. The Applicant contends that the
First Respondent
never had access to the keys to the buildings, locks
or gates, under its control. The Applicant contends therefore that
there is
direct link between the advice given in the letter
above-mentioned and the spoliation by the First Respondent.
[9]
The Second Respondent has raised a number of defences as to why he
should not be liable
for costs
de bonis propriis
. In my view
the sole issue for determination is whether there is a link between
the letter dated 26 July 2022 by the Second Respondent
and spoliation
referred to above, and if so, should the Second Respondent be ordered
to pay costs
de bonis propriis
.
[10]
The letter from the Second Respondent unequivocally acknowledges that
the Second Respondent ‘
instructed’
the First
Applicant to ‘
cut all barricades placed on their buildings’
and thus deprive the Applicant of its right of retention over the
premises over which there existed a lien. Absent any other
developments,
the letter could most likely prove to be the trigger
for unlawful deprivation of the undisturbed possession of the
building premises
under retention.
[11]
Following the above-mentioned the Second Respondent and the attorney
for the Applicant engaged
in settlement negotiations and certain
terms and conditions were agreed upon. The Second Respondent was
expected to dispatch the
draft settlement agreement to the Applicant
but same never happened.
[12]
On 18 August 2022 the Second Respondent wrote another letter to the
Applicant’s attorneys
in which he complained about the closure
of part of the Campus of the First Respondent. In the said letter the
Second Respondent
also demanded an undertaking that access would no
longer be denied to the Applicant. The Second Respondent further
said:
“ …
should
we not receive your written undertaking not later than the stipulated
time….we hold instructions . once again, to
approach a
competent court for an appropriate relief…”
[13]
The Second Respondent may initially have advised the First Respondent
to barricade and cut the
chains and locks and thereby instigated the
unlawful spoliation. It is undisputed that following that advise
there was some amicable
negotiations to resolve the issues between
the Applicant and the First Respondent. Following that meeting when
the dispute further
reared its head the Second Respondent
categorically informed the Applicant that he intended to approach the
court for appropriate
relief. This was on 18 August 2022. At no stage
after the meeting of 27 July 2022 was there any intimation on the
part of the Second
Respondent advising the First Respondent to take
the law into its own hands.
[14]
In my view, the meeting of the 27 July 2022 became the intervening
eventuality which overtook
the advice given in the letter of 26 July
2022. The correspondence of 18 August 2022 further confirms the
view I hold in
that the Second Respondent wanted to approach a
competent court for appropriate relief. The spoliation took place on
24 August
2022, hardly six days after the Applicant was threatened
with litigation. It is difficult to come to the conclusion that the
spoliation
is directly linked to the advice referred to in the letter
of 24 July 2022 in view of the intervening meeting as well as the
correspondence
of 18 August 2022. I cannot find that the Second
Respondent ought to be mulct with costs
de bonis propriis
. In
view of this finding, I have no reason to accede to the request to
order the referral of the Second Respondent to the Legal
Practice
Council.
[15]
When it comes to adjudication of costs the general rule is that the
successful party is entitled
to costs. Allied to this rule is another
principle that the award of costs lies in the discretion of the Court
which must be judicially
exercised upon a consideration of the facts
of each case and bearing in mind that such decision is a matter of
fairness to both
sides
[1]
.
[16]
The Applicant launched these proceedings alleging that the First
Applicant had unlawfully deprived
it of its peaceful undisturbed
possession of sixteen buildings. There were indeed negotiations which
culminated in the restoration
of the status quo. The First Respondent
in a way conceded the wrong doing in that it filed the Notice of
Withdrawal and did not
persist with its opposition. The First
Respondent did not act lawfully when it deprived the Applicant of its
possession. The
Applicant was thus partly successful in
obtaining relief that it originally sought and has to be indemnified
for its expenses in
instituting this application. There is no reason
why the First Respondent should not pay the costs at least until it
formally withdrew
its opposition. I accordingly make this order:
ORDER
1.
The First Respondent is liable for the costs of the Applicant until
12 September
2022.
P.E.
MOLITSOANE J
On
behalf of the applicant:
Adv. PC Ploos van Amstel
Instructed
by: Kleingeld
Mayet Attorneys
Bloemfontein
On
behalf of the first respondent:
No
Appearance
Instructed
by:
On
behalf of the Second Respondent: Mr
L.M Mokhele
Instructed
by: L.M
Mokhele Attorneys Inc
On
behalf of the third respondent:
No
appearance.
[1]
McDonald
t/a Ford Helicopter v Huey Extreme Club 2008(4) SA 20 (C) at 22A-B.