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[2022] ZAECGHC 17
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SNR Electrical and Mechanical Services v Mbiza and Another (2080/2021) [2022] ZAECGHC 17 (28 February 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GRAHAMSTOWN
CASE
NO
: 2080/2021
DATE
:
25 FEBRUARY 2022
In the matter
between
SNR
ELECTRICAL AND MECHANICAL SERVICES
and
V MBIZA AND ANOTHER
J U D G M E N T
BESHE,
J
:
REGISTRAR
:
Calling case 2080/2021, SNR Electrical and Mechanical Services versus
Mbiza V and Another.
COURT
:
Thank you. Having heard Mr Skoti for the applicant and Mr Knott
for the 1
st
respondent yesterday and having reserved judgment, I now deliver the
judgment having had time to consider their submissions and
the
documents filed of record.
The applicant approached
this court by means of a rei vindicatio application on an urgent
basis for the return of his motor
vehicle, or its
motor vehicle because it's a company. It appears to be common
cause that the motor vehicle was returned by
the 1
st
respondent at day or two preceding the hearing of the application.
The issue that remains for consideration is that of costs.
The
reading of the papers seems to suggest that the applicant was
justified in bringing the application and that it was justified
to do
so on an urgent basis.
I am
also of the view that, on the papers at least, the applicant did make
out a case for the granting of the order that they were
seeking in
the notice of motion. However, the matter does not seem to be
as simple as all that. The crucial question
is, in view of the
timing of the hearing of the application, whether the applicant is
entitled to costs, and if so to what extent.
The
matter was set down for hearing on the 15
th
July 2021 as per the notice of motion. The timeframes suggested
in the notice of motion were as follows: The respondents
were
given until 13
th
July to signify their opposition and until the 15
th
July to file their answering affidavit. The applicant was to
file their replying affidavit on 20
th
July 2021. This is despite the fact that the application was to
be heard on 15
th
July
according to the same notice of motion. This anomaly was
rectified by directives issued by Lowe J on 12
th
July
2021 directing that the matter be set down for hearing on 16
th
July, that the papers be served on the respondents
forthwith
(and I underline that), the respondents were to file answering papers
on 15
th
July, with the applicant to file its reply by 9 o'clock on 16
th
July. It transpires that the papers were not served on 1
st
respondent as per Lowe J's directive. There is a dispute as to
when service, if at all, was effected. More about this
later.
It is
common cause that no opposing papers were filed by any of the
respondents. In fact the 1
st
respondent had indicated that he would not be opposing the
application.
On 16
th
July 2021 Lowe J issued an order in which it was
noted
(and I underline that once again) that the 1
st
respondent had by agreement delivered the subject matter of the
application being the motor vehicle at 21H16 on 14
th
July, 2021. Not being amenable to making a costs order, Lowe J
issued a
rule nisi
calling upon the 1
st
respondent to show cause on 3
rd
August 2021 why he should not be ordered to pay the costs of the
application. The applicant was ordered to file an affidavit
by
the relevant Sheriff regarding service to supplement the founding
affidavit on or before 21
st
July 2021.
In
response to the order of 16
th
July the parties filed affidavits in relation to costs. The 1
st
respondent resists the granting of a costs order against him on the
basis
inter alia
that he was served with the papers at the stage when he was no longer
in possession of the motor vehicle having returned or handed
the
motor vehicle to the police on 14
th
July. Preceding that on 12
th
July
he was advised by his attorneys of record that an urgent application
had been sent to their email address wherein it
was intimated that he
would be served with the original papers by the sheriff the following
day, being 13
th
July.
On 15
th
July having arranged to meet with the sheriff, he was served with the
papers on 16
th
July.
To cut
a long story short it appears that the 1
st
respondent was served with the papers on 16
th
July 2021 although I have not seen a return of service in this
regard. He denies that the sheriff attended at his place of
residence as the rules prescribe or in any manner prescribed by the
rules. It would appear that the aspect of non-service
of papers
on the respondent was brought to the attention of the applicant or
those representing it. This was apparently met
by the return of
service indicating a refusal to take court documents at 15H30 on 15
th
July, 2021. It is not clear though who refused to accept court
documents. The narrative relating to the service by
the sheriff
according to the applicant is as follows as would appear from the
supplementary affidavit filed on behalf of the applicant
in this
regard relating to the issue of costs. That the founding papers were
delivered to the sheriff on 14
th
July. It is contended that the sheriff advised the applicant's
attorney that the 1
st
respondent was evading service by refusing to give the sheriff his
whereabouts. An attempt by the sheriff on 15
th
July at about 3:00 also came to nought where the 1
st
respondent is said to have refused to take the court documents.
No confirmatory affidavit was filed by the sheriff in this
regard.
This is over and above the fact that the order of the 16
th
July 2021 directed that the applicant should file an affidavit by the
relevant sheriff on or before 21
st
July.
In an
affidavit filed by the applicant's attorney, Mr Ndila, on 18 February
2022 an explanation is proffered as to why such
an affidavit was not
filed. The explanation being that attempts to get the sheriff
to depose to an affidavit in this regard
came to nought. What
then is the Court to make of the issue of service in the
circumstances where the 1
st
respondent denies that an attempt was made to serve him with the
papers and that he denies that he refused to accept same?
The
dispute falls to be dealt with by applying the
Plascon
Evans
rule a well-known dictum which is
to the effect that in these circumstances the issue should be decided
on respondents’ version.
In my view this is a genuine, real and
bona fide
dispute of fact. I am inclined to agree with the suggestion
that the refusal by the sheriff to depose to an affidavit regarding
service lends credence to the 1
st
respondent's
version.
It is
apposite to point out that the applicant did not approach the court
for an order as sought in the notice of motion and no
order was
issued in his favour in this regard. And there could not have
been an order granted to him as sought in the notice
of motion
because the vehicle had already been delivered to it. It would
appear the court was approached for the purpose
of a costs order and
the applicant cannot be faulted for having done so. It was
quite entitled to do so. After acknowledging
the agreement
between the parties, as I have indicated earlier on, regarding the
delivery of the motor vehicle, the court issued
a
rule
nisi
, not an order in terms of what is
sought in the notice of motion. It is implicit therefore from
Lowe J's order that the court
was called upon to consider the issue
of costs only. The court therefore issued as I have said a
rule
nisi
for the purpose of having the 1
st
respondent show cause why he should not pay the costs of the
application. No judgment or order on the merits was rendered
by
the court and I am of the view that there could be no question of
success in the true sense of the word by the applicant or
of
applicant being successful.
I have
already alluded to the points raised by the 1
st
respondent
as to why he should not be ordered to pay costs, one of them being
that he had not been served with the papers
initiating the
proceedings. In the affidavit deposed to by the 1
st
respondent in relation to costs, he states that he was only served
with the papers on 16
th
being the date on which the matter was to be heard. From Lowe
J's order it appears that the 1
st
respondent was represented by Miss Maketa on that date and it
stands to reason that the issue of service was raised otherwise
a
rule nisi
in the terms that I've already mentioned would not have been issued
requiring the applicant to file an affidavit by the relevant
sheriff
in this regard.
As stated
above the applicant was justified in launching the proceedings
against the 1
st
respondent but in light of what I have
said above, I am satisfied that the 1
st
respondent has
made out a case for the discharging of the
rule nisi
issued by
Lowe J by showing on a balance of probabilities that it was not
served with the papers initiating the proceedings as
provided for in
Rule 4 of the Uniform Rules of this Court. Accordingly the
rule
nisi
is discharged. In my view the appropriate order to make in
the circumstances would, as far as costs are concerned be that each
party is to pay their own costs. It is so ordered.
………………………………………
.
BESHE, J
JUDGE OF
THE HIGH COURT
DATE
:
25 FEBRUARY 2022
APPEARANCES
For
the Applicant
: Adv: D Skoti
Instructed
by
:
JZ NDILA ATTORNEYS
C/o
NOLTE SMIT ATTORNEYS
51A
High Street
GRAHAMSTOWN
Ref: Tyne
Tel.: 046 – 622 7209
For
the Respondents :
Adv: Knott
Instructed
by
:
MJULELWA INC
C/o YOKWANA ATTORNEYS
10
New Street
GRAHAMSTOWN
Ref:
Mr Yokwana
Tel.:
046 – 622 9928
Date
Heard
:
24 February 2022
Date
Reserved
:
24 February 2022
Date
Delivered
:
25 February 2022