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[2022] ZALMPPHC 56
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Babsita Family Trust v Kamo Jou Trading & Projects and Others (3071/2021) [2022] ZALMPPHC 56 (26 October 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 3071/2021
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED
In
the matter between:
BABSITA
FAMILY TRUST
APPLICANT
And
KAMO
JOU TRADING & PROJECTS
FIRST RESPONDENT
MASILI
FLOYD GORDON NAKENG
SECOND RESPONDENT
MFGN
BOSCH SERVICE (PTY) LTD
THIRD RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant, the first, second and third respondents (respondents)
have concluded lease agreements
in terms of which the respondents
hired a portion of the property from the applicant. The lease
agreements were for a period of
5 years commencing on 1
st
May 2017 and ending on 30
th
April 2022. The property
leased was to be used for the purpose of tyre supply and similar
services rendered to motor vehicles.
[2]
During January 2021 the applicant requested a meeting with the
respondents. The respondents replied
the applicant per email
suggesting that the meeting be held on 18
th
January 2021.
In that email the respondents notified the applicant that their lease
agreements were coming to an end on 30
th
April 2022, and
that they do not see themselves investing more funds into the two
companies. The respondents further notified the
applicant that they
were anticipating closing Tyres and More by 30
th
April
2021 based on current economical challenges and lease setup.
[3]
The meeting between the applicant and the respondents took place on
10
th
February 2021 wherein the applicant acceded to the
respondents’ early termination of the lease agreements. The
parties agreed
that the termination was by mutual agreement, and that
the applicant will await to be notified by the respondents as to when
they
will vacate the premises. On 1
st
April 2021, the
respondents through their legal consultancy wrote an email to the
applicant, notifying the applicant that the respondents
no longer
wish to terminate the lease agreements but that they wish to carry
out the remaining term of the leases, and further
requested a further
extension of 5 years from the date of the expiration of the lease
agreements. The applicant responded by notifying
the respondents that
the lease agreements have been cancelled and that if they fail to
vacate the premises, the applicant will
proceed with legal action.
[4]
On 6
th
May 2021 the applicant brought an application
seeking orders that the cancellation and immediate termination of the
lease agreements
be confirmed; and that the respondents be evicted
from the properties. The respondents filed their answering affidavit.
The respondents
in their answering affidavit have stated that in the
light of the legal action and harassment received after the legal
action was
instituted, the respondents have decided to cancel both
agreements. Further that the cancellation notices were sent to the
applicant
on 12
th
May 2021 and 10
th
July 2021,
and also that they have vacated both properties.
[5]
When this matter came before court on 13
th
October 2022,
counsel for the applicant conceded that the respondents have vacated
the leased premises, that the orders for confirmation
of cancellation
of the leases and evictions of the respondents have been rendered
moot. That the only issue that the court must
determine is the issue
of costs. The applicant submitted that the general rule is that costs
follow the suite, that since they
were substantially successful with
their application, the respondents were liable for the costs of the
application on a punitive
scale of attorney and own client. The
respondents on the other hand submitted that the applicant’s
eviction application was
premature. That even though the parties have
agreed on a termination, the said termination was conditional, and
that the condition
was not met, hence the respondents opted to
complete the remainder of the term of their lease.
[6]
The applicant’s application has been rendered moot by the
respondents when they vacated the leased
premises after been served
with the application. There is no longer any live dispute which the
court may determine. The court has
a discretion, notwithstanding that
the matter has become moot, to hear and dispose it on its merits. The
usual ground for exercising
that discretion in favour of dealing with
it on the merits is when the case raises a discrete issue of public
importance that will
have an effect on future matters. (See
Tshwane
City v
Nambiti
Technologies
[1]
).
This matter does not raise any discrete issue of public importance
that will have an effect on future matters, and therefore
there is no
need to deal with the merits which have become moot.
[7]
The award of costs is in the discretion of the court, which
discretion should be exercised judiciously,
having regard to what is
fair to both parties. In
Giuliani
v
Diesel
Pump Injector Services (PVT.) LTD
[2]
Goldin J said:
“
The language used
by Lord Justice Bowen in the case of Forster v Farquhar …
appears to me to reflect law with regard to costs
which is
appropriate to this case:
‘
The measure of
what is fair as to costs is not found in a mere consideration of his
conduct toward the opposite side. It may have
been reasonable from
this point of view to do that which it would be unreasonable to make
the opposite litigant pay for. Although
he has won the action, he may
have succeeded only upon a portion of his claim under circumstances
which make it more reasonable
that he should bear the expense of
litigating the remainder than that it should fall on his opponent.
The point is not merely whether
the litigant has been oppressive in
the way he waged his suit or prosecuted his defence, but whether it
would be just to make the
other side pay. We can get no nearer to a
perfect test than the inquiry whether it would be more fair as
between the parties that
some exception should be made in the special
instance to the rule that the costs should follow upon success …
‘I cannot
entertain a doubt’, says Lord Halsbury LC,
‘that everything which increases the litigation and costs, and
which places
on the defendant a burden which ought not to bear in the
course of that litigation, is perfectly good cause for depriving the
plaintiff
of costs.’ The language of Lord Watson is to the same
effect: ‘I shall not
attempt,’ he says, ‘a
complete definition of what is meant by these words. They at all
events embrace in my opinion
everything for which the party is
responsible connected with the institution or conduct of the suit and
calculated to occasion
unnecessary litigation and expense.
’
[8]
The lease agreements were terminated by mutual agreement, but the
respondent wanted to renegade on that
agreement, and wanted to
unilaterally continue with the lease agreements and continue renting
the premises until the initial term
of the agreements expires. The
applicant was forced to resort to litigation in order to evict the
respondents. The respondents
vacated the premises only after they
were served with the eviction application. Despite having vacated the
premises, the respondents
proceeded to file their answering affidavit
still opposing the eviction application. In their answering affidavit
the respondents
notified the applicant that they have cancelled the
lease agreements and have also vacated the premises.
[9]
The respondents answering affidavit was filed on 20
th
July
2021. From the 20
th
July 2021, the applicant was aware
that there was no longer any live dispute between it and the
respondents. The only outstanding
issue was costs. That could have
been resolved by the parties themselves out of court without clogging
the court’s roll.
The matter could have been set down only if
the parties were unable to agree. It does not seem that the parties
have attempted
to resolve the issue of costs on their own, except for
the applicant to state that the respondents did not tender costs in
their
answering affidavit. Even if the respondents did not tender
costs in their answering affidavit, that was not a bar to the parties
from engaging each other in trying to resolve the matter on their
own, rather to rush to court on a simple issue. It will therefore
be
just to award the applicant costs up to the time of filing of the
respondents answering affidavit.
[10]
In the result I make the following order:
10.1 The respondents are
jointly and severally liable for the applicant’s costs on party
and party scale up to the 20
th
July 2021.
10.2 Each party to pay
its own costs for appearance in court on 13
th
October
2022.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
applicant
: Adv van Gas
Instructed
by
: AJ Coetzer & de Beer attorneys
Counsel for the
respondent
: Mr Maja
Instructed
by
: Maja Attorneys
Date
heard
: 13
th
October 2022
Electronically
circulated on
: 26
th
October 2022
[1]
2016
(2) SA 494
(SCA) at para 6
[2]
1966
(3) SA 451
(R) at 453C-E