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[2021] ZANCHC 39
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Louw v Engirex (Pty) Ltd and Others (1629/ 2020) [2021] ZANCHC 39 (30 July 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE DIVISION,
KIMBERLEY)
Case
No: 1629/ 2020
Argued:
21 May 2021
Date
delivered: 30 July 2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates: YES/NO
Circulate
to Magistrates: YES/NO
In
the application of:-
JOHANNES
ABRAHAM
LOUW
APPLICANT
and
ENGIREX
(PTY)
LTD
FIRST RESPONDENT
BERTUS
KILIAN
SECOND RESPONDENT
NEXUS
(PTY) LTD
THIRD RESPONDENT
CORAM
STANTON AJ
JUDGMENT
INTRODUCTION:
-
[1]
Pursuant to the filing of an urgent
application an interim order was
granted on an
ex parte
basis in favour of the applicant on 25
September 2020 as follows:-
1.1
The first, alternatively the second, alternatively the first
and second respondents were ordered to allow the applicant to place
orders and procure fertilizer and chemicals from the third respondent
through the first respondent and by way of the formal/official
channels created by the first, alternatively the second,
alternatively the first and second respondents;
1.2
The first, alternatively the second, alternatively the first
and second respondents were ordered to allow the applicant to
deliver/sell/distribute
the fertilizer and chemicals so procured to
the clients of the applicant;
1.3
The first, alternatively the second, alternatively the first
and second respondents were interdicted from interfering in any way
whatsoever with the applicant's ordering and procurement processes
referred to in prayer 1.1;
1.4
The first, alternatively the second, alternatively the first
and second respondents were interdicted from interfering in any way
whatsoever with the applicant's delivery/selling/distribution
processes referred to in prayer 1.2; and
1.5
The first, alternatively the second, alternatively the first
and second respondents were interdicted from
ordering/inciting/allowing
any other person to interfere with the
applicant's processes referred to in prayers
1.1 and 1.2.
[2]
The return date of the rule
nisi,
23 October 2020, was
extended on various occasions.
[3]
The respondents opposed the application
and filed their answering
affidavit on 04 November 2020. The replying affidavit was filed on 11
December 2020.
[4] Prior
to the application being ventilated,
the dispute between the parties
resolved itself. The applicant, however, persists in seeking the
costs of this application from
the first and second respondents. I am
consequently required to determine the issue of costs.
EVALUATION OF THE
EVIDENCE IN RESPECT OF THE MERITS OF THE APPLICATION:-
[5]
The gist of the dispute is whether the applicant was still an agent
of the first respondent
on 25 September 2020 when the interim order
was granted.
[6]
Mr AD Olivier, on behalf of the applicant, submitted that the
ties between the applicant and the first respondent had been severed
in as far as the applicant's position as the first respondent's
agent, with effect 15 November 2020, and, at the time of the filing
of this application, he was still an agent of the first respondent
and accordingly entitled to the relief he sought.
[7]
In addition, the applicant contends that he could therefore no
longer order directly from the third respondent.
[8]
Mr DC Jankowitz, on behalf of the respondents, argued that the
applicant himself ended the relationship between the applicant and
the first respondent by way of a message
via
WhatsApp sent on
12 September 2020 as well as by way of telephone calls made by the
applicant to the auditor of the first and second
respondents.
[9]
According to the respondents, the applicant could have ordered
and procured products from the third respondent directly.
EVALUATION OF THE
EVIDENCE:-
[10]
The WhatsApp message sent on 12 September 2020 reads as
follows:-
''Ek dink Jul moet my
uitbetaal en my ooreenkoms eindig”.
[11]
On 12 September 2020 at at 13:19 the second respondent
inter
alia
replied to the WhatsApp message as follows:-
''Ek sal jou versoek aan
die ander aandeelhouers oordra.”
[12]
During the further WhatsApp exchange on 12 September 2020, the
applicant was requested to confirm whether he would only be resigning
as shareholder or as an agent as well. The applicant, however, failed
to respond to this request.
[13]
Mr Olivier argued that the WhatsApp message cannot be
construed as a formal resignation, but should merely be regarded as
an indication
of his intention to do so. In support of his argument
he stated that the subsequent formal termination would not have been
necessary
if the applicant had in fact resigned by sending the
WhatsApp message.
[14]
It is common cause that the applicant received a WhatsApp
voice message from the second respondent on 17 September 2020 with
the
effect that the first respondent did not intend to conduct any
further business with the applicant and that all contractual ties
between the applicant and the first respondent were severed with
immediate effect. According to the first respondent, the voice
message was sent due to the applicant's verbal cancellation of the
business relationship between the applicant and the first respondent.
[15]
In my view, the agency agreement between the applicant and the
first respondent was terminated at the principal's insistence on 17
September 2020, prior to the issuing of this application.
[16]
The applicant failed to disclose that the marketing agreement
between himself and the third respondent was cancelled on or about
23
September 2020, with three months notice. The cancellation preceded
the interim order. Despite the cancellation, the third respondent
nevertheless invited the applicant to place orders for the products
directly with the third respondent until 23 December 2020,
but he
refused to do so.
[17]
The applicant simply cannot contend that the relief sought was
required when he could have contracted directly with the third
respondent
and continued to deliver products to clients.
APPLICABLE
LEGAL PRINCIPLES:-
[18]
Where
an application is settled on a basis which disposes of the merits
except insofar as the issue of costs is concerned, the Court
should
not have to hear evidence to decide who is liable for costs, but the
Court should make an award as to costs with the material
at its
disposal.
[1]
[19]
It
is common cause that the primary purpose of an award of costs is to
compensate/indemnify a successful litigant for his/her expenses
incurred in initiating or defending
litigation.
[2]
[20]
The
issue of costs remains in the discretion of the Court, which
discretion should be exercised judicially upon a consideration
of all
of the facts of each case.
[3]
[21]
The
decision as to whom the costs should be awarded in a matter is also a
question of fairness to both parties.
[4]
[22]
On a conspectus of the evidence, I am not persuaded that the
applicant is entitled to a cost order.
WHEREFORE THE FOLLOWING
ORDER IS MADE:-
1.
The rule
nisiis
discharged; and
2.
The applicant is ordered to pay the first and second respondents'
costs.
STANTON AJ
ACTING JUDGE
APPEARANCES:
For
the applicant:
Advocate AD Olivier
On
instruction of:
Elliot Maris Attorneys
For
the first and second respondents:
Advocate DC Jankowitz
On
instruction of:
Van de Wall Incorporated
[1]
Law of Costs by AC Cilliers (Lexis Nexis) at page 2-16; Nxumalo and
Another v Mavundla and Another 2000(4) SA 349 at 355E - H.
[2]
Price Waterhouse Meyernel v Thoroughbred Breeders' Association of SA
[2002] 4 All SA 723
(SCA) at paragraph [18].
[3]
Gelb v Hawkins
[1960] 3 All SA 371
(A) at 376; Mouton v Die
Mynwerkers Unie
1977 (1) All SA 242
(A) at 265.
[4]
See Gelb v Hawkins as well as Mouton v Die Mynwerkers Unie supra.