Delowar and Another v Soomar and Another (EL410/2021) [2021] ZAECELLC 21 (13 July 2021)

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[2021] ZAECELLC 21
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Delowar and Another v Soomar and Another (EL410/2021) [2021] ZAECELLC 21 (13 July 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO: EL410/2021
In
the matter between:
MOHAMMAD HOSSAIN
DELOWAR
First Applicant
RAHILA
BEGUM (PTY) LTD
Second Applicant
and
ALLIE MAHOMED
SOOMAR

First Respondent
FIRST FORTUNE
INVESTMENT 14 CC
Second Respondent
REASONS
FOR JUDGMENT
MBENENGE JP:
[1]
These proceedings relate to a property situated at 212 Oxford Street,
East London. The dispute concerns
a convenience store of which the
first applicant was dispossessed by the first respondent.
[2]
The second respondent, First Fortune Investment 14 CC, has a
franchise agreement and a lease agreement
with Total SA by virtue of
which it conducts business as a fuel station on the property. The
first respondent is the sole member
of the second respondent.
[3]
The convenience store forms part of the property. It is located
adjacent to the fuel station and was,
at all times relevant hereto,
the subject of a lease agreement concluded between the first
applicant and the first respondent. It
is alleged that the first
applicant is the sole owner of the second applicant, Rahila Begum
(Pty) Ltd, a private company that runs
the convenience store.
[4]
The first respondent locked the convenience store because he was of
the view that the first applicant breached
the lease agreement by
virtue of which it occupied the convenience store.
[5]
Aggrieved by the lock out, the applicants sought and obtained, on an
urgent
ex parte
basis, a rule
nisi
returnable on 4 May
2021, which, in the main, directed the respondents to unlock the
convenience store, restrained the respondents
from blocking or
preventing entry by the first applicant or its employees into the
convenience store, and directed the respondents
“
to hand over
the keys of the property to the first applicant within twenty-four
(24) hours from the hour of issue of
[the order sought herein
being granted].” This part of the rule
nisi
was made to
operate as an interim interdict.
[6]
The rule
nisi
further called upon the respondents to show
cause why they should not be ordered “
to pay damages for any
stock that might be damaged or rotten or expired due to the unlawful
eviction, during the period of unlawful
ejectment of the applicant
from the property or running the convenience store business
”
and to “
pay damages for profit lost, at a rate of R15 000
per day for all the days of the store being locked and the applicant
being
unlawfully evicted from the store and for being prevented from
conducting normal business in the store
.”
[7]
On 28 April 2021, the respondents delivered a notice of intention to
oppose the application.
[8]
The answering affidavit attested on 3 May 2021 is deposed to by the
first respondent and was transmitted
per facsimile to the applicant’s
attorney of record on the same day, at 16:19.
[9]
When the matter was called on 4 May 2021, and after the handing up of
the answering affidavit from the
Bar, the parties agreed to an order
postponing the application to 17 June 2021 for hearing as an opposed
application, and extending
the
rule nisi
accordingly.
[10]   The
order further directed as follows:
“
2.
The applicants are to deliver their
replying affidavits by 1 June 2021.
3.
The applicants shall deliver their heads of argument and practice
note by 4 June 2021,
with the respondents delivering their heads of
argument and practice note by 11 June 2021.
4.
The costs of the appearance of today are reserved.
5.
Should paragraphs 2 and 3
hereof not be complied with, the matter may be enrolled in
the
unopposed court on 15 June 2021.”
[11]   In
the answering affidavit, the first respondent-
[11.1]
registered his acquiescence to an order that the first applicant’s
restored possession of the property be confirmed, subject to an order
discharging the rule
nisi
, and directing the respondents to
unlock the convenience store and not “
disturb or block or
prevent the first applicant or any of its employees from trading and
working in the convenience store until termination
of the
[occupancy]
agreement or by order of court
; and
[11.2]
tendered the applicants’ party and party costs of the application
for
up to the filling of the answering affidavit.
[12]
Save as aforesaid, the first respondent contended that -
[12.1]
the first applicant never had the keys to the property;
[12.2]
the applicants are not entitled to an interdict operating in
perpetuance;
and
[12.3]
motion proceedings are not competent for resolving disputes involving
claims for damages for unliquidated amounts premised on the loss of
stock and profits resulting from the impugned ejectment.
[13]
The application was subjected to judicial case flow management, on 10
June,
[1]
by which time the
applicants had not delivered their answering affidavit, heads of
argument and practice note.
[14]   The
respondents delivered heads of argument and practice note on 11 June.
The application remained enrolled for hearing
on 17 June, as
directing otherwise would have hamstrung the proceedings.
[15]
Without having applied for condonation, the applicants delivered
their replying affidavit and practice note, out
of time, on 14 June.
The applicants’ heads of argument were only delivered on the eve of
the hearing.
[16]
Even though it was available to me to disregard the replying
affidavit delivered in the circumstances outlined above,
[2]
I nevertheless perused same, avoiding a possible delay of the matter
resulting from an application for the postponement of the matter
to
enable the applicants to seek condonation - a course that would have
been to the detriment of the respondents.
[17]   The
explanation proffered by the applicants for the laches in delivering
the replying affidavit boils down to this:
they required time to
collect pictures and video footage, and to secure witnesses who would
depose to affidavits confirming that,
notwithstanding the interim
order directing the unlocking of the convenience store, the
respondents had not desisted from the conduct
complained of by the
applicants.
[18]   The
applicants also persisted in seeking confirmation of the rule
nisi
in its entirety and alleged that the respondents had breached the
terms of the interim order by also not letting the applicants and
the
employees of the convenient store and customers have access to
ablution facilities.
[19]
Besides seeking to make out a fresh case in reply, which is legally
impermissible, the replying affidavit did not
advance the applicants’
case beyond where the proceedings had been at the time the
respondents delivered their answering affidavit.
[20]   The
concession made by the respondents that they were not entitled to
lock the convenience store put paid to the
dispute at the heart of
these proceedings.
[21]   It
is against this background that I granted an order discharging the
rule
nisi
, directed the respondents to unlock the convenience
store and avail any other facility thereto in terms of the applicable
lease agreement.
Consequent upon this, the order restrained and
interdicted the first respondent from, in any manner whatsoever,
disturbing or blocking
or preventing the first applicant or any of
his employees from trading and working in the convenience store,
until the parties’
agreement is terminated or other due process of
law is set in motion. The respondents were directed to pay costs of
the application
on a party and party scale up to the delivery of the
respondents answering affidavit, and the applicant to pay the costs
incurred
thereafter on the same scale.
[22]   I
stated that reasons for the order would follow in due course, and
herein below follow the reasons.
[23]
There is merit in the respondents’ contention that the applicants
are entitled to no more than what was tendered
at the time of the
delivery of the answering affidavit.
[24]
Upon the application of the
Plascon
- Evans
[3]
rule, the first applicant has not been shown to have been in
possession of the keys to the convenience store, all he had having
been
access to the store.
[25]
The spoliation remedy sought by the applicants is available to a
person who has been deprived of his or her actual
possession or
co-possession of the subject property. One of the requisites for the
grant of the remedy is effective physical control
of the thing,
[4]
which is lacking in the instant matter.
[26]
The applicants also claim unliquidated damages by way of motion
proceedings, which flies in the face of
National
Director of Public Prosecutions v Zuma
[5]
where it was held:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special, they cannot be used to resolve factual
issues because they are not designed to determine probabilities.”
[27]   The
quest for unliquidated damages is also not sanctioned by the
Directions applicable in this Division, which provide
as follows:
“
1.
Default judgment applications in which
unliquidated damages are claimed shall, by arrangement with
the
Registrar at each one of the Centres in this Division, be set down
for hearing on a daily trial roll during the first two weeks
and the
last two weeks of each term.
2.
The-
2.1
Joint Rules
of Practice for the Eastern Cape High Court;
2.2
Directions for the Management of the High
Court, Eastern   Cape During the National State of Disaster
dated 12 May 2020;
and
2.3
Case Flow Management Practice Directive
dated 25 February  2019,
shall,
with necessary adaptations, apply to the setting down of the default
judgment applications.”
[6]
[28]
Coming to the issue of costs, the general rule is that a party is
liable to pay costs incurred unnecessarily through
his or her failure
to take proper steps or because he or she took wholly unnecessary
steps.
[7]
[29]
The following remarks by Innes CJ in
Scheepers
and Nolte v Pate
[8]
are apt:
“
I
think it is the duty of a litigant to avoid any course which unduly
protracts a lawsuit, or unduly increases its expense . . . if
he only
takes [the course which shortens the lawsuit or does not increase its
expense] later on it may still be effective, but the
fact that it
came late and that considerable expense was unnecessarily incurred in
consequence, seems to me an element which may
well affect the mind of
the court in apportioning the costs.”
[30]
Following upon this, courts have deprived litigants of the costs to
which they would otherwise have been entitled
if their conduct has
unnecessarily occasioned, encouraged or prolonged a trial.
[9]
[31]   The
proceedings ought to have been finalised, at the very latest, on 4
May 2021. It was unreasonable for the applicants
not to accede to the
respondents’ proposed order (which has ended up prevailing) on 4
May 2021.
[32]
It is for these reasons that I granted the order which, for the sake
of completeness, and in part, reads:
“
1.
The
rule
nisi
issued on 9 April 2021 is hereby
discharged.
2.
The first and second respondents shall unlock the property situated
at 212 Oxford Street,
Oxford Total Garage, East London (the
convenience store) and shall avail any other facility thereto in
terms of the lease agreement.
3.
The first respondent is restrained and interdicted from, in any
manner whatsoever, disturbing
or blocking or preventing the first
applicant or any of his employees from trading and working in the
convenience store, until such
time as the parties’ agreement is
terminated or other due process of law is set in motion.
4.
The respondents shall pay the costs of the application on a party and
party scale up
to the delivery of the respondents’ answering
affidavit.
5.
The applicants shall pay costs incurred thereafter on the same
scale.”
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Applicants’
counsel
:
M P
G Notyawa
Applicants’
attorneys
M N Dwayi Attorneys
East
London
Respondents’
counsel
:
C
D Kotzë
Respondents’
attorneys

:
Changfoot Van Breda Inc.
East
London
Date
matter heard

:           17 June
2021
Date
order granted
:           17 June
2021
Date
reasons handed down
:
13 July 2021
[Also, by electronic
mail transmitted to the parties’ attorneys, in terms of paragraph
68 of the Eastern Cape National State of
Disaster Management
Directions]
[1]
Pursuant
to rule 15A of the Joint Rules of Practice for the Eastern Cape
Division of the High Court.
[2]
See
Waltloo
Meat and Chicken SA (Pty) Ltd v Silvy  Luis (Pty) Ltd
[2008] ZAGPHC 136
;
2008 (5) SA 461
(TPD), where, at para 26 – 30, Poswa J held:
“
Let
me repeat that the applicant in the present case seeks no . . .
indulgence . . . It is important to note that the discretion
to
condone non-compliance . . . lies with the court.
The late filing [of
the replying affidavit] I am referring to is that which did not
comply with the provisions of rule 6 (5) (e)
. . . within 10 days of
receipt of the answering affidavit. Counsel were of the view that
the court is entitled to look at the
contents of the replying
affidavit, for purposes of determining the issue of condonation.
In my view both
counsel are wrong . . . the court may not resort to information
contained in a document that is not before it .
. .
It remains in the
discretion of the court whether to have [the replying affidavit]
admitted or not as evidence, by granting the
application for
condonation of such late filing.”
[3]
Plascon
- Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 H - 635 C.
[4]
Dennegeur
Estate Home Owners Association and Another v Telkom SA SOC Ltd
2019 (4) SA 451
(SCA) at para 10.
[5]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA), para 26.
[6]
Directions
governing the setting down of undefended unliquidated claims for
damages by Mbenenge JP dated 12 April 2021.
[7]
Lotzoff
v Connel
and
Another
1968 (2) SA 127
(W);
Protea
Assurance Company Ltd v Matinise
1978 (1) SA 963
(A);
Vilakazi
v Malevu
1979 (1) SA 737
(N);
Van
Eck v Santam Insurance Company Ltd
1996 (4) SA 1226
(C).
[8]
1909
TS 353
- 356.
[9]
King
Pie Holdings (Pty) Ltd v King Pie (Pinetown) (Pty) Ltd
;
King
Pie Holdings (Pty) Ltd v King Pie (Durban) (Pty) Ltd
1998 (4) SA 1240
(D) at 1250.