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[2020] ZALMPPHC 37
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Phokwane Funeral Directors CC v Sheriff of the Magistrate's Court for District of Mebo (6485/2019) [2020] ZALMPPHC 37 (18 June 2020)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DMSION, POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: 6485/2019
In
the matter between:
PHOKWANE
FUNERAL DIRECTORS CC
APPLICANT
AND
THE
SHERIFF OF THE MAGISTRARE'S COURT FOR
1
st
RESPONDENT
DISTRICT
NEBO
RATALE
MASHIFANE ATTORNEYS
2
ND
RESPONDENT
LEBOGANG
DIAGO
3
RD
RESPONDENT
BETTY
MAJOMANE MAISELA
4
TH
RESPONDENT
COMFORT
MOKGATLA MOGADIME
5
TH
RESPONDENT
MASEKHELA
PATRICIA MATULUDI
6
TH
RESPONDENT
MAPHEFO
MAUPA INNOCENTIA MASHIFANE
7
TH
RESPONDENT
MAKLAKA
NTHABISENG THELMA
8
TH
RESPONDENT
SHOKOANE
KHOMATJO
9
TH
RESPONDENT
MOLOTO
JULIA PHASHA
10
TH
RESPODENT
NKUNYANE
MARGARET MATJOMANE
11
TH
RESPONDENT
MAMOKETE
MOGADIME
12
TH
RESPONDENT
PHOMELELO
EMMA PHOKU
13
TH
RESPONDENT
ELIZABETH
MPHO MATENJI
14
TH
RESPONDENT
NANCY
NGWANAMOLEKANE MAGASHULA
15
TH
RESPONDENT
HAPPHY
NKGUDI
16
TH
RESPONDENT
NENE
MARIA MASUKU
17
TH
RESPONDENT
THELMA
MARIPANE
18
TH
RESPONDENT
MONICA
MOKGATLA PHAKA
19
TH
RESPONDENT
HLAKOTJE
FORTUNE MASEHLA
20
TH
RESPONDENT
REINETT
MPONANE MASHIFANE
21TH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The
applicant is Phokwane Funeral Directors CC. The third to twenty first
respondents have issued simple summons against Phokwane
Funeral
Directors (Pty) Ltd under various case numbers in the Magistrate
Court Nebo. They proceeded to obtain default judgments
against
Phokwane Funeral Directors (Pty) Ltd. Thereafter they issued writs of
execution and attached movable assets.
[2]
After
the attachment of the assets, the applicant brought an application on
urgent basis seeking an order that the attachments in
respect of the
warrants of execution under various case numbers issued by Magistrate
Court Nebo be set aside. They were further
seeking an order that the
first and second respondents be interdicted from executing any and
further warrants of execution at any
premises of the applicant
wherein the defendant is Phokwane Funeral Directors (Pty) Ltd. The
first respondent is the sheriff of
the Magistrate Court Nebo, whilst
the second respondent is the attorney of the third to twenty first
respondents. The applicant's
application was served only on the first
and second respondents. The second respondent is opposing the
applicant's application.
[3]
When
this application was heard, the attachments of the movable assets
have already lapsed in terms of Rule 41(7) (E) of the Magistrate's
Court Rules of Court. Since the prayer for setting aside of the
warrants was rendered moot by the lapse of the attachment, the
applicant proceeded to argue the prayers in
relation to interdict and
costs on a punitive scale against both first and second respondents
jointly and severally.
[4]
The
background facts are as follows. On 12
th
June 2018 the second respondent acting on behalf of third to
twenty first respondents issued letters of demand against Phokwane
Funeral Directors (Pty) Ltd. The cause of action was for alleged
termination of contracts of the third to twenty first respondents
and
also failure by Phokwane Funeral Directors (Pty) Ltd to pay them
their stipend in relation to the learner-ship agreement. Phokwane
Funeral Directors failed to comply with the letters of demand. The
second respondent proceeded to issue summons against Phokwane
Funeral
Directors (Pty) Ltd.
[5]
On
the 27th May 2019 the applicant through its attorneys wrote a letter
to the second respondent informing it that the applicant
is a close
corporation and that they never gave any permission to Phokwane
Funeral Directors (Pty) Ltd to share a name similar,
alternatively
exactly to that of the applicant. They further denied entering into
any agreements with the third to twenty first
respondents. They
further informed the second respondent to serve any judgment or
execution taken against the Pty Ltd at the Pty
Ltd's address and not
that of the applicant.
[6]
The
second respondent replied per its letter dated 28th May 2019 stating
that they have not properly cited the applicant. They further
stated
that the applicant failed to enter appearance to defend to any of the
matters and that its records shows that they had a
number of
communications and meetings with the applicant, and at no stage did
the applicant inform them that the company was wrongly
or incorrectly
cited. The second respondent further stated that the applicant had
satisfied some of the judgments based on the
same facts.
[7]
The applicant's attorneys of record
responded per their letter dated 20thJune 2019 stating that any
payments which might have been
made has been made in error and they
will demand a refund. They further stated that the applicant's
trading address is in Pretoria
and that the applicant was never
served with any summons at that address. They concluded by informing
the second respondent to
execute the writs that they might have
obtained at Phokwane Funeral Directors (Pty) Ltd address and not at
the address of the applicant.
[8]
On
the 3
rd
July 2019 the second respondent proceeded to issue the writs of
execution against Phokwane Funeral Directors (Pty) Ltd. On
the 9th
July 2019 the writs of execution were handed over to the first
respondent for execution. On 22nd July 2019 and 12th September
2019
the first respondent attached assets at the applicant's premises in
Phokwane village and placed them under judicial attachment.
On 22nd
July 2019 the applicant's attorneys wrote a letter to the first
respondent informing it that it has executed the warrants
against a
wrong entity.
[9]
On
25th September 2019 the applicant's attorneys wrote a letter to
second respondent giving the second respondent 24 hours to instruct
the first respondent to release the goods under attachment failing
which they will bring an urgent application. The second respondent
failed to comply with the demand and on 1st October 2019 the
applicant instituted the present application on urgent basis. The
application was set down to be heard on 15th October 2019.
[10] On 5th October 2019 the
applicant's attorneys wrote a letter to the second respondent
replying to the second respondent's letter
dated 12
th
July 2018. In their letter the applicant's attorneys
denied the applicant ever concluding any agreements with the third
to
twenty first respondents and they also denied the applicant's
indebtedness to the third to twenty first respondents. On 15th
October 2019 the applicant's application was struck off the roll of
urgent applications due to lack of urgency.
[11]
In its founding affidavit, the applicant
has attached the records from the Companies and Intellectual Property
Commission (CIPC)
for both Phokwane Funeral Directors CC and Phokwane
Funeral Directors (Pty) Ltd. According to the records of CIPC,
Phokwane Funeral
Directors CC has one active member who is Maupa
Masaku Melidah, the deponent of the applicant's founding affidavit.
It also has
four inactive members who are Sipho James Maupa who is
deceased. The other three inactive members are Mokgadi Tshekgofatjo
Maupa,
Richard Mokgethi Maupa and Thabang Maupa who have all resigned
from the CC. With regard to Phokwane Funeral Directors (Pty) Ltd,
the
active directors are Fata Richard Maupa and James Sipho Maupa. The
registered address of Phokwane Funeral Directors CC has
been stated
as suite 1, 267 Waterkloof Road Brooklyn Pretoria, whilst that of
Phokwane Funeral Directors (Pty) Ltd has been stated
as 1st Floor
Gani House, 90 Bok Street Polokwane.
[12]
The second respondent in its founding
affidavit has stated that it was mandated by the third to twenty
first respondents to institute
action against the applicant. That
after they issued letters of demand against the applicant, the
applicant's attorneys of record
did not place the citation of its
name in dispute. According to the second respondent, both Phokwane
Funeral Directors CC and Phokwane
Funeral Directors (Pty) Ltd are one
and the same entity. The second respondent has also stated that the
applicant has settled other
similar claims around March and April
2018 after it became aware of the judgments.
[13] As I
have pointed out in the paragraph 3 above, the applicant has
abandoned its first prayer of seeking
to set aside the warrants of
execution. What remains for this court to determine is whether the
applicant has met the requisites
for the granting of a final
interdict, and if successful whether the circumstances of this case
warrants a punitive costs order
against the first and second
respondents jointly and severally.
[14] It is
settled law that the requirements for the granting of a final
interdict are (a) clear right;
(b) unlawful interference with that
right, actually committed or reasonably apprehended; and (c) the
absence of any other satisfactory
remedy.
(See
Van Deventer v Ivory Sun Trading 77
[1]
and Hotz v UCT
[2]
)
[15] There
are two entities with the same name and the difference is that one is
a closed corporation and
the other one is a Pty company limited. Both
entities are juristic persons capable to sue or being sued. The close
corporation
has one member whilst the company has two directors. The
member of the CC shares the same surname with the directors of the
Pty
Ltd. Even though at some stage the CC had a member Sipho James
Maupa who shares the same names as one of the directors of the Pty
Ltd, they don't share the same ID numbers. Even though the member and
directors of both the CC and company might have been somehow
related
in blood or through sharing the same surname, the two separate
entities remained independent from each other, and also
did not share
the same registered address.
[16] The
second respondent on the other hand acting on instructions from its
clients who are the third to
twenty first respondents chose to
institute action against the Pty Ltd. The second respondent on
numerous occasions was informed
that the applicant did not enter into
any agreements with the third to twenty first respondents. The second
respondent acknowledged
that it had wrongly cited the applicant in
its papers but that the applicant and the Pty Ltd is one and the same
entity. The second
respondent persisted with that argument even in
this court and relied on the case of
Foxlake
Investment v Ultimate Raft Foundation Design
[3]
wherein at para
14 the court said:
"As stated earlier, Foxway
and Foxlake share the same registered address, receptionist and
managing director. The copy of the
agreement on which the claim is
based was attached to the original summons. In my view when the
summons was served on the registered
address of both Foxway and
Foxlake, Foxway recognised its connection with the claim
notwithstanding the error in its description.
The amendment sought by
the respondents in the court a quo did not seek to introduce a new
legal entity as the first defendant..."
[17]
In the Foxlake case the respondents were
seeking an amendment to its particulars of claim so that the one
entity can be cited in
the alternative as a party to the proceeding.
The respondent effected that amendment after an exception was served
on them. In
the case at hand several letters were written to the
second respondent making him aware that it is serving its documents
on a wrong
entity. Instead of amending its papers or joining the
applicant to the proceedings, it insisted that the two entities are
one and
the same thing. In Foxlake case the two entities shared the
same registered address and managing directors of which is not what
happened in the present case. In my view, Foxlake case is
distinguishable from the present case in that the respondents wanted
to cite the two entities in the proceedings whilst that is not what
the second respondent wanted to achieve in this case.
[18]
Both the CC and the (Pty) Ltd are two
separate entities independent from each other. In case the second
respondent was in doubt
as which was the correct party to the
proceedings due to their confusing names, it should have cited both
entities. If it was unaware
at the time of the institution of the
action, when it was made aware that the two are separate entities, it
should have amended
its citation of the parties or joined the
applicant to the proceedings.
[19]
The attached goods were in the
possession of the applicant and the applicant has a right to manage
and control them without any
disturbance. In my view, the applicant
has established a clear right to the attached goods and has therefore
satisfied the first
requirement.
[20]
Since the CC and (Pty) Ltd are two
separate entities which had different registered addresses and
different member /directors, by
attaching the goods in possession and
control of the applicant, there was an unlawful interference with its
right to properly manage
and control the said goods. In my view, the
applicant has established the second requirement.
[21]
With regard to the third requirement, it
was held in
Hotz v UCT
supra,
that the purpose of an interdict is
to put an end to conduct in breach of the applicant's right, and that
the existence of another
remedy will only exclude the grant of an
interdict where the proposed alternative will afford the injured
party a remedy that gives
it similar protection to an interdict
against the injury that is occurring or is apprehended. Even though
the attachment has lapsed,
that does not prevent the second
respondent from reissuing the writs and place the applicant in the
same predicament. Therefore,
the lapse of the attachment does not
solve the problem and the applicant will therefore not be afforded
adequate protection. I
am therefore satisfied that the applicant has
established the third requirement.
[22]
Turning to costs, in
Limpopo
Legal Solutions and Another v Eskom Holdings SOC Limited
[4]
the court said:
"In Nel, the
then-Appellate Division held:
"The true explanation of
awards of attorney and client costs not expressly authorised by
statute seems to be that, by reason
of special considerations arising
either from the circumstances which give rise to the action or from
the conduct of the losing
party, the court in a particular case
considers it just, by means of such an order, to ensure more
effectually than it can do by
means of a judgment for party and party
costs that the successful party will not be out of pocket in respect
of the expense caused
to him by the litigation."
[23]
An award of costs on punitive scale is
awarded in exceptional cases. The second respondent was warned on
several occasions that
it is serving its papers on a wrong entity,
but it deliberately ignored the warnings and insisted that the two
entities were one
and the same whilst there is proof that they were
two separate entities independent from each other. The second
respondent has
displayed arrogance in ignoring the warnings. Despite
that, the second respondent persisted with its opposition of the
applicant's
application despite the fact that it was having a weak
defence. In my view, that amount to misuse of court processes and
unnecessarily
putting the applicant out of pocket. The intention of
the applicant was to amicably resolve the matter without incurring
unnecessary
legal costs.
[24]
Even though the second respondent was
acting on the mandate of the third to twenty first respondents, it
was not supposed to blindly
take instructions which might lead to an
abuse of court processes. It is the duty of a legal practitioner to
advise its clients
properly. If the instruction given to him/her will
compromise him/her, he/she must simply withdraw from the case and not
proceeded
with the instructions for the sake of money. In my view,
the second respondent by proceeding with these type of instructions
despite
been warned in advance amounted to negligence and
recklessness on its part and should therefore be liable for the costs
of this
application. In my view, this is one of the exceptional cases
that deserves costs on a punitive scale. I don't find any reason why
the first respondent should also be held liable for the costs of the
application jointly with the second respondent.
[25]
In the result I make the following
order:
25.1.
The first and second respondents are
interdicted from executing any and all further warrants of execution
at any premises of the
applicant wherein the Defendant is Phokwane
Funeral Directors (Pty) Ltd only in relation to the case numbers
mentioned in the notice
of motion.
25.2.
The second respondent to pay the costs
of the applicant on a scale as between attorney and client.
MF. KGANYAGO J
JUDGE OF HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL
FOR APPLICANT
: ADV M. BRONKHORST
INSTRUCTED
BY
: FVS ATTORNEYS
COUNSEL
FOR SECOND RESPONDENT : MR
MMAKOLA
INSTRUCTED
BY
:
MMAKOLA MATSIMELA INC
DATE
OF HEARING
: 25 MAY 2020
DATE
OF JUDGEMENT
: 18
th
JUNE 2020
[1]
2015 (3) SA 532 (SCA)
[2]
2017 (2) SA 485 (SCA)
[3]
[2016] ZASCA 54
(01 April 2016)
[4]
[2017] ZACC 34
at para 35