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[2019] ZANCHC 49
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Onah v Ogu (18286/2018) [2019] ZANCHC 49 (27 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1828/2018
Heard
on: 08/02/2019
Delivered
on: 27/05/2019
In the matter between
Dr
EVERESTUS
ONAH
Applicant
And
HYACINTH
CHINEME OGU
Respondent
JUDGMENT
PAKATI
J
[1]
The applicant, Dr Everestus Onah, seeks an interdict against the
respondent, Mr Hyacinth Chineme Ogu, in the
following terms:
‘
1.
An order directing and compelling the respondent to return to the
applicant keys to and all accessories
of Erf 2375 Kimberley, commonly
described as No. 6 Wharton Terrace Court Belgravia, Kimberley ;
2.
An order interdicting and prohibiting the respondent from entering
Erf 2375 Kimberley,
commonly described as No. 6
Wharton Terrace Court Belgravia, Kimberley;
3.
An order directing and compelling the respondent to refrain from
acting and/or parading as the
manager of the aforesaid property
and/or as the agent of the applicant;
4.
An order interdicting and prohibiting the respondent from collecting
and/or keeping any rental
money due to the applicant from the tenants
of the aforesaid property; and
5.
The respondent be ordered to pay the costs of this application.’
[2]
Mr Ogu the application and seeks the following order against Mr Onah:
1.
To sign all necessary and relevant documents to ensure that the sale
goes through
as soon as practicable within 2019
alternatively.
2.
To refund me all the costs incurred with interest should Prayer 1 not
to be practicable.
3.
Costs of suit on a punitive scale.
4.
Further and alternative relief.’
[3]
Mr Ogu denies that Mr Onah has made out a case for the relief sought.
He alleges that he had other remedies
available to him. Mr Ogu does
not dispute that he has the rental money in his possession and states
that he would pay it to Mr
Onah on condition he signs all documents
allowing transfer of the property into his name.
[4]
The following facts are undisputed:
14.1 That Mr Onah is
the owner of the property;
14.2 That the parties
signed a deed of sale on 23 October 2014.
14.3 That the written
agreement
inter alia,
contained the following terms:
‘
2.
PURCHASE
PRICE
The purchase price
is the sum of R 750 000 (seven hundred and fifty thousand Rand)
(exclusive of Value Added Tax) payable by
the purchaser to the seller
as follows:
THE
PURCHASER SHALL WITHIN 14 (FOURTEEN DAYS AFTER BEING CALLED UPON TO
DO SO FURNISH THE SELLER’S CONVEYANCER WITH AN ACCEPTABLE
GUARANTEE FOR PAYMENT OF THE PURCHASE PRICE UPON REGISTRATION OF
TRANSFER
.
(N.B.
VAT IS ONLY APPLICABLE IF THE SELLER IS REGISTERED AS A VENDOR UNDER
THE VALUE ADDED TAX ACT)
OCCUPATION
…
6.2 If occupation is
given to the purchaser before the date of transfer:
6.2.1
The purchaser shall not be entitled to make any alterations on the
property before transfer without the prior written consent
of the
seller which consent is at the seller’s sole and absolute
discretion.
6.2.2
The purchaser shall be obliged to vacate the property upon
cancellation of this agreement for whatsoever reason, no tenancy
being created by any such prior occupation.
8.
VOETSTOETS
The
property is sold as described in the existing title deed or deeds
thereof, and subject to all conditions and servitudes (if
any)
attaching thereto or mentioned or referred to in the said title deeds
or prior deed. The seller shall not be liable for any
deficiency in
extent which may be revealed on any re-survey, nor shall [the] seller
benefit by any surplus in extent.
9.
WARRANTIES
The
property is sold “voetstoets” and as it stands, the
seller gives no warranty in regard to the buildings and any
improvements upon the property or the rights attaching thereto. The
seller shall not be liable for any defects in the property,
either
latent or patent.
10
OCCUPATIONAL
RENTALS
If the date of
occupation and possession does not coincide with the date of
transfer, the party enjoying occupation and possession
of the
property while it is registered in the name of the other party, shall
in consideration thereof for the period of such occupation,
pay to
the other party occupational rental of R 4 600-00 (
four thousand
and six hundred rand)
per month or a pro rata share thereof for
any portion of a month.
11.
BREACH
Should the
purchaser fail to pay for guarantee any portion of the purchase price
referred to in clause 2 above or fail to comply
with any other
obligations imposed on him in terms of this agreement, and remain in
default for a period of ten (10) days after
the date of delivery or
dispatch by prepaid registered post of written notice requiring the
purchaser to make such payment, provide
a guarantee, or carry out the
obligation in question, the seller shall be entitled (in addition to
and without prejudice to any
other rights available to the seller at
law);
11.1 To cancel
the sale and recover such damages as the seller may be able to prove
that the seller has sustained, in which event
the seller be entitled
to retain all amounts paid by the purchaser until the actual amount
of damages has been determined by a
court and there upon to set-off
such damages against the amounts retained
;
My underlining
…
12
MORTGAGE BOND
12.1 This agreement
is subject to the suspense (sic) condition that a loan of R750 000-00
(seven hundred and fifty thousand rand)
secured by a mortgage bond to
be registered over the property is obtained by the purchaser on the
normal terms and conditions of
any Registered Commercial Bank within
a period of 30 (Thirty) days from the last [day] of signature hereof
or such extended period
as the parties may agree to in writing.
12.2
In the event of the aforesaid bond not being granted within the
period stipulated in Clause 12.1 above alternatively within
such
extended time period as
the
parties may have agreed to in writing, then and in such event this
agreement shall lapse and shall have no force and effect
and the seller shall be obliged to refund to the purchaser together
with interest all monies paid by the purchaser hereunder in
reduction
of the purchase price.’
My
underlining
THE
APPLICANT’S CASE IN THE FOUNDING AFFIDAVIT
[5]
During 2015 Mr Onah and Mr Ogu entered into an oral agreement in
terms of which Mr Ogu was to manage Mr Onah’s
property by
entering into a lease agreement with a prospective tenant. In terms
of this agreement Mr Ogu would collect monthly
rental from the tenant
in the amount of R7 000-00, remit R6 000-00 to Mr Onah and keep R1
000-00 for himself. Mr Ogu leased the
property to a tenant and
concluded the lease agreement in his personal capacity in terms of
which the tenant deals with him directly.
[6]
Since October 2017 Mr Ogu has failed/declined and or refused to remit
the rent which he collected from the
tenant in terms of the
agreement. Mr Onah says that Mr Ogu breached the agreement and
informed him that he did not want to continue
with the agreement. He
asked him to return his house keys and refrain from collecting rental
from the tenant. Despite his requests
Mr Ogu refused to return the
keys to the house. He continued to collect the rental and kept the
money to himself.
[7]
Mr Onah worked for the Department of Health, Kimberley Hospital (“the
department”) and alleges
that he had known Mr Ogu since 2006.
At the time Dr Enwerem, his friend and colleague, stayed in the
property for about three years.
The department paid rent in the
amount of R4600-00 on his behalf. Because of their friendship Mr Onah
did not increase the rent
to R6 000-00 per month like other lessors
in the same complex.
[8]
Mr Onah’s attorneys of record, Mwim Attorneys, addressed a
letter dated 19 October 2017 to Mr Ogu and
demanded the return of the
keys to him and all accessories of the property within five days. He
was also asked to refrain from
entering the property, acting as
and/or parading himself as the manager of the aforesaid property and
from collecting and/or keeping
any rental from the tenant. He was
further requested to remit the amount of R6 000-00 for October
2017 rental to Mr Onah within
five days.
[9]
Mr Onah states that his attorneys of record forwarded several letters
to Mr Ogu instructing him to hand over
the keys to the property and
remit the money already collected for rental. However, Mr Ogu failed
to comply with Mr Onah’s
demands. Mr Onah alleges that Mr Ogu
continued to collect rental and kept it. Notably, Mr Onah attached
one email, Annexure “EC
2”, to the founding affidavit
form his attorneys of record demanding the keys as alluded to
earlier.
[10] Mr Onah says
that the refusal of Mr Ogu to comply with the demand is prejudicial
to him. He requests the Court to grant
him the relief he seeks as he
has no other remedy available to him.
[11] According to
Mr Onah when he visited the property he was refused access and would
not be recognised as the owner of the
property. He alleges that Mr
Ogu has ‘
hijacked
’ his property. He acknowledges
that he would not just terminate the lease agreement concluded by Mr
Ogu. He states that he
has a bond registered over the property which
requires to be serviced. Mr Ogu is enriching himself unjustifiably
with the rent
money collected and keeps it for himself.
[12] Mr Onah
contends that as the owner of the property, he has a right to the use
and enjoyment of it which includes the
patrimonial benefits that
accrue as a result. From October 2017 Mr Ogu has in total collected
an amount of R63 000-00 in rental.
He argues that Mr Ogu has no
right to occupy his property, restrict his access, collect and keep
money for rent paid by the tenant.
He argues further that Mr Ogu’s
conduct is unlawful encroachment of his rights. He alleges that he
would suffer damages if
the application is not granted.
THE RESPONDENT’S
CASE
[13] Mr Ogu
alleges that after he learned that Mr Onah was selling the property
during July 2014, he viewed it and observed
that it ‘
had
serious maintenance shortcomings’
. The kitchen cupboards
were falling apart, the roof was leaking, and the passage and
bedrooms were not tiled but covered with carpets
which were in a very
bad state. He was nevertheless prepared to buy it. After he and Mr
Onah signed the deed of sale he applied
for a bond amounting to R750
000-00 from Absa Bank but only R600 000-00 was approved in February
2015. He confirms the email sent
by Mr Onah to the transferring
attorneys dated 09 April 2015 regarding the passing away of his wife.
[14] Mr Ogu
further confirms Mr Onah’s version that during May 2015 he
advised him that he was experiencing delays with
the finalisation of
his wife’s estate and requested him to lease the property
pending finalisation of the estate and transfer
of the property. He
disputes that he did not discuss the repairs with Mr Onah. He says
that he informed him that the property needed
some renovations before
it could be leased. Mr Onah in response permitted him to do the
repairs as he was experiencing financial
constraints at the time and
that he would reimburse himself from the monthly rental, so he
argues. He then approached Elela Construction
(Pty) Ltd and the
repairs were done and that he paid R 30 793-45. He thereafter
advertised the property in the Diamond Field Advertiser
Newspaper
(“the DFA”) and secured a tenant who occupied the
property from July 2015. He charged monthly rental of R
7 000-00 and
remitted an amount of R5 000-00 to Mr Onah and retained R2 000-00 for
services as manager. In July 2016 he increased
the monthly rental to
R7 700-00 as well as the remittance to Mr Onah to R 5 500-00. This
was despite the fact that occupational
rent payable was R4 600-00 per
month in terms of clause 10 of the deed of sale, so he says.
[15] From August
to October 2016 Absa Bank enquired from the transferring attorneys
about the progress of the loan of R600
000-00 approved earlier. The
bank was informed that Mr Onah intended to cancel the agreement. On
or about 31 October 2016 he indeed
cancelled the agreement for the
following reasons:
15.1 Mr Ogu failed to
pay occupational rent from October 2014 to July 2015 and was indebted
to him in the amount of R41 400-00;
15.2
He denied Mr Onah access to the property;
15.3 The ‘
frivolous
repairs’
done to the property without Mr Onah’s
consent;
15.4
Lack of transparency and the alleged
mala
fide
dealings by Mr Ogu;
15.5 The fact that the
value of the property had increased from R750 000-00 to R900 000-00
and;
15.6 The persistent
financial loss at the hands of Mr Ogu which made it impossible for
him to service his bond.
[16] On 10
November 2016 the transferring attorneys informed Mr Ogu and Absa
Bank that Mr Onah had cancelled the agreement.
Mr Ogu alleges that he
told Mr Onah that he owed him for the alleged repairs as well as the
costs of attorneys. On 03 December
2016 he forwarded an email to Mr
Onah setting out the details and extent of his claim. He argues that
he and Mr Onah discussed
the cancellation of the agreement and his
claim. Mr Onah requested time to reconsider his position.
[17] On 04
January 2017 Mr Onah advised Mr Ogu as well as the transferring
attorneys that he would proceed with the transfer
of the property.
Between 20 and 26 January 2017 the parties signed an addendum to the
deed of sale (Annexure “CHO 6”).
Clause 9 of same reads:
‘
9.
It is hereby specifically agreed as follows:
9.1
Dr Onah confirmed that he has signed all the documents for the
transfer of the property with the attorneys
in Johannesburg and will
ensure that the documents are delivered to Towell and Groenewaldt
Attorneys in Kimberley;
9.2
Dr Onah shall provide any document, and/or sign any document,
relevant to the transfer, as requested by the
attorneys until the
finalization of the transfer;
9.3
Mr Ogu remit an amount of R12 000-00 to Dr Onah for the December 2016
and January 2017 rentals upon the signing
of this addendum by both
parties;
9.4
Mr Ogu shall liaise with his bank to resuscitate the bond earlier
approved by the bank upon the signing of
this addendum by both
parties; [and]
9.5
Mr Ogu shall provide any document, and/or sign any document, relevant
to the transfer, as requested by the
attorneys until the finalization
of the transfer.’
[18] Mr Ogu
alleges that on 26 January 2017 he paid an amount of R12 000-00 to Mr
Onah for December 2016 and January 2017 rentals
as per the agreement.
He again approached the bank for a loan of R750 000-00. He does not
disclose the date on which he approached
the bank for the second time
but state that the loan was approved on 27 February 2017. On 13 April
2017 he received confirmation
from Duncan & Rothman Attorneys
that they would register the bond. On 08 May 2017 they confirmed
receipt of the draft deed
and guarantee from Towell & Groenewaldt
Attorneys.
[19] Towell &
Groenewaldt forwarded an email to Duncan & Rothman Attorneys
dated 28 July 2017 and 11 August 2017 informing
them that the
application in terms of section 42 (2) of the Administration of
Estates Act
[1]
filed by Mr Onah
was rejected by the Master of the High Court due to his failure to
list the property in the inventory. On 26 September
2017 Towell &
Groenewaldt enquired from Mr Onah about the possibility of amending
the inventory. In response he cancelled the
agreement on 27 September
2017.
[20] Towell &
Groenewaldt blame Mr Onah for the delay and state that when he sold
the property it was worth R750 000-00
and not R950 000-00. They
warned him that he could not use the value of the property to his
advantage. Mr Onah did not yield to
that, hence the application. On
09 May 2018 Nedbank withdrew its approval of the loan of R750 000-00.
According to Mr Ogu, Mr Onah
allowed him to take possession of the
property since May 2015 while he was busy winding up his wife’s
estate although he
did not physically stay in it.
[21] Mr Ogu
contends that Mr Onah does not approach this Court with clean hands
as the application is intended to frustrate
the alleged binding sale
agreement. He persists that he would pay the monthly rental due to Mr
Onah when he signs the transfer
documents and pays for his claim for
repairs. He states that he does not accept the cancellation of the
agreement because it is
not based on legal grounds. He denies that he
has breached the agreement as the occupational rent is based on a
secondary oral
agreement and Mr Onah is the one in breach of the sale
agreement. He insists further that he is entitled to the transfer of
the
property.
[22] Mr Ogu
alleges that Mr Onah envisaged a dispute of fact and should have
instituted a claim by way of action. He claims
that Mr Onah owes him
money to the value of R82 542-52 for the losses he allegedly
incurred. He maintains that he kept the rentals
in order to cover for
the alleged costs of repairs. He argues that he had to pressurise him
in order to continue with the sale
in order to cover for the losses
should the sale of the property fails.
THE APPLICANT’S
REPLYING AFFIDAVIT
[23] According to
Mr Onah during his stay at the property Dr Emwerem complained that
‘
some things’
needed to be fixed and that there
was no lock-up garage. Mr Onah states that he duly attended to the
unnamed items except for the
lock-up garage. As he was about to
attend to it Dr Emwerem left Kimberley. At the time the property’s
evaluation was between
R750 000-00 and R880 000-00. On 23
October 2014 Mr Onah and Mr Ogu entered into a written deed of sale.
Soon after taking
control of the property Mr Ogu informed Mr Onah
that he had made some repairs amounting to R30 000-00. This came as a
surprise
to Mr Onah as he was unaware of any repairs that had to be
done. He says that Mr Ogu neither informed him of a need to do the
alleged
repairs after viewing the property and before signing the
deed of sale nor did he discuss it with him prior to effecting the
said
repairs/alterations and/or renovations.
[24] Mr Onah
demanded invoices pertaining to the material used and labour costs
for the alleged renovations. Mr Ogu refused
and alleged that he was
not entitled to it. Mr Onah expressed some doubt about this, the
argument goes. During that period his
wife passed away.
[25] On 09 April
2015 Mr Onah forwarded an email to Messrs Towell & Groenewaldt,
the transferring attorneys, and informed
them that the delay of the
sale and transfer of the property was as a result of finalising his
wife’s estate. At that stage
Mr Ogu had not paid occupational
rent of R4 600-00 per month in terms of clause 10 of the deed of
sale, the argument goes.
[26] Mr Onah says
that Mr Ogu leased the property to a tenant who paid R7 000-00 per
month and Mr Ogu in turn paid an amount
of R5 000-00 to him and kept
an amount of R2 000-00 to himself. This arrangement was not verified
with him and was therefore done
without his knowledge. This,
according to Mr Onah, was done in bad faith.
THE
FIRST CANCELLATION
[27] Mr Onah
alleges that Mr Ogu was compensating himself for the alleged repairs
and/or renovations using the money for rental.
In this process Mr Ogu
collected about R34 000-00, an amount more than what he alleges he
had paid for the so-called renovations,
argues Mr Onah.
[28] It later
transpired that Mr Ogu had collected R7 700-00 from the tenant and
without telling Mr Onah, kept R700-00 for
himself over and the above
the agreed R1 000-00, the argument goes. Mr Onah cancelled the
agreement and advised Mr Ogu to cancel
the lease agreement with the
tenant because he wanted assistance of professional property managers
to manage the property. However,
Mr Ogu refused alleging that he had
a right to the property.
[29] Mr Onah
denies that the property needed repairs and/or renovations as it was
in good condition. He alleges that Mr Ogu
fabricates the alleged
damages to the kitchen cupboards and the roof in an attempt to
justify the purported repairs. In trying
to reach an amicable
solution, he unwillingly and under pressure, agreed to pay Mr Ogu for
the alleged repairs, the argument goes.
He alleges that Mr Ogu has
not paid any monies towards the purchase price since the deed of sale
was signed. He alleges further
that Mr Ogu has failed to allege or
prove any loss or damages as a result of the cancellation of the
agreement.
THE
SECOND CANCELLATION
[30] On 26
September 2017 Towell and Groenewaldt addressed an email to Mr Onah
requesting him to advise when he would be filing
the amended
inventory list with the office of the Master in Pretoria. He informed
them that he had decided to cancel the sale as
the deeds office
valuation of the property was R950 000-00 and that it was not worth
his while to sell at R750 000-00. Moreover,
he had to pay executor’s
fees on the amount of R900 000-00 and not R750 000-00. He addressed a
letter to Towell & Groenewaldt
confirming cancellation.
[31] The crucial
question to be determined is whether Mr Onah is entitled to the
relief sought in the papers as they stand.
He insists that he has
made out a proper case for the relief sought. Mr Ogu urges me to
dismiss the application with costs and
grant its orders although its
application is not before me.
[32] Mr Onah
denies that Mr Ogu informed him of repairs to the property otherwise
he would have requested for ‘
a cost estimate of the repairs’
before it commenced. He denies further that Mr Ogu forwarded a letter
to him setting out the details of his claim. When he requested
for an
invoice Mr Ogu sent Annexure “CHO 3” which records:
‘
Tiling
and repairs of Wharton Terrace Court, flat 5, No. 7 Park Road,
Belgravia, Kimberley
Item
Description
Unit
Quantity
Rate
Builders
Works
Sub-Total
1.0
Work
Done:
Remove
carpet in main lounge; Tiling of main lounge; Tiling of main
bedroom, Repair of leaking roof; Replace ceiling of one
room;
Painting; Repairs of Kitchen cupboards.
1.1.1
Cost
of Materials
1.1.2
Labour
Item
Item
1
1
17 793.45
13 000.00
R
17 793.45
R
13 000.00
SUB-TOTAL
VAT
@ 14%
TOTAL
INVOICE AMOUNT
R
30 793.45
R
-
R
30 793.45’
[33] Mr Lobi, for
the respondent, submits that Mr Onah does not approach this Court
with clean hands. He submits further that
he has an alternative
remedy and the application should be dismissed with costs.
[34] According to
Mr Lobi argues that there is a dispute of fact in this matter and Mr
Onah is not in a position to disclose
how much is owed to him by Mr
Ogu. He states further that the application is an abuse of process.
[35] Mr Mongala,
on behalf of the applicant, argues that the application is unopposed
because Mr Ogu has not applied for the
dismissal of the relief
sought. He argues further Mr Ogu is not entitled to keep Mr Onah’s
keys to the property as he is
the owner of same. According to Mr
Mongala the oral agreement was terminated when the letter of demand
dated 19 October 2017 was
forwarded to Mr Ogu.
AUTHORITIES
[36] The rule is
that the necessary allegations upon which the applicant relies must
appear in the founding affidavit, as
the applicant will not generally
be allowed to supplement the founding affidavit by adducing
supporting facts in a replying affidavit.
This means that all the
necessary allegations upon which the applicant relies must appear in
his founding affidavit.
[2]
In
BETLANE
v SHELLY COURT CC
[3]
Mogoeng J had this to say:
‘
[29]
It is trite that one ought to stand or fall by one's notice of motion
and the averments made in one's founding affidavit. A
case
cannot be made out in the replying affidavit for the first time. It
was for this reason that some of the allegations made
in the replying
affidavit, such as the unlawfulness of the writ of execution, were
challenged.’
[37] In
NATIONAL
COUNCIL OF SOCIETIES FOR THE PREVENTION OF CRUELTY TO ANIMALS v
OPENSHAW
[4]
Mhlantla AJA held that:
‘
[29]
It is trite law that the applicant in motion proceedings must
make out a proper case in the founding papers. Miller J
in Shakot Investments (Pty) Ltd v Town Council of the Borough of
Stanger, puts the matter thus:
‘
In
proceedings by way of motion the party seeking relief ought in his
founding affidavit to disclose such facts as would, if true,
justify
the relief sought and which would, at the same time, sufficiently
inform the other party of the case he was required
to meet.’’
The same cannot be said
in casu
. Mr Onah seeks a final interdict.
EVALUATION
[38] Mr Mongala
submits that Mr Onah relies on an oral agreement and the issue
therefore is whether same was validly cancelled
when the letter of
demand was received by Mr Ogu. On the other hand Mr Onah in reply
gives a detailed account of how he and Mr
Ogu entered into a deed of
sale in 2014 concerning the same property which was never mentioned
in the founding affidavit. It is
only after these issues were brought
up in answer that Mr Ogu that Mar Onah mentioned it in his replying
affidavit.
[39] Mr Mongala
submits that the deed of sale lapsed due to the fact that Mr Ogu
failed to fulfil a suspensive condition in
terms of the deed of sale,
hence Mr Onah now relies on the oral agreement. It might be so that
the suspensive condition was not
fulfilled at the time but it does
not end there. There was also an addendum that was signed by the
parties in an attempt to revive
the said deed of sale. Mr Mongala
argues that the addendum did not resurrect the deed of sale which is
disputed by Mr Ogu.
[40] In my view,
Mr Mongala’s argument cannot stand because there is no order of
court to the effect that the alleged
cancellation of the deed of sale
was valid or not taking into account that Mr Ogu disputes that it
committed any breach. The validity
of the said cancellation has
therefore not been tested in court.
[41] I take into
consideration that Mr Onah did not mention the deed of sale in its
founding affidavit. Had Mr Ogu not mentioned
it in reply I would
never have known about true facts of this matter. Obviously Mr Onah
did not play open cards with this Court.
In my view it is important
that the principal agreement, the deed of sale and its alleged
cancellation, should be dealt properly
with in a court of law.
[42] Mr Mongala
submits that one of the questions that need to be resolved is whether
or not the deed of sale is enforceable.
In actual fact a number of
issues need to be dealt with around the deed of sale and its alleged
cancellation. For example, issues
like whether or not:
42.1 the respondent
should pay occupational rent;
42.2 the applicant
signed the addendum with the intention to be bound by the agreement;
and
42.3 the respondent is
entitled to claim for repairs allegedly done to the property. This
list is not exhaustive.
REQUIREMENTS FOR
A FINAL INTERDICT
The
requirements for the right to claim a final interdict are: (a) a
clear right; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of similar protection by any other
remedy.
[5]
CLEAR RIGHT
[42] Mr Mongala
argues that Mr Onah has a clear right as the owner of the property.
He argues further that Mr Ogu’s
right to occupy, possess or
lease the property was terminated by cancellation of the deed of
sale, breach of contract alternatively
by the letter of demand dated
19 October 2017. It is undisputed that the applicant is the owner of
the property as indicated earlier.
AN
INJURY ACTUALLY COMMITTED OR REASONABLY APPREHENDED
[43] It is clear
from the founding affidavit that harm that Mr Onah alleges he
suffered relates to the money for rental that
was kept by Mr Ogu and
that he has no access to the property. Mr Onah says that he still has
to service the bond and therefore
is prejudiced that Mr Ogu keeps
rental money and keys to himself.
THE
ABSENCE OF SIMILAR PROTECTION BY ANY OTHER REMEDY
[44] Mr Onah
argues that he has no alternative remedy and is therefore entitled to
the relief sought. Mr Ogu disputes this.
[45] Mr Onah
seeks rental money kept from him by Mr Ogu. He decides to approach
this Court and seek an interdict. It is unclear
how much is due to
him. In the notice of motion he indicates that Mr Ogu should be
interdicted from ‘
keeping any rental money due to the
applicant’.
The founding affidavit also does not disclosed
how much is involved.
[46] In my view,
the applicant fails to mention the deed of sale in his founding
affidavit because he wants to take a short
cut in order to regain
control of the property without having to deal with the question
whether the deed of sale was validly cancelled
or not. He could have
approached court and claim all the rental monies due to him. In my
view, he did not take this Court into
his confidence and tell it
about the deed of sale signed before the oral agreement was entered
into. Even though it is not a rigid
rule that an applicant makes its
case in the founding affidavit it is preferable for the applicant to
come clean in its founding
affidavit so that a court should not find
itself in difficulty trying to sort out the facts, as in this case.
Moreover, Mr Ogu
also has to know what case the applicant has against
him/her in order to prepare his defence.
[47] For the
reasons advanced
supra
I am not satisfied that the applicant
made out a proper case for the relief sought and the application has
to be dismissed with
costs. On the other hand the respondent has no
application before me for the relief that he seeks.
COSTS
[48] Mr Mongala
submits that Mr Ogu has, nowhere in the papers, opposed the granting
of the interdict sought by Mr Onah. He
submits further that the
application should succeed with costs.
[49] Mr Lobi
argues that Mr Onah does not approach this Court with clean hands as
his application is intended to frustrate
a valid sale agreement
between the parties. He urges me to dismiss the application with a
punitive costs order. However, this argument
was not pursued during
hearing of the matter. Instead Mr Lobi argues that Mr Onah should be
compelled to sign the agreement to
allow for transfer of the property
into the name of Mr Ogu in the absence of a formal application.
[50] The purpose
of an award of costs to a successful litigant is to indemnify him/her
for the expense to which he/she has
been put through having been
unjustly compelled to initiate or defend litigation.
[6]
An award of attorney and client costs will not be granted lightly, as
the court looks upon such orders with disfavour and is loath
to
penalise a person who has exercised a right to obtain a judicial
decision on any complaint such party may have.
[7]
The court may order the payment of attorney and client costs when a
party is guilty of dishonesty or fraud or had vexatious, reckless
and
malicious or frivolous motives or committed a grave misconduct.
[8]
[51] The matter
of costs is a matter wholly within the discretion of the court but
this is a judicial discretion and must
be exercised on the grounds
upon which a reasonable person could have come to the conclusion
arrived at. Costs on attorney and
client are punitive in nature. In
my view, an award of costs on a party and party scale is one that is
justified in the circumstances.
In
the circumstances I grant the following order:
1.
The
application is dismissed with costs on a scale as between party and
party.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Applicant:
Adv JK Mongala
Instructed
by:
C/O Mjila and Partners
On
behalf of the Respondent:
Adv L Lobi
Instructed
by:
Lulama Lobi Inc
[1]
Act
66 of 1965; Section 42 (2) provides: ‘An executor who desires
to effect transfer of any immovable property in pursuance
of a sale
shall lodge with the registration officer, in addition to any such
other deed or document, a certificate by the Master
that no
objection to such transfer exists.’
[2]
Rule 6 of the Uniform Rules of Court
[3]
2011 (1) SA 388
(CC) at 396C
[4]
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 349A-B
[5]
Setlogelo v Setlogelo
1914 AD 221
at 227; Masuku v Minister of Justice & Others
1990 (1) SA 832
(A) at 840-841
[6]
Texas Co (SA) Ltd v Cape Town Municipality
1926 AD 467
at 488
[7]
Jewish colonial Trust Ltd v Estate Nathan
1940 AD 163
at 183-184
[8]
Van Dyk v Conradie
1963 (2) SA 413
(C) at 418E-F