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[2019] ZAKZDHC 7
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Gautam v Mrs India South Africa CC and Others (12369/2018) [2019] ZAKZDHC 7 (21 May 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case No:
12369/2018
In
the matter between:
Saumya
Tiwari Gautam
Applicant
and
Mrs
India South Africa CC
First Respondent
Annulutchmee
Thaver
Second Respondent
Deon
Ganas
Third Respondent
Judgment
Lopes
J:
[1]
During the early part of 2018, the applicant, Mrs Saumya Tiwari
Gautam, became aware
of an advertisement for a beauty pageant
described as ‘Mrs India South Africa’, the object of
which was to choose a
beauty queen as Mrs India South Africa 2018.
Mrs Gautam maintains that the advertisement claimed that the sole aim
and objective
of the pageant was to inspire, motivate and uplift
women in South Africa - this appears in a document entitled
‘Introduction’
in the court papers. This appealed
to Mrs Gautam, as did the prizes which were advertised and described
as ‘Amazing
prizes’ up to the value of R500 000 and
a brand new VW Jetta 7….’
[2]
On the 25
th
of August 2018 Mrs Gautam won the beauty
pageant and was crowned as Mrs India South Africa 2018. She then
started working, promoting
the brand and complying with her duties as
Mrs India South Africa.
[3]
As time passed, Mrs Gautam felt that she was getting no support from
the respondents,
who were the close corporation and persons involved
in running the pageant. Her demands for her prizes largely fell
on deaf
ears, and she received some vouchers valued at no more than
R5 000. With regard to the motor vehicle, she was informed
by the third respondent that it was a motor vehicle on loan for a
period of one year, and that Mrs Gautam would be responsible
for
insuring the vehicle. Viewing all of this as being not what she
was promised, Mrs Gautam then instructed her attorneys
to address a
letter of demand to the respondents on the 14
th
of
September, 2018. Her letter of demand having elicited no
positive response, she caused summons to be issued against the
respondents on the 5
th
of October 2018. Various
press reports appeared, recording the complaints of Mrs Gautam.
The origin of these reports
is the subject of a dispute between the
parties.
[4]
As a result of the dispute, and the publication of it, the
respondents regarded the
conduct of Mrs Gautam as being in breach of
their contract with her, and by way of what is described as a ‘LETTER
OF DISQUALIFICATION
AND DETHRONEMENT’ dated the 26
th
of October 2018, Mrs Gautam was stripped of her title. The
respondents demanded that she return to them all her prizes,
sponsorships,
packages, vouchers, her title sash and crown. It
also appears from the papers that the first princess Daphnie Singh
was appointed
Mrs India South Africa 2018 in Mrs Gautam’s
stead.
[5]
Mrs Gautam then sought interdictory relief on an urgent basis
declaring her to be
Mrs India South Africa 2018, alternatively
reviewing and setting aside the decision of the first and second
respondents to disqualify
her, and calling upon the respondents to
deliver the record of the proceedings in terms of which she was
disqualified. Mrs
Gautam sought further relief interdicting and
restraining the respondents from taking any steps to remove her as
the current holder
of Mrs India South Africa, 2018, and further
interdicting them from harassing or threatening or defaming her
directly, or indirectly
through the means of the press or any social
media.
[6]
The notice of motion frames the interdictory relief in the form of an
interim interdict
pending the final determination of the application,
and costs calculated on the scale as between attorney and own client,
jointly
and severally, against the respondents.
[7]
The matter first came before this court on the 8
th
of
November 2018 when it was struck off the roll for want of urgency.
Subsequently, the Judge President directed the registrar
to accord
the matter such preference as she was able to do. This resulted
in the matter coming before me on the 13
th
of May 2019.
Mrs Gautam now seeks final relief.
[8]
Mr
Jorgensen
, who appeared for the respondents raised the
point that as Mrs Gautam was stripped of her title on the 26
th
of October 2018 - and the first princess Mrs Daphnie Singh had been
appointed - if this Court granted the interdictory relief sought
by
Mrs Gautam, it would have the effect of stripping Mrs Singh of her
title as Mrs India South Africa, 2018. The problem with this
is that
she has not been cited as a party to this application. Mr
Jefferys
SC
, who appeared for Mrs Gautam, submitted that the present
proceedings had nothing to do with Mrs Singh and there was nothing
which
she could say with regard to the present application. He
submitted that in the event that this Court did not agree with that
approach, an interim interdict should be granted, and Mrs Singh be
given an opportunity to intervene.
[9]
In support of his contention that Mrs Singh should not be joined as
an interested
party, Mr
Jefferys
referred me to the matter of
United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels
Ltd and Another
[1972] 4 All SA 493
(C).
[10]
In
United Watch
a group of sub-tenants sought an order setting
aside the termination of their leases by a provisional liquidator.
This was
after the tenant through whom they had acquired their
respective sub-lease rights, had been provisionally liquidated. The
court
held that they had no direct and substantial interest in the
application for the provisional or final liquidation of the tenant,
and the granting of rights to the liquidator to cancel the
sub-tenants’ lease agreements. The court held that the
applicants were in an analogous position to sub-lessees in an action
for ejectment. Thus, although the application itself
to set
aside the liquidation decision was in a different format, that did
not constitute a distinction of any significance.
In the
circumstances the court declined to set aside those parts of the
provisional liquidation order authorising the liquidator
to cancel
the applicants’ leases. The court also expressed the view
that there was no merit in a claim for non-joinder
in the original
liquidation application.
[11]
The present circumstances are somewhat different. In
United
Watch
the applicants, as sub-lessees, derived their title from
the tenant. Their relationship with the tenant had nothing to
do
with the tenant’s relationship with its landlord and the
liquidation proceedings. In the present matter, in the event
that I were to grant the relief sought by Mrs Gautam, there would be
two persons having the title of Mrs India South Africa, 2018
–
the first appointed by the respondents – and the second by
way of an order of court. This would clearly
be untenable, and
Mrs Singh may rightly be heard to complain that she had no part in
the order reinstating Mrs Gautam, because
she had never been cited as
a party.
[12]
In this regard it is significant to note that Mrs Gautam herself does
not view the loss of the
title as being a purely financial matter.
There is obviously a considerable element of prestige and publicity
involved in
having acquired the title and being treated as a
celebrity. These are aspects which are very difficult to
express in monetary
terms. In my view Mrs Singh has a direct and
substantial interest in the application before me.
[13]
Mr
Jefferys
submitted that in the event I was of the view I
have expressed above, that I should grant an interim interdict
pending the outcome
of the application. I do not believe that
it would be correct in the circumstances for me to do so. I
appreciate that Mrs
Gautam regards the matter as having an element of
urgency, because once the remaining four months’ of her reign
have expired,
her reign will be over and there will be no point in
restoring the title to her, save for the prizes. The prizes
however
form the substance of an action instituted actioned by her
against the respondents.
[14]
In making the order which I set out below, the respondents have
incurred wasted costs in having
to come to court to argue the point
of non-joinder, and they must be compensated for those costs. I am
mindful of the continuing
urgency of the matter, and allow for
abridged dates for the delivery of affidavits.
[15]
In all the circumstances I make the following order:
(a)
The application is adjourned
sine die
, and the applicant is
given leave to amend her application, to seek to join Mrs Daphnie
Singh as a respondent.
(b)
In the application to join Mrs Daphnie Singh, she must be directed to
deliver any answering
affidavits, or a notice to abide, within 10
days of the date of the service of the papers upon her.
(c)
The applicant is directed to deliver any replying affidavit within
five days of the
receipt of any affidavits delivered by Mrs Daphnie
Singh.
(d)
The applicant is given leave to approach the senior presiding judge
once the papers are
finalised, to seek an urgent date for hearing as
the senior presiding judge may determine.
(e)
The applicant is directed, in the application to join Mrs Daphnie
Singh, to annex a copy
of this order, and to draw her attention to
the provisions regarding the delivery of affidavits, or a notice to
abide.
(f)
The applicant is directed to pay the wasted costs of the respondents
occasioned by
the hearing on the 13
th
of May, 2019.
Lopes
J
Date
of hearing:
13
th
May 2019.
Date
of judgment:
21
st
May 2019.
For the
Plaintiff:
Mr H P
Jefferys
SC (instructed by Rajesh Hiralall Attorneys).
For the Defendant:
Mr P
Jorgensen
(instructed by Mervin Dorasamy Inc. Attorneys).