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[2017] ZAGPPHC 3
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Mabron Farming Enterprises (Pty) Ltd v Hano Trading CC and Others (70839/15) [2017] ZAGPPHC 3 (13 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
13/1/2017
Case
Number 70839/15
In the matter of
MABRON
FARMING ENTERPRISES (PTY)
LTD Applicant
And
HANO
TRADING
CC First
Respondent
BOTHA
MASSYN & THOBEYANE
ATIORNEYS Second
Respondent
LERUMA
EMMANUEL
THOBEYANE Third
Respondent
THE
SHERIFF OF
CENTURION Fourth
Respondent
JUDGMENT
BAM
J
1.
The applicant lodged two applications, for: (a)
The clarification of an order made by this court in case number
3632/2013; and (b)
the setting aside of a writ of execution in case
number 70839/2015 issued by the respondents against the applicant.
The applications
are opposed.
2.
On 30 September 2013 case number 3632/13 was
argued before me and on 7 October 2013 I delivered my judgment. The
order I made in
that case gave rise to this application. The dispute
between the parties concerns the interpretation of the order. On
their interpretation
First and Third Respondents issued a writ of
execution against the applicant after the latter had failed to pay
the costs it was
allegedly ordered to do in terms of the said
judgement.
3.
In my view the issuance of the writ was invalid.
Apparently it was based on a mis interpretation, or
mis-understanding, of
the order I have made. I did not intend
to, and did not make any costs order against the applicant at all.
4.
The relevant aspects in case number 3632/13 were
the following:
(i) On 29 January 2013
the provisional liquidation of
HANO TRADING CC
was granted.
The matter was eventually enrolled before this court for the purposes
to confirm or dismiss the Rule Nisi.
(ii) The parties were
cited as follows:
MATOME SIMON
SEBYEDANE
First Applicant
KGOMOTSO TRYPHINAH
MAPHOSO NO
Second Applicant
And
HANO TRADING
CC
First Respondent
JAMES MALOSE
SEMOKA
Second Respondent
LERUMA EMMANUAL
THOBOJANE
Third Respondent
(Second and third
respondents were intervening creditors in terms of a court order
dated 29 January 2013.)
(iii) At the hearing of
the application the present applicant,
"MABRON FARMING",
represented by Mr Badenhorst SC and Mr Schoeman, applied to
intervene as creditor. (The application was already filed on 1March
2013.)
Although the intervention
application was initially opposed by the respondents, represented by
Mr Sullivan SC and Mr Young, this
dispute between these parties
became settled and the parties agreed that
MABRON FARMING,
should
be granted leave to intervene as an applicant in the liquidation.
(iv) On 26 March 2013 the
first applicant had already filed a Notice of Withdrawal after having
settled his dispute with the Third
Respondent
(THOBOYANE.)
This
issue concerned the counterclaim by the second and third respondents
about the payment of R183 697 32 to the first applicant.
(v) The application for
the confirmation of the Rule Nisi, brought by the second applicant,
represented by Ms Groenewald, was opposed.
(vii) The legal
representatives of
MABRON FARMING
and the Respondents then
prepared two draft orders.
The first draft order,
"X",
envisaged the situation that in the event the
final liquidation of
HANO TRADING CC
were to be
dismissed, it provided that in that event
HANO TRADING CC
should
pay to
MABRON FARMING
the amount of R183 697 32 as well as the
costs. (A copy of "X" is attached.)
(viii) The second draft
order,
"Z",
concerned the intervention of
MABRON
FARMING
as intervening creditor. (A copy of
"Z"
is attached.)
5.
After having heard argument, I concluded that the
provisional order for the liquidation of
HANO
TRADING CC
should be dismissed with costs.
6.
However,
MABRON FARMING,
had become a party in its capacity as
intervening creditor, as agreed upon and reflected in
"X".
Accordingly I deemed it necessary, and
expedient, to make the order granting
MABRON
FARMING
leave to intervene as an applicant in
the main application.
7.
On behalf of the applicant it was submitted that
that order should not have been made. The respondents contended
during argument
that the order granting the applicant the right to
intervene was indeed correctly made by the court. This submission was
sound,
as alluded to above, in that as from that point in time the
applicant became a party to the proceedings.
8.
In view thereof that no liquidation proceedings
would have followed or realised, the question of costs in respect of
the proposed
liquidation, from that point onwards, fell by the way. I
therefore made the order as recorded in my judgement solely for the
purpose
of incorporating
MABRON FARMING
as
a party as reflected in
"Z".
That
was the only reason why
"Z"
formed
part of the order. It was never intended to hold the applicant liable
for any costs incurred before the order concerning
the intervention
was made.
9.
The respondents' contention that the applicant
was also liable for all the costs of the liquidation application
before the intervention,
is fallacious, and not substantiated.
10.
What occurred thereafter is that the applicant's
attorneys, after payment of the amount of R183 697 32 was made to the
applicant
by
HANO TRADING,
when
the bill of costs came before the Taxing Master, the respondents'
representative, third respondent, Mr THOBEYANE, an attorney,
submitted that the applicant was liable to pay the costs of the first
respondent,
HANO TRADING,
for
the instituted liquidation proceedings, in accordance with the court
order (Al), incorporating
"Z".
11.
As indicated above it was never intended that the
applicant should be held liable for any costs at all, and that no
order was made
that
MABRON FARMING
was
liable for any costs. It seems clear that the particular order was
incorrectly interpreted.
12.
The subsequent dispute about the costs and the
issuance of the writ of execution against the applicant could have
been avoided by
the respondents, especially in view of the
applicant's attitude in that regard, by simply asking for reasons for
the relevant order.
13.
When read in context it should be clear that the
order I have made never intended the applicant to be mulcted in
costs. However,
in order to avoid any possible misunderstanding, I am
prepared to concede that a variation of the order in terms of Rule
42, as
requested by the applicant, is justified and called for.
14.
In view of the above the respondents,
HANO
TRADING CC
and
LERUMA
EMMANUEL THOBOYANE
should pay the costs of
both applications on the usual scale. I am not convinced that the
third respondent, Mr Thoboyane, acted
maliciously as contended by the
applicant's attorney in rather unacceptable harsh and rude terms.
15.
In these circumstances I am also not prepared to
make an order that the matter should be reported to the Law Society
as requested
by the applicant.
16.
ORDER
A. The order in respect
of Part A in case number 3632/13 is varied as follows:
1.
Paragraph 1of the draft order, marked
"Z"
in regards to the intervention of the intervening party
is made an order of court.
There is no order
as to costs.
2.
The Rule Nisi is dismissed with costs, including
the costs of senior and junior counsel.
(Excluding
any costs incurred by the intervening creditor, MABRON FARMING
ENTERPRISES (PTY) LTD.)
3.
The draft order concerning the payment of the
R183 697 32 by the first respondent to the intervening creditor
MABRON FARMING ENTERPRISES (PTY) LTD,
including costs of two counsel,
is confirmed.
B. The application for
setting aside the writ of execution in case number 3632/13 against
the applicant by the respondents succeeds.
The writ is set aside.
C. First and third
respondents are ordered to pay the costs of both applications,
including the costs of two counsel.
A
J BAM JUDGE
9 January 2017