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[2016] ZAGPPHC 858
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Mandla Linx (Pty) Ltd v Vermaak and Others (82647/2015) [2016] ZAGPPHC 858 (15 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Case
No: 82647 /2015
DATE:
15/9/2016
In
the matter between:
MANDLA
.
LINX
(PTY)
LTD
..
.....................................................................................
Applicant
and
EPHRAIM
VERMAAK
N.O
…...............................
First Respondent
MARIA
PETRONELLA VERMAAK
N.O
…...................................
..
Second Respondent
EPHRAIM
VERMAAK
…..................
Third Respondent
JUDGMENT
MAKHUBELE
AJ
[1]
This matter came before me in the opposed motion roll to determine
the reserved costs of the urgent application and the scale
on
obtained substantive relief in the urgent court before Ranchod J on
27 October 2015 and as such it is not only entitled to costs
of the
application, but such costs should be on the scale as between
attorney and client. The respondents are alleged to have conducted
themselves in a vexatious, unscrupulous, unlawful, dishonest and
dilatory manner since the onset of the dispute that formed the
subject matter of the urgent application.
[2]
The respondents are opposing the cost order, and particularly on a
scale as between attorney and client as contended by the
applicant.
The first and second respondent are juristic entities. The
allegations that formed the subject of the urgent application
were
made against the third respondent.
Reference
to respondent in this judgment refers to the third respondent, Mr.
Vermaak.
[3]
The relief sought in the urgent application was phrased in the
following terms:
"
I.THAT the normal rules pertaining to the service, times and filing
of applications be dispensed with and this application
be determined
on an urgent basis in terms of the provisions of Rule 6( 12) ( a) and
(b) of the Rules of Court:
2.
THAT the applicant 's possession of the service entry to the
immovable propert y, known as portion 2 ( a portion of portion 22
)
of the farm Rooibank [8...] registration division JR, Province of
Gauteng measuring approximately 21, 4 137 hectares ("
the
immovable property ") be restored;
3.THAT
the respondents be directed to remove the steel fencing poles that
have been planted into the ground and that block the service
entry to
the immovable property;
4.
THAT pending the outcome and final determination of an action to
be launched out of this court within 10 days of
this order:
4.
1 The respondents are interdicted and restrained from, in any
manner whatsoever, interfering with applicant' s, its
representatives'
, its customers' , its employees' , its invitees
'and / or its contractors' entry and access to the
immovable property, such entry and access being depicted on the
map and highlighted in blue, a copy of which is attached
to the
founding affidavit marked "M 3.2" ;
4.2
The third respondent is interdicted and restrained
from
harassing, intimidating or threatening the applicant, its
representatives, its customers, its employees, its invitees
and/or
its contractors in any manner whatsoever, including but not limited
to
interfering with the with the execution of
its contractors' duties and / or the execution of their
instructions,
informing
members
of
the
public that
the
business
no
longer
operates, or that the
business is closed for renovations or
for any other
reasons;
5.
The respondents are interdicted and restrained from spoliating the
applicant in any manner.
5.
The respondents, jointly and severally, the one to pay, the others to
be absolved are ordered and directed to pay the costs of
this
application on an attorney and own client scale;
6.
The applicant is granted such further and/or alternative relief
as the court deems meet" .
[4]
In his heads of argument counsel for the applicant submitted that the
parties settled the matter after Ranchod J advised them
that he was
inclined to grant relief in the Notice of Motion. Costs were
postponed because they could not reach an agreement thereto.
As I
have already stated above, the applicant's argument is that it
obtained substantial relief in the urgent application and as
such ,
costs should follow the cause. The only issue for determination is
the scale according to counsel for the applicant is the
scale on
which costs should be paid.
[5]
The respondents ' counsel did not concede that the applicant obtained
substantive redress before Ranchod J. He argued that the
respondents
also obtained relief in terms of the counter-application and as such
there should be no order as to costs, moreso on
a scale as between
attorney and client.
[6]
The matter before me was argued on the heads of argument filed by the
respective counsel as well as references to relevant parts
of the
papers filed in the urgent application. I did not have the benefit of
the transcript of proceedings before Ranchod J.
[6.1]
It appears from a reading of the order though that both parties
obtained some relief although counsel for the applicant downplayed
the respondents ' success by submitting that Ranchod J did not issue
an interdict against his clients. According to him, the respondents
only obtained an undertaking from the applicant.
I
do not agree with this submission.
[6.2]
My approach then will be to steer clear of the merits of the
unresolved dispute and to look at the circumstances surrounding
the
issues that were finally disposed of in terms of the court order of
27 October 2015.
[7]
The order of Ranchod J reads as follows:
"
Having
perused the documents filed on
record,
it is
ordered
:
I.
THAT,
pending the outcome and determination of
an
action
to
be
launched
out
of this
court
within
10
days
of
this
order:
I.
I
The respondents undertake to be and
are
hereby
interdicted and
restrained from,
in
any manner whatsoever,
interfering with the
applicant' s, its representatives' , its customers' ,
its
employees' ,
its
invitees' and
/or
its
contractors'
entry
and
access
to
the immovable property, such entry and
access
being depicted on
the
map
and
highlighted
in blue,
a
copy of which is attached
to
the founding affidavit marked
"M3.2";
1.2
The
third respondent undertakes to be and is hereby
interdicted and restrained from harassing, intimidating
or
threatening
the
applicant,
its
representatives, its
customers,
its
employees,
its
invitees
and/or
its
contractors
in
any manner
whatsoever,
including
but
not
limited to
interfering
with
the
with
the
execution of
its contractors'
duties
and /or
the execution
of
their
instructions, informing
members
of the public that the
business no
longer operates,
or
that the
business is closed for renovations
or
for
any other
reasons;
1
.3 The respondents undertake to be an are
hereby
interdicted
and
restrained
from
spoliating the
applicant
in any
manner;
1
.4 The applicant in turn undertakes not to harass the
respondents.
2.THAT
the applicant'
s possession of the service entry to the
immovable
property, known
as
portion
2..
(a portion of
portion
2..
) of the farm Rooibank,
8..
registration
division
JR,
Province
of Gauteng measuring approximately 21
,
4
1
37 hectares ("
the immovable
property ") be restored up
to and until 1 M
arch 20
1
6,
3.
That for the purpose of order 2 the third respondent
will
remove the steel fencing poles that have been planted into
the ground
and
that block
the service entry to the immovable property;
4.
The costs of the application are reserved."
[8]
The dispute pertaining to the issues under paragraphs 1.1 to 1 .4 of
the order will be finally determined in the action that
is still to
be launched as per paragraph 1 thereof. The issue that has clearly
been finally decided is applicant's possession of
the service entry
to the immovable property (paragraph 2 of the order) . The
respondents have been ordered to restore applicant's
possession up to
and until 1 March 2016 and to this end the respondents were ordered
to remove the steel fencing.
[8.1]
The fact that the disputes pertaining to the issues in paragraphs 1,
1 ,1 to 1 .4 are still to be finally adjudicated makes
it difficult
to base the argument of costs on which party obtained substantive
relief. Ideally, the costs should have stayed reserved
until
finalization of the action.
[8.2]
As I have already stated above, the only issue that has been finally
adjudicated is restoration of applicant's possession
of the service
entry. The possession was restored up to 1 March 2016. In this
regard, I am inclined to agree with the respondent
' s counsel that
it obtained some relief with regard to its counter-application for
restoration of this contested entry.
BACKGROUND
FACTS
[9]
On 10 April 2015, the applicant, represented by Mrs Elize Morin,
entered into an agreement of sale with the Expan Family Trust,
represented by the third respondent ("the respondent" ) in
terms of which the applicant purchased certain immovable property
known as Portion 2 of [2..] Rooibank [8..] JR . Hammenskraal.
[9.1]
The parties signed an addendum to the sale agreement on 20 April
2015. It provides for amongst others an undertaking by the
seller to
repair the refrigerator, tangle (3 phase protector ) on the borehole
and audio system and that it would issue all certificates.
The
parties also agreed that the seller purchases the business on the
property as a going concern. The business purchased was described
as
a restaurant. I may mention in passing though that there is a dispute
as to exactly what this "going concern " included.
The
respondent contends that it did not sell Xombana Game Ranch CC. I am
not required to rule on the dispute of facts with regard
to the
undertakings made during the negotiation of the sale agreement.
[1O]
The purchase agreement and the addendum thereto did not make
provision for the right of way or access road depicted in blue
in
Annexure M3.2. This is the access road that passes through the
respondent's property. The respondent contends in their answering
affidavit that initially the applicant was interested in purchasing
two properties, Portion 2.. of Portion 22 as well as Portion
7.., the
property belonging to the respondents. If this had happened, access
would have been given because they would
be owners of
both properties.
There
is a dispute with regard to whether, the respondent showed the
applicant any other access route to its property other than
the one
depicted in Annexure M3.2.
[10.
l ] In an email enquiry and response dated 22 May 2015 the parties
dealt with several issues, amongst which is the access road
and the
existing Xombana sign boards coming off the tar road.. The applicant
requested the respondent to give written consent
"
for
continuous use
of the
current
access road
to
Xombana
that
is
in
front of the Safari M all."
The respondent answered that this will be automatic when the
applicant "sign the Paradise Link agreement".
It
is common cause that the applicant only signed the Paradise Link
Agreement on 14 October 2015.
[11]
On 17 July 2015, the applicant' s attorneys wrote a letter to
the
respondent's attorneys and raised issues such as (a) the validity of
the
electrical
certificate,
(b) the
threats
by
Eskom
to
switch
off
the
electricity
due
to
non-payment
of
amount
owed,
(c)
the
respondent'
s
unlawful
diversion
of internet traffic from
www.xombana.co.za
website, (d)
the
discrepancies
in
the
inventory
and
missing
items
and;
(e) failure
by the respondent to repair of fridges and other
appliances.
The
applicant made a request for a meeting to discuss these issues.
[11
.l ] It appears from the papers that whilst the parties were
resolving the issues in the snag list, a dispute arose with regard
to
access route to applicant 's property from the tar road.
Several
letters were exchanged between the respective attorneys in this
regard.
[11
.2] Whilst discussions were underway to resolve these and other
issues, the relations between the parties soured with allegations
and
counter-allegations of harassment and intimidation being leveled by
one party against the other.
The
first incident of alleged unlawful conduct on the part of the
respondent was highlighted in a letter dated 18 September 2015
from
the applicant's to the respondent 's attorneys.
In
this letter, it was alleged that the applicant was informed by one of
its contractors, Messrs.Falcon Fencing that the respondent
had
threatened to erect a fence to cut off the applicant and its patron'
s access to their restaurant.
The
respondent was warned that such conduct would constitute spoliation
and was advised that the applicant would approach the court
for
urgent relief should he carry out the threat.
[11.2]
The respondent'
s attorneys responded to this letter
in writing on the same day , and whilst there was no denial of the
threat to cut off the access,
it was pointed out to the applicant 's
attorneys amongst other things that " Your clients are not
entitled to
access their
property by
means
of
Our
client'
s
entrance.
They
have
been
using it as a concession by Our client,
even though it was
never discussed or agreed upon
between the parties. It is our
instructions that not
once
during
the
sale
negotiations
or
subsequent thereto
was access to the property via Our Client' s entrance
discussed
or agreed
upon.
In
such
instance, it would be included in the
agreement of sale, and I or servitude registered over the
property by the transferor in the power of attorneys to pass
transfer. In any event , due to the recent events and the actions of
your client,
Our Client is
concerned
for his safety
and security
and
he can no longer
make this concession to your
client. They are able to obtain access to their property by means of
their law full entrance. Our client
trusts that your
client will respect his property boundaries as he is
not
desirous of applying to court to enforce his rights. Secondly, Our
client denies that he entered your client' s
premises
last
night,
and
he
denies
that
he
flashed
lights
at
the
restaurant
at
any
stage.
His
wife
and son
accompanied
him
when
he
was
on
his
property looking at beacons
on his property, as he was
entirely within
his rights to do. He views these spurious a/legations in a
serious light and your client is requested to refrain from
this kind of contentions in future."
[11.3]
The applicant's attorneys ' response to this letter is dated 30
September 2015. They acknowledged that there exists a factual
dispute
regarding the negotiations that led to the conclusion of the
agreement but with regard to the access route, their investigations
indicate that it has been in use for more than 30 years and has been
used by the previous owners of the land for a period in excess
of 30
years. For that reason, they were of the view that the respondent was
not entitled to refuse their client access to her property
through
the contested route.
Further
allegations of unlawful conduct were made against the respondent,
such as (a) removal of the signage to the applicant's
business the
previous night (29 September) and; (b) informing several members of
the public that the establishment of the applicant
was closed for
business and no longer operated.
[11
.4] The respondent did not (immediately) respond to these
allegations. Another letter was dispatched on 01 October 2015. It
recorded all previous allegations. The respondent was placed on terms
to replace the signage boards and to desist from acting in
other
alleged unlawful activities that prejudiced the applicant's business
interest.
[11
.5] The respondent replied to both letters on 02 October 2015 and
denied that the access route had been in existence for 30
years ,
that the access road was part of the sale negotiations and that it
was informing the public that the applicant 's establishment
is
closed for business.
With
regard to the removal of the signage, the respondent appeared to
admit having removed it but denied that it was a direction
sign. He
indicated that he had already restored it but that it and any other
signage with reference to the applicant 's restaurant
on the
respondent's property would be removed on 20 November 2015 if the
applicant does not do so before that date.
With
regard to the access route, the respondent reiterated the previous
position that the applicant had no right to access its property
through his property . The applicant was given notice that the
entrance to the respondent' s property "will be gated as and
entrance controlled from 20 November 2015" because he was
extremely concerned about his safety and that of his family.
[12]
The applicant has attached a confirmatory affidavit of one of the
members of the public who was allegedly informed that the
applicant'
s establishment had closed for business.
The
effect of all this as well as other breaches relating to the terms of
the purchase agreement will undoubtedly be ventilated
in the action
that the applicant intends to institute against the respondent. The
applicant contends that the actions of the respondent
has affected
its business that in any event was purchased on the strength of the
undertakings that were made and not fulfilled.
Therefore,
I am not required, at this stage to make any pronouncement on their
truthfulness.
The
service entry dispute: Spoliation and counter- spoliation
[13]
As I have indicated in the introductory paragraphs,the only issue in
my view that was finally decided is the parties' respective
access to
what is known as the "service entry".
The
court order reads as follows in this regard "
2..
THAT
the applicant' s possession
of
the
service entry to the immovable property,
known
as
portion
2
(a
portion
of
portion
[
2..]
of
the
farm
Rooibank,
8..
registration
division
JR,
Province
of Gauteng
measuring approximately 21, 4
1
37 hectares ("
the immovable
property ") be restored
up
to
and
until
1
M
arch 20 16,
3.
That
for
the
purpose of order 2
the third
respondent
will
remove
the steel fencing poles that have been planted
into the
ground
and
that
block
the
service
entry to
the
immovable
property
:
[14]
The exact date and circumstances under which this entry came into
being are also not common cause. The applicant' s version
is that a
fence was erected when it took possession of the property during
April and has been in peaceful possession since then.
Later on a gate
was installed. The respondent's version is that it was created during
July 2015 and was only used from September
2015. Furthermore, he
objected to the gate as soon as it was installed on the basis that he
did not give consent. According to
him, the applicant's lawful
entrance to its property is by means of registered right of way
servitude over Portion [1..] ( a Portion
of Portion 2..) of the Farm
Rooibank. The applicant disputes this and contends that this entrance
was never pointed out during
the sale negotiations and that in any
event it is not a convenient entrance as it meanders through several
properties. The only
access route that was ever shown to it is the
one that comes from the tar road through the respondent's property.
The
service entry is apparently used by the applicant 's contractors and
suppliers and is only access to the kitchen area where
deliveries are
accepted.
[15]
The respondent does not deny erecting steel droppers directly in
front of this gate, but justifies it on the basis that he
wanted to
uphold the status quo.
The
steel droppers were erected during October 2015.The respondent was
clearly taking the law into his own hand.
IS
ANY OF THE PARTIES ENTITLED TO COSTS OF THE URGENT APPLICATION?
[16]
I do not intend to repeat what I have already stated above, but it is
clear from the chronology of the events since the breakdown
of the
negotiations around the alleged breaches of the terms of sale
agreement that the actions of the respondent with regard to
access to
the service entry left the applicants with no option but to approach
the court for urgent relief.
The
issue is not whether or not the applicant had consent or a right to
erect the service entry . Even on the version of the respondent,
it
is clear that the gate was in existence for some time and he
(respondent) was aware of it.
The
gate could have been created without the respondent's consent , but
he is not entitled to take the law into his own hands by
planting
steel droppers to prevent use of the gate.
[17]
In the matter of
Ivanov
v North West Gambling Board
[1]
,
the
issue was,
amongst
others
whether
possession that
was
prohibited
by
statute,
notably,
the
National
Gambling
Act
should be
restored
by
spoliation
order.
The
appeal court, per Mhlanta JA, held
[2]
that:
"
the aim
of
spoliation is to prevent self-help. An applicant
upon
proof
of
two
requirements
is entitled
to
a
mandament
van
spolie
restoring
the
status
quo
ante.
The
first
proof
that
the
applicant
was
in possession of the spoliated thing. The
cause
for
possession
is
irrelevant- that is why possession
by
a
thief is protected. The
second is the
wrongful deprivation of possession. The fact that possession
is wrongful
or
illegal is irrelevant,
as
that
would
go
to the merits
of
the
dispute"
The
court referred to various old authorities, amongst others Bon
Quelle
(edms) BPK v Munisipaliteit van Otavi
[3]
wherein the following was
stated:
"
Die mandament van spolie is n' besitsremedie waarvan die
beperkte en uitsluitlike funksie is
om
die herstel
van status quo
ante
te bewerk-stellig
(Oglodzinski
v
Oglodziski 1
976 (4) SA 273
(DJ
op
274F-G) en daarom kom dit nie
daarop
aan dot die
spoliator n ' sterkter aanspraak
op
besit
as
die
gespolieerde
mag
he
nie
of dot
laasgenoemde inderdaad
geen
reg
op
besit
het
nie.
Die
beginsel
is
eenvoudig: spoliatus
ante onmia restituendes est
ongeag
die
partye se
daadwerklike regte
op
besit"
[18]
I have already mentioned the fact that both parties obtained relief
with regard to the service entrance dispute. The applicant
' s relief
is that its possession should be restored until 01 March 201 6 and
that in this regard, the respondent should remove
the steel droppers.
[18.1]
The respondent did not file a notice of counter-application,
but in his answering affidavit he asked the court to restore
his
possession of this service entry. This is understandable because the
matter was brought to court on an urgent basis . The matter
was
settled without argument, so I do not know what informed the
settlement in paragraphs 2 and 3 of the order. What is clear though
is that both parties cannot be said not to have obtained some relief.
[18.2]
However, in as far as the issue of costs is concerned, the overriding
principle is that the respondent took the law into
his own hands by
erecting steel droppers in front of the service entry, refusing to
remove them. The applicant was forced to approach
court.
For
that reason, costs of the urgent application must be awarded in
favour of the applicant.
[19]
The next question is the scale on which such costs should be paid.
[20]
As I have stated above already, counsel for the applicant, Mr.
Woodrow, contends that the actions of the respondent since the
onset
of the dispute with regard to the alleged breaches of the terms of
the sale agreement were vexatious, unscrupulous, unlawful,
dishonest
and dilatory.
He
referred me to the case of
Ward
v Sulzer
[4]
at
paragraph 516 in this regard where the following was
stated" f
or
example vexatious,
unscrupulous,
dilatory or mendacious conduct ( this list isnot exhaustive) on the
part
of
an
unsuccessful
litigant
may render it unf air
for
his
harassed
opponent
to be out of pocket in the matter
of
his own
attorney and
client
costs".
He
also referred to the matter of
Nel v LandBouwers
Ko-
Operative Vereenegi
ng
1946
AD
597
, where the purpose of an
attorney and client cost order was explained as follows :
"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
part y, 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.
Theoretically a party and party bill taxed in accordance with the
tariff will be reasonably sufficient
for that purpose. But in fact a
party may have incurred expense which is reasonably necessary but is
not chargeable in a part y
and part y bill."
viability
of the business, informing members of the public that the applicant
's business is closed for business , taking down signage
to the
applicant ' s business, diverting internet access, and many other
issues.
[22]
Therefore, I am not inclined to grant the request for a punitive cost
order on a scale of attorney and client at this stage.
ORDER
[23]
I make the following order;
[23.1]
The respondents are directed to pay the costs of the urgent
application, including the reserved costs of 28 October 2015,
jointly
and severally, the one paying the others to be absolved.
TAN
MAKHUBELE
ACTING
JUDGE OF THE HIGH COURT.
APPEARANCES:
Applicant:
.................................
Advocate
C Woodrow
Instructed
by:
............................
Van Der
Merwe & Bester Inc Pretoria
Respondents:
,........................
Advocate
J J W Hayes
Instructed
by:
...........................
Hayes Smit
Attorneys
…
...................................................................................................................
Pretoria.
Date
Heard:
..............................
18
May 201 6.
[1]
2012 (6) SA 67
[2]
Paragraph 19
[3]
1989 ( 1 ) SA 508 ( A)
[4]
1973 (3) SA 701
( ADJ at 706H