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[2012] ZAFSHC 167
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Ex Parte Vesta in re: Vesta v McDonald and Another (3452/2012) [2012] ZAFSHC 167 (10 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3452/2012
In
the
ex parte
application of
:-
CAMPANELLA
VESTA
.............................................................
Applicant
In
the action between:
CAMPANELLA
VESTA
................................................................
Plaintiff
and
IAN
FRANCIS McDONALD
...............................................
1
st
Defendant
(UK
Identity number: )
MARGARET
PHILOMENA McDONALD
..........................
2
nd
Defendant
(UK
Identity number: )
_____________________________________________________
CORAM:
DAFFUE, J
_____________________________________________________
HEARD ON:
6
SEPTEMBER 2012
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
10 SEPTEMBER 2012
_____________________________________________________
[1]
The applicant is Me Vesta Campanella, a business woman of Sandton,
Gauteng. The respondent, Mr & Me Mc Donald are UK citizens.
Residing in the United Kingdom.
[2]
The parties are in dispute about the sale of immovable properties,
being 6 erven situated in Fouriesburg, Free State Province.
Applicant
sold these properties to respondents in terms of a written Deed of
Sale signed by applicant as seller on 23 February
2011 at Sandton and
by respondents as purchasers on 2 March 2011 at Fouriesburg.
[3]
On 20 August 2012 applicant brought an urgent
ex parte
application whereupon Hancke, AJP issued a
rule nisi
which
reads as follows:
“
2.
A
rule nisi
is issued calling upon
IAN
FRANCIS McDONALD
(UK Identity number: )
and
MARGARET
PHILOMENA MCDONALD
(UK Identity number: ) (hereinafter referred to as “
the
Respondents”
)
to show case, if any, on the
6
th
day of
September
2012
,
why the following order should not be made final:
The Sheriff of
the Court, Bethlehem is hereby authorised and directed to attach,
in order to found and/or confirm jurisdiction,
the Respondent’s
right, title and interest in and to the monies held in trust by
Breytenbach Mavuso Inc., a firm of attorneys
and conveyancers of
Bethlehem, on account of the sale and transfer of Erven 303-308
Fouriesburg from
V. Campanella
to
I.F.
and
M.P. McDonald:
The Sheriff of
the Court, Bethlehem is hereby authorised and directed to serve
this order on the offices of Breytenbach Mavuso
Inc. At 12 Union
Street, Bethlehem, Province of the Free State, Republic of South
Africa (Ref: Michal Muller/CAM18/0003);
That the
Respondents be ordered to pay the costs of this application.
3. The relief
asked for in 2.2.1 and 2.2 above apply with immediate effect pending
the finalisation of this application.”
Leave was also granted to
effect service of the application papers and order on respondent’s
attorney of record, Mr Andrew,
whose full particulars were well known
to applicant’s attorney of first instance. I pause to mention
that although reference
is made in the notice of motion and the order
issued of an order to found and/or confirm jurisdiction, no mention
is made in the
founding affidavit of an intention to confirm
jurisdiction.
[4] Applicant relied on
respondent’s alleged breach of contact and gave notice of her
cancellation of the Deed of Sale prior
to institution of the
application. Applicant knew that following her cancellation of the
Deed of Sale, the full purchase price
of R535 000,00 which was kept
in trust by the Bethlehem attorneys, Breytenbach Mavuso Inc pending
registration of transfer, which
have to be paid over to respondents
as purchasers at their request. She intended to prevent that by
launching the aforesaid application.
[5] Nothwithstanding
several clauses of the Deed of Sale being referred to in much detail
in her founding affidavit, applicant failed
to refer to the most
important clause 19 at all. This clause reads as follows:
“
19.
JURISDICTION:
The Seller and the Purchaser hereby
consent to the jurisdiction of the Magistrates Court in respect of
any action that may arise
from this agreement. Each party however
reserves the right, if he so chooses, to institute in the Supreme
Court and to recover
the costs hereof according to the Supreme Court
scale.”
It should be common cause that for
many decades the High Court was known as the Supreme Court.
[6] In correspondence after the relief
was granted
ex parte
, respondent’s attorney requested
applicant’s attorney to confirm that clause 19 was brought to
the attention of the
presiding judge who granted the order.
Applicant’s attorney responded dismissively that “The
application speaks for
itself.”
[7] On 31 August 2012
notice was given by the respondents of an application in terms of
rule 6(12)(c) to be brought on the aforesaid
return date, to wit 7
September 2012. Respondents intended to apply for the reconsideration
of the order of 20 August 2012. The
following allegations were made
in the affidavit accompanying the notice:
(a) respondents consented
in writing to the jurisdiction of the magistrate’s court and/or
the Supreme (High) Court in clause
19 of the Deed of Sale;
(b) all contractual
obligations of the Deed of Sale had to be effected by the parties
within the area of jurisdiction if this court:
this would include the
fact that payment had to be made to applicant’s conveyances in
Bethlehem, occupation of the properties
had to be given in
Fouriesburg and registration of transfer would have to be effected in
Bloemfontein;
(c) There was no reason
to obtain an order to found jurisdiction;
(d) Applicant deceived
the court into granting what is effectively an anti-dissipatery order
without disclosing a cause of action
in that regard.
[8] Respondents not only
asked that the
rule nisi
be
discharged, but also that punitive costs on an attorney and own
client scale, including the costs of two counsel, where applicable,
be paid.
[9]
Ex
facie
the papers before me there was no
response from applicant’s attorney pertaining to the rule
6(12)(c) application prior to
the 5
th
September 2012, the day preceding the return day of the
application and I will deal with this later.
[10] On 4 September 2012
the Heads of Argument, prepared by Adv Pillay of the Durban Bar on
behalf of the respondents, were duly
served and filed. It was
inter
alia
submitted that applicant’s
application was instituted in bad faith and that applicant could not
in the circumstances obtain
an order to found or confirm
jurisdiction.
[11] On 5 September 2012,
a day before the hearing, applicant’s attorney wrote to
respondent’s attorney and conveyed
the following:
“
2. I
request, in place of paragraph 3.2 of my earlier letter, that you
furnish an undertaking on behalf of your clients that the
sum of R250
000 be held in trust in the Republic of South Africa pending the
institution of an application by my client against
your clients for
an anti-dissipation interdict in appropriate terms, which application
will be served on your offices by no later
that Thursday, 13
September 2012.
In order for my client to agree to
the discharge of the
rule nisi
granted in her favour, I
require that the aforesaid undertaking be furnished in writing on
behalf of your clients prior to the
hearing in Court tomorrow
morning.
Should the undertaking not be
received timeously, my client’s further instructions are to
apply for an order interdicting
and restraining Breytenbach Mavuso
from releasing funds to your clients pending the outcome of the
anti-dissipation interdict
application.
This letter was handed in
from the Bar during argument by agreement.
This is quite astonishing
behaviour of someone who is confronted with a rule 6(12)(c)
application apparently based on solid foundation.
[12] On the return date,
6 September 2012, the application was heard by me in the unopposed
motion court. Mr Pillay appeared for
respondents, having flown in
from Durban early that morning. Mr Olivier appeared for the
applicant. Mr Pillay handed in a letter
from applicant’s local
attorney, dated 6 September 2012, and apparently faxed at 08h52 only
to his Durban attorney and thus
a mere 40 minutes before the start of
the motion court proceedings which reads as follows:
“
Kindly take
note that we have instructions to inform you that we hold
instructions from our correspondent to discharge the rule
nisi
this morning and tender cost for the application.
We further confirm that our
instructions from our correspondent to the effect that he gave you
notice yesterday that it will not
be necessary to attend the
proceedings in this regard, seeing that it is on the unopposed roll.”
When this letter was
received in Durban, Ms Pillay was already at court in Bloemfontein.
[13] There was thus no
further dispute as to whether or not the rule
nisi
should be
discharge. The only issue open for debate was the scale of costs to
be awarded. Consequently I allowed counsel to address
me in this
regard.
[14] Mr Pillay submitted
that applicant suppressed material facts in launching the application
and on that basis alone the rule
nisi
should be discharged. He
referred to the well-known
sine qua non in ex parte
applications, i.e. good faith, and submitted that applicant did not
show that in launching the application. The effect of his argument
is
that the court should have been informed that respondents consented
the jurisdiction which he failed to do. See the
LOCUS
CLASSICUS, SCHLESINGER v SCHLESINGER
1979 (4) SA 342
WLD at
352 and further and pertaining to costs order in such instances, p
354A – F.
Mr Pillay went further
and submitted that applicant’s attorney’s attitude in
respect of the proposal that the rule
nisi
be discharged must
be seen in proper context. Also, he submitted, that there was no
legal basis for the relief claimed, once it
was clear that respondent
consented jurisdiction.
[15] Mr Olivier argued
that applicant and/or her legal representatives did not show a
flagrant, wilful and reckless disregard for
the rules of court of the
legal position. At best for respondents, he submitted, applicant
and/or the legal team acted negligently
and therefore there is no
room for a punitive costs order.
[16] On receipt of the
rule 6(12)(c) application, or at best for applicant when the Heads of
Argument of Mr Pillay was served, applicant
and her legal team should
have realised that respondents intended to pursue the matter applying
for
inter alia
a punitive costs order. They should have
realised that respondents arguments were based on a solid legal
foundation. As late as
5 September 2012, a day before the return
date, there was still no chance of a settlement or concession.
Respondents were entitled
to instruct Durban counsel and to brief him
to appear on the return date.
[17] Applicant’s
attorney should not now complain about respondent’s attitude,
as he was the one that threatened with
a punitive costs order, should
respondents dare to apply for a discharge of the rule
nisi
.
This is apparent from his letter dated 27 August 2012 and annexed as
annexure “PA5” in the rule 6(12)(c) application:
“
3.
Your suggestion that your clients will seek to discharge the rule
without proper grounds is noted with concern. Any attempt by
your
clients to discharge the rule will be opposed and a copy of this
letter will be placed before the court in support of a request
that
your clients be ordered to pay all the further costs unnecessarily
incurred, as between attorney and own client.”
[18] The legal position
in this country is clear relating to submission to jurisdiction by
peregrine. A judgment given on the strength
thereof is
internationally enforceable. There is no right to an attachment of
the property of a peregrines who has submitted to
jurisdiction. See
JAMIESON v SABINGO
2002 (4) SA 49
SCA at 58H –
59A, para [26].
[19] Furthermore, and
insofar as applicant intended to apply for anti-dissipatery relief
under the guise of an application to found
or confirm jurisdiction,
that would also be a hopeless case as the requirements for the Marevo
injunction have not been met.
[20] In my view the
applicant should be penalised with a punitive costs order on the
scale as between attorney and client –
not own client –
for one or more of the following reasons:
(a) applicant suppressed
the fact that respondent’s consented to jurisdiction;
(b) applicant suppressed
the fact that other grounds for jurisdiction existed and that it was
not necessary to found jurisdiction
by order of court;
(c) the application was
brought well-knowing that a dispute existed as to who of the parties
was in breach of contract;
(d) even accepting that
applicant was negligently advised as to the correct legal position
prior to the launching, the legal position
should have been
ascertained on receipt of the rule 6(12) see notice or at best on
receipt of the Heads of Argument.
Contrary as could be
expected, and bearing in mind the threats referred to above, did not
take any positive action to prevent respondents
from incurring
further costs, such as the fees of counsel for preparing the Heads of
Argument and his fees and expenses pertaining
to the appearance in
Bloemfontein on the return date.
[21] The following orders
are granted:
1. At the request of
applicant the rule
nisi
issued on 20 August 2012 is set aside;
2. Applicant is ordered
to pay the costs of the application, including the costs of the
application in terms of rule 6(12)(c), and
the appearance of
respondent’s counsel on the scale as between attorney and
client.
_____________
J.P. DAFFUE, J
On
behalf of applicant: Adv. J Olivier
Instructed
by:
O’Donovan
Attorney, Johannesburg
c/o Graham Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv. I Pillay
Instructed
by:
Andrew & Associates
Durban
c/o Honey Attorneys
BLOEMFONTEIN
/eb