Alsairi v BCF Distributors (Pty) Ltd (3514/2004) [2005] ZAFSHC 128 (21 June 2005)

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[2005] ZAFSHC 128
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Alsairi v BCF Distributors (Pty) Ltd (3514/2004) [2005] ZAFSHC 128 (21 June 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 3514/2004
In
the matter between:
TALEB
SALEH ALSAIRI
Applicant
and
BCF
DISTRIBUTORS (PTY) LTD
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI
J
_____________________________________________________
HEARD
ON:
19
MAY 2005
_____________________________________________________
DELIVERED
ON:
21
JULY 2005
_____________________________________________________
[1] The
matter came to this court by way of an urgent application on 13
October 2004. It served before Hattingh J. He granted the
rule
nisi
,
and fixed the return day. In terms of the provisional court order
the respondent was directed to restore the undisturbed possession
of
the property situated at Plot No. 8, Glenara Road, Olive Hill,
Bloemfontein, Free State Province to the applicant.
[2] The
application was not really contested by the respondent in the sense
that the respondent did not file the opposing papers.
The rule
nisi
was finally confirmed on 2 December 2004. The final order was
granted with the consent of the respondent. This means that the rule
nisi
was confirmed without the usual judicial inquiry into the merits of
the application. However, the question of costs remained unresolved.
Therefore it stood over for later adjudication.
[3] The
issue was at long last argued before me on 19 May 2005. Having heard
the argument I reserved judgment. Since the main relief
sought has
already been disposed of, the only issue I am called upon to decide
now is the ancillary relief which concerns costs.
[4] There
are two fundamental rules pertaining to costs in civil litigation.
The first rule is that success carries the costs. In
other words the
costs are normally awarded in favour of a victorious party and
against the vanquished party. The second rule is
that the awarding
of costs is always an issue in the discretion of a court. The first
rule is often regarded as a general rule of
costs while the second
rule is often regarded as the principle rule of costs. A.C.
Cilliers:
Law
of Costs
p. 1 – 6 (Service issue 30 September 2004).
[5] As
regards the general rule that success carries costs, there are some
exceptions. Two of these exceptional rules are that a
successful
party may be deprived of his costs on good cause shown and that a
successful party may be directed to pay the costs of
his adversary in
the proceedings initiated by the winner himself against the loser.
A.C. Cilliers
supra
at
p. 1 – 7:
“
A
successful party
may
in certain very limited circumstances be ordered to pay the costs of
his adversary (in addition, of course, to his own). This
occurs
where the successful party has brought about and is responsible for
the proceedings.”
[6] Where
a winner is shown to have made himself guilty of certain kinds of
misconduct, he may be penalised by applying one of the
aforesaid
exceptional rules. In other words a winner may be deprived of the
whole or part of the costs which he would ordinarily
have been
entitled to recover from the loser. The winner may even be ordered
to pay the costs of his adversary depending on the
gravity of the
misconduct. Attempts to mislead the court by means of perjured
evidence or actually giving false evidence especially
in a case where
an application is brought on
ex
parte
basis or on an urgent basis may be visited with punitive costs
orders. (
VAN
DER MERWE v STRYDOM
1967 (3) SA 460
(AD),
EVATT
AND ANOTHER v PHILIP
1931 WLD 163
and
BLES
v WOODIFIELD AND BOTHA
1910 EDC 15.)
[7] Before
the issue which arose for decision is considered it is necessary to
set out in brief the historical background which gave
rise to this
litigation between the parties.
[8] The applicant owned a
property known as Plot No. 8, Glenara Road, Olive Hill, Bloemfontein,
Free State Province. On this property
there was an abattoir,
abattoir business equipments, motor vehicles, trucks and three dogs.
The building structure on the plot originally
consisted of a dwelling
section and an abattoir section at the time the applicant purchased
the plot from its previous owner a certain
Saad Shaat on 19 March
2003. Adjacent to the main building, there was apparently the
so-called a wendy in other words a tiny wooden
dwelling structure.
Somewhere on the property there were some sink dwellings. It does
not appear on the papers how many such dwellings
there were on the
plot. The property was fenced. Access to the plot was through one
main gate. The applicant Taleb Saleh Alsairi
was a businessman as
was Ronald John Nel, the sole director of the respondents, BCP
Distributors (Pty) Ltd with its principal place
of business at
Centurion in Gauteng Province.
[9] The applicant arrived
from Dubai in Saodi Arabia back in this country on 13 September 2004
and proceeded to Bloemfontein to oversee
his business interest. On
his return to the city from abroad he spent the first three days in
the city. During the second half
of the ninth month he was involved
in business negotiations with the respondent for the sale of his
aforesaid plot measuring 4,2827
hectares. Among other places, the
negotiations preceding the conclusion of the agreement were held at a
certain flat somewhere in
the city. On a certain day two gentlemen
Ronald John Nel and John John represented the respondent. The
applicant acted in person.
The parties reached an agreement.
[10] They signed the
contract in Bloemfontein on 30 September 2004. The purchase price
was the amount of R1,2 million. The contract
was drawn up by the
respondent’s attorney Krohn Incorporated. The following clauses of
the contract are relevant to the dispute:
“
2.1 The
purchaser is to pay the purchase price by way of the creation of a
loan account in the purchaser company for credit of the
seller
against date of registration of transfer of the
PROPERTY
in
the name of the
PURCHASER
.
5.1 Possession
of the property shall be given to the Purchaser on:
date of registration of transfer
from which date it shall be held by
the Purchaser at his sole risk, loss or profit.
OCCUPATIONAL INTEREST
In the event that
occupation does not coincide with registration, then the party
enjoying possession of the property while it is registered
in the
name of the other party will be liable for the payment of
occupational interest to the owner of the property. Occupational
interest is to be calculated on a pro-rata basis for the period of
occupation enjoyed by the non-owner at the rate of
R
N.A.
per
month from
THE
DATE OF OCCUPATION
to date of registration of the transfer.
16.1 The parties hereto confirm that
all provisions of this agreement go to the root of the contract.
16.2 This
document contains the full agreement between the parties hereto and
no variation or amendment hereof will be valid unless
it is reduced
to writing and signed by both parties.
16.3 No
concession which the Seller may from time to time allow the Purchaser
will in any way prejudice the Seller’s strict rights
in terms of
this agreement and the Seller will at all times, notwithstanding any
possible prior waiver or concession, be entitled
to the strict and
full compliance of all the provisions of this agreement by the
Purchaser.”
[11] On
Friday 8 October 2004 the applicant and the respondent’s attorney
met. They discussed certain issues pertaining to the
sale agreement
between the applicant and the respondent. The applicant voiced his
dissatisfaction about the specific stipulation
in the contract that
as the seller, he would not receive the capital of the transaction in
other words the purchase price, after
the registration of the
transfer and that instead the respondent would create a loan account
in its business books of account in
favour of the applicant. There
was also a telephone conversation between the applicant and the
respondent’s director between 8
October 2004 and 13 October 2004.
[12] By Tuesday 12
October 2004 one of the respondent’s employees was already staying
on the plot. He was staying there with his
wife and two children.
In addition there was also a private security guard posted at the
gate of the plot. Among others his duty
was to restrict access to
the premises in question.
[13] On
Wednesday 13 October 2004 the applicant launched this urgent
application. The primary ground upon which the applicant claimed
the
final interdict was common law rule of spoliation. That is to say
that the respondent had wrongfully deprived the applicant
of the
undisturbed and peaceful possession of the aforesaid plot or landed
property. The secondary basis of the relief according
to the
applicant was that his dispossession constituted a contractual breach
of the written agreement which stipulated that possession
of the plot
remained with the seller and that such possession shall be given to
the purchaser on the day of the registration of the
transfer which
event had not yet eventualised. (
Vide
clause 5 annexure “B” founding affidavit.)
[14] The conduct
complained of can according to the respondent’s contention, neither
be regarded as an act of wrongful dispossession
on the primary basis
that it constituted a common law spoliation, nor can it be regarded
as wrongful dispossession on the secondary
basis that it constituted
a breach of contract. The respondent’s defence is that the
applicant after his return from overseas
never resumed possession of
the property specifically on 16 September 2004 as alleged, that the
applicant on his own accord and free
will allowed the respondent to
take possession, occupation and control of the plot and that at the
applicant’s own special request
a certain employee of the
respondent as well as independent security guards were deployed on
the plot for the purpose of securing
the movables and the property as
a whole.
[15] I
am not now called upon to consider the merits of the matter. That is
now water under the bridge. The respondent consented
to the
confirmation of the rule
nisi
.
The question which now falls to be determined at this stage of the
proceeding is whether good cause exists for depriving the successful
party, in other words the applicant, of the costs of the application.
[16] The
applicant’s version is that he was the possessor of the property at
all times material to this dispute. He re-entered
the RSA from an
overseas trip on 13 September 2004. Three days later, on 16
September 2004 to be precise, he returned to his place
of residence
on the plot outside Bloemfontein. He subsequently sold the plot to
the respondent in terms of a written agreement signed
in Bloemfontein
on 30 September 2004. This was the only agreement in respect of the
property. There was no prior oral agreement
in terms of which he
surrendered possession of the property to the respondent. Subsequent
to the sale of the property he remained
in possession thereof pending
the registration of the transfer. On Friday 8 October 2004 he went
away from the plot on a weekend
visit to the city. On his return to
the plot on Monday 11 October 2004 he was prevented from re-entering
the plot by a security
guard engaged by the respondent and posted at
the gate. His three further attempts on three consecutive days to
regain possession
were fruitless.
[17] The respondent’s
version is that the applicant did not resume possession of the
property on 16 September 2004. Before the
signing of the sale
agreement, the applicant allowed the respondent by way of an oral
agreement to take possession of the property.
The applicant was not
staying on the plot but in a certain flat in the city. The applicant
was anxious that the fixed property
might be vandalised and the
movables stolen. The respondent deployed its employees on the plot
and later posted a private security
guard at the gate in order to
reinforce the security on the plot. However, the applicant was never
denied access to the plot. But
from 12 October 2004 the applicant
was prohibited from removing vehicles, equipments, assets or any
other items from the plot. The
applicant became disgruntled because,
as the respondent’s deponent said, the respondent had declined to
have the sale agreement
amended as the applicant wanted.
[18] There
are four ethical grounds on which the respondent relies in support of
its submission that in the exercise of my discretion,
I must depart
from the customary rule which postulates that the litigation costs
generally must be awarded in favour of the successful
litigant. I
proceed to examine such grounds.
[19] In
the first place, the respondent’s case was that the applicant had
consented to the occupation of the plot by the respondent.
On behalf
of the respondent it was argued that the respondent’s case that
occupation of the plot was given voluntarily by the
applicant to the
respondent was evidenced by the fact that the keys to the premises
were in fact handed to the respondent by the
applicant himself.
[20] Counsel for the
applicant submitted that the applicant, in order to obtain the
spoliation relief on urgent basis, created the
false impression that
he had never consented to the occupation of his plot by the
respondent prior to the registration date of the
transfer. According
to the respondent the alleged consent was given before 30 September
2004.
[21] The applicant denied
the respondent’s claim of such an oral agreement. He alleged that
he returned to his plot on 16 September
2004 after an overseas trip
and that since then until 11 October 2004 he was in free, peaceful
and undisturbed possession of the
property. He deposed that from
Monday 11 October 2004 until Wednesday 13 October 2004 he made a few
attempts to gain entry onto
the property but that he was prevented
from re-entering the plot on the respondent’s instructions.
[22] I
find it difficult to accept the respondent’s version in this
regard. On the respondent’s own version the oral agreement
in
terms of which the respondent was authorised to take immediate
possession of the property was reached before 30 September 2004,
a
date on which the written agreement was signed. In the answering
affidavit, the respondent made no attempt to explain why such
an
important term, agreed upon during the negotiations which preceded
the signing of the written contract, was not expressly embodied
in
the written contract which was subsequently signed.
[23] The
version of the respondent is also inconsistent with certain clauses
of the written contract.
“
5.1 Possession of the property
shall be given to the Purchaser on:
date of registration of transfer
from which date it shall be held by
the Purchaser at his sole risk, loss or profit.
16.1 The parties hereto confirm that
all provisions of this agreement go to the root of the contract.
16.2 This
document contains the full agreement between the parties hereto and
no variation or amendment hereof will be valid unless
it is reduced
to writing and signed by both parties.”
[24] The
respondent’s submission that upon proper interpretation of clause
5.1 the respondent was not precluded from taking possession
of the
property prior to the registration of the transfer is a thin if not a
hollow submission. However generous I tried to interpret
clause 5.1
I could find nothing to support such an interpretation. Even if one
reads clause 5.1 together with clause 5.2 nothing
significant emerges
to bolster the benevolent interpretation contended for by the
respondent. Had the parties agreed as the respondent
claimed they
did, clause 5.1 would have been differently worded bearing in mind
the fact that such a material term was according
to the respondent
agreed upon before the undisputed written contract was concluded.
[26] The
respondent did not even say exactly when in September 2004 such an
oral agreement concerning its early possession of the
property was
reached. All the respondent alleged was:
“
7.3 Enkele
dae voor 30 September 2004 waarop
aanhangsel
“A”
(which should be “B”) deur applikant onderteken is, het applikant
by ooreenkoms die respondent toegelaat om besit en beheer te
neem van
die
eiendom
.”
If
this version was indeed so, clause 5 would for instance have
stipulated the precise date on which the respondent took occupation
of the plot as well as the amount of occupational rent he would have
been obliged to pay as the purchaser to the applicant as the
seller.
[27] The
parties agreed that the terms and conditions of the written contract
they signed on 30 September 2004 went to the heart of
their
agreement; that the document so signed contained their complete
agreement; and most importantly in the context of this matter,
that
notwithstanding any possible prior waiver or prior concession the
applicant as the seller was at all times entitled to the strict
and
full compliance with the terms of the written agreement. In other
words the respondent was precluded from relying on any other
prior
oral consent or deal which was not in keeping with the terms of their
written agreement. (
Vide
clause 16.)
[28] The written
agreement was drawn up by the respondent’s attorney. Had such an
early occupation of the property by the respondent
been agreed upon
prior to the signing of the contract, the respondent’s attorney
would almost certainly have ensured that such
a material term was
incorporated and reflected in the contract he drew afterwards. He
did not. Since the term was comparatively
more favourable to the
respondent than it was to the applicant one would have expected the
respondent’s deponent to have readily
noted its omission from the
written contract before he signed that contract. He did not.
[29] As regards the
respondent’s alleged first ground of misconduct, I am unable to
find that the applicant misled the court by
withholding any
information relating to the alleged oral concession whereby the
applicant, as the respondent claimed, consented to
the occupation of
the plot by the respondent.
[30] In the second place
the respondent’s contention was that the parties identified a need
to protect the property against possible
vandalism, damage and
stealing. It is so that the applicant launched the urgent
application not only for the purpose of regaining
possession of the
immovable property we are here concerned with but also for the
purpose of regaining possession of the movable property
on the plot.
[31] Whether the loose
assets or movable property such as the abattoir business equipment,
the motor vehicles or any other business
implements were part and
parcel of the deal or not was not the issue. The real issue was in
whose peaceful and undisturbed possession
such movables were from 16
September 2004 until 11 October 2004. Seeing that I have already
found in favour of the applicant that
he and not the respondent was
in free, peaceful and undisturbed possession of the plot, it follows
that he must also have been in
a similar possession of the movables
thereon.
[32] In his replying
affidavit the applicant admitted that he and the respondent’s
deponent agreed on certain arrangements pertaining
to the
safeguarding of the property. I shall revert to these arrangements
later.
[33] It is so that in
his founding affidavit the applicant did not mention such
arrangements. However, the mere fact that he did
not disclose any
information in connection with such sideline issue does not
necessarily portray him as a deceptive litigant. I
can find nothing
in the applicant’s omission from which it can objectively be
construed that he acted in an unethical manner.
Therefore the
respondent’s second ground of the alleged misconduct on the part of
the applicant holds no water, in my view.
[34] In the third place
the respondent’s contention was that the applicant had failed to
mention in his founding affidavit that
the respondent had to place
certain employees of the respondent on the premises by mutual
agreement since the plot was uninhabited.
The underlying reason for
such placement was to protect the plot in other words the fixed
property as well as the movables thereon
including the applicant’s
three dogs. The respondent moved the family of one of its employees
from town and settled such employee
and his family on the plot and
housed such employee and his family in a shack away from the abattoir
building structure. It was
contended for the respondent that the
applicant’s omission to disclose these facts in his founding
affidavit amounted to a misconduct.
According to the respondent the
presence of its employees on the property signified the respondent’s
occupation, possession and
control of the property.
[35] In his replying
affidavit the applicant confessed some of the aforegoing factual
allegations made by the respondent but avoided
others. He admitted
for instance that the placement of the respondent’s employee on the
plot was an arrangement which was done
with his knowledge and
consent; and that the purpose was to secure the entire property. He
also admitted that he had handed certain
keys to the respondent for
the purpose of implementing the proposed new security measures and
that he owned the three dogs which
he was keeping on the plot for
security purposes.
[36] The applicant denied
among others the allegation that he lived in the city and not on the
plot at all relevant times and averred
that he lived in the house
which was attached to the abattoir building as one structure. He
also denied the allegation that the
respondent’s employee and his
family were staying in a shack on the plot but averred that such
employee and his family were in
fact accommodated inside the abattoir
itself on the plot.
[37] In
my view, nothing significant turns around the issue of the
applicant’s precise place of residence. Whether he lived in
a flat
somewhere in the city or in the house on the plot is really not the
point. It cannot be seriously argued with conviction
in the
circumstances of this case that a person who owns a plot on the
outskirts of a city but lives in the city and not on the plot
itself
thereby looses possession of the plot because of his residence away
from the plot coupled with his extensive and frequent
travels
overseas. (
Vide
Silberberg & Schoeman :
The
Law of Property
4
th
Edition p. 295 - 296.) As long as such a person has
animus
revertendi
in respect of his landed property his temporary absence however
frequent cannot justify the proposition that he had given up
possession
of his property or that he has abandoned it. I have
already found that the applicant did not surrender possession of his
property
fixed or movable as the respondent claimed he did.
[38] The transfer of the
respondent’s employees to and their settlement on the applicant’s
plot did not fortify the respondent’s
contention that the applicant
had voluntarily surrendered the possession of the property and had
allowed the respondent to take early
occupation and control thereof.
The parties are agreed as to the real purpose of the placement of the
employees. The underlying
reason was the tightening up of the
existing security measures an idea which was apparently mooted out by
the respondent’s sole
director Nel. Until then the applicant’s
attitude was that he and his dogs provided adequate protective
measures for the property.
[39] It was also argued
on behalf of the respondent that if the applicant was prevented from
entering the plot as he claimed and not
merely prevented from
removing movables especially abattoir equipments from the plot he
could not have been in a position to aver
that the respondent’s
workers were accommodated in the abattoir itself. Since the precise
location or site of the abattoir in
relation to the gate was unknown
to the court or rather undisclosed even by the respondent’s
deponent himself, the contention becomes
a lame argument for the
reasons I shall give in paragraph [42] below in connection with the
security guards. The applicant’s averment
that the workers were
housed inside the abattoir and not outside the abattoir in a shack
must be accepted as an undisputed fact.
The nondisclosure relating
to the settlement of the workers on the plot does not amount to
misconduct.
[40] In the forth place
the respondent contended that the applicant did not mention in his
founding affidavit that the respondent
had to post the private
security guards at the gate of the plot by mutual agreement in order
to secure the property which was unoccupied.
The first security
guard was deployed from Tuesday 12 October 2004 according to the
respondent’s version. The physical presence
of the security guard
on the property was a further indication of great symbolic
importance. Like the physical presence of the respondent’s
workers
on the plot, the physical presence of the private security guards
also symbolised the occupation, possession and control
of the
property by the respondent. So went the respondent’s argument.
[41] Much
of what I have already said about the workers applies equally well to
the guards. The parties were agreed that the primary
purpose for the
posting of the guards on the property was to protect the property
fixed and loose. In its answering affidavit the
respondent alleged
that the security guards were instructed to see to it that the
applicant did not remove any movables from the
property and that he
was not prevented from entering or leaving the property. The
respondent vehemently denied that the security
guards had prevented
the applicant from accessing the property as the applicant had
alleged in his founding affidavit.
[42] As
I see it the version of the applicant has to prevail. In determining
an appropriate order of costs I have to remind myself
that the
applicant’s averments as set out in his founding affidavit were not
disputed by the respondent at the right stage of the
proceedings.
The practical effect of the respondent’s consent to the final
confirmation of the rule
nisi
was a wholesale admission of the applicant’s averments as contained
in the founding affidavit. I do not think that it is permissible
now, after the provisional order has been confirmed as a final order
of spoliation, with the consent of the respondent for that matter,
to
revisit the averments in the founding affidavit which were never
disputed originally. The attack is simply belated. I am bound
to
approach the question of costs on the premise that the undisputed
averments of the first applicant remained as admissions on the
merits. To the extent that the belated answering affidavit attempts
to recreate a dispute on the merits it should be treated with
caution. What I have here is no usual answering affidavit but an
answering affidavit seriously watered down and drastically dented
by
the respondent’s own consent which boiled down to a complete
admission of the founding affidavit in its entirety.
[43] The applicant’s
case was that on three consecutive days commencing on Monday 11
October 2004, the security guards deployed
at the gate by the
respondent prevented him, not from leaving the property with any
movables, but from re-entering the plot at all.
In other words he
was locked outside and not inside. He responded in his replying
affidavit that he agreed to the deployment of
the security guards on
the understanding that they were going to secure the property. Their
deployment was for security purposes
and not dispossessive purposes.
Therefore the security guards with the respondent’s authority
overstepped the mark. Denying the
applicant access to the plot was
never within the applicant’s contemplation when he acceded to the
respondent’s request to have
private security guards deployed on
the property. It could not have been intended and it cannot be
readily accepted by this court
that the applicant would readily
relinquish his rights to possession, occupation and control of the
property before its registration
in the name of the respondent for
nothing in return.
[43] The fallacy of the
respondent’s contention is that the occurrence report book kept at
the gate and completed by the three security
guards did not support
the respondent. Contrary to the respondent’s version the
occurrence report book showed that the first security
guard was
posted at the gate as early as Monday 11 October 2004 as the
applicant averred and not only on Tuesday 12 October 2004
as the
respondent claimed. Moreover, all the three security guards noted
that all was in order on the farm from 11 to 13 October
2004. The
point I am trying to make is that had the applicant been on the plot
and had he tried to remove any movables from the
plot as the
respondent alleged he did on Tuesday 12 October 2004 such an incident
would probably have been recorded by the security
guard on duty.
After all it was their primary duty to prevent possible stealing of
assets. No such entry was made. No answering
affidavit from any of
the security guards was annexed to the answering affidavit in order
to verify the respondent’s version.
Therefore, that part of the
respondent’s version remains an inadmissible hearsay. But the
applicant’s averment that he was turned
away on Monday 11 October
2004 was in a way supported by the occurrence report book. The
occurrence report book showed that the
gate was already manned by a
security guard a day earlier than the respondent had alleged.
[45] Counsel for the
respondent asked the question why the applicant had consented to the
deployment of the security guards if there
was no need to secure the
property since he was leaving there? If I understood the applicant’s
version as a whole well, he kept
three dogs on the property for
security reasons and he also lived on the property. Those two
factors provided, in his opinion, some
sort of security. According
to him, therefore, there was no need to secure the property by
providing further security measures as
the respondent’s deponent
suggested. But because he had other business interests elsewhere
inside and outside the country he accepted
the respondent’s
proposals for the provision of extra security measures which included
the deployment of security guards in addition
to the workers. I get
the impression that the applicant readily accepted the respondent’s
security proposal because the respondent
had apparently undertaken to
do so at its own expense and in addition because the respondent was
on the verge of owning the property
anyway if the deal went through.
[46] It
would seem that no security guards did any night duty on the
property. Now, if protection of the property was the primary
underlying reason for engaging and deploying security guards, it
makes one wonder as to why such security services were dispensed
with
at night a time during which the property was most vulnerable.
[47] The respondent’s
averment that its consent was required before anyone could enter the
property strengthened, in my view, the
applicant’s version that on
the instructions of the respondent’s deponent the security guards
repeatedly barred him from getting
onto the plot despite his
persistent attempts.
[48] Having
considered the question of the deployment of the security guards I am
not persuaded that the applicant, in not informing
the court in his
founding affidavit about the full circumstances which led to their
deployment, committed a misconduct. In my view,
he did not do so in
an apparent attempt to mislead the court. Therefore the applicant
cannot on that basis be deprived of the costs.
[49] Since
the real and undisputed reason which underpinned all the three
transactions namely the placement, the deployment and the
handing
over of the key were considerations of security and not
considerations of surrender of the possession, the applicant is not
to blame for not divulging them in his founding affidavit. I am of
the view that none of them was significantly connected to the
central
issue. They were all sideline matters. It cannot therefore be
seriously contended that the applicant chose to withhold
these facts
in an apparent or deliberate attempt to mislead the court so that a
spoliation order which he did not deserve could be
granted in his
favour.
[50] The real essence of
the applicant’s case was that on Monday 11 October 2004 the
respondent despoiled him of the free, undisturbed
and peaceful
possession of the property, the plot and certain movables thereon.
According to the respondent the applicant’s case
was granted on
totally untrue foundation. Despite the respondent’s knowledge of
the demerits of the application and a number of
the alleged ethically
wrong actions on the part of the applicant, the respondent elected to
file no answering affidavit to resist
the confirmation of the
provisional order as a final order.
[51] The
respondent had ample opportunity to do so. But he chose not to avail
himself of such an opportunity. Instead of doing so
he consented to
the final confirmation of the rule
nisi
on Thursday 2 December 2004 more than six weeks since the rule
nisi
was provisionally granted. Almost six weeks after the confirmation
of the rule
nisi
in other words twelve weeks since the provisional order was granted
the respondent filed an answering affidavit in which it contested
the
customary award of costs to the applicant notwithstanding his success
on the merits.
[52] In
a way the respondent attempted to revisit the merits and to cast some
doubt as to the correctness of the final spoliation
order. It was
for instance contended on behalf of the respondent that the
respondent reluctantly consented whatever that means to
the
confirmation of the rule
nisi
.
The version of the respondent as to the merits is now meaningless
and irrelevant. Only the version of the applicant was placed
before
Musi J in deciding the fate of the rule
nisi
.
By consenting to the confirmation of the rule
nisi
the respondent forfeited the benefit of the rule as laid down in
PLASCON
EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) per Corbett JA.
[53] In
the answering affidavit the respondent raised a series of alleged
acts of misconduct. I have examined four of the main alleged
grounds
of unethical conduct. I was at pains to scrutinise the respondent’s
complaint about the applicant’s behaviour as far
as this matter of
costs was concerned. I could find no real substance in any of the
acts complained of. There were no obvious traces
of deceptive or
unethical conduct let alone any convincing proof of perjured
evidence. (
Vide
VAN
DER MERWE v STRYDOM
1967
(3) SA 460
(AD) at 470 A – H.)
[54] The applicant
brought the urgent application on two grounds as I have indicated
earlier in this judgment. Each of those grounds
was perfectly sound
in law. None of them was tainted by any acts of deplorable
misconduct so unethical as to move me, in the exercise
of my judicial
discretion, to deprive the successful litigant, in other words the
applicant, of the costs. In the absence of any
proven grounds of
misconduct I would be inclined to hold the respondent responsible for
the payment of the applicant’s costs.
No good cause was shown to
exist, which warrants depriving the applicant the costs of this
litigation. On a balance of probability
no proper case has been made
out to justify a departure from the general rule that success carries
the costs.
[55] Accordingly I direct
that the costs of this application must be borne and paid by the
respondent in favour of the applicant and
that such costs must
include those incurred on 27 January 2005.
______________
M.H. RAMPAI, J
On behalf of
applicant: Adv. J.G. Gilliland
Instructed
by:
Stander,
Venter & Kleynhans
BLOEMFONTEIN
On
behalf of respondent: Adv. C. Snyman
Instructed by:
Krohn
Inc
BLOEMFONTEIN
/sp