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[2024] ZALMPPHC 48
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Van Der Merwe v Station Commander: Westenburg Police Station and Another (1276/2024) [2024] ZALMPPHC 48 (20 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA LIMPOPO DIVISION, POLOKWANE
CASE
NO:
1276/2024
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED.
DATE: 20/05/2024
SIGNATURE
In
the matter between:
Rianda
Van Der Merwe
Applicant
And
The
station Commander:
First
Respondent
Westenburg
Police Station
Chari
Johan
Bloem
Second
Respondent
Delivered:
This judgment is handed down electronically by
circulation to the parties
through
their
legal
representatives'
email
addresses.
The
date
for
the
hand-down
is deemed to
be the 20th May 2024.
JUDGEMENT
LEDWABA
AJ
[1]
On
the 10th
February
2024
and
on
an
urgent
basis, the
applicant
obtained
an interim
order returnable on the 20th February 2024. Apart from the order
which granted urgency
,
the court
order reads
:
2.
The First
Respondent is ordered to immediately release the Applicant from its
custody
,
where
she is currently being detained at the Westenburg or Polokwane Police
Station
.
The
Station Commander or officer
in
command of the
Westenburg
Police
Station
is
ordered
to
do
so
on
the 10
FEBRUARY 2024 on receipt of this Court order.
3.
The service of
these papers on the Respondents by way of a personal service of the
attorney of the Applicant is hereby authorized.
4.
The Applicant
will file a confirmatory affidavit confirming the founding affidavit
and supplementing
it with facts
if necessary,
before or on
the
close
of business on
the 12 FEBRUARY
2024.
5.
The First and
the Second Respondents shall be entitled to oppose this application
and shall file opposing affidavits before or on
the 14 FEBRUARY 2024.
6.
The
Applicant
will
be
entitled
to
file
a
replying
affidavit
on
15
FEBRAURY 2024
7.
The Order in
paragraph 2 above shall be an interim order
,
implemented
immediately
,
but shall
thereafter be subject to confirmation on the return date which shall
be on the urgent roll of this Honourable Court of
20 FEBRUARY 2024
.
The
applicant
will be
released
from
detention
by
the Station Commander or officer in command of the Westenburg or
Polokwane Police Station on 10 February 2024
,
upon the
receipt of order to do so
.
8.
The First and
the Second Respondents are ordered to pay the costs of this
application
,
jointly
and
severally
,
the
one
to pay
the
others
to be absolved
on a scale as
between attorney and client. The determination of the costs order
shall take place on 20 February 2024 with regard
to the costs of 10
February 2024 as well as the costs of 20 February 2024
[2]
The
clear
message
of
the
court
orders
2
and
7
is
to
immediately
release
the applicant
from police custody on an interim basis pending the confirmation or
discharge
of
the order
on
the return date of the 20th
February 2024
.
The court
orders 4,5 and 6 set out the dates by which the parties were directed
to deliver their
respective
supporting affidavits.
[3]
On the 13th
instance, I issued the directive which reads
:
The
legal representatives of the applicant and the second respondent are
directed to file written short heads of argument:
a
with
authorities where applicable
,
with regard to
the dispute or disputes to be determined
by
the
hearing
of
the
20t
h
February
2024
,
save
the
common cause
that the applicant is to permanently
released from
police custody
;
b
with
authorities where applicable
,
addressing the
question how do they understand
order
number 8 which
deals costs
.
In particular
,
they are
required to address the question as to which party is to pay the
costs of the 10
t
h
February 2024
,
the costs of
the 20th
February 2024
and the balance of the costs up to the 20
th
February 2024
.
This is
because of the possible pending malicious prosecution and why should
these costs not be reserved
until the fate
of malicious prosecution is certain? and
c
as to whether
there is any prejudice with noncompliance with the court order
numbers 4 and 5 with regard to the delivery
of the
supplementary
papers
.
d
The legal
representatives of the applicant and the second respondent are
directed to comply with this directive by the 16th
May 2024
.
[4]
Thomas
Grobler
Attorneys
,
who
represents
the
second
respondent
,
indicated
that Mr
Grobler
,
who
is dealing
with the
matter
is
out of country
from the
7th
May 2024 to
the 27th
May 2024
.
The law firm
requested
indulgence
until the 31
s
t
May 2024 to file the
requested
-
short heads of
argument. I indicated my intention to deliver this judgment on the
20th instance and did not accede to the request
to delay the delivery
of the judgment. The short heads of argument on behalf of the
applicant were timeously submitted
.
[5]
The supporting
affidavits do not make the case for the applicant to be returned to
police custody
.
It is common
cause that the applicant's permanent release from police custody is
to be confirmed.
[6]
There is
dispute
whether the
second respondent
fully and
timeously
complied
with the time
frames set out by the court order of the 10
th
February 2024. I found no prejudice
to
noncompliance
with time
frame
order.
The parties were able to place their respective version before this
court.
[7]
The first part
of order number 8 directs the first and second respondents to pay the
costs of the application, jointly and severally
,
the one to pay
the others to be absolved on a scale as between attorney and client.
The second part of this order deals with the
costs aspect. It is the
subject of this judgment and also refers to the costs of the 10th
February 2024 and the 20
th
February 2024.The second part is contradictory
to
the
first
part
,
alternatively
and
at
the
very
least
unclear
or confusing.
This court
order appears to be based on the applicant
'
s
draft order. The applicant's
short
heads
describe
this
part
of the
court
as being
contradictory.
I
do not
attempt
to
interpret
this
part
of
the
court
order
and
decline
the
invitation
to
interfere
with
this
order,
including
the first part
by reversing
the cost order
against the
second respondent. There is no basis to do that.
[8]
The
background is that the interim order followed the strained
relationship between
the
applicant
and the second respondent. The applicant's version is that
they
were
married in community of property and were also business partners and/
or interest members in the legal entities which acquired
assets. On
the basis of irretrievable breakdown
of
their marriage
relationship,
the
applicant
sued
for and
was
granted the
decree
of
divorce.
The
applicant's
version
is
that
after
the
divorce,
she
assumed the use of her maiden surname, Van Der Merwe and resigned
from the parties' CB Systems CC. On behalf of transferor
,
CB
Systems CC the applicant signed the
documents
transferring the BMW X 5 motor vehicle with registration number
C[...] 8[...]( the car) on the eNatis system into her
name.
[1]
The
applicant states that she was authorized to do so.
[2]
While
the CIPC records still reflects the applicant's
surname
as
Bloem,
she
submitted
her
resignation
under
Van Der Merwe
.
She
says
that
despite
the
second
respondent's
confirmation
that
Bloem
and Van Der Merwe surnames refer to the applicant, the CIPC rejected
her resignation application using Van Der Merwe surname
.
[3]
She
says that taking the position that
this
is
the applicant's fault, the second
respondent
issued
court papers under case number 11605/2023 to force the applicant to
undertake further steps to have
the
changes
registered.
The
applicant
submits
that
the
second
respondent
laid a fraud charge against
her
in
an
attempt
to
force
her
to do more
to
ensure
the
amendment
of
the
CIPC
documentation
.
She
regards
the
second
respondent's
laying of a fraud criminal charge as malicious prosecution
.
[4]
[9]
It
is common cause that at the time of the registration of the car from
the close corporation to the applicant the car was registered
in the
name of the close corporation
.
The
parties are in dispute whether at that point
,
it
be
l
onged
to the applicant
or
the
close
corporation
.
[5]
It
is
not
the
applicant
'
s
case
that
as
the
member
of
CB System CC
,
the
second
respondent
signed
the transfer
documents
or that she was authorized by CB System CC to sign the transfer
documents on behalf of the close corporation
.
[10]
The
second respondent
'
s
version is that in order to have the car registrat
i
on
documents changed from the parties
'
close
corporat
i
on
to the applicant's name
,
the
applicant forged his signature
,
alternatively
signed transfer document to transfer the ownership of the car from CB
Systems CC into her name without authority to
do so
.
He
attaches the documents he alleges prove this assertion
.
His
version is to the effect that the applicant represented to the
registration authority that she had CB Systems CC authority
to
change the car ownership
registration
from
CB Systems CC into her personal name
.
He
states that the applicant's conduct amounts to fraud and/or forgery
and uttering with the result that he laid criminal charges
against
the applicant
at
the
first
respondent's
police
station
for
investigation
.
He
states
that
after
laying
criminal
charges
,
he
had
no
further
dealings
with
the
South
African
Police
Services and that it is the Public Protector
'
s
prerogative to prosecute the applicant after consideration of the
provided facts. The court will then make the decision
based
on
the evidence
led.
The second
respondent
states
that
the laying of criminal charge led to the arrest
and
the police detention
of
the applicant
on
the 9th
February
2024. The applicant issued urgent application against the first
respondent
,
on
the basis of her arrest and detention by the investigating officer
Seargent Baloyi
,
and
the second respondent for having laid the fraud charge
.
The
only relieve the applicant claimed against the second respondent
relates ti he cost. He states that the reservation of costs
does not
make sense and submits that the applicant should be ordered to pay
his costs
.
[6]
[11]
While the
second respondent has laid fraud charge against the applicant which
awaits the Public Prosecutor
'
s
decision
,
the
applicant is yet to take steps to finalise the fate of her alleged
malicious prosecution claim against the second respondent.
[12]
Both parties
appear to acknowledge that there is a portion of the costs which
depends on the fate of the fraud charge laid by the
second respondent
and
malicious
prosecution claim the applicant intends to pursue. Both the fraud
charge and the malicious prosecution claim are not before
this court
and if the parties are correct
,
that portion
of the costs will have to wait until they are dealt with
.
[13]
The
applicant request that the costs of these proceedings be reserved to
be determined
at
the trial and will issue summons
for
unlawful arrest
and
amend them
to
include malicious prosecution.
[7]
She
again request that the costs of the urgent application
be
reserved
and
determined
in
an
action
for
unlawful
arrest,
to
be issued
by
the
applicant
within
thirty
days
The
reason
to
reserve
the
costs
is
that
the applicant intends joining Baloyi
.
[8]
[14]
The
second respondent submits that should the applicant be charged
,
the
criminal trial court will decide whether there are merits in the
charges laid against her
.
He
further submits that the civil court trial will
,
after
the leading of evidence
,
be
in a position to decide whether the charge laid against the applicant
was malicious. He further submits
that
it is not for this court to make such a decision
.
[9]
[15)
On
the
basis
that
the
applicant
cited
the
second
respondent
and
claim
no
relief
other than the costs order
,
the
second
respondent
claims
the
costs
order
against
the applicant for the alleged malicious and erroneous citing of him
as a parry
.
[10]
The
success or failure of the costs order sought may depend on the fate
of malicious prosecution claim.
[16]
Whether the
second respondent maliciously prosecuted the applicant depends on
whether he did anything more than laying the criminal
complaint. This
is for the Public
Prosecutor
to decide and
not this court
.
The
applicant
'
s
position is that she still intends
to prosecute
what
she
regards
as malicious
prosecution
not
only against
the second respondent but also in relation to the conduct of the
arresting officer Seargent Baloyi
.
The merits or
demerits of the fraud complaint and the malicious prosecution claim
may influence the decision relating to the awarding
of the
costs
.
This
decision
should
not
be
preempted
by
the
awarding
of the
costs order at
this stage
.
At
the finalization of the fraud complaint and the malicious prosecution
claim
,
it
will hopefully be clear where the costs should lie and to what
extent.
[17]
There
is no
prejudice
in
reserving
the
balance
of the
costs
until there is
certainty and clarity about the second respondent's complaint and the
applicant's claim. The fate of this complaint
and claim lies in the
hands of both parties.
[18]
The
issue
of
costs
is
within
the
court's
discretion
with
the
default
practice
being
that the costs ordinarily follow the results.
[11]
[19]
The
primary purpose of a costs order is to minimize the extent to which a
successful litigant
will
be out
of
pocket
as
a
result
of
litigation
such
party
should
not
endure.
[12]
[20]
The
principle that the costs generally follow the results does not apply
to frivolous and vexatious litigation.
[13]
My
view is that this include the costs which were maliciously incurred
and those incurred as result of the abuse of court processes.
[21]
The finding
that
the
second respondent maliciously prosecuted the fraud claim against the
applicant may affect which party is liable for the costs
of this
matter or part thereof, excluding the already ordered costs.
[22]
I refrain from
making any costs order at this state. The applicant and the second
respondent have the right to apply to this court
for an order for the
balance of the costs
,
when any of
them decides
that it is
appropriate to do so.
Order
[a]
The
arrest and
detention
of
the applicant
which
occurred
on the
9th
February
2024 is set
aside.
[b]
The
interim order
number
2 read
with
7 granted
by
this court on
the 10th
February 2024
in terms of which the applicant was released is confirmed.
[c]
Save for the
costs order granted by this court on the 10th February
2024 in terms
of the first part of order number 8
,
the balance of
the costs are reserved
.
LEDWABA LGP
ACTING JUDGE OF THE
HIGH COURT
LIMPOPO
DIVISION : POLOKWANE
APPEARANCES
FOR
THE APPLICANT:
Mr
Moolman
PRATT
LUYT & DE LANGE ATTORNEYS
20
WATERMELON
STREET
,
PLATINUM
PARK
POLOKWANE
FOR
THE SECOND RESPONDENT:
Mr
Grobler
.
THOMAS
GROBLER ATTORNEYS
14
LANDDROS MARE STREET POLOKWANE
DATE
OF HEARING:
20
FEBRUARY 2024
DATE
OF JUDGEMENT
:
20
MAY 2024
[1]
Paragraph
3.17
of the
founding
affidavit.
[2]
Paragraph
3.13
of the applicant
'
s
supplementary
affidavit
[3]
ln
response
the
second
respondent
states
that the only thing the applicant needs to do is to
sign
the
transfer of shares in
her
surname
"B
loem
"
of
which
she
is registered
with
the
Department
of
Home Affairs for the
shares
to
be
successfully registered with the CIPC: paragraph 24.2, 24.3, 24.4,
25.1 and 25.2 of second respondent’s opposing affidavit.
[4]
P
a
r
agra
ph
s
3.27 a
nd
3.30
of t
h
e
a
ppl
i
can
t's
s
uppl
em
enta
ry
affi
d
av
i
t
.
Th
e
seco
nd
r
es
p
o
nd
e
nt
says
w
h
e
n
th
e
a
ppli
ca
nt
a
cquired
th
e
s
h
a
r
e
s
,
s
h
e
u
se
d
Bl
oe
m
s
urn
a
m
e
:
para
gra
ph
3
5
.2
of
hi
s
s
upplem
e
ntar
y
oppo
s
in
g
a
ffid
av
it
.
[5]
The
applicant says although the car is registered to the name of CB
Systems CC
,
it
was her property
,
and
has always been her personal vehicle
:
paragraph
3.17 of her supplementary affidavit
.
The
second respondent denies this allegation
:
see
paragraphs 26
.
3
and 27.1 of his supplementary opposed affidavit.
[6]
Paragraphs
of the respondent's opposing affidavit 106
.
5
,
106
.
6
,
125
.
2
and 3
[7]
Paragraphs
3
.
31
and 32 of the applicant's supplementary
affidavit
.
[8]
P
a
r
agra
ph
s
5
.
2
and
5
.
2
applicant
'
s
supplementary)
[9]
Paragraphs
84
.
2
,
3
,
88.4
,
89
.
2
,
91
.
3
,
96
.
1
and 97
.
2
of
the
opposing affidavit
[10]
Paragraphs
49.2 and 124.2 of opposing affidavit.
[11]
Public
Protector v South African Reserve Bank
(2019)
ZACC
29
;
2019(6)
SA 253(CC)
;
2019(9)
BCLR 1113(CC) -at 224 and 227
[12]
Mkhatshwa
& Others v Mkhatshwa & 6 Others
(2021) ZACC 15
paragraph
20
[13]
Mkhatshwa
& Others v Mkhatshwa & 6 Others
(2021) ZACC 15
paragraph 18.