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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 16838/2024
In the matter between:
Y[…] V[…] D[…] M[…] Applicant
and
D[…] S[…] V[…] D[…] M[…]
Respondent
Coram: Acting Justice P Farlam
Heard: 31 July 2024
Delivered electronically: 6 August 2024
JUDGMENT
FARLAM AJ:
[1] When this application was launched on Tuesday, 30 July 2024, the applicant
sought as a matter of urgency an order directing the respondent to vacate the
applicant’s property in V […] d[…] V[…], Paarl before 17h00 on Wednesday,
31 July 2024, as well as ancillary orders designed to ensure that he was
removed from the property and handed over all keys thereto in the event of
his failing to do so of his own accord. In addition, the applicant sought the
costs of this application on scale C, as contemplated in Uniform Rule 67A,
and that those costs be paid on a punitive, attorney and own client, basis.
[2] By the time that this application was called in the urgent court on the morning
of Wednesday, 31 July 2024, the respondent had vacated the premises . It
appears that the respondent left the property around 1 4h00 on Tuesday, the
30th, slightly more than four hours after his attorneys had been emailed a copy
of the unissued and unsigned application papers (at 09h45), and about half an
hour after his attorneys’ receipt of the issued application (at 13h35).
[3] The substantive relief sought by the applicant has thus become moot. All that
remains for determination is the question of costs (the respondent having
refused to make a tender in that respect).
[4] On the papers before me – which consisted of a founding affidavit from the
applicant (with attachments), a supplementary affidavit from the applicant’s
attorney (with annexures) deposed to on the morning of 31 July 2024 and an
answering affidavit from the respondent (with annexures) deposed to later on
31 July 2024 – the applicant clearly made out a case for a mandament van
spolie (or spoliation order) . That was also , understandably, not disputed by
the respondent’s counsel in argument. While the respondent’s affidavit
contained a very brief and unsubstantiated denial of the merits of the
application (in a two -line paragraph), his vacation of the property soon after
receiving the application and taking legal advice further supports that
conclusion. The consideration of the costs question must thus proceed on the
basis that the application was well -founded and would, on the papers, have
succeeded.1
[5] The respondent nevertheless disputes that he should pay the costs of the
application. In the alternative, he contends that, if an adverse costs order
were to be granted, he should not pay costs on a punitive scale and that any
party and party costs order should not be on scale C.
[6] The respondent’s main argument in this regard was that , once the applicant
had learned of the respondent’s occupation of the property on Saturday,
27 July 2024, the applicant’s attorney could have resolved the matter
expeditiously, and inexpensively, by sending a letter of demand on Sunday,
28 July or Monday, 29 July 2024, instead of instructing counsel to draft a High
Court application. According to the respondent, he would have vacated the
property upon being notified of an intention to issue a spoliation application ,
just as he vacated the property soon after receiving the application papers
and taking advice from his attorney. In the circumstances, so he submitted, an
application was unnecessary and, at best, premature.
[7] I am not aware of any authority to the effect that a letter of demand must
precede an urgent application in order for the applicant to claim the costs
thereof; and I was also not referred to any by the respondent. Every case
must in any event turn on its own facts ; and so the fact that a demand may
have been considered appropriate in other matters 2 does not mean that the
1 It is well-established that, where a decision concerning costs is divorced from the merits because a
decision on the merits may no longer be required, regard must still be had to the merits in determining
costs (see e.g., Erasmus v Grunow en ̛n Ander 1980 (2) SA 793 (O) at 798D ; Johnson v Minister of
Home Affairs and Another 1997 (2) SA 432 (C) at 434B; Thusi v Minister of Home Affairs and Another
and 71 Other Cases 2011 (2) SA 561 (KZP) para 64).
2 For example, the applicant in Matsipe v SAI Group (Pty) Ltd (34618/17) [2017] ZAGPPHC 319
(2 June 2017) issued a letter of demand before approaching the court for an urgent spoliation order.
applicant in this case should be penalised for not first seeking to address the
respondent’s unlawful occupation of her property by way of an attorney’s
letter. The following factors bear particular reference in this context:
7.1. The applicant had warned the respondent in a WhatsApp message on
Saturday, 27 July (after he had advised her through that medium that
he was not living in the house and that “[y]ou will need to tell your
tenants that they will need to find alternate accommodation”) that,
unless he left the house, she “will get a court order to evict [him]”. The
respondent replied to that message less than half an hour later with a
hostile and insulting WhatsApp which ended with the sentence: “Let’s
see how the courts [sic] decides on your attempted extortion”. The
respondent also followed up that communication with a further
WhatsApp at 13h31 on Sunday (28 July) in which he inter alia stated:
“An estate canno t block your access to the matrimonial home. The
court is very reluctant to evict a spouse from the marital home, even if
one spouse brings the matters to court.” The applicant can thus hardly
be blamed for instructing her lawyers to draft , and then bring, the
action she had foreshadowed.
7.2. In my view, one also cannot infer that, because the respondent left the
property shortly after receiving the application and taking legal advice
in respect thereof, a letter of demand – which by its nature would have
been much less detailed and compelling, and also have posed much
less of an immediate threat to the respondent – would have had
anything like the same effect. In deed, the sending of a letter in those
circumstances might even have been seen as a sign of weakness or
uncertainty, and as evincing an unwillingness by the applicant to seek
an order compelling the respondent to vacate , and thus an invitation
to continue the dispute by correspondence.
7.3. In addition, the matter undoubtedly required prompt resolution , as,
even aside from the fact that these kinds of applications are inherently
urgent, the applicant had concluded a lease agreement in respect of
the property with a Mr Raphuthing, in terms of which he and his wife
and four minor children were permitted to occupy the property from
1 August; and the applicant would therefore be in breach of that lease
agreement, and be liable for damages thereunder, in addition to being
deprived of the rental income that she claims she needs for her own
children’s maintenance and housing , were the respondent to remain
in the property after 31 July.
[8] The applicant therefore cannot be faulted for instructing her legal
representatives to commence with drafting urgent application papers on
Sunday, 28 July. Even if a letter had been sent on the Sunday or the Monday,
the application papers would anyway have had to be prepared on those days
so that the applicant could proceed to court urgently in the event of the
demand not being complied with – as the respondent had already advised by
WhatsApp that it would not be. The respondent’s attorney’s charge that the
applicant’s attorney was “acting in an unnecessary [ sic] litigious manner” by
bringing an application was therefore unwarranted.
[9] The position is consequently that the applicant has brought an application of
undisputed urgency, which was justified and well-founded, in order to address
unlawful action on the part of the respondent . The respondent, by his actions,
has essentially conceded the application. The usual rule in such
circumstances is that an applicant should be awarded costs. 3 I see no reason
to depart from that.4
3 See, e.g., Ideal Trading 199 CC v Polokwane Local Municipality (3087/2021) [2023] ZALMPPHC
75 (15 August 2023), where the Court quoted passages from Ward v Sulzer 1973 (3) SA 701 (A) ,
before stating at para [9] that: “Although this case was decided against the backdrop of a withdrawal,
the reasoning still rings true. The Applicant cannot be deprived of its costs in as far as the conduct of
the Respondent rendered the merits of the application moot.”
4 I have considered the judgment of the Free State High Court ( per Daffue J) in JRK v HEK
(4711/2020) [2021] ZAFSHC 13 (3 February 2021), which the applicant’s counsel drew to the
[10] What therefore needs to be considered is the scale of costs.
[11] The applicant has, as mentioned, asked for attorney and own client costs, as
well as costs on scale C. As noted above, the notice of motion conflated these
by asking for costs on scale C in the context of an attorney and own client
order. However, t he applicant’s counsel acknowledged in argument that the
costs scale in Rule 67A is not applicable to punitive costs orders, merely party
and party costs ones . It was accordingly common cause at the hearing that
the question of whether a costs order should be on scale C would only arise in
the event of my not being inclined to grant the applicant attorney and own
client (or attorney and client) costs.
[12] The respondent’s counsel submitted at the hearing that, despite attorney and
own client costs having been sought in the notice of motion, the founding and
supplementary founding affidavits did not motivate that prayer or thus make
respondent’s and the Court’s attention ; and agree with the applicant that the cases are
distinguishable. That matter is in some respects the converse of the present one. In JRK, like the
present case, a husband and wife were embroiled in divorce proceedings and the occupation of the
house by the husband appeared to be “to put pressure on [the wife] in divorce litigation” and to
“prevent[] [the wife] from earning rental income” on the property (para [24]) . However, in JRK, the
spoliation was done by the wife in attempting to get the husband out of the property, the husband
already having established peaceful and undisturbed possession . It furthermore appeared to the
Court that the applicant “to a certain extent abused the legal process in order to obtain a tactical
advantage over respondent” (para [23]) and brought a “vindictive application” (para [25]). While
Daffue J granted the applicant a spoliation order, he was consequently disinclined to award the
applicant costs and even “initially considered ordering applicant to pay respondent’s costs in respect
of her opposition to the application” (para [25]). The Court in JRK accordingly decided to make no
order as to costs. In the present matter, by contrast, the person who sought to put pressure on the
other in the divorce litigation (the respondent) has effectively conceded the application, and would
also, on the papers before me, have lost. The considerations which motivated Daffue J to depart from
the usual rule that the successful party should be awarded costs therefore do not apply in the present
matter. Indeed, the kinds of sentiments expressed by Daffue J in JRK support a costs order for the
applicant in this instance.
out a case for punitive costs on that scale. That submission has some merit,
although I do not think it can be dispositive in this case, inasmuch as the basis
for the punitive costs award was clearly evident from the papers and
particularly the allegations in the founding affidavit that the respondent was
occupying the property “based upon an ulterior motive” and that he “wishes to
be spiteful and wishes to gain a bargain through extorting [the applicant] from
[sic] paying him what he perceives he is entitled to”.
[13] Those allegations of the applicant were not disputed by the respondent; nor
could they plausibly have been. The respondent’s own divorce action
indicates that he resides some way away from V[…] d[…] V[…] (in Plumstead,
Cape Town) and it was also undisputed that he had been living there for
almost two years prior to 27 July 2024. It was further undisputed that the
respondent had given no indication in communications with his estranged wife
that he wanted to move back to their erstwhile marital home in V […] d[..]
V[…]. As the respondent effectively acknowledged in his WhatsApp
communications, the reason for his sudden occupation of the applicant’s
property, almost immediately after she had left for Europe with the children,
was therefore not because he genuinely believed that he was entitled to live
there, but because he saw an opportunity to attempt to improve his bargaining
position in the divorce negotiations with his wife.
[14] Had this application proceeded to argument on the merits, I would therefore
have had little compunction in awarding the applicant attorney and client
costs, to penalise the respondent for his vexatious and vindictive conduct. As
noted above, the respondent’s show of bravado was however short-lived and
there was consequently no prejudice to the applicant other than the legal
costs she had incurred in relation to the application. The respondent’s
WhatsApp communications with his wife could arguably also be considered to
be the kind of petulant bluster that, in a pre -electronic communication age,
would have been intemperately said in the heat of the moment in a verbal
argument without being accorded (or intended to be accorded) long-lasting
significance. There is furthermore the question of how to balance the fact that,
while attorney and client costs might have been warranted in respect of the
merits, a fair portion of the costs will ultimately have related to the costs of the
hearing about costs, in respect of which a punitive scale would not appear to
be justified. While, as explained above, I do not think that the applicant
needed to send a letter of demand in the circumstances of this case, it may
be, too, that , given the speed with which the respondent capitulated , the
applicant could have limited the costs she incurred in respect of the merits,
and that it would accordingly be unfairly puni tive to the respondent to allow
the applicant to tax her costs other than on the normal scale . In the
circumstances, I have decided not to award costs on a punitive scale, but
instead on a party and party basis.
[15] That then leads to the question of whether counsel’s costs should be on
Scale C (as contended for by the applicant), or on a lesser scale (as asserted
by the respondent). This issue can be addressed swiftly. While it is correct, as
the respondent’s counsel argued, that this matter was ultimately a fairly
straightforward mandament van spolie , to which the respondent appeared to
have no defence, the applicant was, in my view, justified in employ ing an
experienced and streetwise counsel, given that the re spondent had indicated
that he was intending to raise a variety of defences and, for example, seek to
invoke the protections afforded by the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998 ( PIE) and also attempt to cloud
the issues by portraying them as interlinked with the pending divorce action.
The indications were that the respondent would thus seek to complicate the
issues as much as possible, as part of his strategy to improve his bargaining
position for the divorce , and at least try to frustrate and delay using PIE, in
circumstances where he knew that time was of the essence for the applicant,
who had to give vacant occupation to a tenant by 1 August 2024 . It must also
be borne in mind that the applicant had very shortly before arrived in the
Netherlands with their children to start a new job, and needed to be sure that
this matter, which was o f some importance to her, was in capable hands. In
the circumstances, the applicant’s briefing of a senior junior counsel was
appropriate, and she is entitled to recover costs commensurate with that
counsel’s seniority.
[16] I therefore make the following order:
The respondent is to pay the costs of the application on a party and
party basis, with counsel’s fees granted on Scale C.
_________________________
ACTING JUDGE P FARLAM
For applicant: Adv A Ferreira
Instructed by: Hannes Pretorius Bock & Bryant (Mr W Bock)
For respondent: Adv Michelle Schoeman
Instructed by: Madelein Wöhler Attorney