REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
CASE NO: 2023 - 008788
In the matter between:
MAMBA STRIKE FORCE CC APPLICANT
AND
ANDRIES CHRISTIAAN PETZER FIRST RESPONDENT
PHP ARMED RESPON SE (PTY) LTD SECOND RESPONDENT
ALPHERA FINANCIAL SERVICES (PTY) LTD THIRD RESPONDENT
6 January 2025
2
THE MOTOR FINANCE CORPORATION FOURTH RESPONDENT
A DIVIS ION OF NEDBANK (PTY) LTD
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail and by uploading it on to the electronic
platform . The date and time for hand -down is deemed to be 10h00 on the
06th of JANUARY 2025.
DIPPENAAR J:
[1] This is an opposed application in which t he applicant s ought the return of various
motor vehicles in possession of the first and second respondents, together with ancillary
relief .
[2] Shortly after service of the application on 8 February 2023 , the vehicles were
placed in the possession of the liquidators of Mamba PHP (Pty) Ltd by the first re spondent
on 22 February 2023 . At that point the relief sought by the applicant in its original notice
of motion became moot.
[3] The first and second responden ts’ attorneys proposed that the application be
withdrawn, with each party to pay its own costs. The applicant’s attorney, Mr Hood refused
to do so and demanded that the first respondent deliver an answering affidavit.
[4] In due course an answering affidavit was delivered on 23 March 2023. In their
opposing papers, the first and second resp ondents raised various grounds of opposition,
including the non - joinder of the PH liquidators, the mootness of the application and the
3
existence of bona fide disputes of fa ct regarding ownership of the vehicles which were
known before the application was launched. They expressly challenged the applicant ’s
owner ship of the vehicles in question.
[5] This resulted in an extensive replying affidavit being delivered on 17 April 2023 . A
notice of amendment of its notice of motion was served by the applicant on 5 April 2023,
which was effected on 4 May 2023. I n terms of the amendment, the applicant now sought
a declaratory order that it was the owner of the vehicles.
[6] At the hearing, th e applicant abandoned its substantive relief and effectively
capitulated the application . It is thus not necessary to determine the various issues raised.
Having belatedly jettisoned the relief, it follows that the application must fail. Ultimately
the only issue requiring determination was costs.
[7] The applicant contended that each of the parties should be held liable for their own
costs. The first and second respondents in turn, sought a punitive costs order on the basis
that the application constituted an abuse of process and was persisted with for an ulterior
motive. On the available evidence it is not possible to draw that conclusion as the most
reasonable inference.
[8] However, the applicant should in my view be held liable for the costs. The
suggesti on of the respondent was a reasonable one and would have avoided substantial
unnecessary costs being incurred. The fact that the amended substantive relief was only
jettisoned at the hearing fortifies my view. Having read the papers , it is doubtful whether
the applicant would have established its entitlement to the declaratory order sought, given
that the majority of the vehicles were financed with the financ ial institution which re tained
ownership of the vehicles . In addition, there were substantial disput es of fact pertaining
to the Hilux .
4
[9] Had the applicant adopted a reasonable approach, it should not have persisted in
the application once the primary relief originally sought became moot . The decision to
substantially amend the entire application and seek to make out a case in reply, was ill -
conceived. It must be concluded that the continued persistence with the application by
the applicant until the hearing was unreasonable and resulted in substantial unnecessary
legal costs being incurred.
[10] Costs are essentially a question of fairness between the parties. The conduct of
the applicant in relation to the matter renders it just to grant a punitive costs order to
ensure that the first and second respondents are not left out of pocket in relation to the
costs incurred in the application 1.
[11] In the result I grant the following order:
The application is dismissed with costs on the scale as between attorney and client .
___ ________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
GAUTENG PRETORIA
DATE OF HEARING : 11 NOVEMBER 2024
DATE OF JUDGMENT : 06 JANUARY 2025
APPLICANTS ’ COUNSEL : Adv. HJ Basson
APPL ICANTS’ ATTORNEYS : MJ Hood & Associates
1 Nel v Waterberg Landbouwers Ko -op Vereeniging 1946 AD 597 at 607; Swartbooi v Brink and Another
2006 (1) SA 203 (CC) para 27.
5
Mr Hood
RESPONDENT’S COUNSEL : Adv HA Van der Merwe
RESPONDENT’S ATTORNEYS : Anderson Attorneys Inc
Ms Manolios .