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2024
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[2024] ZALMPPHC 183
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Blake and Another v MSI Systems and Technologies (Pty) Ltd and Others (2203/2024) [2024] ZALMPPHC 183 (18 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 2203/2024
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
18 November 2024
SIGNATURE:
In
the matter between:
GARETH
ANDREW BLAKE
FIRST
APPLICANT
SONJA
BLAKE
SECOND
APPLICANT
-and-
MSI
SYSTEMS AND TECHNOLOGIES (PTY) LTD
FIRST
RESPONDENT
RIAAN
MOORCROFT
SECOND
RESPONDENT
MAROPENG
FRANS CHAUKE
THIRD
RESPONDENT
SEBAWA
JOHANNES MOSHOANA
FOURTH
RESPODENT
MAUREEN
MOORCROFT
FIFTH
RESPONDENT
BEN
BOTHA
SIXTH
RESPONDENT
ABRAHAM
ROESTOF
SEVENTH
RESPONDENT
KATE
CHAUKE
EIGHTH
RESPONDENT
ALL
UNLAWFUL OCCUPANTS OF
PORTION
57 OF THE FARM BASKOPPIE
997,
L.S. LIMPOPO
NINTH
RESPONDENT
POLOKWANE
LOCAL MUNICIPALITY
TENTH
RESPONDENT
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
On the 7
th
of August 2024, this Court granted an order in
the following terms:
‘
1.
The First to Ninth Respondents, as well as all persons occupying
through the First
to Ninth Respondents, are evicted from the
immovable property commonly known as
PORTION 57 OF THE FARM
BASKOPPIE 997, L.S. LIMPOPO
(“the property”).
2.
The First to Ninth Respondents, as well as all persons occupying the
property
through the First to Ninth Respondents are ordered to vacate
the property on or before the 31
st
of December 2024.
3.
Should the First to Ninth Respondents, as well as all persons
occupying the property
through the First to Ninth Respondents, fail
to vacate the property on expiry of the period referred to in
paragraph 2 supra, the
Sheriff of the area in which the property is
situated is herewith authorized and mandated to carry out the Court
order with the
assistance of the South African Police Services and
evict the First to Ninth Respondents, as well as all persons
occupying through
them, from the property.
4.
Judgment is reserved in respect of costs.
5.
The Respondents have an opportunity to file supplementary heads
on/before 21
August 2024, and the Applicants to respond thereto
on/before 28 August 2024.’
[2]
What follows is thus this Court’s decision with regards to the
issue of costs.
[3]
It should be noted that during the hearing of the matter, the
Respondent’s counsel
conceded that their opposition only deals
with the lawfulness of their tenure up to and including December
2023. On the papers
before the Court, there is no reason for them to
have remained in occupation after this date. On this basis, the order
of eviction
was granted.
[4]
As the Respondents persisted in their view that the Applicants have
not made out a
case on the papers before court, the issue of costs
remained contentious and was consequently argued. The Respondents
persisted
in their view that, should the matter have been determined
prior to December 2023, they would have succeeded with their
opposition.
[5]
The Respondents’ counsel submitted in argument that it would be
just and equitable
under the circumstances if each party is ordered
to pay its own costs. The Applicants in return directed the Court’s
attention
to the consent to costs contained in the lease agreement.
In terms of Clause 22 of the lease agreement provides for costs to be
recovered in the event of the institution of legal proceedings on a
scale as between attorney and client. The Applicants furthermore
submitted that they were substantially successful and are thus
entitled to their costs.
[6]
In the case of
D
& DH Fraser Ltd v Waller
[1]
the Court concluded that a stipulation in a mortgage bond that the
debtor on failure of payment of his debt, shall pay collection
costs,
should be treated as a penalty and the creditor is therefore entitled
to recover only the actual loss which he has sustained
through the
debtor’s breach of contract.
[7]
In
Ebrahim
(Pty) Ltd v Mahomed and Others
[2]
the learned Milne JP stated the following:
‘
It was rightly
conceded by Mr. Mahomed that, if the undertaking in annexure A to pay
costs on an attorney and client basis including
collection charges,
was enforceable, as we hold it was, the learned Judge was correct in
holding that the indebtedness, acknowledged
in annexure A, was more
onerous than the indebtedness acknowledged in either ohe 1 or ohe 2.’
[8]
In the unreported case of
Vuselela
Security SPV (RF) v Lizoxola Properties (Leave to Appeal)
[3]
the learned Judge states the following:
‘
The only aspect
of my order that was not granted by consent was a direction that the
applicant for leave to appeal pay the costs
of the application on the
attorney-and-client scale.
The reasons I gave for
that order were that, first of all, costs on the attorney- client
scale were provided for in the agreement
upon which the respondent in
the application for leave to appeal sued in the court a quo. Second,
there were no facts under oath
before me that would have justified a
departure from that contractual undertaking, even though I accepted
it in my judgment that
such a departure is possible and the courts
are not bound by contractual undertakings to pay costs on a
particular scale.’
[9]
It is thus evident that an agreement to pay costs on an attorney and
client scale
is enforceable on a contractual basis unless a basis has
been set out in the papers before court why the contractual term
should
not be enforced.
[10]
In casu
no such case has been made out. If the Court accepts
the version of the Respondents hypothetically, then they remained in
unlawful
occupation after the end of December 2023, being the date on
which, according to their version, their lawful occupation seized.
They had no basis in law to remain in occupation.
[11]
In this Court’s view, if the opposition of the proceedings were
bona fide, the Respondents
would have vacated the premises, as per
their version, by the end of 2023 and would not have unlawfully
remained in occupation.
[12]
On this basis, the Court finds that the Applicants were obliged to
institute legal proceedings
as contemplated in Clause 22 of the lease
agreement. As a consequence, they are contractually entitled to the
payment of their
attorney and clients scale fees.
Order:
[13]
In the result the following cost order is made:
13.1 The First
to Ninth Respondents, jointly and severally, the one paying the other
to be absolved, are ordered to pay the
costs of the Applicants on a
scale as between Attorney and Client.
M
BRESLER
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
FOR
THE APPLICANTS
:
Adv. J
Stroebel
INSTRUCTED
BY
: Raath Law Inc
schalk@raathlaw.com
FOR
THE RESPONDENTS
:
Adv. V Sako
Adv. P Kotsana
INSTRUCTED
BY
: Ntwampe Thobejane
Inc Attorneys
info@nbtinc.co.za
DATE
OF HEARING
: 7 August 2024
DATE
OF JUDGMENT
:
18 November 2024
[1]
1916 AD 494
[2]
1962 (2) SA 183 (N)
[3]
2023 JDR 3794 (GJ) at 2