REPUBLIC OF SOUTH AFRICA
i. f x , \.\
SLF SOW?”
IN THE HIGH COURT OF SOUTH AFRICA
: GAUTENG DIVISION, PRETORIA
a CASE NO.: 2025-124686
(1) REPORTABLE: NO F ,
(2) OF INTEREST TO OTHER JUDGES: NO :
(3) REVISED: NO
Date: 4 August 2025 Evan der Schytt
In the matter between
NKHESANI THEODORA MTHOMBENI APPLICANT
and
NOMPUCUKO MASUKU FIRST RESPONDENT
PAM GOLDING PROPERTIES (PTY) LTD SECOND RESPONDENT
JANNIE SWANEPOEL THIRD RESPONDENT
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JUDGMENT
Van der Schyff J : 8
Introduction : .
{1] The applicant approached the court for urgent relief after she was unlawfully evicted
from the property she had leased, by the homeowner, the first respondent. Relief was
granted, but the issue of the second respondent's costs was separated and
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reserved. The parties were afforded the opportunity to file supplementary heads
dealing with the issue of costs.
[2] Neither the second nor the third respondents were instrumental in the applicant's
eviction from the property. The second respondent was cited in the application based
on being the rental agency for the first respondent, with the third respondent being
the estate agent with whom the applicant had contact. He is no longer employed by
the second respondent. A costs order was, however, sought against the second and
third respondents. The third respondent did not partake in the proceedings.
[3] It is common cause between the parties that the second respondent, the only party
that opposed the relief sought against it, is the managing and administering agent of
the first respondent. All communication between the applicant and the first
respondent is to be channeled through the second respondent, and the second
respondent's address is also the first respondent's domicillium address. It is likewise
common cause thatthe first respondent, assisted by a group of about twenty people,
forcibly broke the gate to obtain entrance to the property and the house while the
applicant was absent. This group began removing ‘the applicant's belongings,
furniture, and household effects from the property. Thereafter, they inserted chains
and locked the doors and the main gate.
[4] There is, however, not a single shred of evidence that links the first respondent's
conduct to the second and third respondents. They did not take part in any manner
in the first respondent's unlawful deprivation of the applicant's possession and
occupation of the property. ,
[5] The second respondent submitted that it was incorrectly joined as a party to these
proceedings. | agree. The second respondent was an irrelevant party in the
spoliation proceedings. It was unnecessarily and improperly dragged into these
proceedings. The position would have been different if the second respondent was
merely cited for it being the managing agent and no relief was sought against it.
[6] The second respondent informed the applicant of its position and invited the
applicant to withdraw the application against it and tender costs. The invitation was
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ignored. This led to the accumulation of additional costs. As a result, the second
respondent seeks a punitive costs order in its favour.
[7] It is trite that a court will not lightly grant a punitive costs order. The facts
underpinning the application demonstrate, however, that the second respondent
was included as a respondent without any reasonable basis. The second respondent
cannot be out of pocket in respect of the expense caused by the litigation. In the
current scenario, justice and fairness require a departure from the general rule that
a successful party is entitled to costs.! The applicant was successful, but not as
against the second respondent. : :
[8] Litigation is a costly exercise, and prospective litigants must carefully consider whom
to cite as parties against whom relief is sought.
ORDER 28a
In the result, the following order is granted: ‘
1. The applicant is to pay the second respondent's costs on the scale of attorney
and client.
yt : E van der Schyff
a Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on CaseLines. in the event that there is a discrepancy between the date the judgment
is signed and the date it is uploaded to CaseLines, the date the.judgment is uploaded to
CaseLines is deemed to be the date that the judgment is handed down.
For the applicant: Adv. M G Skosana
Instructed by: TS MAKHUBELA ATTORNEYS
For the second respondent: Adv. Z A Teperson
' See Nel v Waterberg Landbouwers Ko-operatiewe Vereniging 1946 AD 597.
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