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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 780/2020

In the matter between:

ELRICH RUWAYNE SMITH N.O                                                    1^st Applicant

DONOVAN THEODORE MAJIEDT N.O                                        2^nd Applicant

and

EDDIE MODISE                                                                         1^st Respondent

ANY OTHER OCCUPIERS OF                                                 2^nd Respondent

ERF […], EXTENSION 111,

BLOEMFONTEIN

FREE STATE PROVINCE

MANGAUNG METROPOLITAN                                                3^rd Respondent

MUNICIPALITY

 

JUDGMENT BY:         RAIKANE, AJ

HEARD ON:                3 DECEMBER 2020

DELIVERED ON:        10 DECEMBER 2020

INTRODUCTION

[1] This is an extended return date of an interim order for eviction in terms of Section 4 (1) Act 19 of 1998. The interim order was granted on 27 February 2020 to be heard on 30 April 2020 and is resisted by the First Respondent. A notice to oppose was delivered 16 March 2020. The parties indicated that the matter has become moot they only issue for determination by the court will be the issue of costs.

[2] When a court makes a determination on costs the most important thing is to consider the results of the matter coupled with the conduct of the parties during litigation leading to finality.

 

BACKGROUND:

[3] The Respondents were appointed liquidators of Archi-M Studios and Mabulu Trust was one of the debtors of the insolvent estate. It signed a power of authority authorising the Applicant to be its agent and sell the property in question to liquidate its debtors from which the occupants were to be evicted. Eddie Modise was amongst those who were occupying that property at that stage alleged that his occupation was due to a written agreement with Mr. Mabulu, that the property will be transferred to him due to a debt owed to him by Mr. Mabulu, yet the property was owned by Mabulu Trust.

[4] On the turn of events the Applicants entered into a written offer to purchase concluded on 31 July 2019 with the Modise Trust represented by the First Respondent. The terms of the contract being that 15% of the R3 600.00 purchase price should be paid on signature of the offer and the balance thereof within 30 (thirty) days in the form of bank guarantees which never happened. A letter of demand was sent to the purchaser and he elected to cancel the contract and demanded his deposit on 3 February 2020.

[5] Both parties changed legal representatives, and nothing happened in the matter for quite some time and it was submitted that the parties were talking during that period.  The matter was postponed several times I must comment though drawing a chronology of the events as they unfolded was very difficult even for the Counsels as the pagination was not done correctly and some of the documents filed for record were highly illegible and at times the court adjourned for Counsel to call, text or talk to those attorneys who were in court to get instructions.

[6] Nonetheless fast forward on 8 October 2020 a new offer to purchase was signed between the Applicants and Eddie Modise Properties & Development Company on the same terms represented by the First Respondent. The deposit was still 15% and the balance payable within 30(thirty) days by delivering the bank guarantees.

[7] An opposing affidavit was filed by the new attorneys on the rule nisi order still hanging on 12 October 2020 and a copy of the deposit paid in 2019 was annexed. The Applicant also filed their replying affidavit. I do not intend to repeat the details thereof.

[8] There matter was on the roll on the 8 October 2020 was postponed to 15 October 2020, postponed to 26 November and eventually to 3 December 2020. On the postponement of the 26 November 2020 the reason for postponement that was furnished was that to enable the parties to confirm the delivery of the guarantees, the matter was again postponed to the 3 December 2020.12.04

[9] As indicated earlier the submission was that the guarantees were delivered though both Counsel could not find proof thereof either in their briefs or from the trial bundle after a short adjournment to allow them to phone it was confirmed that same has been submitted and the mootness of the matter was confirmed.

[10] The issue on the costs both submitted that their clients are entitled to costs. Submission on behalf of the Applicants was that there was no need to file the answering affidavit that  necessitated a reply and the appearances in court though and the  costs must cover the whole application from the date the directive in terms of section 4 (1) of the PIE Act on 18 February 2020 despite the fact that it was  repeatedly  stressed that the first contract  between the Applicant and  Modise Trust  was cancelled and that  a new contracted in place was between the Applicants and  Eddie Modise Properties & Development Company. The reason of keeping the application on the roll despite the second contract was aimed at ensuring that the guarantees are delivered. It was further confirmed that the deposit money paid under the first contract has been carried over to the second contract.

[11] Submission on behalf of the First Respondent was that the Applicant must bear the costs there was no need to keep the matter on the roll due to the mootness of the matter. Secondly, even during the first contract a point in limine on local standi was raised against the applicants.

[12] It is trite that in civil matters costs follow the results and the applicable scale will depend on the conduct of the parties during litigation on how they prolonged the finalisation of the matter or any other reason the court might find wanting in the legal practitioner’s in conducting the litigation. At worse they are punitive in nature and can be ordered de bonis and the scale might be on attorney and own client depending on the circumstances of the matter.

[13] From the chronology of this matter it is common cause that both the Applicants and the First Defendant have been involved in this matter from inception. They both gave mandates to different sets of attorneys and yet they continue to engage each other as to how to resolve this matter through conducting ongoing discussions. Time frames in terms of the Rules were totally disregarded the interim order under the first contract was authorised on 27 February 2020 with a return date on 30 April 2020   and there is no endorsement on what happened on that return date up until late in the year when a new contract was drafted.

[14] The reason why it was maintained on the roll is also not convincing as such a conduct has a great impact on case management and clogs the court roll unnecessary so.

[15] I am of the view both parties are responsible for this state of affairs.

In the result I make the following order.

1. The matter is struck off from the roll as it has become moot.

2. Each party to pay to bear their own respective costs.

 

 

________________

  T.V RAIKANE, AJ

 

 

On behalf of Applicant:                             Adv. Els    

Instructed by:                                           Phatsoane Henney Attorneys.

                                                                BLOEMFONTEIN

 

On behalf of Respondent:                        Adv. Mazibuko

Instructed by:                                           Masia Attorneys.

                                                                BLOEMFONTEIN

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