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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 18524/2015

(1) REPORTABLE: NO

(2) OF INTERST TO OTHER JUDGES: NO

DATE: 31/10/2016

In the matter between:

TASO ANASTASIOU                                                                              FIRST APPLICANT

MONIQUE ANASTASIOU                                                                 SECOND APPLICANT

and

KATIE K.P. JORDAAN                                                                                  RESPONDENT

JUDGMENT

COLLIS AJ:

INTRODUCTION

[1] In the present application applicants are seeking an order to set aside and rescind a cost order granted against them on 26 May 2015, on an urgent basis. The cost order was granted against them as they were in default of appearance during the hearing of the urgent application. The application is brought in terms of the provision of Uniform Rule 42(1) alternatively the common law and as such the applicants also seek condonation for the late launching of the application. The application is opposed by the Respondent.

BACKGROUND

[2] The applicants are the erstwhile tenants of the respondent, a practicing attorney. They first entered into a written lease agreement on 25 March 2014, which lease agreement was for an initial period of twelve months. On 1 April 2015, the parties concluded a second lease agreement in respect of the same premises, which was to endure for a fixed period of twelve months until 31 March 2016.[1]

[3] During the period of their tenancy the applicants duly and diligently paid their monthly rental and never defaulted on any of their obligations. At all material times they were aware that the respondent was desirous to find a purchaser for the premises.[2]

[4] Shortly after the second lease agreement commenced, the applicants were notified by the respondent that they needed to vacate the leased premises by 25 May 2015. The notice to vacate was dated 21 April 2015 and was in compliance with Cause 16.3 of the second lease agreement.

[5] Upon receipt of the said notice, the applicants on 18 May 2015 made enquiries directed to the estate agent of the respondent, enquiring as to whether the new owners would immediately take occupation of the leased premises as they had found it challenging to find an alternative rental premises. They indicated that they would be pleased if they could be given a further indulgence of another month in order to secure alternative accommodation.[3]

[6] In response thereto, the respondent’s agent confirmed that the new owner was desirous to take occupation of the premises on 25 May 2015 and that they should have vacated the premises by then.

[7] This initial email directed to the agent was the next day followed up by a call of the first applicant to the respondent, wherein the first applicant again repeated his request to be given a further indulgence. At no stage did they indicate that they would not vacate the premises on the date given in the notice to vacate.[4] This enquiry was met with the respondent threatening the applicants.  The respondent threatened to take steps against them in the event of any damages that could be suffered by her as a result of the sale of the property being cancelled by their refusal to vacate the premises.

[8] In an immediate response thereto, the applicants sought to clarify any misconception that could have been created by the former enquiry. The said response reads as follows:

“Dear Katie

Your response to or enquiry (to Diane) was alarming. We did not expect all the legal consequences to be thrown at us. We understand that you don’t want to lose the sale and would not want to detriment that in any way. We were merely enquiring when the new owner would need to occupy the property. If they were not in a hurry to move in then we could have stayed another month as we were hoping to rent another house nearby that is only available from the 1^st July. 

Please be assured that we are doing all we can to be out on the requested date.” [5]

[9] On 21 May 2015, the applicants confirmed that they were able to find alternative accommodation and reiterated that they did not object to vacate the property by 25 May 2015.[6]

[10] Rule 42(1)(a) empowers the court to rescind an order erroneously sought or erroneously granted in the absence of a party seeking rescission provided that such party is affected by such order or judgment. The prerequisite factors for granting rescission under this Rule are the following: firstly, the judgment must have been erroneously sought or granted; secondly, such judgment must have been granted in the absence of the applicant; and lastly, the applicant’s rights or interest must be affected by the judgment. Although the language used in Rule 42(1) indicates that the Court has a discretion to grant the relief, such discretion is narrowly circumscribed. The use of the word ‘may’ in the opening paragraph of the Rule indicates the circumstances under which the Court will consider a rescission or variation of the judgment.   

[11] Once those three requirements are established, the applicant would ordinarily be entitled to succeed, cadit quaestio. He is not required to show good cause in addition thereto. See Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd 1977 (2) SA 576 (W) at 578G; De Sousa v Kerr 1978 (3) SA 635 (W).

RESPONDENT’S GROUNDS OF OPPOSITION

[12] The Respondent opposes the application on the following grounds:

12.1 Firstly the respondent contends that the applicants were in wilful default of appearance on the day of the hearing when the cost order was made and when all the facts were placed before the court.[7]

12.2 Secondly the respondent contends that the applicants have failed to place before court a convincing explanation for condonation to be granted.[8]

12.3 Thirdly the respondent contends that the application for rescission is meritless and that the appropriate course of action to have been followed was to have appealed the costs order granted by the urgent Court and not to have applied for the rescission of such order.[9]

[13] I will proceed to deal firstly with the requirements under Rule 42(1).

Judgment erroneously sought or granted.

[14] The respondent launched an urgent application for the eviction of the applicants on 21 May 2015. It is common cause between the parties that at the time of the launching of the urgent application, the applicants were still in lawful occupation of the property as they were only required to vacate the property by 25 May 2015.  On the day of the hearing of the application (being the 26 May 2015), the respondent correctly in my view aborted the application and only requested the Court to grant a cost order against the applicants.

[15] The cost order so granted by the urgent Court was granted after the respondent’s counsel had informed the Court that the applicants had vacated the leased premises and as such the Court was requested to remove the application from the roll and to grant a cost order against them.[10]

[16] The cost order so sought and ultimately granted by the Court, was part of the ancillary relief sought to the eviction application applied for, albeit that the request was no longer persisted with on the day of the hearing of the urgent application.

[17] That having been the position, where the applicants were still in lawful occupation of the premises as at 21 May 2015, the basis for seeking their eviction on this date was premature and at best can be described as a gross overreaction, premised on unwarranted and exaggeration of risk, as unlawful occupation is a hallmark feature of any proposed eviction.[11]

[18] Even when the eviction application was not persisted with, the costs order was indeed persisted with. Given what I have already outlined above, this request for cost was not supported by the main relief of eviction. As a consequence I find that the main relief could not have been granted by the Court as at this date in view of the aborted application.

[19] Furthermore, In Mutebwa v Mutebwa & Another 2001 (1) SA 193 (TkH) the Court reaffirmed the position as follows when considering an application in terms of Rule 42(1).

“[22] There is nothing in the language used in the Rule which indicates that the error must appear on the record of proceedings before the power conferred could be exercised. The contention that the Rule is confined to cases where the error appears on the record cannot, in my opinion, be correct. Such an interpretation places an unwarranted limitation on the scope of the Rule. Decided cases show that relief may be granted under this Rule if; (i) the Court which made the order lacked competence to do so; (ii) at the time the order was made the Court was unaware of facts which, if then known to it, would have precluded the granting of the order; or (iii) there was an irregularity in the proceedings.” [12]

[20] Having regard to the prevailing circumstances, I am of the opinion that the cost order was erroneously sought and indeed erroneously granted by the Court.

Judgement granted in the absence of a party

[21] It is not in dispute that the costs order was granted in the absence of the applicants,[13] and as such the second requirement of the rule has also been met.

Applicant’s rights or interest must be affected by the judgment.

[22] Pursuant to the costs order being granted against the applicants a bill of costs was drawn and taxed which resulted in the respondent executing a writ pursuant to such taxed bill of cost. It therefore follows, that the applicant’s rights or interest is affected by the costs order made against them.

[23] For the reasons as set out above, it is my finding that the requirements set out in Rule 42(1) have indeed been met and as such I find it superfluous to deal with the requirements set out in common law to rescind the judgment.

COSTS

[24] As far as costs are concerned, the applicants seek a punitive costs order against the respondent in the event of the application being successful. The basis for a punitive cost order being sought emanates from the malice with which the respondent obtained a cost order against them (her conduct), knowing full well that as at the date of the hearing of the application, that the applicants had vacated the leased premises and as such that the application had been brought prematurely. 

[25] On behalf of the respondent it was argued that the judge granting the cost order was fully appraised that the applicants had vacated the premises as at date of the hearing of the application and the Court nevertheless exercised its inherent jurisdiction when making the cost order.

[26] A Court when granting any cost order exercises a discretion, which discretion must be exercised judicially[14] upon the consideration of the relevant facts of each case. In essence it is a matter of fairness to both parties. This to my mind entails not merely granting what a litigant before a court is asking, but to interrogate the basis for seeking such a request. If indeed such interrogation had taken place, the Court would have concluded that indeed at the time of the launching of the urgent application, the applicants were in lawful occupation and as such no basis in law existed to grant a cost order against them for an abortive application brought by the respondent.

[27] In the result I make the following order:

27.1 The cost order granted against the First and Second Applicants on 26 May 2015, is hereby rescinded;

27.2 The writ of execution issued consequent to the cost order granted on 26 May 2015, is hereby set aside;

28.3 The Respondent is order to pay the cost of this application on an attorney and client scale.

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C. J. COLLIS

ACTING JUDGE GAUTENG LOCAL DIVISION JOHANNESBURG

APPEARANCES:

FOR APPLICANTS        :  ADV. J.C.VILJOEN

INSTRUCTED BY          :  STUPEL & BERMAN INC.

FOR RESPONDENT     :  ADV. V DE VITT

INSTRUCTED BY          :  K. JORDAAN & ASSOCIATES INC.

DATE OF HEARING      : 04 August 2016

DATE OF JUDGMENT  :   31 October 2016

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