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CASE NUMBER: 642/04
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
NORTH WEST DEVELOPMENT CORPORATION Applicant
(PTY) LTD
and
SOLID DOORS (PTY) LTD Respondent
URGENT APPLICATION
MAFIKENG
HENDRICKS J.
DATE OF HEARING : 09 JUNE 2004
DATE OF JUDGMENT : 22 June 2004
COUNSEL FOR THE APPLICANT : Adv J.J. Reyneke S.C.with him Adv. J W SteynCOUNSEL FOR THE RESPONDENT : Adv C.P. van Coller
with him Adv H.M. Vermaak
HENDRICKS J:
INTRODUCTION
[1] This matter came before me as an urgent application on 31st May
2004 and was postponed until 09th June 2004 at the instance of the
Applicant. Costs was reserved at that stage.
[2] The Applicant is the owner of 4 premises in the Babelegi Industrial
Township. The Respondents hired these premises from the Applicant
for several years in terms of written lease agreements which were
extended from time to time. Separate lease agreements were entered
into between the parties for each of the 4 premises.
[3] It is common cause between the parties that at the time the Applicant
instituted this application, Respondent was still in occupation of all 4
premises (Stands 96, 97A, 97B and 98) and enjoyed undisturbed
possession thereof.
[4] The Respondent has given notice to the Applicant of its intension to
terminate the lease agreements and that it intends to vacate these
premises. Different dates were advanced as the respective dates on
which the Respondent will vacate each of the different premises.
[5] The first date specified by the Respondents was during May 2004 in
respect of the first premises (Stand 96). The Applicant approached
this court on an extreme urgent basis for an order in the following
terms:
“2. That the Respondent be interdicted and restrained from removing or alienating
any of the Respondents or third parties’ movable assets (“the assets”) situated at
Stands 96, 97A, 97B and 98 in the Babelegi Industrial Township (“the immovable
properties”) pending the institution and finalisation of an action by the Applicant
against the Respondent for payment of arrear rental.;
3. Alternatively, that the Respondent be interdicted and restrained
from removing or alienating the assets situated at the immovable
properties pending the issuing of an order by the above
Honourable Court for the attachment of the assets;
4. Costs of suit to be paid by the Respondent.”
[6] I may just mention that the above prayers are set out in the amended
notice of motion which was filed at a later stage. It differs from the
original notice of motion because of the insertion of the words “...and
finalisation...” in paragraph 2.
[7] This application is opposed by the Respondent on various grounds which
I will deal with later on in this judgment.
[8] The nature of the application is that the Applicant applies to have his
hypotec over the movables of the Respondent or third parties on the
premises hired by the Respondent from the Applicant perfected.
URGENCY
[9] The Applicant initially approached this court on the Monday 31st May
2004 at 10h00. The documents were served on the Respondent on the
preceeding Friday, 28th May 2004 at 14h04 and was also filed with the
Registrar of this court on the very same day.
[10] The notice of motion is in short form and does not comply with
Form 2(a). No time limit was given to the Respondent during which
he could answer to what it contained in the founding papers.
[11] When the matter appeared before me on the 31st May 2004, the
Respondent had filed its opposing papers that very same morning.
[12] The Applicant who wanted to reply to the allegations contained in
the opposing papers successfully applied for a postponement of
the matter. Costs were reserved at that stage.
[13] One of the basis on which the Respondent opposed this
application is the lack of urgency, alternatively that the urgency is
selfcreated by the Applicant.
[14] In a letter dated 9 th December 2003 , Respondent’s attorneys
notified the Applicant about their intention to terminate the various
lease agreements and to vacate the premises. The following
appears in paragraphs 9 and 10 of the said letter:
“9. Our clients, in view of the aforegoing, however, hereby
formally give notice of its intention to vacate the immovable
properties after the lapsing of periods hereunder referred to
and upon which dates the leases will be cancelled by our
clients, our clients occupying the properties until the lapsing
of such period with a view to mitigating damages and in an
effort to afford yourselves reasonable notice. Our clients will
vacate the properties after the lapsing of the periods in
respect of the respective properties as follows:
9.1 In respect of Stand 96, a period of five months
calculated from date hereof;
9.2 In respect of Stand 97A, a period of six months from
date hereof;
9.3 In respect of Stand 98, a period of twelve months
calculated from date hereof;
10. Our clients accordingly in view of the aforegoing while
reserving all its rights affords your clients notice formally in
terms hereof of its intention to vacate the leased premises
after the expiry of the aforementioned periods at which time
the leased agreements shall be cancelled”.
[15] This letter is attached as Annexure FZ11 to the Founding Affidavit
of the Applicant, and it is common cause that Applicant did receive
this letter shortly after 09 December 2003.
[16] It is also common cause that at no stage did the Respondent
undertake not to proceed with the vacating of the said premises, as
stated in the letter.
[17] It was submitted by Mr Reyneke S.C. who appeared on behalf of
the Applicant that it came to the attention of the Applicant via a
Review Application instituted by the Respondent, that the
Respondent (in an affidavit in that Review application) states that it
is “in the process of vacating the said premises”.
See : paginated page 87 of the record
[18] It is then that Applicant realised that the Respondents is serious
about vacating the said premises. This affidavit was attested to on
19th May 2004 and it came to attention on the Applicant around
27th May 2004. This prompted the Applicant to resort to bringing
this application on an extreme urgent basis.
[19] It is abundantly clear that the Applicant was indeed notified by
Respondents of its intended vacating of the said premises several
months ago.
[20] It is clear that Applicant itself, created
the situation it finds itself in by waiting
until the last moment before taking
action. The urgency is therefor self
created.
[21] I agree fully with the submission made by Mr Van Coller who
appeared on behalf of the Respondent that the Respondent was
“frogmarched” to court by the Applicant.
[22] Although applications of this nature can be urgent depending on
the circumstances, I find myself unable to think of any valid reason
why the Applicant did not take appropriate steps at a much earlier
stage.
[23] It is mindboggling why the Applicant waited until the end of the
notified first period of five months before it took action. A court will
not condone or tolerate the actions of a applicant where he
creates himself the urgency.
[24] I am of the view that the actions of the Applicant under the
circumstances of this case warrants that this court shows its
disapproval of such actions with the granting of an appropriate
punitive cost order.
[25] I was inclined to dismiss the application outrightly due to the fact
that the urgency is selfcreated, but I am of the view that it is in the
interest of justice that this matter be entertained as there is merit in
Applicant’s application.
THE APPLICATION
[26] The Applicant is applying to have his hypotec over the movables
on the hired premises perfected.
[27] A Lessor’s hypotec comes into operation only when (and operates
only as long as) rent is owing.
[28] Before the lessee is in arrear with rent the lessor has no hypotec
and cannot interdict the lessee from removing his goods from the
hired premises.
See: Landlord and Tenant by W.E. Cooper on page
1923.
[29] A lessor’s hypotec operates only in respect of movables on the
hired premises and unless they have been attached, the lessor’s
hypotec is lost as soon as they are removed from the hired
premises.
See: Frank v Van Zyl 1957 (2) SA 207 at Page 210 AC.
[30] It is trite law that if a lessor wants to render his hypotec legally
effective he must by judicial process perfect his hypotec over the
movable property while it is still on the hired premises.
See: KleinsakeontwikkelingsKorporasie Bpk v Santam
Bpk 1988 (3) SA 266 (K) on page 270 CD where the
following is stated by Tebbutt R:
“Dit word egter geleer dat, alhoewel die verhuurder se
hipoteek outomaties ontstaan wanneer die huurgeld
agterstallig raak oor die goed van die huurder, of _ derde in
die omstandighede hierbo uiteengesit, wat op die verhuurde
perseel deur die huurder gebring word, dit nodig is alvorens
die verhuurder dit kan afdwing, of die ‘voordeel’ van die
hipoteek kan verkry, dat hy dit moet perfek maak of bevestig
deur _ bevel van _ bevoegde hof;...”
See also the other authorities quoted further on that
page.
[31] In order to succeed in obtaining an attachment order or an interdict,
the lessor must prima facie establish and proof that the lessee is
in arrears with his rent.
See: Currie v Kessack 1904 TH 6. On page 10 where
Mason J states:
“I consider, therefore, that the Applicant has made out a
sufficient prima facie claim to justify an interdict if he is
entitled to it on other grounds”.
[32] The applicant has attached proof that the Respondent is in arrears
with the rentals in respect of the said premises.
See: Annexure FZ10 on page 65 of the paginated pages
of the record as well as page 3 of Applicant’s
Supplementary Head of Argument filed on 14th June
2004.
[33] In terms of the above, it is evident that Applicant claims that
Respondent is in arrears with the rentals on the said premises to
the total of R 2 903 069.68. Annexures FZ15, FZ16, FZ17 also
proofs the individual amounts which the Respondent is in arrears
with in respect of each of the individual premises.
[34] Respondent denies that any rentals are due and payable to
Applicant.
In paragraph 6.14 and paragraph 7 of the answering affidavit,
Respondent states the following;
“6.14 The court will also note that the Respondent disputes
the alleged amount of arrear rentals, stating that it is not in
arrears with its rentals at all.
7. It will therefore be denied that the Applicant has
established any basis in law to interdict the Respondent in
any way, as the Respondent simply does not owe the
Applicant any money at all”.
[35] This is in contrast with what is stated in paragraphs 5254 of the
answering affidavit where Respondent clearly states his ability to
pay whatever rentals may be found to be owed to Applicant after
the action (now instituted) is disposed off.
[36] In its opposition to the application, Respondent does not claim a
reduction in rentals nor does it raise setoff as a valid defence in
the action that is now instituted. Respondent opposes the
applicant on the basis that:
(a) the judicial managers of the Applicant lacks the necessary
locus standi in bringing this application;
(b)that a rent moratorium was agreed upon between the Applicant and Respondent;
(c)the claim has prescribed; and on
(d)a counterclaim
(a) Lack of Locus Standi of the judicial managers of the Applicant:
[37] It is common cause that the Applicant was placed under judicial management by this
Honourable Court as far back as 10thAugust 1999, under Case Number 96/99.
Paragraph 2.7 of the final order placing the applicant under judicial management
reads thus:
“2.7. that while the respondent (Applicant in this matter*) is under judicial
management all actions, proceedings, the execution of all writs, summonses
and other processes against* the respondent (Applicant in this matter*) be
stayed and be not proceeded with without the leave of this court being
obtained;”
(* my insertion and underlining)
[38] It is clear from the reading of this court order that proceedings againstthe Applicant
were stayed and such proceedings could not be proceeded with (against the Applicant)
without leave of the court.
[39] It does not affect proceedings which the Applicant institute or that it had instituted. I
am in agreement with the submission made by Mr Reyneke SCthat the judicial
managers are empowered to discharge all the duties prescribed in Section 433 of the
Companies Act, Act 61 of 1973 (as amended).
[40] The Court order referred to above also confirm this position.
Paragraph 2.9 of the Court Order reads thus:
“2.9 that the final judicial managers discharge the duties prescribed by
section 433 of the Companies Act, Number 61 of 1973 as amended;”
[41] The submission by Mr Van Collerthat the judicial managers are on the same footing
as a liquidator of a company is with respect incorrect. It is clear from the reading of
Section 433 of the Companies Act and the abovementioned order of the court that the
judicial managers of the Applicant de facto as directors of the Applicant. The judicial
managers so to say stepped into the shoes of the erstwhile directors of the Applicants.
[42] As such, the judicial managers do have the necessary locus standito institute court
proceedings for and on behalf of the Applicant within the scope of Section 433, of the
Companies Act.
[43] I am therefore of the view that the judicial managers acted within the scope of their
duties and powers when they instituted this application. They do have the necessary
locus standirequired to institute this application.
b)The rent Moratorium
[44] opposing this application, the Respondent also states that a
moratorium over the payment of rent was agreed upon between Applicant and
Respondent. For his submission that such a moratorium is in place, Mr van Collerrely
inter aliaon a letter written on behalf of Applicant to Respondent. This letter is dated
06 September 2002 and is attached as Annexure “NC10" to the Answering Affidavit
on page 196 of the record. The third paragraph thereof reads thus:
“During the meeting which was held on the 20/06/2002 with you, it was
agreed that the rental moratorium allegedly granted by Mr Frank Peter
should come to an end on the 30/06/2002, as Mr Peter was not authorized to
do this”.
[45] Although the contents of this paragraph is denied in a letter from the Respondent to
the Applicant, (Annexure NC11 on page 197 of the record) the intention of the
Applicant is made clear that it firstlywants to bring the moratorium “allegedly
granted by Mr Frank Peter” to an end. It is clear that the usage of the word
“allegedly” a denial of the existence of such a moratorium. Secondly, it is
undoubtedly clear that Applicant categorically states that Mr Frank Peter, if he
indeed entered into such a moratorium, “ was not authorized to do this”.
[46] This clearly indicates that Applicant did not agree to a moratorium. If a moratorium
was in place, it would have the effect of an indulgence was granted to the Respondent.
Such indulgence, if it existed, was in any event brought to an end on 30/06/2002,
albeit the version of the Applicant.
[47] Estoppel though not raised as a point in limineby Respondent, was raised during
argument by Mr Van Coller. Mr Van Colleralso submitted that Applicant waived its
right with regard to the verbal amendment of the lease agreements.
[48] I am unconvinced that Applicant waived its rights with regard to verbal amendment of
the lease agreements. Similarly, I am of the view that estoppel as a possible defence
in opposition to the application cannot stand. As far back as 06 September 2002 (1
year and 9 months ago) was the existence of the moratorium denied by the Applicant.
[49] On careful perusal of the Answering Affidavit by Respondent, it is clear that
Respondent admits that it did not pay rental for a substantial period of time. What the
Respondent denies is that it is liable for the payment of such rentals as a result of inter
alia the alleged moratorium.
[50] I am of the view that no moratorium is in place and that Respondent is in arrears with
the payment of rentals .
c)Prescription
[51] Another defence raised in opposing of he Application, is that of prescription. The
accounting and payment history in respect of the various premises are attached as
Annexures FZ15, FZ16 and FZ17 on pages 254 274 of the record. It is clear that a
substantial portion of the amounts reflected thereon have not prescribed. Prescription
as a defence in the action that has now been instituted can possibly be successfully
raised with regard to the amounts that was due and payable on or before the end of
May 2001. I am unconvinced that prescription can be raised as a total defence under
the circumstances of this case.
d)Respondent’s counter claim
[52] In paragraph 70 of its Answering Affidavit, Respondent list the damages which it
suffered as a result of structural defects on the leased premises. This, it is said,
amounts to a major damages claim.
[53] This counterclaim by the Respondent is in essence one for damages. In terms of the
lease agreements entered into between the Applicant and the Respondent, it was
agreed inter alia, that the Applicant will not be liable for damages arising as a result of
structural defects.
[54] It is clear from paragraph 79 of the Answering Affidavit (paginated page 160 of the
record) that Stand 96 have not been vacated. By reason of inferential reasoning, it
follows that the other stands or premises have not been vacated either and it means
therefore that the Respondent is still in occupation of the said leased premises.
[55] In the case of Greenberg v Meds Veterinary Laboratories (Pty) Ltd, 1977 (2) SA 277
(T) Franklin J. states on page 286D the following:
“When a party has a counterclaim for damages, ... he cannot claim to set off
his counter claim for damages against the rental which has already accrued;”
[56] In Basinghall Investment (Pty) Ltd v Figure Beauty Clinics (SA) (Pty) Ltd1976 (3)
SA 112 (W) on pages 120 G 121 H McEwan J., said this:
“There are a number of cases which suggest that a tenant who is in
occupation of premises is liable for payment of the rent notwithstanding that
he claims that by reason of defects in the premises he has not had full
beneficial occupation of them. It appears that in such circumstances the
landlord (lessor) is not required to claim some sort of quantum meruit, based upon the actual value of occupation of the tenant. He is entitled to
claim the full amount of the rent. It is then open to the tenant to establish a
claim for a setoff or a counterclaim for damages.”
[57] It is noteworthy that the Respondent does not claim a reduction in rentals as a result
of the structural defects. Even if a reduction in rentals was claimed by the
Respondent it would mean that he will still be liable to pay rentals even though it may
be reduced.
[58] The mere fact that the Respondent was and still is in beneficial occupation of the said
premises mean in essence that it is liable to pay the accrued rent because it is keeping
the lease agreements alive.
See: Greenberg v Meds Veterinary Laboratories (Pty) Ltd (supra)
and also
Basinghall Investments (Pty) Ltd v Figure Beauty Clinics (S.A.) (Pty) Ltd
(supra)
[59] The defence of a countercliam for damages cannot with success be raised in an
application of this nature.
[60] In view of the afore said, I am of the view that the Applicant succeeded in proving
that it is entitled to an order in terms of paragraph 2 of the amended notice of motion.
Application to Strike Out
[61] The Applicant filed an application to strike out certain paragraphs; portions of
paragraphs and an annexure to the answering affidavit of the Respondent as well as
the Founding Affidavit of the Respondent in the security for costs application. This
application is brought in terms of the provision of Rule 6 (15) and was filed on
08thJune 2004.
[62] I do not intend to deal separately with each and every averment or allegation sought to
be struck out. Suffice it so say that I have carefully examined and studied each and
every allegation or averment and annexure and I am of the view that these allegations
and/or averments are scandalous and/or vexatious and/or irrelevant. The annexure
amounts to unsubstantiated hearsay evidence.
[63] For example, allegations such as that the judicial managers only wants to “increase
their fees”
and
“this will bolster the exorbitant fees of the judicial managers which already stands at
approximately R500 000,00 per month”
are irrelevant to this application, whether these allegations are true or not.
[64] I do not agree with the submission made by Mr van Collerthat the application to strike
out is a mere waste of time and also a mere academic exercise. Mr Van Coller,
correctly in my view, conceded that the inclusion of these allegations and/or
averments and annexures does not form the basis or core of Respondent’s case and it
was therefore not necessary to be included in the affidavits.
[65] In any event, the inclusion of these words and/or phrases has nothing to do with the
present application. It is for the abovementioned reasons that the application to strike
out was granted. The appropriate order to make is to grant an order in terms of
paragraphs 1 and 2 of the Notice of Motion in the application to strike out. The
question of costs will be dealt with later in this judgment.
Application for Security for costs
[66] The Respondent filed an application for security for costs on the 31stMay 2004. This
was done by way of urgency.
In this application Respondent prays that:
“1) Applicant set security for the legal costs to be incurred in the amount of R250 00000
for both the main application as well as the action under case no 641/04.
2)Respondent reserves the right to apply from time to time to have the security increased;
3)The main application and the litigation in case number 641/04 be stayed until Applicant (in
the main application) has put up proper security; and
4)An order for costs”.
[67] It is clear from the Founding Affidavit that the basis for this security is in terms of
Rule 47 of the Uniform Rules of Court as well as Section 13 of the Companies Act,
Act 61 of 1973, as amended.
[68] The contents of Rule 47(1) is coached in such a way that it is peremptory for a party
who is entitled and desirous to demand security for costs from another party, to
deliver a notice, setting forth the grounds upon which security is claimed, and the
amount demanded. It is clear from the documents filed that such a notice was not
served and filed on the Applicant (in the main application).
[69] It is clear that the amount of R250 00000 as requested by the Respondent is in
respect of both the action instituted by Applicant as Plaintiff under Case Number
641/04 as well as the main application in this matter.
[70] There is no distinction drawn as to what portion of the amount of R250 00000
is to be apportioned in respect of the action under Case Number 641/04. Summons
was issued in Case Number as recently as 31stMay 2004.
[71] I can find no reason why security must be set as a matter of urgency in the pending
action. Similarly, can I think of no good reason why the Respondent cannot comply
with the provisions of Rule 47 in the action and demand that security be put up in the
proper manner. In as far as it is possible to draw a distinction, I have no hesitation
whatsoever in dismissing the application for security for costs as far as the action
proceedings under Case Number 641/04 is concerned for want of compliance with the
provisions of Rule 47.
[72] As far as the putting up of security for the main application is concern, it is clear that
the Applicant chose to approach the court on an extremely urgent basis. It goes
without saying that any reaction to Applicant’s urgent application should also be on
an urgent basis.
[73] It is therefore understandable why the Respondent also lodge this application on an
urgent basis. Although the provisions of Rule 47(1) of the Uniform Rule of Court is
peremptory in nature, this court can, in view of the provisions of Rule 6 (12) of the
Uniform Rules of Court condone the noncompliance with the prescribed procedures
and time limits because of the urgency of the matter.
[74] However, the matter does not end there. Section 13 of the Companies Act, Act 61 of
1973 (as amended) provides thus:
“Where a company or other body corporate is plaintiff or applicant in any
legal proceedings, the Court may at any stage, if it appears by credible
testimony that there is reason to believe that the company or body corporate
or, if it is being wound up, the liquidator thereof, will be unable to pay the
costs of the defendant or respondent if successful in his defence, require
sufficient security to be given for those costs and may stay all proceedings till
the security is given.”
[75] It is clear from the use of the word “may”in the above quoted section that the court
has a discretion whether or not to order that sufficient security be put up by a
company. One of the factors that the court must consider is whether the Applicant, as
a company, is in a sound financial state. Two balance sheets of the Applicant is
attached to the answering affidavit filed on behalf of the Applicant. Although
positive financial pictures of the Applicant are painted in these balance sheets, it is
however not complete financial statements or audit reports.
[76] It is interesting to note that despite the sound financial position that the Applicant is
apparently finding itself in, it is nevertheless still under judicial management. It does
however not mean that because a company is under judicial management it
automatically means that it will not be able to pay for the legal costs that it might
incur. Each case must be decided on its own merits and the court must exercise its
discretion whether or not to order that security be put up judicially.
[77] As a result of the fact that a party who litigate has the right to appeal, it cannot be
said with certainty that further legal costs will not be incurred.
[78] I am of the view that as a result of the costs orders that I am going to make, and the
fact that the possibility exist that future legal proceedings may flow from this
application, the applicant (in the main application) must be ordered to put up
sufficient security for costs.
Costs
[79] The purpose of an award of costs to a successful party is to indemnify him for the
expense to which he has been put through having been unjustly compelled to defend
litigation.
See: Die Meester v Joubert 1981 (4) SA 211(A).
[80] The basic rule is however that all costs are in the discretion of the Court. Even the
general rule that costs follow the event is subject to the overriding principle that all
costs are in the discretion of the Court.
See: Abbott v Von Theleman 1977 (2) SA 848 (C).
[81] This discretion however, must be exercised judicially upon considered of the facts of
each case. The general rule that costs follow the event should be departed from only
where good grounds for doing so exist.
[82] In the absence of special circumstances, therefore, a successful litigant is entitled to
his costs.
See: Santam Versekeringsmaatskappy Bpk v Strydom 1977(4) SA 899
(A).
[83] It is not a hard and fast rule that separate and distinct issues carry their own costs.
The general rule has been formulated as follows:
“a successful plaintiff is entitled to his costs unless
the defendant has been entirely successful on a
distinct issue wholly unconnected with the issue
upon which the plaintiff has succeeded.”
I am of the view that the same applies also to applications.
[84] Where the whole of the evidence is relevant, it is not permissible to
divide it to separate issues and to ask whether, on each of these
issues, the applicant has succeeded or failed. Where the issues
are not distinct, but are interwoven or closely connected, a court
will be reluctant to make separate awards of costs on such issues.
[85] Thus where a party makes more than one claim and succeeds only
in part, the court will, where the issues are separate and distinct,
award costs in respect of each issue to the party who succeeds on
it.
See: Pretoria City Council v Lombard NO 1949 (1) SA
166(T).
Cost of the main application
[86] Although the Applicant was successful in obtaining an order in
terms of paragraph 2 of the amended notice of motion, there is
sufficient reason for this court not to award a cost order in its
favour. As stated earlier on in this judgment, the manner in which
the Respondent was “frogmarched” (to use the words of the
Respondent) to court on such an extreme urgent basis, which
urgency the Applicant had created himself, justify that a punitive
costs order be awarded against the Applicant. To show the court’s
disapproval of the actions of the Applicant the costs order should
be on the punitive scale as between attorney and own client. It will
include the costs occasioned by the employment of two counsel,
when two counsel was in fact employed. This cost order will also
include the costs of the 31st May 2004 which was reserved.
Costs of the Application to strike out
[87] The Applicant was successful in its application to strike out. In
applying the general rule that costs should follow the event, an
appropriate cost order must be made in favour of the Applicant.
[88] This court will show its displeasure with the actions of the
Respondent by ordering it to pay the costs of the striking out
application on the attorney and own client scale. I am unconvinced
that the deponent should pay such costs personally. He was
however, authorised to depose to the affidavits on behalf of the
Respondent and he did so with the knowledge and possibly also
with the blessings of the Respondent.
Costs in the application for security for costs
[89] As is apparent from what is stated above, both parties were partly
successful. As far is security for the action instituted under Case
641/04 is concerned, the Applicant successfully opposed the
putting up of security. As far as the putting up of security for this
application is concerned, the Respondent was the successful party.
The issues here are completely interwoven and cannot be distinctly
separated.
[90] It is therefore practically impossible to award a cost order to any of
the two parties. I am of the view that with regard to the costs in
the application for security for costs, each party should be ordered
pay its own costs.
Conclusion
I therefore make the following orders:
A Main application
1) An order is granted in terms of paragraph 2 of the amended
notice of motion;
2)Applicant is ordered to pay the costs of the main application on the scale as between
attorney and own client;
3)Such costs include the costs that was reserved on 31stMay 2004;
4)Such costs will include the costs occasioned by the employment of two counsel,
when two counsel was in fact employed.
B Application to Strike Out
5) An order is granted in terms of paragraphs 1 and 2 of the notice of motion in
the application to strike out;
6)Respondent is ordered to pay the costs of the striking out application on the scale as
between attorneys and own client;
7)Such costs will include the costs occasioned by the employment of two counsel,
when two counsel was infact employed.
C. Application for security for costs
8) Applicant (in the main application) is ordered to set security for the legal
costs incurred by the Respondent in this application in the form, amount and
manner directed by the Registrar of this court;
9)Each party is ordered to pay its own costs with regard to the application for security
for costs.
R.D. HENDRICKS
JUDGE OF THE HIGH COURT
Attorneys for the Applicant : Smit Stanton Inc
29 Warren Street
MAFIKENG
Attorneys for the Respondent : Abdul Kader Ahmed
1st Floor, Hurvitz House
14 Main Street
MAFIKENG