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IN THE HIGH COURT OF SOUTH AFRICA

[VENDA  PROVINCIAL DIVISION]

 

                                                                                      Case No: 1107/07

 

In the matter between:

 

TSHAMAANO  MUDZUNGA  ELECTRICAL                     Applicant

 

and

 

THE ACTING SHERIFF OF THE HIGH COURT,

T.G  RALIPHASWA                                                    1^st Respondent

 

VOLTEX (PTY) LIMITED t/a  VOLTEX                             2^nd Respondent

 

DATE HEARD:  17^th April 2008

DATE JUDGMENT HANDED DOWN:  22^nd April 2008

 

 

JUDGMENT

 

 

SNYMAN  AJ

 

 

[1]     This is the extended return day of an interim order which was granted on 15 December 2007.  The applicant applied on an urgent basis for an order that the attachment of the applicant’s goods by the first respondent be set aside as an irregular proceeding – such interim order was granted in the absence of the first and second respondent(it appears from the affidavit by the attorney for the second respondent that he only became aware of the intended application the Monday after the Saturday when  the application was heard, that being the reason why the second respondent did not oppose the urgent application).  The second respondent thereafter filed a notice to oppose and an opposing affidavit.  The first respondent is not opposing the application.

 

[2]     The applicant did not file a replying affidavit and when questioned in this regard, counsel for the applicant informed the Court that the applicant does not intend to file such affidavit and will argue the matter on the affidavits already filed.

 

[3]     During argument it transpired that the applicant only relies on the contents of the first respondent’s notice of removal (annexure “B” to the founding affidavit), and counsel for the applicant argued that due to the fact that the notice aforesaid refers to the Magistrate’s Court for the district of VHEMBE held at THOHOYANDOU, this process is irregular in law and should be set aside.  In my view, this argument cannot be upheld.  It is not in dispute that the first respondent attached the relevant goods in terms of a valid warrant of execution, issued by the Registrar of the High Court Pretoria, under case number 9026/2007 and that this warrant  was issued in terms of a valid judgment of the High Court, Pretoria.  In my view, the mere fact that the first respondent’s notice of removal refers to the Magistrate’s Court, and not the High Court Pretoria, does not at all affect the validity of the warrant of execution.  It follows therefore that the attachment of the relevant goods by the first respondent is valid.  The applicant’s submission that the said attachment is “irregular in law and/or unlawful” is therefore without any substance and is rejected.  The applicant is therefore not entitled to the relief as claimed in prayer 2 of the Notice of Motion.

 

 

[4]     The second respondent also argued that, in view of the fact that the deponent to the founding affidavit, Mr Lalumbe, does not state whether the applicant is a sole proprietor, close corporation, company or partnership, no such legal persona as the applicant exists and that the deponent did not have the necessary authority to launch this application.  The said deponent, Mr Lalumbe, stated under oath that he is the manager of the applicant, that is a business and what the address of the business is.  The second respondent did not tender any evidence whatsoever to rebut the said evidence of Mr Lalumbe, and in view hereof, I have to accept the evidence of Mr Lalumbe.  In Civil Procedure in the Superior Courts, Harms, the following is stated at p B-36:  “Where the respondent does not present any evidence that the applicant is not properly before the court, the minimum of evidence ought to suffice”.  In the premises the second respondent’s argument cannot be upheld.

 

[5]     As far as the costs of the application is concerned, counsel for the second respondent argued that, in view of the actions of the applicant and more specifically that of Mr Lalumbe, a punitive costs order be made against the applicant and Mr Lalumbe jointly and severally.  Counsel for the applicant argued that there is no evidence to substantiate a punitive costs order and also submitted that no order as to costs should be made against Mr Lalumbe.

 

[6]     The authority on the question of awarding costs on a scale as between attorney and client is clear, and I deem it unnecessary, for purposes of this judgment, to refer to and/or discuss all such authority, suffice to state the following:  the ordinary rule is that the successful party is awarded costs as between party and party (Valkin v Daggafontein Mines Ltd 1960(2) SA 507 (W) at 516).  An award of attorney and client costs is not lightly granted by the court (see, inter alia, Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 at 183 – 184); the court leans against awarding attorney and client costs (Moosa v Lalloo 1957(4) SA 207 (D) at 225).  The court does not normally order a litigant to pay the costs of another litigant on the basis of attorney and client unless some special grounds are present (See, inter alia, Van Dyk v Conradie 1963(2) SA 413(C) at 418, Pienaar v Boland Bpk 1986(4) SA 102 (O) at 116(C).  In Ward v Sulzer 1973(3) SA 701 (AD) at 706 H the court, with reference to the leading case regarding attorney and client costs, namely Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD. 597, stated the following:  “For example vexatious, unscrupulous, dilatory or mendacious conduct (this list is not exhaustive) on the part of an unsuccessful litigant may render it unfair for his harassed opponent to be out of pocket in the matter of his own attorney and client costs”.

 

[7]     In its opposing affidavit, the second respondent refers to “various issues” and alleges that the applicant should have addressed these issues and that ifs failure to do so, justified a punitive costs order.  In my view, these issues are not relevant to the applicant’s case for inter alia, the following reasons:

 

(a)             the applicant is not applying for an order setting aside the judgment granted against the close corporation known as Tshiawelo Mudzunga Electrical CC (CK 2005/099676/23) nor for an order setting aside the subsequent warrant of execution:

 

(b)             it is clear from a perusal of the applicant’s founding affidavit that its intention was to apply for an order to stay any possible sale in execution of its goods, and all the necessary allegations for obtaining such relief have been made;

 

(c)             the applicant is seeking no order whatsoever against the second respondent;

 

(d)             ex facie the documents filed it appears that there is some confusion about the entities knows as Tshamaano Mudzunga Electrical (the applicant), the aforesaid close corporation and Tshiawelo Electrical Mudzunga CC(CK2001/078856/23) referred to  in annexure “:V1” of the opposing affidavits.

 

[8]     It is abundantly clear that the applicant followed the wrong procedure in that is should have instituted interpleader proceedings in the High Court, Pretoria.   There is no evidence to even suggest that this conduct amounts to mala fides and/or abuse of the process of the court.  On the contrary, it appears to be a bona fide mistake.

 

[9]     In my view there are no special grounds or special considerations that warrant an order for costs on a scale as between attorney and client.

 

[10]   As far as the request for a costs order against the deponent to the founding affidavit, Mr Lalumbe, is concerned, counsel for the second respondent could not refer me to any authority to substantiate the granting of a costs order against a deponent to an affidavit who is not a party to the proceedings.

 

[11]   In Wynne v Divisional Commissioner of Police 1973(2) SA 770 (ECD) ADDLESON, J  stated as follows at 777 C – E:

 

          “Counsel did not refer me to any authorities in support of an order for costs for or against a person who is not a party to the litigation and I can conceive of no principle to justify such an order in this type of case.  It is true that a losing party – who ex hypothesi should never have come to Court – is sometimes awarded costs:  but he has at all times been before the Court and, moreover, was entitled to be before the Court.  Cf  Holmes and Another v Lawrie, 1927 A.D. 535.  Except in special cases, such as where a person has successfully pleaded that he should not have been joined and should therefore never have been cited as a party, the Court does not appear to have power to make an order for costs either for or against a person who is not before it.  See, for example Rubin on Costs, p.3;  Celliers on Costs, p.10; and cases cited therein”. This dicta was applied in SA Commercial Catering and Allied Workers Union and Another v Lehapa NO and Another  (Mostert NO intervening) 2005(6) SA 534 (W) at 360[9] .  In SA Commercial Catering, supra, the Court concluded as follows at 360[11] and 361:  “Although it may be correct that a Court is not empowered to grant costs for or on behalf of party not before it, this does not mean that a Court is not empowered to make a costs order once all the parties are properly before Court (compare, for example, the approach adopted in Holmes and Another v Lawrie 1927 AD 535 at 536)”.  I agree with the aforesaid dicta expressed in Wynne, supra and Commercial Catering, supra.

 

[12]   Harms, Civil Procedure in the Superior Courts at B – 410 states, without referring to any authority, the following:  “The Court cannot order  a person who is not a litigant before it to pay costs”.  Furthermore, a party is defined as follows in Rule 1 of the Uniform Rules:  “party or any reference to a plaintiff or other litigant in terms, shall include his attorney with or without an advocate as the context may require”.  In terms of this definition a deponent to an affidavit is excluded.  And in MJ Silver, Rothbart & Cohen:  in re Lowveld Macadamia Industries Bpk (in likwidasie) 1996 (4) SA 633 (T) it was held that a shareholder of a litigant does not qualify as a party for purposes of  the rules.

 

[13]   In my view, the deponent to the affidavit in casu is not a party to the proceedings and in view of the authority referred to above, this Court is not empowered to make any costs order against him.

 

[14]   In the result the following order is made:  the interim order (rule nisi) granted on 15 December 2007 is discharged with costs, such costs to be on a scale as between party and party.

  

__________________________________

MM SNYMAN

ACTING JUDGE OF THE VENDA HIGH COURT

 

Applicant’s Counsel                        Adv MS Sikhwari

Applicant’s Attorneys                      Philemon  Siliga Attorneys

 

2^nd Respondent’ Counsel               Adv FR van der Heever

2^nd Respondent’s Attorneys           Hack, Stupel & Ross Attorneys

                                                          c/o Booyens, Du Preez & Boshoff Inc.

 

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