REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA JUDGMENT

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1 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 31498/2017 Not reportable In the matter between: SPHYNX TRADING CC PAVLOS KYRIACOU Not of interest to other judges c..a \i\, 55 1st Applicant 2nd Applicant and HAFNI PROPERTIES CC EL-SA YID ADBEL HAMID HAFNI THE RAND WEST CITY LOCAL MUNICIPALITY 1st Respondent 2nd Respondent 3rd Respondent JUDGMENT PETERSEN AJ: Introduction [1] A spoliation application was brought in the urgent court before Janse Van Nieuwerihuizen Jon 12 August 2017 in the following terms: 1

2 " The Third Respondent is ordered to immediately restore and or reconnect the electricity supply to immovable property known as 4 Wol Street Homelake, Randfontein, Gauteng, herein after referred to as the "immovable property". 3. An order that if the Third Respondent fails to restore and/or reconnect the elctricity supply to immovable property, the Applicant is authorized to restore said supply, with the assistance of the Sheriff and/or an electrician. 4. The Second Respondent is ordered to pay the costs of this application on a punitive scale, including the costs of two advocates. 5..." An interim order was granted and the matter stood down to 14 August [2] On 14 August 2017, a final order was granted in respect of prayers 2 and 3 of the notice of motion and prayer 4 was postponed to the 17 August [3] The sole issue for determination on 17 August 2017 was the argument on costs, which the court was prepared to entertain on the urgent roll. The second respondent was granted an indulgence to file an answer to the founding affidavit, which was filed on 15 August 2017 with the applicants' replicating on 16 August On 17 August 2017, the matter was removed from the urgent roll to be set down on the opposed motion roll after the second respondent served on the applicants' an application in terms of rule 6(15) of the Uniform Rules of Court to strike out certain alleged material in the second applicants affidavits. [4] The second respondent seeks the following relief in terms of rule 6(15), the striking of: "1. The following passages in the founding affidavit on the basis that it constitutes inadmissible hearsay evidence: 1.1 "... as a result of the Second Respondent's instructions to the Third Respondent to switch off the electricity. " at par 6 of the founding affidavit; 1.2 "... and informed that the First Respondent duly represented by the Second Respondent gave instruction for the disconnection of the electricity supply to the immovable property. " at par 7 of the founding affidavit. 2

3 1. 3 "... other than it was on the instructions of the Second Respondent/landlord" at par 9. 1 of the founding affidavit; 1.4 "... however the electricity could not be switched on instructions of the First Respondent duly represented by the Second Respondent. Jonker further informed that the Second Respondent in writing indemnified the Third Respondent." at par 10 of the founding affidavit "... and that they received instructions from your client to switch the power off." at the bottom of paginated page 6, forming part of the letter quoted in par 11 of the founding affidavit; 1. 6 "... and personally gave him the instructions to cut the electricity. JI as set out in the middle of paginated page 15 forming part of the recording of the letter quoted under par 11.1 of the founding affidavit; 1. 7 "... The guards, Islam Mohammed that stays on site with his family (3 children) and pregnant wife almost froze last night and could not cook their supper. JI at par 11.4 of the founding affidavit; 1.8 The entire paragraph 13.3 and 13.4, together' with the attachment Annexure J, of the founding affidavit; 1.9 The entire paragraph 13.6 of the founding affidavit; 2. The following paragraphs or passages contained in the replying affidavit, as well as the following annexures and/or attachments and/or supporting affidavits to the replying affidavit on the basis that it constitutes inadmissible hearsay evidence, and/or evidence which should have been contained in the founding affidavit, and/or trial by ambush which is not permitted, and/or attacks on credibility, and/or argumentative matter: 2.1 All references to annexures RA attached hereto, including inter alia par 2.2 and 13; 2.2 The entire par 5.4 of the applicants' replying affidavit; 2.3 The entire first sentence of par 8 of the applicants' replying affidavit; 2.4 The entire par 10 of the applicants' replying affidavit, including the reference to annexure RA; 2.5 The wording: "Nothing no longer turns on the point because the indemnification initially refused by the Third Respondent, and disavowed by the Second Respondent, was provided by an employee of the Third Respondent on 16 August 2017." Set out in par 16 of the applicants replying affidavit; 2.6 The first sentence set out in par 22 of the applicants' replying affidavit; 2.7 The section of par 27 of the applicants' replying affidavit which reads: "The Second Respondent could not correct his instructions to Mr. Jonker, because Mr. Jonker could not 3

4 be reached and it is conveyed by employees of the Third Respondent during or about 15 August 2017, after the Court order that Mr. Jonker is in hospital"; 2.8 The entire par 30 of the applicants' replying affidavit; 2.9 The entire par 34 of the applicants' replying affidavit; 2.1 o The entire paragraph 4 (including the sub-paragraphs) as well as the attached affidavit of Evelyn Bernice Crowhurst (annexure RB) and the transcription attached thereto marked annexure ED and EE; 2.11 All references to the affidavits of Ms. Crowhurst, Rodriguez and Mr. Husain, as well as any reference to the annexures thereto, contained in the applicants' replying affidavit;" [5] The main issue for determination by this court is the issue of costs which was not determi~ed on 17 August 2017 and the striking application is secondary in my view. The application to strike out [6] The spoliation application to reconnect the electricity at the immovable property situated at 4 Wol Street, Homelake, Randfonte1n sought against the third respondent was not opposed by the first and second respondents'. The third respondent against whom the relief was sought likewise did not oppose the application. The only relief sought against the second respondent, which is opposed, is in respect of the costs of the spoliation application. No cost order was sought against the municipality. [7] The application in terms of rule 6(15) was launched after the final order was granted on 14 August When the final order was granted on 14 August 2017, the only affidavit on record was the founding affidavit of the second applicant. The second respondent filed his answering affidavit on 16 August 2017 when the applicants' persisted in the relief sought against him in respect of the costs of the spoliation application. The applicants' subsequently filed a replying affidavit, an affidavit from Eveline Berinice Crowhurst, the financial manager of the first applicant, accompc;3nied by a confirmatory affidavit of Alicia Rodriguez, a secretary employed by the first applicant, a confirmatory affidavit of lmaaz Husain, a sales representative employed by the first applicant, a transcription of a recording of a meeting held at the municipal offices and a memory stick containing the recording. 4

5 [8] In opposing the application for costs the second respondent seeks to strike o_ut portions of the second applicant's founding affidavit and the aforementioned affidavits and transcription insofar as it impacts on the issue of costs. [9] The applicant's submit that the application to strike cannot succeed for three reasons, first, because the evidence of Crowhurst, Rodriguez and Husain is real and direct evidence, secondly because the relief sought is not competent and thirdly, because the respondents' rely on the evidence sought to be struck in their heads of argument. [1 O] Without derogating from the totality of the applicants' submissions, I turn to the second submission, which is essentially that the application to strike cannot succeed as the order of 14 August 2017 was a final order. The submission is that this court is functus officio in circumstances where a final order has been granted and where t~e only issue that remains to be determined is that of costs. The applicants' on this submission rely on Sacks v Claridges Caterers (Pty) Ltd 1996 (1) 696 at 697A-B where Caney J held: uln my judgment, however, the litigation in which the affidavit containing the offending averments was filed has terminated. An order has been made confirming the rule nisi and there is no /is outstanding. The order confirming the rule was made on affidavits as they stood at that time. It appears to me, consequently, that the Court is functus officio in relation to the dispute which existed between the parties, and it is not competent to add to or alter the order which was made confirming the rule nisi. That the presiding judge gave leave in terms I have quoted cannot confer a jurisdiction on the Court. That the Court is functus officio orice it has delivered its judgment or made its order is clear from the decision of Estate Garlick v. Commissioner for Inland Revenue, 1934 A.O. 499 at p There are, it is true exceptions, but the present case does not fall within any of them." [11] The circumstances of the present matter are distinguishable from Sacks v Claridges Caterers (Pty) Ltd. In the present matter the alleged offending statements made in the founding affidavit were not challenged in the spoliation application as the relief sought against the third respondent was not opposed by the second respondent. A /is arose between the applicants' and second respondent after the 5

6 final order in respect of the spoliation was granted, when the applicants' persisted in the relief for costs sought against the second respondent and raised new evidence in their replying affidavit and the additional affidavits of their employees. Unlike Sacks v Claridges Caterers (Pty) Ltd further affidavits were exchanged and filed in respect of the issue of costs after the final order. [12] It is clear that the cost order sought against the second respondent is sought solely on the basis that the spoliation application against the third respondent was predicated by certain acts allegedly performed by the second respondent and thus the reason why costs are sought on a punitive scale. What the applicants' essentially seek is an order which holds the second respondent to account for the costs incurred in moving the urgent application. [13] The second respondent submits that since the sole issue is costs, that the proper approach to be adopted would be that considered in Gamlan Inv (Pty) Ltd v Trillion Cape (Pty) Ltd 1996 (3) SA 692 (C) at 700G-H. In the Gamlan matter, the court referred with approval to the matter of Jenkins v SA Boiler Makers, Iron.& Steelworkers & Ship Builders Society 1946 WLD 15 where the court held that: '... where a disputed application is settled on a basis which disposes of the merits except insofar as the costs are concerned, the Court should not have to hear evidence to decide the disputed facts in order to decide who is liable for costs, but the Court must, with the material at its disposal, make a proper allocation as to costs.' The court in Jenkins further expressed itself as follows at pages 17 and 18 in respect of the issue of costs: 'It seems to me to be against all principle for the Court's time to be taken up for several days in the hearing of a case in respect of which the merits have been disposed of by the acceptance of an offer, in order to decide questions of costs only. 'I cannot imagine a more futile form of procedure than one which would require Courts of law to sit for hours, days, or perhaps even for weeks, trying dead issues to discover who wou ld have won in order to determine questions of costs, where cases have been settled by the main claims being conceded. 6

7 'Costs... must be decided on broad general lines and not on lines that would necessitate a full hearing on the merits of a case that has already been settled. This approach is certainly to be commended. Costs, more particularly at present, play a very important role in fitigati~n and the presiding judicial officer should, in my view discourage the incurring of unnecessary costs by making an appropriate order in this respect. ' [14] The striking application highlights a real dispute of fact on the circumstances giving rise to the spoliation application and in my view demonstrates the probability of a separate cause of action for damages. What this court is called upon to do is adjudicate what has escalated to a "separate cause of action" on evidence raised in in the papers obtained after the final order was granted. This in my view militates against the principle in Jenkins that costs must be decided on broad general lines and not on lines requiring a full hearing on the merits, which now finds itself accompanied by an application to strike. [15] The spoliation order was sought against the third. respondent with no accompanying relief for costs against the third respondent. Ordinarily costs follow the result and would be granted against the party in respect of whom redress is sought. The absence of any relief for costs against the third respondent in circumstances where it cannot simply ignore due process before terminating the electricity of a consumer is questionable and underscores the point that the cost order sought against the second respondent is likely a separate cause of action for damages. [16] This is a case where, without derogating from the recourse the applicants' may otherwise have against the second respondent, justifies an order in the peculiar circumstances of this matter, that each party bears its own costs. [17] In the result, it is ordered that: Each party bear its own costs in respect of the spoliation application. 7

8 ,/ AH PETERSEN ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA Appearances: For the Applicant: Adv. CE Puckrin SC with him GD Lubbe Instructed by: Nel Kotze and Van Dyk Attorneys For the First Respondent: Adv. JH Sullivan Instructed by: Waldick Jansen Van Rensburg Inc. Date heard: 19 February 2018 Date of judgment: May