Botha and Others v Mashishi and Another (22049/18) [2018] ZAGPPHC 842 (9 November 2018)

Botha and Others v Mashishi and Another (22049/18) [2018] ZAGPPHC 842 (9 November 2018)

The court found that the first respondent had vacated the property prior to the hearing, rendering the eviction application moot. The only issue remaining was costs. The court accepted the applicants' submission that the respondent's opposition was dilatory and intended to delay eviction, as evidenced by the incomplete and inadequate answering affidavit. The lease agreement contained a clause obliging the respondent to pay costs as between attorney and client in the event of litigation. The court held that, in the absence of exceptional circumstances, such agreements should be enforced, and none were present in this case. Accordingly, a punitive costs order was warranted.

Citation
[2018] ZAGPPHC 842
Parties
Applicant: Hendrik Stefanus Botha; Applicant: Hendrik Stefanus Botha NO; Applicant: Jasmine Botha; Respondent: David Senyane Mashishi; Respondent: All the Unlawful Occupiers of Erf 231 Riviera, City of Tshwane Metropolitan Municipality, better known as 113B Soutpansbergweg, Main House, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 November 2018
Case Number
22049/18
Procedural Posture
Urgent Application / Costs Determination After Moot Eviction Application
Outcome
Application for eviction rendered moot; punitive costs order granted against first respondent.
Judges
Brand
Legal Topics
Eviction Application, Punitive Costs Order, Lease Agreement Termination, Pacta Sunt Servanda
Land and Property Civil Procedure Eviction Application Punitive Costs Order Lease Agreement Termination Pacta Sunt Servanda

Case Brief

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Parties

Hendrik Stefanus Botha

Applicant

Hendrik Stefanus Botha NO

Applicant

Jasmine Botha

Applicant

David Senyane Mashishi

Respondent

All the Unlawful Occupiers of Erf 231 Riviera, City of Tshwane Metropolitan Municipality, better known as 113B Soutpansbergweg, Main House, Pretoria

Respondent

Procedural Posture

Urgent Application / Costs Determination After Moot Eviction Application

Legal Issues

  1. 1 Whether a punitive costs order as between attorney and client should be granted against the first respondent.
  2. 2 Whether the costs agreement in the lease should be enforced by the court.
  3. 3 Whether any exceptional circumstances exist to justify deviation from the costs agreement.

Ratio Decidendi

The court found that the first respondent had vacated the property prior to the hearing, rendering the eviction application moot. The only issue remaining was costs. The court accepted the applicants' submission that the respondent's opposition was dilatory and intended to delay eviction, as evidenced by the incomplete and inadequate answering affidavit. The lease agreement contained a clause obliging the respondent to pay costs as between attorney and client in the event of litigation. The court held that, in the absence of exceptional circumstances, such agreements should be enforced, and none were present in this case. Accordingly, a punitive costs order was warranted.

Court Disposition

Application for eviction rendered moot; punitive costs order granted against first respondent.

Orders

  • The first respondent shall pay all costs related to the application, as between attorney and client.