Mamba Strike Force CC v Petzer and Others (2023-008788) [2025] ZAGPPHC 5 (6 January 2025)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2023 - 008788

1.REPORTABLE: NO

2.OF INTEREST TO OTHER JUDGES: NO

3.REVISED: NO

6 January 2025

Judge Dippenaar

In the matter between:

MAMBA

STRIKE FORCE CC

APPLICANT

AND

ANDRIES

CHRISTIAAN PETZER

FIRST

RESPONDENT

PHP ARMED RESPONSE (PTY)

LTD SECOND

RESPONDENT

ALPHERA FINANCIAL SERVICES (PTY) LTD

THIRD RESPONDENT

THE

MOTOR FINANCE CORPORATION

FOURTH

RESPONDENT

A DIVISION OF NEDBANK (PTY) LTD

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by e-mail and by uploading

it onto the electronic platform. The date and time for hand-down is deemed to be 10h00 on the 06th of JANUARY 2025.

DIPPENAAR J:

[1] This is an opposed application in which the applicant sought the return of various motor vehicles in possession of the first and second respondents, together with ancillary relief.

[2] Shortly after service of the application on 8 February 2023, the vehicles were placed in the possession of the liquidators of Mamba PHP (Pty) Ltd by the first respondent on 22 February 2023. At that point the relief sought by the applicant in its original notice of motion became moot.

[3] The first and second respondents’ attorneys proposed that the application be withdrawn, with each party to pay its own costs. The applicant’s attorney, Mr Hood refused to do so and demanded that the first respondent deliver an answering affidavit.

[4] In due course an answering affidavit was delivered on 23 March 2023. In their opposing papers, the first and second respondents raised various grounds of opposition, including the non- joinder of the PH liquidators, the mootness of the application and the existence of bona fide disputes of fact regarding ownership of the vehicles which were known before the application was launched. They expressly challenged the applicant’s ownership of the vehicles in question.

[5] This resulted in an extensive replying affidavit being delivered on 17 April 2023. A notice of amendment of its notice of motion was served by the applicant on 5 April 2023, which was effected on 4 May 2023. In terms of the amendment, the applicant now sought a declaratory order that it was the owner of the vehicles.

[6] At the hearing, the applicant abandoned its substantive relief and effectively capitulated the application. It is thus not necessary to determine the various issues raised. Having belatedly jettisoned the relief, it follows that the application must fail. Ultimately the only issue requiring determination was costs.

[7] The applicant contended that each of the parties should be held liable for their own costs. The first and second respondents in turn, sought a punitive costs order on the basis that the application constituted an abuse of process and was persisted with for an ulterior motive. On the available evidence it is not possible to draw that conclusion as the most reasonable inference.

[8] However, the applicant should in my view be held liable for the costs. The suggestion of the respondent was a reasonable one and would have avoided substantial unnecessary costs being incurred. The fact that the amended substantive relief was only jettisoned at the hearing fortifies my view. Having read the papers, it is doubtful whether the applicant would have established its entitlement to the declaratory order sought, given that the majority of the vehicles were financed with the financial institution which retained ownership of the vehicles. In addition, there were substantial disputes of fact pertaining to the Hilux.

[9] Had the applicant adopted a reasonable approach, it should not have persisted in the application once the primary relief originally sought became moot. The decision to substantially amend the entire application and seek to make out a case in reply, was ill-conceived. It must be concluded that the continued persistence with the application by the applicant until the hearing was unreasonable and resulted in substantial unnecessary legal costs being incurred.

[10] Costs are essentially a question of fairness between the parties. The conduct of the applicant in relation to the matter renders it just to grant a punitive costs order to ensure that the first and second respondents are not left out of pocket in relation to the costs incurred in the application [1].

[11] In the result I grant the following order:

The application is dismissed with costs on the scale as between attorney and client.

EF DIPPENAAR

JUDGE OF THE HIGH

COURT

GAUTENG PRETORIA

DATE OF HEARING: 11 NOVEMBER 2024

DATE OF JUDGMENT: 06 JANUARY 2025 APPLICANTS’ COUNSEL: Adv. HJ Basson APPLICANTS’ ATTORNEYS: MJ Hood & Associates Mr Hood RESPONDENT’S COUNSEL: Adv HA Van der Merwe RESPONDENT’S ATTORNEYS: Anderson Attorneys Inc Ms Manolios.

[1] Nel v Waterberg Landbouwers Ko-op Vereeniging 1946 AD 597 at 607; Swartbooi v Brink and Another 2006 (1) SA 203 (CC) para 27.