Shabalala v Little Swift Investments (62) (Pty) Ltd and Others (LCC139/2009) [2011] ZALCC 2 (16 February 2011)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD IN RANDBURG

CASE NO: LCC139/2009

In the matter between:

MABUTHO INNOCENT SHABALALA …...............................................................Applicant

and

LITTLE SWIFTS INVESTMENTS (62) (PTY) LTD …..............................First Respondent

FRANK REARDON ….................................................................................Second Respondent

JOHN KILLEN …...........................................................................................Third Respondent

THE SHERIFF FOR THE DISTRICT OF ESTCOURT ….....................Fourth Respondent

CARLOS MIRANDA ATTORNEYS ….........................................................Fifth Respondent

JUDGMENT

MPSHE AJ:

INTRODUCTION

[1] This is an application seeking relief in the following:

That the Bill of Cost and the Warrant of Execution issued by this Honorable Court on 20 February 2009 be and is hereby set aside;

That the First, Second and Third Respondents be and are hereby interdicted from causing any further writs of execution to be issued by this Honorable Court in respect of the Order of Court dated 13 October 2008 9annexure “T1” to the Applicant’s Founding Affidavit) pending their bill of costs being taxed by the Taxing Master of this Honorable Court in accordance with the Rules of Court;

That the Fourth Respondent be and is hereby interdicted from proceeding to attach and remove any assets belonging to the Applicant in respect of the Order of Court dated 13 October 2008 in the absence of a taxed bill of costs;

That the First, Second, Third, Fourth and Fifth Respondents pay the costs of this application jointly and severally the one paying the other to be absolved.

BACKGROUND

[2] This matter has a history that led to this application. It is therefore important to sketch out the previous events herein.

The Applicant resides on the farm known as Bell Park situated in Winterton in the district of Estcourt, KwaZulu Natal (hereinafter referred to as the farm).

During or about July 2008, the Applicant brought an application, in this court, under case LCC104/2008 seeking an order that:

That the First, Second and Third Respondents be directed to provide the Applicant with grass bales and other food necessary for his cattle,

Alternatively that the First, Second and Third Respondents be directed to provide Applicant’s cattle with alternative grazing camp similar to the camp that was burnt down by the Third Respondent, and

That the First, Second and Third Respondents (hereinafter referred to as the Respondents) be ordered to pay costs of that application.

[3] On the day of the hearing the Applicant’s previous attorneys sought an indulgence from court to amend the Notice of Motion by inclusion of the relief that:

That the First, Second and Third Respondents be declared to have interfered with the Applicant’s rights and evicted the Applicant from that portion of land on the farm that the Applicant was using prior to the Third Respondent having burnt it down, and

That the First, Second and Third Respondents be interdicted from evicting the Applicant from the farm, save through an order of this Court.

[4] After argument for the inclusion of the amendment to the Notice of Motion, the application for the amendment was dismissed by my brother Ncube AJ, together with an order that Applicant be ordered to pay costs of the application.

[5] Pursuant to the costs order in LCC104/2008 Fourth Respondent armed with a warrant of execution attached applicant’s cattle.

[6] The Fourth Respondent attached and removed 52 of Applicant’s cattle as alleged by Applicant.

[7] The Applicant’s cattle were subsequently sold on auction, in a Sale of Execution by the Fourth Respondent, on the instructions of First, Second Third and Fifth Respondents.

ISSUES TO BE DETERMINED

[8] The following are in my opinion relevant issues to be determined by this Court.

(a) Whether the order for costs was in respect only of the amendment or the entire matter.

(b) Whether the Warrant of Execution issued by the Registrar on 20 February 2009 ought to have been authorized and issued by this Court.

[9] In regard to (a) Mr. Singh for the Applicant inter alia argues that the bill would not have been so high to the value or R68 644, 15 if it was only for arguments on the amendment application. This argument does not dispute the fact that costs on Attorney and client scale was awarded.

[10] Mr Singh referred the Court to the Judgement of my brother NCUBE AJ in case LCC104/2008 delivered on 12 October 2009. I quote order in full.

“I have listened to the argument relating to the amendment of Applicant’s Notice of Motion. The Respondent’s counsel has objected to the amendment to introduce prayers 4 and 5

The objection is upheld and the amendment is refused.

The Application is dismissed.

The Applicant is to pay the Respondent’s costs on attorney and client scale.”

[11] Mr Singh submitted that order 1 and 2 referred only to the amendment application and not the main application. This is clearly wrong. The order is numbered. I then referred Mr Singh to the First, Second, Third and Fifth Respondent’s answering affidavit

specifically pages 45 of the record. For fear of being prolix quote only paragraph 3.11 which reads:

“3.11 The court having heard argument on the merits form both parties refused the application for the amendment and dismissed the entire application with costs on a punitive scale. Costs were awarded on a punitive scale because the Land Claims Court considered the application vexatious proceedings”

[12] The First, Second Third and Fifth Respondents answering affidavit was served on the 08 October 2009. Applicant after perusal of the answering affidavit as directed then conceded that costs are for both amendment application and the main application. This then settled the first dispute.

[13] In regard to (b) Applicant challenged the validity of the Writ of Execution on two main points. These related to the date of Judgement that led to the issuing of this Writ of Execution and compliance with Form 18 as contemplated in Rule 45(1) of the Uniform Rules. This Rule States:

“The party in whose favour any Judgment of the Court has been pronounced may at his own risk, sue out of the office of the Registrar and or more Writs for Execution thereof as near as may be in accordance with Form 18 of the first schedule.” (My underlining)

[14] Applicant did not clearly argue that the Writ of Execution does not comply with Form 18 save that the date of judgement on the Writ is clearly wrong as the judgement referred to is yet to come. It is clear to me that the Writ is issued pursuant to a judgement in case LCC104/2008 between the parties as mentioned on the Writ. The reading of this entire Writ indicated that the wrong

date”12-04-2009” is a typographical error and does not invalidate the Writ. I further find that the Writ is “as near as may be in accordance with Form 18 of the first schedule”– De Clerk v Balju Van Die Hoogeregshof Empangeni En Ander 1994 (3) SA 564 (NPD).

I find no basis justifying the setting aside of the Writ.

[15] Prayer 1.1 to the Notice of Motion is seeking the setting aside of the Bill of Costs. The challenge is based on two points. The submission herein is to the effect that the bill of costs was not taxed. Alternatively if it was taxed proper notice was not

given to neither applicant nor his erstwhile attorney.

[16] Applicant relies on the fact that the Court stamp is not reflected on the bill. This to me is technical and frivolous. At the end of the bill there clearly appears a Registrar of the High Court of Transvaal Provincial Division stamp dated 12-02-2009 next to an unclear signature. I fail to understand this challenge by the Applicant. In all fairness to applicant filed Bill of Costs does not clearly reflect the court stamp. However this is no excuse. Applicant should have simply requested the original from Respondents. I find that the Bill was properly taxed.

[17] It is alleged in the alternative that the bill if taxed, it was taxed without notice to the Applicant or his erstwhile Attorney Mr T Mbhense. This submission again is of no substance. One only has to peruse Annexure “FR 2” and “FR 3”

to the answering affidavit at pages 57-59 of the record. It is clear that Applicant disregarded the contents of the answering affidavit if the same was read. I reiterate that the answering affidavit was served on the 08-10-2009.

[18] However, more disconcerting is the fact that it is Mr Singh’s say-so that service was not done on Mr T Mbhense. There is no affidavit to that effect attested to by Mr T Mbhense. In my opinion relief sought has no basis.

[19] I now turn to prayers 1.2 and 1.3 to the Notice of Motion. Logic dictates that these prayers may only succeed if it is found that the Bill of Costs was not taxed. I need not burden judgment having regard to my finding in paragraph 11 supra.

COSTS

Mr De Wet for First, Second Third and Fifth Respondents argued for punitive costs. Submission is to the effect that the whole application should not have been instituted. That it is frivolous and vexatious. He referred to the history of this matter particularly to the non-compliance with rules of Court by the Applicant. I do agree with this submission. However, Applicant has already suffered costs on a punitive scale in case LCC104/2008. Applicant is less 44 herd of cattle that were sold in execution. I need not overemphasize the fact that this Court is engaged in social justice and equity. I do order cost against Applicant but on a party to party scale.

I subsequently make the following order:

Application is dismissed.

Applicant to pay costs of all Respondents on a party to party scale.

________________

PRESIDING JUDGE

Mpshe AJ

16.02.2011