Small Enterprise Finance Agency Soc Limited v Fumiel Transport and Projects (Pty) Ltd and Another (M281/2024) [2024] ZANWHC 228 (6 September 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: M281/2024

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:-

SMALL ENTERPRISE FINANCE AGENCY SOC LIMITED (REGISTRATION NUMBER: 1995/011258/06) Applicant and FUMIEL TRANSPORT AND PROJECTS (PTY) LTD (REGISTRATION NUMBER: 2013/088483/07) 1st Respondent RAMOHANOE JOEL MOGODISENG (ID 5[…]) 2nd Respondent

The judgment is handed down by e-mail circulation to the parties’ representatives. The date of handing down is 6 September 2024.

JUDGMENT

FMM REID J

Introduction

[1] In this application the applicant claims, in motion proceedings, for inter alia contractual damages suffered by the applicant due to the actions of the respondent. The applicant and the respondents entered into 4 contractual agreements (“the agreements”) in terms of which the applicant provided finance to the respondent to purchase 4 vehicles (“the vehicles”). The total amount of the claim is R5,647,104.21 (Five Million Six Hundred Forty Seven Thousand Rand and Twenty One Cents). I will refer to the amount as R5,6 million.

[2] The material facts as contained in the agreements attached to the founding affidavit, are common cause between the parties.

[3] The applicant is a state-owned company which is duly registered and incorporated in accordance with the company laws of the Republic of South Africa with its principle of business situated at Bylsbridge Office Park, Johannesburg, Gauteng Province. It is partly funded, by the Department of Trade and Industry.

[4] The claim against the first respondent is for:

4.1. Payment in the total amount of R5,6 million in respect of the agreements.

4.2. The return of the vehicles.

4.3. Forfeiture of all money paid to the applicant by the first respondent in respect of the agreements.

4.4. Confirmation of the cancellation of the agreements.

4.5. Cost of the application as between attorney and client.

[5] The second respondent signed as a surety for the payment of the aforesaid amount. The claim against the second respondent is based on the signing of surety and co-principal debtor in favour of the applicant for the debts and performance of the obligations of the first respondent.

[6] The second respondent is the sole active director of the first respondent.

[7] This application was initially enrolled on the unopposed motion court roll for 27 July 2023 on which date the respondents opposed the matter. The matter was removed from the roll and costs were reserved.

[8] The respondents filed their opposing affidavit out of time. An application for condonation for the late filing of the opposing affidavit was filed by the respondents, which application was not opposed by the applicants.

[9] Condonation for the late filing of the opposing affidavit was granted and the matter proceeded on argument.

Factual Background

[10] The agreements were entered into between the parties on 5 April 2018 at Rustenburg and/or Mahikeng. The second respondent represented the first respondent in these agreements and the founding affidavit states that the applicant was represented “by an authorised representative and/or employee”. This identification becomes relevant later in the judgment.

[11] The total amount of R5,6 million is calculated as set out below.

[12] The first instalment sale agreement with account number APP008068 was in respect of a 2012 Mercedes Benz OF1730 with registration number H[…] in the amount of R1,026,000.00 with the total amount outstanding being R1,425,093.00, which amount includes interest, value added tax (VAT) and the initiation fee. In terms of the agreement, the respondent would repay the loan amount over a period of thirty-four (34) months in instalments commencing on 30 June 2018, as follows:

12.1. Thirty-three (33) monthly instalment payments of R38,475.09 each; and

12.2. One (1) final instalment payment of R38,472.68 on 31 March 2021.

[13] The second instalment sale agreement with account number APP008068-002 was in respect of a 2012 Mercedes Benz OF1730 with registration number H[…] in the amount of R1,026,000.00 with the total amount of finance being R1,407,328.63, which amount includes interest, value added tax (VAT) and the initiation fee. In terms of the agreement, the respondent would repay the loan amount in instalments commencing on 30 June 2018, as follows:

13.1. Thirty-four (34) monthly instalments of R38,475.09 each; and

13.2. One (1) final instalment payment of R38,472.68 on 31 March 2021.

[14] The third instalment sale agreement with account number APP008068-003 was in respect of a 2012 Mercedes Benz OF1730 with registration number H[…] in the amount of R1,026,000.00 with the total amount of finance being R1,407,328.63, which amount includes interest, value added tax (VAT) and the initiation fee. In terms of the agreement, the respondent would repay the loan amount over a period of thirty-four (34) months in instalments commencing on 30 June 2018, as follows:

14.1. Thirty-four (34) monthly instalment payments of R38,475.09 each; and

14.2. One (1) final instalment payment of R38,472.68 on 31 March 2021.

[15] The fourth instalment sale agreement with account number APP008068-003 was in respect of a 2012 Mercedes Benz OF1730 with registration number H[…] in the amount of R1,026,000.00 with the total amount of finance being R1,407,353.53, which amount includes interest, value added tax (VAT) and the initiation fee. In terms of the agreement, the respondent would repay the loan amount over a period of thirty-four (34) months in instalments commencing on 30 June 2018, as follows:

15.1. Thirty-five (35) monthly instalment payments of R38,475.09 each; and

15.2. One (1) final instalment payment of R38,472.68 on 31 March 2021.

[16] I will refer to the abovementioned agreements as “the contracts”.

[17] After conclusion of the contracts, the first respondent paid the monthly instalments as agreed between the parties up and until January 2020. As from February 2020 the first respondent failed to make the agreed payments and proceeded to make sporadic payments.

[18] The applicant addressed electronic correspondence to the first respondent on 22 April 2021 and 26 April 2021 demanding payment.

[19] In the electronic communication the applicant requested the first respondent to inform the applicant of the location where the vehicles were situated and whether the vehicles are insured. There was no response from the respondents, and a formal letter of demand was sent by the applicant to the respondents in June 2021. No response was received from the respondents. The applicant argues that the first respondent was thus in breach of the contract during June 2021.

[20] The applicant argues that it accepted the breach and on 21 July 2021 the contracts were cancelled by the applicant. The respondents were informed accordingly. The respondents did not respond to the letter of cancelation. The applicants claim, and respondents deny, that this is the date on which the cause of action for contractual damages arose.

[21] In the answering affidavit, the respondent raised eight (8) points in limine and did not answer to the merits of the claims. The factual allegations were neither denied nor admitted. Instead, the respondents answer as follows in paragraph [1.5] of the answering affidavit:

“(1.5) I am advised that there are several points of law that may, if upheld, dispose of the application in its entirety and I wish to deal with these points in limine following immediately, and while reserving the right to answer to the allegations as appear from the founding affidavit in seriatum.”

[22] The respondents conclude the answering affidavit with the following statement:

“9.2 The respondents’ rights are reserved, including but not limited to binging an application for the filing of a further affidavit at the appropriate juncture in order to also save costs at this stage in relation to opposing a frivolous and inherently flawed application, especially when regard is had to the points in limine contained herein.”

[23] The above quotations reflect that the respondents were advised that the points in limine are legally sound to such an extent that they elect to not answer to the merits of the claim. This advice is very risky, and should be discouraged, to say the least. The courts prefer to not deal with litigation on a piece-meal basis. It is advisable that all legal practitioners heed to the principle that litigation should not be conducted in such a fashion that “rights are reserved” to answer to certain allegations “at a later stage”. The rights that the respondents attempt to reserve to answer to the merits “at a later stage” can be a costly mistake. The respondents should have answered to the merits after dealing with the points in limine.

[24] That being said, should any one of the points raised in limine be successful and be a point that is dispositive of the matter, the claim is to be dismissed, struck or dealt with otherwise as

determined in Rule 6(5)(g) of the Uniform Rules of Court.

[25] Should the respondents not be successful and every point in limine dismissed, the applicant is entitled to the order so sought. These points in limine include, inter alia; jurisdiction, prescription, authority of the deponent to the founding affidavit, non disclosed agent, and failure to file a Rule 41A notice.

Legal position

[26] I will start with discussion of the most compelling points in limine raised by the respondents and the legal exposition thereof.

Prescription and incorrect procedure

[27] The argument of the respondents is that the cause of action arose with the first breach of the contract, thus when the first payment was not made. This occurred in February 2020. On this basis, the respondents argue that the claim of repayment and/or outstanding payments has become prescribed during February 2023. The application was served on 30 May 2023.

[28] The applicant argues that the prescription of the claim has been interrupted by addendums that were entered into between the parties after the initial agreements were concluded. The addendums include different instalment periods, as well as 2 month grace periods.

[29] In Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another 2017 (1) SA 185 (SCA) the Supreme Court of Appeal held the following in relation to when prescription commences:

“[20] The effect of an election possessed by a party to a contract, on the running of prescription, was considered in the decisions of HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N) at 910 – 911 — in respect of an anticipatory breach of a contract — and Big Rock (Pty) Ltd v Hoffman 1983 (1) SA 534 (T) — in the context of the giving of notice in terms of s 13 of the Sale of Land on Instalments Act 72 of 1971. In HMBMP Properties, it was held that the innocent party's cause of action for damages resulting from the defaulting

party's repudiation of an obligation which is to be performed by him at some future date, only accrues (ie the 'debt' of the defaulting

party only becomes due) when the innocent party elects to cancel the contract and to treat it as at an end. Prescription,

consequently, commenced to run from that date. In Big Rock (Pty) Ltd v Hoffman 1983 (1) SA 534 (T) it was held that the furnishing of a notice in terms of s 13 of the Land Instalment Act to remedy a default and a failure to comply, was a condition precedent to the seller's right to claim payment of the full balance owing under the contract. Prescription therefore only began to run after the expiry of the prescribed notice period.

[21] The cases of Western Bank Ltd v SJJ van Vuuren Transport (Pty) Ltd and Others 1980 (2) SA 348 (T); First Consolidated Leasing Corporation (Pty) Ltd v Servic SA (Pty) Ltd and Another 1981 (4) SA 380 (W); and Bankorp Ltd v Leipsig 1993 (1) SA 247 (W) were all decided under the current Act. However, contrary to the views of academics, these cases affirmed the decisions taken under the old Act that prescription began to run on default by the debtor and not when the creditor elected to claim the

balance outstanding. In Western Bank it was held that 'debt is due' meant that the debt was immediately claimable, or the debtor was under an obligation to pay the debt immediately. The legislature envisaged a debt in respect of which the claimant could institute action. By analogy with the old Act, prescription began to run from the date on which the right of action first accrued. This right accrued when the first default occurred and the right to claim the balance owing accrued when this occurred. It was held that the contract did not provide that the right to claim the balance only arose when the creditor decided to claim, but arose immediately on default of payment. It was held that a creditor would otherwise be able by his own conduct, to delay the running of prescription.

[22] Servic followed the decision in Western Bank holding that once the right of election arises the debt becomes due. In Bankorp, the reasoning in Hamilton was followed, namely, where the creditor is entitled to payment, the only issue is to sue for it immediately, or to sue at a later stage; and that consequently, the right to enforce payment must mark the commencement of prescription, because that is when the debt is due. Reference was however made to the attractiveness of the contrary argument that there can be no commencement of prescription until the election is made, because there was no sense in looking for the point in time when the debt is due, if the debt does not even exist.

[23] The decisions in Orton, Hamilton, Western Bank and Servic, as pointed out in Big Rock are all distinguishable on the basis that in none of them was the giving of notice by the creditor to remedy a default and a failure by the debtor to comply, a condition precedent to the creditor's right to claim payment of the full balance owing under the contract, as is here the case.

[24] The court a quo accordingly erred in its reliance on Orton and Hamilton which were not only decided in terms of s 5(1)(d) of the old Act, but in neither of them was the giving of notice to remedy a default and a failure by the other party to comply, a condition precedent to the creditor's right to claim payment of the full balance owing under the contract. In terms of the current Act, a debt must be immediately enforceable before a claim in respect of it can arise. In the normal course of events, a debt is due when it is claimable by the creditor, and as the corollary thereof, is payable by the debtor. Thus in Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd [1990] ZASCA 136; 1991 (1) SA 525 (A), the court held that for prescription to commence running,

'there has to be a debt immediately claimable by the creditor or, stated in another way, there has to be a debt in respect of which the debtor is under an obligation to perform immediately'.

(See also The Master v IL Back & Co Ltd and Others 1983 (1) SA 986 (A) at 1004F – H.) In Truter and Another v Deysel 2006 (4) SA 168 (SCA) para 16, Van Heerden JA said that a debt is due when the creditor acquires a complete cause of action for the recovery of the debt, ie when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or, in other words, when everything has happened which would entitle the creditor to institute action and to pursue his or her claim. In the present context this could only occur if and when Standard Bank elected to give the requisite notices to Nicolas.”

[30] It was determined in Holeni v Land and Agricultural Development Bank of South Africa 2009 (4) SA 437 (SCA) that the precise definition of “debt”, “state” and “prescription” will be dependent on the context of which the debt is claimed. This, in turn, will be dispositive of whether extinctive prescription of debt has occurred.

[31] On my understanding of the above listed caselaw, the facts in casu will determine the date on which prescription commenced. The content of the addendums and the dates of the demand, as well as the date on which the contracts were cancelled, will be the determining factor of whether prescription has taken place or not.

[32] In the answering affidavit, the respondents also dispute the correctness of the certificates of balance.

[33] The applicant does not provide a detailed summary of the amount claimed in the certificate of balance.

[34] The date of prescription and the quantification of the amount are factual questions that can only be determined once evidence is led.

Rule 41A

[35] The respondent claims that the application is fatally defective on the basis that the applicant has failed to file a notice in terms of Rule 41A of the Uniform Rules of Court. The relevant part of Rule 41A reads as follows:

41A Mediation as a dispute resolution mechanism

(1) In this rule —

‘dispute’ means the subject matter of litigation between parties, or an aspect thereof.

‘mediation’ means a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.

(2)(a) In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.

(b) A defendant or respondent shall, when delivering a notice of intention to defend or a notice of intention to oppose, or at any time thereafter, but not later than the delivery of a plea or answering affidavit, serve on each plaintiff or applicant or the plaintiff’s or applicant’s attorneys, a notice indicating whether such defendant or respondent agrees to or opposes referral of the dispute to mediation.”

[36] It was found in Nomandela and Another v Nyandeni Local Municipality and Others 2021 (5) SA 619 (ECM) that the respondent’s compliance with Rule 41A is not dependent on the applicant’s compliance with Rule 41A. In the Nomandela matter, the point in limine that the applicant failed to comply with Rule 41A, was dismissed. This was partly due to the fact that the Nomandela matter was brought, and determined, on an urgent basis.

[37] In the matter of Growthpoint Properties Limited v Africa Master Blockchain Company (Pty) Ltd 2022 JDR 3218 (GJ) the court found that:

“(26) Sub rule (2)(a) of Rule 41A compels a plaintiff or applicant to file a prescribed Rule 41A Notice of agreeing or opposing mediation, before summons or motions may be issued. Sub rule (2)(b) compels the defendant or respondent to also file a

prescribed Rule 41A Notice of agreeing or opposing mediation, before a plea or opposing papers may be issued. The above notices according to sub rule (2)(c) have to be substantially in accordance with Form 27 of the First Schedule. According to sub rule (2)(d) the said notices will be without prejudice and not filed with the Registrar. Neither party initially complied with these provisions. However, by the time the application for summary judgment was argued, the plaintiff had delivered the requisite notice, whilst the defendant had not itself followed the rule.

[38] In Erasmus: Superior Court Jutastat e-publications CD-Rom & Intranet: ISSN 1561-7467 Internet: ISSN 1561-7475 at RS 23, 2024, D1 Rule 41A-4 the following is said in relation to the application of Rule 41A:

“In MEC, Department of Public Works Eastern Cape Province v Moleshe (Unreported, ECB case no 751/2020 dated 31 January 2023) it was held at paragraph [17] that, for a party to rely successfully on the other party’s failure to deliver a notice in terms of rule 41A(2), it would have to demonstrate that such non-compliance had created prejudice. It would be necessary to show that non-delivery of the notice had hampered the preparation and conduct of its defence, or that it had caused harm in the wider sense. The court would need to be satisfied, overall, that it would be in the interests of justice for the case to be removed from the roll.”

[39] The purpose of Rule 41A is to require the parties to consider, and inform the court of their perspectives, on whether the matter is capable of alternative resolution processes. Rule 41A is drafted in peremptory terms and must be complied with. This has not been done by either party. The prejudice of failing to comply with Rule 41A can only be determined after evidence is led.

Unspecified agent

[40] Another prominent next point in limine raised by the respondents, is that the founding affidavit is fatally defective in the absence of the identification of the agent who entered into the contract on behalf of the applicant. The applicant only refers to “an authorised representative and/or employee” without providing the identity of the person acting on behalf of the applicant.

[41] The respondents argue that the applicant did not comply with the requirements stipulated in Rule 18 of the Uniform Rules of Court. Rule 18(6) reads as follows:

“(6) A party who in his or her pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading.”

[42] The further argument of the respondents is that the respondents are deprived of the opportunity to file an exception to obtain details in compliance with Rule 18(6), on the basis that the applicant elected to institute motion proceedings, as opposed to action proceedings. The argument of the applicant is that the respondents could have filed a Rule 30 notice of irregular proceedings in order to obtain that detail. The applicant also argues that that the respondents do not suffer any prejudice in the absence of the identity or the individual who was acting on behalf of the applicant.

[43] In the matter of Dass and Others NNO v Lowewest Trading (Pty) Ltd 2011 (1) SA 48 (KZD) at 53B–H, Tshabalala JP held that non-compliance with rule 18(6) can be condoned in the absence of prejudice to the other party. The issue of prejudice is disputed in casu.

[44] In the matter of Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing en Andere 2001 (2) SA 790 (T) it was held that:

“Held, further, that the instant case, a factually complicated one in which a large sum was claimed under various headings, was pre-eminently one in which the issues needed to be precisely defined. It was, however, clear that paras 6, 7 and 9 did not comply with the

provisions of Rule 18(4) and 18(10): some of the averments consisted of conclusions of fact that were arrived at without setting out the underlying facts (paras 6 and 7); some were susceptible of more than one interpretation and thus vague and embarrassing (paras 6 and 7); no particulars were supplied as to how the various sums claimed were arrived at (para 9); and sums were claimed under headings that were so vague that they failed to give the defendants any guidance in respect of assessment of damages (para 9). (At 803E/F - F/G and 804E/F - 805E, paraphrased.)”

[45] In as far as the addendums are to be used to determine the date of prescription of the applicant’s claim, the identification of the authorised agent acting on behalf of the applicant becomes crucial. The identification of the contracting individual determines the authority of the agent acting on behalf of the applicant, which in turn affects the validity of the agreements and amendments.

Analysis

[46] The central issue in the dispute between the parties, is the respondent’s indebtedness to the applicant. The respondents have not answered to the merits of the claim, under the apprehension that the rights to file an answering affidavit “is reserved”.

[47] The claim involves a substantial amount, and justice would not suffice if a claim in the amount of R5,6 million are summarily and incorrectly granted or dismissed without having all the facts before court. In addition, substantive amounts of money have been paid towards the vehicles for the periods from 2018 to 2020.

[48] For the reasons set out in paragraphs [27] to [31] above, evidence will be required to determine whether the claim has become prescribed.

[49] Evidence will also be required to determine whether the person who acted on behalf of the applicant in the initial contract as well as the addendums, had the necessary authority to do so.

[50] Based on the reasons outlined in paragraphs [40] to [45] above, the respondents are entitled to be informed of the identity of the individual who acted on behalf of the applicant in conclusion of the contracts and in negotiating and agreeing to the addendums.

[51] The respondents argue that the abovementioned disputes are bona fide factual disputes which warrants oral evidence. The respondents argue that it was foreseeable by the applicant that factual disputes would arise and as such the action procedure should have been used to institute the proceedings.

[52] While I agree with the respondents that the action procedure would be the correct procedure in that oral evidence is required in determination of the points in limine, I do not agree with the argument that the disputes were reasonably foreseeable.

[53] I hold this view since the applicant’s claim is based on a liquid amount, as set out in the certificate of balance. A liquid amount would typically be a straightforward amount as agreed upon and set out in the contracts. However, the disputes raised by the respondent in the answering affidavit renders the amount “non-liquid”

as it requires further evidence to determine (a) the date of prescription, (b) the exact value of the outstanding amount and (c)

the validity of the addendums amending the terms of the original agreements.

Rule 6(5)(g)

[54] Rule 6(5)(g) of the Uniform Rules of Court reads as follows:

“6(5)(g) Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for such deponent or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.

[55] In terms of Rule 6(5)(g), when the matter cannot be decided on the affidavits before it, the court has the discretion to do any of the following:

55.1. Dismiss the application.

55.2. Make an order with the view of a just and expeditious disposal of the matter.

55.3. Direct that oral evidence is to be heard on specified issues or refer the matter to trial, with appropriate directions as to pleadings or definition of issues.

[56] I hold the view that it would not be in the interests of justice to dismiss the application. This will close the doors of court to the applicant, should the claim have become prescribed pending these proceedings. I am also unaware of any specific order that would resolve the matter in a just and expedient manner, other than the requirement for oral evidence to be presented.

[57] It is trite law that the court will refer a matter to trial if a dispute of fact is incapable of resolution on the papers and too wide-ranging for resolution by way of referral to oral evidence. See: Less v Bornstein 1948 (4) SA 333 (C); Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162; Conradie v Kleingeld 1950 (2) SA 594 (O) at 597 and 599; Oblowitz v Oblowitz 1953 (4) SA 426 (C) at 434G.

[58] In Erasmus: Superior Court Jutastat e-publications CD-Rom & Intranet: ISSN 1561-7467 Internet: ISSN 1561-7475 at RS 22, 2023, D1 Rule 6-45 the following is said in relation to referring a matter to trial:

“In such instance it is essential that the issues be defined. It is an alternative procedure to dismissal of the application in such circumstances, and is appropriate where the applicant when launching his application could not reasonably have foreseen that a serious dispute of fact, incapable of resolution on the papers, was bound to develop.”

(footnotes omitted)

[59] In my view, an appropriate order would be that the matter should be referred to trial. This is on the basis that the factual disputes which are raised in the answering affidavit, warrants evidence in determination thereof.

[60] In referring the matter to trial, the following directives are issued:

60.1. The notice of motion and founding affidavit is to stand as summons and particulars of claim.

60.2. The answering affidavit is to stand as pleadings raising points in limine.

60.3. The respondents are granted a period of 20 court days after receipt of this order, to file with the Registrar and serve upon the applicant an answering affidavit to the merits of the claim, which will stand as a plea, exception, notice to strike out, with or without a counterclaim.

[61] Once the disputes have been resolved by oral evidence, the case is decided based on the findings of the presiding Judge together with evidence that was given under oath in the respective affidavits. See: Murray NO v Humansdorp Co-Operative 2023 (3) SA 66 (SCA) at paragraphs [21]–[22].

Costs

[62] The general principle is that the successful party is entitled to its costs. In casu, it cannot be said that either party was substantively successful, and a cost order against any party would not be just and fair.

[63] The proceedings may only be brought to finality in the finalisation of the trial. During the trial proceedings an evaluation of the validity of the points in limine and the merits can be made by the presiding judge. As such, I deem it in the interests of justice that the costs of this application be cost in the cause.

[64] Should the respondents not file an answering affidavit to stand as a plea as directed, the respondents can be placed under bar. In the event that the matter does not proceed to trial, the respondents are ordered to pay the costs of this application.

ORDER

In the premise, I make the following order:

i) The matter is referred to trial.

ii) The following directives are issued:

a. The notice of motion and founding affidavit stands as summons and particulars of claim.

b. The answering affidavit stands as a plea raising points in limine.

c. The respondents are granted a period of 20 court days after receipt of this order, to file with the Registrar and serve upon the applicant an answering affidavit to the merits of the claim, which affidavit will stand as plea, exception, notice to strike out, with or without a counterclaim.

iii) The costs of this application and the reserved costs of 27 July 2023 are cost in the cause on Scale C and a party – party basis.

iv) Should the matter not proceed to trial, the respondents are ordered

to pay the costs of this application as well as the reserved costs of 27 July 2023, on Scale C and a party – party basis.

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE OF HEARING: 8 APRIL 2024 DATE OF JUDGMENT: 6 SEPTEMBER 2024 APPEARANCES FOR THE APPLICANT: ADV B MARAIS INSTRUCTED BY: SHEPSTONE AND WYLIE ATTORNEYS E-MAIL: woker@wylie.co.za C/O ME TLOU ATTORNEYS & ASS NO 43 CNR BADEN POWELL & VISSER STREET, GOLF VIEW MAHIKENG E-MAIL: naledi@tlouattorneys.co.za REF: NT/SHE6/0001 FOR THE RESPONDENTS: ADV PJS SMIT INSTRUCTED BY: LABUSCHAGNE ATTORNEYS 19 CONSTANTIA DRIVE RIVIERA PARK, MAHIKENG TEL: 018-381 6828 E-MAIL: litigation4@labuschagneatt.co.za REF: GGL/bvn/GW1883