IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CIVIL APPEAL NO. 56/2010
In the matter between:
SIPHO KEVIN MABUZA APPELLANT
TONCAR INVESTMENTS (PTY) RESPONDENT
CORAM : A.M. EBRAHIM J.A.
: S.A. MOORE J.A.
: I.G. FARLAM J.A.
FOR APPELLANT : S.C. SIMELANE
FOR RESPONDENT : L. MANYATSI
Pre litigation costs – Claim for – Refusal by High Court to grant such costs set aside after matter settled.
The appellant was the tenant in a lease agreement between himself and the respondent. The lease was for a period of three years. The premises consisted of a restaurant and bar.
About a year before the lease was due to expire, the respondent took it upon itself to purport to terminate the lease. No valid reason was given for the termination. It is likely that the respondent mistakenly believed the lease had expired. The appellant was not in breach of the lease. In view of the pressures being put upon him to leave the premises, the appellant closed his business for two days, thereby, one presumes, incurring a loss of income. He took legal advice and was advised to make a court application to declare the purported cancellation to be invalid. A draft application was prepared.
The appellant’s attorney then contacted the respondent’s attorney, to advise him of what was being proposed. The respondent’s attorney contacted his client and a short time later was instructed that the appellant would be allowed to continue trading and that the letter demanding that he quit the premises was withdrawn.
The draft application and the accompanying affidavits were accordingly not presented to the court and no litigation took place in connection with the purported cancellation of the lease.
The appellant then brought an application on notice of motion, seeking an order declaring that the respondent was liable to pay the pre-litigation or extra-judicial costs incurred by the appellant, which was dismissed.
That the respondent wrongfully caused loss to the appellant is beyond question. Not only did he incur unnecessary legal costs, he must have lost something during the time the business was closed. It should have been easy enough to quantify these losses, but this step was not taken.
Had the original application gone ahead and the appellant succeeded (as he would undoubtedly have done), the court would have awarded costs in his favour. The amount of costs would have been determined by the usual process that occurs after a case is concluded. But here there was no litigation. Nor was this a situation where the respondent had been put on terms and then conceded. The respondent, having been apprised by its attorney, after informal discussion, of the correct legal position, quickly and correctly abandoned its stance. Why the appellant’s attorney did not then demand the legal costs unnecessarily incurred, together with any other damages, is not explained in the papers. A claim for such damages would have surely been indefensible.
The appellant instituted proceedings by way of Notice of Motion seeking a declaration in the following terms:
“1. Declaring that the respondent is liable to pay to the applicant the costs incurred as a result of the respondent’s unlawful eviction or attempt thereat, from the premises namely; Shop no. 1 Toncar Property Investments, Matsapha.
2. That the respondent pay the costs of this application.
3. Further and/or alternative relief.”
The respondent resisted the application and sought costs on an attorney client scale and succeeded in his defence to the application, in the court a quo although the learned judge made no award on costs.
In my view it is the duty of this court as it is the duty of any court to do justice. On the facts of this matter it is clearly apparent that the respondent acted improperly in cancelling the lease which had been entered between the parties. The lawyers of the two parties held discussions and reached an agreement that the “lease” had been improperly terminated. What they did not finalise however, was the issue of damages incurred as a result of the impasse between the parties and the issues of pre litigation costs.
At the hearing of this appeal counsel were enjoined to discuss the issue further to determine whether this matter could be resolved between the parties. To their credit they have reached agreement and have consented to an order in the following terms:
“Upon having heard counsel for the parties it is hereby ordered, by consent;
1. That the respondent pay the sum of E8 000.00 to the appellant in settlement of this matter, constituted as follows;
Pre litigation Cost: E1 500.00
Costs in the High Court: E5 000.00
Costs before the Supreme Court: E1 500.00
TOTAL E8 000.00”
In the result the order of the learned judge a quo is set aside and in its place the consent order is substituted.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
Delivered this the 31st day of May 2011.