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Modise N.O v Ditiro Tsa Rona Business Enterprise CC and Another (63333/2018) [2018] ZAGPPHC 930 (21 September 2018)

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IN THE HIGH OF SOUTH AFRICA

THE GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

21/9/2018

 

Case No.: 63333/2018

 

In the matter between:

 

NELLY MASHADI MODISE N.O                                                                           Applicant

 

and

 

DITIRO TSA RONA BUSINESS ENTERPRISE

CC (Registration No: 2002/040684/23)                                                                     1st Respondent

MANTLAWE EVELYN MODISE                                                                           2nd Respondent

THE MASTER OF THE HIGH COURT                                                                3rd Respondent

JUDGMENT


MNGQIBISA-THUSI, J

[1]          The applicant seeks relief in the following terms:

1.1       That this application be heard as an urgent application in terms of Uniform Rule 6 (12);

1.2       That, pending finalisation of the dispute of ownership of certain commercial vehicles under case number 83238/2017:

1.2.1       the first and/or second respondent be ordered to pay all outstanding licensing fees and charges, including accumulated penalties and fines of the vehicles in the possession of the respondents as identified in annexure "E" to the founding affidavit, currently R1, 207, 255.00;

1.2.2       the applicant is ordered to pay all outstanding licensing fees and charges, including accumulated penalties and fines of the vehicles in the possession of the applicant as identified in annexure "E" to the founding affidavit currently R16, 327.20;

1.2.3       that the payment due as per prayer 2.1 above be made into the account of deceased estate within 24-hour's of the date of the order;

1.2.4       that the applicant be ordered to pay the licensing authorities within 24 hours of having received payment from the respondents of the amount due in terms of prayer 2.1;

    1. 5     that the applicant is ordered to renew the licences of all vehicles registered in the name of the deceased once all payments stated above have been complied with;

    2. 1.2.6      that the respondents be ordered to pay all future licensing fees applicable to the vehicles, including any penalties, charges and/or fines associated with the vehicles on request from the applicant;

    3. 1.2.7      that the applicant be allowed to approach the Honourable Court on the same papers, duly amplified, for alternative relief pertaining to the preservation of the vehicles in question, should the respondents fail to comply with any order granted in terms of the relief prayed for by the applicant.

 

[2]       The applicant, Mrs Nelly Mashadi Madise, is the duly appointed executrix of the deceased estate of Thomas Rantebe Madise ("the deceased"). The second respondent, Ditiro Tsa Rona Business Enterprise CC, is a duly registered close cooperation in terms of the laws of the country. The second respondent is Ms Mantlawe Evelyn Modise, a member of the first respondent. The third respondent is the Master of the High Court.

[3]        The applicant and the deceased estate hold a 50% members interest in the first respondent.

[4]        The third respondent has filed a notice to abide.

[5]        The following facts are common cause. On 16 January 2018 this court granted an order on the following terms:

"1.       The first respondent is ordered to pay the existing insurance premiums associated with the vehicles listed in annexure "D" until such time as the action proceedings between the parties under case number 83238/17 have been finalised.

2.          The first respondent is ordered to provide the applicant with proof of payment of the insurance premiums on a monthly basis.

3.            The first respondent is ordered to ensure that the vehicles be utilised within the ambit of the terms and conditions stated by the insurer of the vehicles from time to time and the first and second respondents will be held liable for any excess payments required should a claim with regard to any of the vehicles arise.

4.            The first and second respondents will be liable for any and all damages are not covered by the existing insurance policy, for whatever reason, for as long as the vehicles are in the possession of the first respondent.

5.            The first and second respondents liable for the costs of the application on the scale as between party and party, the one to pay the other to be absolved".

 

[6]        On 22 June 2018 the first and second respondents instituted an application on an urgent basis with prayers similar to prayer sought in this application. The only difference being that the prayer sought was shot against the applicant in this application. On 4 July 2018, the application was struck from the roll for lack of urgency.

[7]        There is a pending matter before this court under case number 83238/17 in which the disputed ownership of the vehicles in the possession of the first respondent is still to be determined.

[8]        The vehicles which are the subject matter of this application on the previous order and application by the respondents were bought and are registered in the name of the deceased. The vehicles have always been used in the business and for the benefit of the first respondent. Furthermore the vehicles which are in the position of the first respondent are currently being used by the first respondent and for its benefit.

[9]        Asa result of the licensing fees and infringement fines with regards to the vehicles in the position of the first respondent not been paid since 2017, there were discussions between the applicant and respondents as to who should be liable for payment of the fees and the fines.

[10]     It is the applicant's contention that even though the vehicles are registered in the name of the deceased, the vehicles are currently in the possession of the first respondent who is utilising the vehicles for its benefit. It was submitted that therefore the first respondent should be responsible for payment of the outstanding licensing fees and current licensing fees, including any infringement fines imposed as a result of contraventions of traffic laws whilst the vehicles were and are used by the first respondent.

[11]     On behalf of the respondents it was argued that in view of the fact that in the pending action under case number 83238/17 the ownership of the vehicles in the possession of the first respondent is still to be determined, and due to the fact that the vehicles are registered in the name of the deceased, the applicant should be responsible for payment of the licensing fees and infringement fines, if any. In the alternative, counsel for the respondents argued that the applicant and the first respondent have the obligation to pay the licensing fees and the infringement fines for the vehicles in the possession of the first respondent. However, no plausible argument was put forward for this assertion.

[12]     In view of the fact that the parties could not agree on who should be responsible for payment of the licensing fees and infringement fines, the applicant sought assistance from Kreston Advisory to investigate which of the parties, i.e. either the deceased or the first respondent, was responsible for payment of the licensing fees and infringement fines before the deceased passed on. The Kreston report attached to the applicant's founding affidavit, concludes that the first respondent has always been responsible for paying the licensing fees and any infringement fines for the vehicles in the possession of and utilised by the first respondent.

[13]     In light of the fact that the vehicles which are the subject matter of this application and which are in the possession of the first respondent, are being used by the first respondent for its benefit, I am of the view that it could not be expected of the deceased estate to pay for the licensing fees, outstanding and current, and infringement fines, past and present, of the said vehicles as it is not receiving any direct benefit from the use of the vehicles and it is not responsible for committing the traffic violations. The first respondent is in possession of the vehicles and is using them in its business and deriving benefit therefrom, and therefore it should be responsible for the payments sought particularly as it has previously been responsible for payment of the licensing fees and any infringement fines relating to the vehicles in its possession.

[14]     The fact that the deceased estate has a 50% member's interest in the first respondent is of no moment.

[15]     There is no dispute that when the deceased purchased the vehicles which are in the possession of the first respondent, he did so in order for the vehicles to be used in the business of the first respondent and for its benefit. There is no reason why the first respondent should be unjustifiably enriched at the expense of the deceased estate.

[16]     With regard to the issue of costs, In the event of the prayers sought by the applicant, counsel for the applicant submitted in the event of the prayers sought by the applicant being granted, the cost order should include costs for two counsel. In its notice of motion the applicant sought costs against the first and second respondents without an indication that two counsel will be used. Having considered submissions made by counsel for the applicant on the issue of costs, I am not persuaded that a cost order including costs of two counsel is justified. In my view the issues involved were not complex to necessitate the employment of two counsel.

[17]     In the result an order is granted in terms of the amended draft order marked "X".

 

 

 

NP MNGQIBISA-THUSI

Judge of the High Court

 

Applicant represented by Adv HC Van der Merwe, assisted by Adv HC Van Zyl (instructed by Koster Attorneys)

First and second respondents represented by Adv B L Leshilo (instructed by Mahanyele Attorneys)

“X”

THE HIGH COURT SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO.: 63333/2018

 

In the matter between:

 

NELLY MASHADI MODISE N.O                                                          APPLICANT

(Cited in her nomino officio capacity as the

duly appointed executrix in the deceased estate of

Thomas Rantebe Madise)

 

And

 

DITIRO TSA RONA BUSINESS ENTERPRISE CC                          FIRST RESPONDENT

(Reg No: 2002/040684/23)

MANTLAWE EVELYN MODISE                                                         SECOND RESPONDENT

THE MASTER OF THE HIGH COURT                                              THIRD RESPONDENT


ORDER

AFTER HAVING READ THE PAPERS FILED OF RECORD AND HAVING HEARD COUNSEL FOR THE PLAINTIFF;

 

IT IS ORDERED:

 

1.          That, pending finalisation of the dispute of ownership of certain commercial vehicles under case number 83238/ 2017:

1.1        The First and/ or Second Respondent are ordered to pay all outstanding licensing fees and charges, including accumulated penalties and fines of the vehicles in the possession of the Respondents as identified in Annexure "E" to the founding affidavit, currently R1 303 057.00

1.2        The Applicant is ordered to pay all outstanding licensing fees and charges, including accumulated penalties and fines of the vehicles in the possession of the Applicant as identified in Annexure "E" to the founding affidavit currently, R24 431.77.

1.3        That the payment due as per prayer 2.1 above be made into the account of deceased estate within 24 hours of the date of the order;

1.4       That the Applicant be ordered to pay the licensing authorities within 24 hours of having received payment from the Respondents of the amounts(s) due in terms of prayer 2.1;

1.5       That the Applicant is ordered to renew the licenses of all vehicles registered in the name of the deceased once all payments stated above have been complied with;

1.6       That tile Respondents be ordered to pay all future licensing fees applicable to the vehicles, including any penalties, charges and/or fines associated with the vehicles on request from the Applicant ;

1.7        That the Applicant be allowed to approach the Honourable Court on the same papers, duly amplified, for alternative relief pertaining to the preservation of the vehicles in question, should the Respondents fail to comply with any order granted in terms of the relief prayed for by the Applicant;

 

2.            Further and / or alternative relief; and

3.            That the First and Second Respondent pays the cost of this application.

 

 

 

REGISTRAR

NORTH GAUTENG HIGH COURT