New Mall wins against rent collector
MBABANE – Tricor International has been ordered and directed to account and remit to New Mall all rentals collected by it on the Mall’s behalf.
The order is, however, interim pending filing of replies and determination of the matter. The judgment was issued by Judge Mumcy Dlamini yesterday. Tricor was further ordered to pay costs of suits.
The New Mall was represented by attorney Zweli Shabangu while Advocate Flynn represented Tricor International. Simangaliso Mamba instructed the advocate.
The application was on a certificate of urgency, for an order as granted. It was common cause that Tricor was the Mall’s collection agent. Pending before the High court is a judgment on whether that relationship still subsists.
"However, it is common cause that the respondent is still collecting rentals from the applicant’s tenants and is not depositing the same to the applicant’s account. The issue before me is whether the matter could be considered as urgent," Judge Dlamini said.
Counsel for Tricor submitted that the matter was not urgent as the Mall had become aware of the matter in September 2011 and a period of 10 months had lapsed before the proceedings were instituted. It was submitted that if there was any urgency, it was self-created.
For the Mall, it was argued that there had been ongoing negotiations before they decided to approach the court. In fact they argued that they negotiated for two months and on the third month, launched the proceedings.
The matter was allegedly urgent by virtue of the fact that the applicant was suffering continuous prejudice on a daily basis by the continued failure by the respondent to deposit rentals collected into the mall’s designated business account.
"I submit that on a monthly basis, rentals collected from the New Mall Shopping Centre amount on average to or about E400 000. The applicant has learnt that the respondent last deposited rental collections into the designated account during the month of September 2011," Shabangu argued.
The amount has allegedly accumulated to about E4 million in the 10 months period between September 2011 and to date.
Shabangu said Tricor was given a second chance following that negotiations were ongoing so it could not be said that the Mall was dilatory in moving the present application.
The court held that a litigant, who has averred financial loss, more so of a high magnitude, should have its matter treated with urgency.
Tricor was served with the application on August 6, 2012 for a hearing on August 9, but it did not file anything. It chose to come to court to argue on technical points against the decided cases of the High Court and the Supreme Court that litigants should not rely on technicalities.
Judge Dlamini stated that it was not clear why Tricor International chose not to answer to the merits of the case. "Neither a notice of intention to oppose was filed herein," Judge Dlamini held.
There was no explanation why the respondents had failed to answer on the merits of the application when it had two days to do so. Having dismissed the respondent’s points of law, Judge Dlamini ordered Tricor to pay the costs of suit on the attorney and own client scale.
Judge Dlamini granted the orders prayed, albeit on interim basis and the case returns to court on August 16, 2012 at 2pm. The parties were put into terms for the filing of court papers.
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