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[2016] ZAWCHC 171
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Agenbag v CBD Towing (8493/2016) [2016] ZAWCHC 171 (22 November 2016)
Republic
of South Africa
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 8493/2016
Before: The Hon. Mr Justice Binns-Ward
Hearing: 2
November 2016
Judgment
delivered: 22 November 2016
In the matter between:
VANESSA
AGENBAG
Applicant
and
CBD
TOWING
Respondent
JUDGMENT
BINNS-WARD J:
[1]
The only question that requires
determination in this matter is what order should be made as to
costs.
[2]
The litigation concerned an application in
which relief was sought as a matter of urgency in the following
terms:
2.
That the applicant be ordered to pay into the trust account
of VFV
Attorneys the amount of R16 250.00 (sixteen thousand two hundred
and fifty rand) or any other amount the court may
direct to be held
as security pending final resolution of any legal proceedings to be
instituted by the respondent within 20 (twenty)
days of delivery of
this order to claim its alleged fees for towing, storage, recovery,
administration and security in respect
of a Toyota Yaris vehicle with
registration number CJ43730 (“the vehicle”);
3.
That, upon proof of payment in terms of paragraph 2 thereof,
the
respondent be directed to deliver the vehicle to the applicant;
4.
Authorising and directing the Sheriff of this Honourable
Court to
take possession of the vehicle and to deliver same to the applicant
in the event of the respondent failing to comply with
paragraph 3
thereof;
5.
That, should the respondent fail to institute any legal
proceedings
as contemplated in paragraph 2 hereof within 20 (twenty) days after
date of delivery of this order, the amount
paid into the trust
account of VFV Attorneys by the applicant as aforesaid be released;
6.
That the respondent be ordered to pay the costs of this
application
as between attorney and client; …
[3]
The application was served on the
respondent on 19 May 2016. The notice of motion set forth a
timetable for exchange of papers
to enable the matter to be heard on
27 May.
[4]
The substantive relief became moot when the
applicant regained possession of the motor vehicle on 23 May.
The applicant’s
attorney then proposed that the matter should
be removed from the roll against an undertaking by the respondent to
pay the applicant’s
costs of suit. The respondent denied
liability for the applicant’s costs and maintained that
it
was the party entitled to a costs order.
[5]
In the context of the resultant impasse,
the matter came before Allie J in the Third Division on 27 May
2016, when an order
was taken by agreement postponing the matter for
hearing on the opposed motion roll in the Fourth Division on 23
August 2016.
The order provided a timetable for the exchange of
opposing and replying affidavits and directed the respondent to pay
the applicant’s
costs occasioned by the postponement.
[6]
On 22 August, however, a further order
was made by the Judge President, also by agreement, further
postponing the matter to
2 November 2016, when it came before me.
By that stage the ambit of the papers conceived in terms of the order
made on 27 May
had expanded to include an application by the
respondent to strike out the applicant’s replying affidavit in
its entirety
and a ‘further supplementary affidavit’ by
the respondent’s sole member in response to what was contended
to
be new matter in the applicant’s replying papers. The
supplementary affidavit was delivered to address the contingency
that
the respondent’s aforementioned application to strike out might
not be granted.
[7]
In the result, by the time the matter was
called on 2 November, the amount of the costs in contention between
the parties no doubt
exceeded the value of the property in respect of
the possession of which the litigation had been instituted.
That was a most
unfortunate state of affairs. Moreover, it was
not even the sort of case in which the merits have to be decided only
to determine
the incidence of costs because the substantive issues
have become moot or settled after the costs had been incurred.
In this
matter the costs were run up for the sole purpose of
providing an evidential basis for the determination of the question
of who
should bear the brunt of them.
[8]
The evidence that was adduced in the course
of the exchange of affidavits after the substantive issue had been
overtaken by events
turned up disputes of fact that were arguably
genuine and therefore resoluble in the applicant’s favour only
if confirmed
by oral evidence. The applicant’s counsel’s
primary contention was that these disputes of fact were not genuine.
But he nevertheless requested that should the factual disputes
be considered by the court to stand in the way of the applicant
getting the costs order that she seeks, they should be referred for
oral evidence. He did acknowledge though that courts
were
reluctant to take issues concerning costs to such lengths. I
certainly have no intention of doing so in this case.
It would
merely exacerbate the already paradoxical situation of the parties
having incurred most of the costs solely for the purpose
of getting a
decision as to which of them should bear them.
[9]
Costs of suit are an incidental aspect of
litigation. The award of costs is a matter within the court’s
discretion.
[1]
Ordinarily, costs follow the result and that would usually be the
case in proceedings of the nature in the current case.
It does
not follow, however, where the result has been pre-empted by an
intervening event, that the parties should be allowed or
encouraged
to pursue proxy proceedings thereafter merely for the purpose of
establishing what the result would have been. Judicial
policy –
which is manifested, for example, in the disinclination of appellate
courts to entertain appeals when the only question
remaining in
contention is one of costs - would discourage such a course. In
exercising its discretion in respect of costs
judicially a court must
have due regard to the facts and circumstances of the given case.
Ultimately, the object is to make
a determination that the court
considers to be just and fair.
[10]
I consider that in a matter like this the
court would be entitled to do the best it can in making such a
decision on the papers
without oral evidence irrespective of the
existence of any disputes of fact. While an award of costs is
final, its character
is more procedural than substantive.
Approaching its determination with regard to the probabilities of
success in the main
case as they appear from the papers would be more
appropriate than requiring the parties to run up yet further costs in
order to
attempt to reach a more definitive conclusion on who would
have won had a decision by the court on the substantive relief been
required.
[2]
Regard may also be had to any other factors that might be
relevant in the exercise of the discretion, including how either
of
the parties might reasonably have conducted themselves so as to avert
the necessity for the litigation. That is the approach
that I
propose to apply.
[11]
In accordance with that approach I shall
not allow myself to be detained by the application to strike out or
any dispute about the
admission of the respondent’s
supplementary affidavit. It seems to me that neither party
would suffer any prejudice
were the replying papers to be left
unaffected and the supplementary affidavit admitted. In
deciding the issue of costs I
shall have regard to all of the
affidavits filed of record.
[12]
The respondent relied on two points
concerning the merits of the case in resisting liability for the
applicant’s costs.
It contended that it had not been in
possession of the vehicle when proceedings were instituted, and
should therefore not have
been joined in the proceedings. It
alleged that, to the knowledge of the applicant, the vehicle had been
in the possession
of Combine Towing at the relevant time.
Furthermore, inasmuch as the application was vindicatory in
character, the applicant
had not established that she was the owner
of the vehicle.
[13]
It is necessary to sketch the factual
background to the proceedings.
[14]
The applicant had been involved in a
collision while driving the vehicle on the N1 in the early hours of
22 April 2016.
A tow driver employed by the respondent had
approached the applicant at the scene of the collision and offered to
tow away the
damaged vehicle. He had represented to her that
the respondent was authorised by the insurers of the vehicle to
undertake
such towing work. The vehicle was towed to the
respondent’s yard at Ndabeni.
[15]
The respondent alleged that later in the
day the applicant requested the vehicle to be towed to Island Auto
Panel in Paarden Island
for a quotation to be obtained in respect of
its repair. A copy of what purports to be a quotation from
Island Auto Panel
was annexed to the answering affidavit. The
applicant denies having requested that the vehicle be taken to the
panel beater
for a quotation.
[16]
The respondent further alleged that after
the panel beater had indicated that the vehicle had been damaged
beyond the cost of economical
repair, it was unable to return the
vehicle to its yard due to lack of capacity. It alleged that it
therefore took the vehicle
to be stored at Combine Towing in Diep
River. According to the respondent’s answering affidavit,
Combine Towing is
a business owned by one Conradie. It alleged that
the applicant was informed of the whereabouts of her vehicle.
She denies
this. The respondent alleged that it had presented
Combine Towing with an invoice in the amount of R6000. The
arrangement
was that Combine Towing would recover the amount from the
applicant or her insurer and account for it to the respondent.
A copy of the invoice was annexed to the answering affidavit.
It is dated 22 April 2016 and numbered ‘Invoice CBD056’.
[17]
The applicant alleged that she discovered
that the respondent was in fact not authorised by her insurer to tow
vehicles insured
by it from scenes of collisions. She said that
she opened a case of fraud against the respondent under what appears
to have
been an April case number (1851/04/2016). She said that
her insurer negotiated with a representative of the respondent to
obtain the return of the vehicle. This allegation was not
denied in the respondent’s answering affidavit. The
applicant averred that the respondent had indicated that it was not
willing to release the vehicle, save against payment of a release
fee
in the sum of R16250, which included storage for 4 days at R400 per
day.
[18]
The applicant averred that after her
insurer had been unable to obtain the release of the vehicle, the
matter was handed to an attorney,
who also represented her insurer.
The attorney addressed a demand for the return of the vehicle.
The attorney’s letter
of demand was addressed to the respondent
at its physical address at Ndabeni and at two email addresses:
combinetowing@gmail and
cbdtowing@gmail. It was, however, sent
as an attachment to a covering email transmitted only to
cbdtowing@gmail, apparently
by one Delaine Du Plessis from the
applicant’s attorneys.
[19]
Despite one of the email addresses endorsed
on the letter being an address that on its face appeared to be
connected to Combine
Towing, the letter was unambiguously addressed
to the respondent. Its content set out the history of the
matter to that stage
consistently with that sketched hereinabove, and
conveyed the writer’s contention that the vehicle was in the
respondent’s
possession as a result of a ‘blatant
misrepresentation’ by its representative that the respondent
was on the applicant’s
insurer’s panel. It appeared
from the body of the letter that the respondent had purported to
assert a lien over the
vehicle. The letter proceeded in
paragraphs 7 and 8 thereof as follows:
7.
We herewith demand the immediate release of the aforementioned
to our
client, due to your blatant misrepresentation. We will advise
our client to pay the amount as per your invoice into
our trust
account as substituted security for your alleged lien over our
client’s vehicle, which amount will be held in trust
pending
the finalisation of an action for recovery of your fees, to be
instituted by yourselves within 20 days hereof, failing
which the
amount so paid into trust will be released.
8.
Should you not agree to release the vehicle forthwith
in accordance
with the proposals made in paragraph 7 above, then our further
instructions are to launch an urgent application against
you for the
immediate return of the vehicle, together with costs as between
attorney and client
.
[20]
The letter set a deadline of close of
business on 6 May for compliance by the respondent with its demands.
It included copies
of orders that it had obtained previously from
this court in three apparently comparable cases to demonstrate the
earnestness with
which the demand and threat of legal action were
being made.
[21]
The respondent failed to respond to the
letter. Its sole member and manager, Mr Marx Orgolitsch,
forwarded a copy of the email
under which it was sent, together with
the attachment, to Karen Brophy on 10 May. Ms Brophy then
emailed Delaine Du Plessis
at the applicant’s attorneys
later that day under the subject line ‘MAT102694: MS V AGENBAG/
CBD TOWING – CLAIM
NUMBER 556991694 4’ and stated
‘We have discounted the amount to R15000 on the 29-04-2016.
We willing (sic)
to discount the discounted amount to R10 000.
Please advise.’ Karen Brophy’s email address
appears
on the email as
combinetowing@gmail.com
.
[22]
On 11 May 2016, the attorneys responded to
Ms Brophy’s email by letter. The letter was addressed to
the respondent and
set out the respondent’s physical address at
Ndabeni. It was sent by email to
cbdtowing@gmail.com
and to
combinetowing@gmail.com
. It was clear from its content that it was directed at the
respondent as it again made reference to the alleged
misprepresentation
by the respondent’s tow driver employee.
It also made it plain that it regarded the email received from Ms
Brophy on
the previous day as having come from the respondent because
it conveyed the rejection of ‘your [i.e. the respondent’s]
discounted amount of R10 000’.
[23]
It is evident that Orgolitsch received the
email. The documentary evidence shows that he forwarded it to
Ms Brophy later the
same day. An indication to that effect was
apparent from the email chain included in an email sent later that
afternoon from
Ms Brophy (
combinetowing@gmail.com
)
to Delaine Du Plessis that stated:
FWD MAT102694: MS V AGENBAG/ CBD TOWING – CLAIM
NUMBER 556991694 4
We are willing to charge the following for mentioned
vehicle:
Accident tow
R1300
Storage
R4750 (19 days @ R250
per day)
Total
R6050
Please advise.
Regards
Karen
[24]
The attorneys responded to Ms Brophy’s
email with yet another letter, dated 11 May 2016, addressed to
the respondent
in identical manner to the earlier letter of that
date. It rejected the offer of the ‘discounted amount’
and
explained that a release fee was not being tendered ‘due to
the blatant misrepresentation by yourselves’. The
word
‘yourselves’ could only have referred to CBD Towing, the
respondent. The letter reiterated that the respondent
should
‘release the vehicle immediately as you are unlawfully in
possession of the vehicle’. It concluded ‘We
await
your urgent reply failing which we will have to launch an urgent
application for the release of the vehicle the costs of
which will be
for your account’. This letter appears to have been sent
only to Ms Brophy’s email address,
combinetowing@gmail.com
.
[25]
Ms Brophy responded by email offering a yet
further discounted amount, described as a ‘final amount’
in the sum of R4175.
The attorneys responded to the email on 12
May by way of a letter, again addressed to the respondent, rejecting
the ‘final
offer’ and indicating that they held
instructions to proceed with an urgent application for the release of
the vehicle.
[26]
As mentioned, proceedings were thereafter
instituted on 19 May and proceeded with as described earlier.
In an answering affidavit
made by Orgolitsch for the first respondent
on 26 May 2016, it was averred that vehicle had been ‘uplifted’
by the
applicant’s insurers from Combine Towing on 24 May.
It was averred that the applicant and her attorneys had been aware
prior to launching the proceedings that the vehicle had been in the
possession of Combine Towing since 22 April. Orgolitsch
further
averred that neither he nor the respondent had any affiliation to or
interest in Combine Towing. Referring to the
abovementioned
exchange of correspondence, Orgolitsch claimed to have been ‘copied
in’ on correspondence sent by email
to Combine Towing. He
said that ‘as the Applicant was aware that the vehicle was in
the possession and control of Combine
Towing’ he had not
thought that he needed to respond to the applicant’s
attorneys. He did not think that the
threat of legal action
pertained to the respondent.
[27]
In the supplementary answering affidavit
that the respondent was given leave to deliver, Orgolitsch attached
email correspondence
from the applicant on 25 and 26 April 2016.
It appears from this that the applicant was addressing CBD Towing at
that stage
for the release of her car. In an email apparently
transmitted at 15:15 to cbdtowing@gmail.com, the applicant stated in
an
evident tone of desperation (in capital letters): ‘Hey
what’s going on can someone please give an answer and why must
we wait so long for someone to get back to us’. It
appears from a further email sent by the applicant the following
morning, that a telephone conversation with Ms Brophy must have
intervened because the later email was addressed to ‘Karen’
and the email addressed to both
cbdtowing@gmail.com
and
combinetowing@gmail.com
. That email went:
Good Morning Karen
As per conversation yesterday, please forward me the
details for release of my car.
Thank you.
Vanessa
Ms Brophy responded by email, setting out a release fee of R16250,
which included R6750 for ‘accident tow’, R2500 for
‘rollback callout’ and R3500 for ‘recovery’.
[28]
Mr Orgolitsch also annexed to his
supplementary answering affidavit a number of specimen invoices to
support his allegation that
the respondent had in fact been
authorised by the applicant’s insurer to tow vehicles from the
scenes of collisions.
One of the attached invoices, dated 16
March 2016 bore the number ‘Invoice CBD056’. It
will be recalled that
that is the same invoice number as that, dated
22 April 2016, mentioned above, which the respondent alleges it
presented Combine
Towing when transferring the applicant’s
vehicle to that concern. The applicant suggests that this
peculiar coincidence
might be indicative that the invoice purportedly
made out by the respondent to Combine Towing might be an
ex
post facto
creation solely for the
purpose of these proceedings.
[29]
In reply, the applicant explained she had
no knowledge of Combine Towing as a separate concern. She said
that she had dealt
only with the respondent. She said that she
had been informed about the release fee required by the respondent by
Ms Wendy
Louw who told her that she had obtained the information from
someone called Karen, which the applicant took to be Ms Brophy.
Ms Louw made a confirmatory affidavit confirming that she had from
time to time dealt with Ms Brophy, who had communicated with
her on
behalf of various towing enterprises, namely CBD Towing, Combine
Towing and Speedy Towing.
[30]
The applicant’s replying affidavit
ran to 39 pages, excluding annexures, as compared to the only nine
pages, excluding annexures,
of the founding affidavit. It was
unduly argumentative, which is an all too frequent feature of replies
in motion proceedings.
The courts have warned repeatedly that
it is a feature that is liable to be marked adversely in costs.
[3]
[31]
In the further supplementary affidavit in
answer to the new matter in the applicant’s replying papers
Orgolitsch averred that
the respondent had ceded its lien over the
applicant’s vehicle to Combine Towing. Apart from the
difficulty that attaches
conceptually to the notion of a cession of a
lien, there is no written record of any such purported transaction.
Orgolitsch
stated that ‘[i]n terms of the cession to Combine
Towing, once it was paid for the salvage and storage of the
Applicant’s
vehicle, Combine Towing would pay me [presumably
the respondent] a total of R6 000 for the salvage, recovery,
rollback and
administration of the operation. Combine Towing
would receive payment for the storage of the vehicle from the
Applicant’s
insurer’. He proceeded ‘Once the
Respondent ceded the lien over the vehicle to Combine Towing, the
Respondent
no longer had control over [the] vehicle and Combine
Towing did not represent or act on behalf of the Respondent in any
dealings
with the Applicant, her attorneys or her insurer’.
[32]
An affidavit by Karen Brophy was also filed
in which she confirmed that she had acted in all communications
between herself and
the applicant and the latter’s insurers and
attorneys solely on behalf of Combine Towing, and not the
respondent. Ms
Brophy did not, however, respond to the
allegations by Ms Wendy Louw of the applicant’s insurers that
Ms Louw had had previous
dealings with her on behalf of the
respondent and Speedy Towing.
[33]
There is nothing in the respondent’s
challenge to the applicant’s title to the motor vehicle.
Orgolitsch admitted
in the answering affidavit the applicant’s
averment that she was the registered owner, alternatively, bona fide
possessor
of the vehicle. The respondent did not place
ownership of the vehicle in issue on the papers.
[34]
In my view the indications on the papers
are that the enterprises of CBD Towing and Combine Towing were
effectively indistinguishable.
There is no evidence to
corroborate the respondent’s claim to have notified the
applicant that it was surrendering her vehicle
to another business.
The most obvious reaction that would have been expected of the
respondent when it received the demands
to surrender the vehicle or
face legal proceedings would have been to point out that it was not
in possession or control of the
vehicle, if that were in fact the
case. If Mr Orgolitsch’s evidence is true, it might also
have been expected to have
expressed some surprise at being addressed
by the applicant’s attorneys if its allegation that the
applicant knew that her
vehicle had been passed on to another concern
were well-founded. Mr Orgolitsch’s reported
perception that the
respondent was being addressed with the demands
merely on the basis of having been ‘copied in’ is
entirely unconvincing.
Apart from any other consideration, the
letters of demand were made out to the respondent at its physical
address. They could
hardly have been mistaken for demands
addressed to another enterprise.
[35]
Moreover, the fact that the final
settlement offer communicated by Ms Brophy was in an amount less than
that in which Orgolitsch
averred Combine Towing was liable to the
respondent in respect of the alleged ‘cession of lien’ is
a strong indicator
that any separation of commercial identity between
the respondent and Combine Towing was fictional. The settlement
offers
made by Ms Brophy from the
combinetowing@gmail.com
address compromised charges that had uncontestably been raised by the
respondent, and not Combine Towing, in respect of matters
such as
accident tow, rollback and recovery. Those adjustments, which
were nowhere explained in the respondent’s answering
papers,
are most unlikely to have been effected if the business truly
involved two quite independent undertakings.
[36]
These considerations are sufficient to
persuade me that justice would be served if the respondent were
ordered to pay the applicant’s
costs of suit in the
proceedings. However, as mentioned, the applicant’s
replying affidavit was unduly lengthy on account
of its excessive of
argumentative content. In the circumstances the costs to be
awarded shall include only 50 percent of
the costs in respect of the
drafting of that affidavit.
[37]
The following order is made:
1.
Save as provided in paragraph 2, the
respondent is ordered to pay the applicant’s costs of suit.
2.
The costs awarded in terms of paragraph 1
shall include only 50 percent of the costs incurred by the applicant
in respect of the
drafting of her replying affidavit.
A.G. BINNS-WARD
Judge
of the High Court
[1]
See e.g.
Chonco and Others v
President of the Republic of South Africa
[2010] ZACC 7
;
2010 (6) BCLR 511
(CC), at para. 6, and the other
authority cited there in footnote 7.
[2]
Cf. amongst others,
Jenkins v
S.A. Boiler Makers, Iron & Steel Workers & Ship Builders
Society
1946 WLD 15
at pp.17-18, referred to
with approval in the relevant respect in
Giliomee
v Cilliers
1958 (3) SA 97
(A) at p. 101;
Standard Bank of South Africa Ltd v Oneanate
Investments (Pty) Ltd (In Liquidation)
[1997] ZASCA 94
;
1998
(1) SA 811
(SCA) at 835B-D and the judgment of the Full Court in
Gamlan Investments (Pty) Ltd and Another v
Trilion Cape (Pty) Ltd and Another
1996 (3)
SA 692
(C) at 700G-701B.
[3]
In
Minister
of Environmental Affairs & Tourism v Phambili Fisheries (Pty)
Ltd; Minister of Environmental Affairs & Tourism
v Bato Star
Fishing (Pty) Ltd
,
[3]
Schutz JA trenchantly observed:
In
the great majority of cases the replying affidavit should be by far
the shortest. But in practice it is very often by far the
longest -
and the most valueless. It was so in these reviews. The respondents,
who were the applicants below, filed replying
affidavits of
inordinate length. Being forced to wade through their almost endless
repetition when the pleading of the case is
all but over brings
about irritation, not persuasion. It is time that the Courts declare
war on unnecessarily prolix replying
affidavits and upon those who
inflate them.