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[2010] ZAGPJHC 154
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Wanderers Club v Boyes-Moffat and Another (3623/2006) [2010] ZAGPJHC 154; 2012 (3) SA 641 (GSJ) (1 February 2010)
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
:
3623/2006
DATE
:
2010-02-01
REPORTABLE
REPORTABLE AS TO COSTS ONLY
(SUGGESTED FORMAT)
FULL
TEXT OF JUDGMENT ANNEXED (p 6-11)
In the matter between
THE
WANDERERS CLUB
.
PLAINTIFF
and
CHRIS
BOYES-MOFFAT
FIRST
DEFENDANT
THE
CITY OF JOHANNESBURG
SECOND
DEFENDANT
Costs – opposed application
for separation of issues in terms of Rule 33 (4) – costs of two
counsel – not justified
although complexity of issues to be
determined at trial may require appointment of two counsel –
dictum in Davis v Caledon
Municipality
1960 (4) SA 885
(C) at 887H
disapproved and not followed.
J U D G M E N T
VAN OOSTEN J:
This is an interlocutory application
in which the plaintiff seeks an order for the separation of issues in
terms of Uniform Rule
of Court 33(4). The application is opposed by
the second defendant. The first defendant abides the decision of this
court.
[The court dealt with the merits of
the application and then proceeded as follows]
In my view it will be both convenient
and expedient if the merits as a whole and the quantum of damages be
determined in separate
trials in accordance with the order sought by
the plaintiff as set out in the notice of motion.
I turn now to consider the costs of
this application. The plaintiff as the successful party will
generally be entitled to costs
(see, for example,
Union Government
(Minister of Railways and Harbours) v Heiberg
1919 AD 477
484). I
see no reason in the present matter to depart from the general rule.
A separation of issues along the lines sought in this
application has
long been proposed by the plaintiff, obviously in an attempt to
curtail the proceedings, but was opposed by the
second defendant
right from the outset. Counsel for the plaintiff asked for the costs
of two counsel. Reliance was placed on the
judgment of Van Wyk J in
Davis v Caledon Municipality and Another
1960 (4) SA 885
(C)
887H, where the learned Judge, having dismissed an exception with
costs, directed that such costs were to include the costs
of two
counsel on the sole basis that “if the main action justifies
two counsel then two counsel
must
be allowed in all
interlocutory applications” (underlining added). The award of
costs of two counsel in similar circumstances
has consistently been
followed in a number of cases. In
Ex parte Palmer NO: In re Hahn
1993 (3) SA 359
(C) 370B-D, Berman J, having referred to
Davis
as well as the apparent approval thereof by Friedman J (as he then
was) in
Gorfinkel v Gross Hendler & Frank
1987 (3) SA 766
(C) 776H, remarked that it had become the practice, certainly in the
Cape, to allow costs of two counsel in interlocutory or subsidiary
applications “where two counsel are properly employed in the
main matter by the party to whom costs have been awarded”.
In
Trust Bank van Afrika Bpk v Bitzer
1978 (4) SA 115
(O) Viljoen
AJ, placing reliance on
Davis
and the
obiter dictum
of
Broome JP in
Ebrahim’s Estate v Inanda Rural Licencing Board
1953 (4) SA 490
(N) 493H, allowed the costs of two counsel in an
opposed application to strike out, which in itself the learned Judge
found, did
not justify the costs of two counsel but on the basis that
it would be unfair not to allow those costs where the main
application
deserved two counsel. In this Division, Zulman J (as he
then was), in
Davies v Chairman Committee of the Johannesburg
Stock Exchange
1991 (4) SA 24
(W) 57 F-H, in determining the
costs reserved at an earlier hearing of the application before
another Judge, where two counsel
had appeared, with reliance on
Davis,
allowed the costs of two counsel.
I have given careful consideration to
the cases I have referred to. In none of those cases was costs of two
counsel either challenged
or argued. Insofar as Van Wyk J’s
remarks may be interpreted as to lay down a general rule that costs
of two counsel must
always be allowed in all interlocutory
applications relating to a main application that deserves two
counsel, I am in respectful
disagreement with the reasoning he
adopted and therefore do not regard myself as bound by it. The
general principle regarding the
award of costs is well-settled: it is
entirely a matter for the discretion of the court which is to be
exercised judicially upon
a consideration of the facts of each case
and in essence it is a matter of fairness to both sides (cf
Gelb v
Hawkins
1960 (3) SA 687
(A) 694A;
Graham v Odendaal
1972
(2) SA 611
(A) 616A; Cilliers
Law of Costs
2.03-2.05). A
general rule of thumb as stated by Van Wyk J, in my view, detracts
from the wide discretion which exists with regard
to costs. Or, as it
has been succinctly stated by Lloyd LJ in
Bolton Metropolitan
District Council v Secretary of State for the Environment
[1996]
1 All ER 184
186 (
Cilliers
op cit 1.04) “As in all
questions to do with costs, the fundamental rule is that there are no
rules. Costs are always in the
discretion of the court”.
In
De Naamloze Vennootschap Alintex
v Von Gerlach
1858 (1) SA 13
(T) Bresler J, with reference to
South African Railways and Harbours v Mills
1924 CPD 110
and
the authorities there reviewed, enumerated as relevant considerations
to the granting of the costs of two counsel, the length
of the
hearing of the argument, the importance of questions of principle or
of law involved and the number of authorities quoted.
Applying these guidelines to the
present matter, the complexity of the issues to be determined at the
trial of this matter justifying
the employment of two counsel is of
course one consideration, but on the other hand is outweighed by an
absence of any of the other
factors I have already referred to: the
present application reveals nothing out of the ordinary and the
issues, in my view, are
not of any legal or factual complexity. Nor
was it argued, or can it be said, that the employment of two counsel
in this application
was a wise and reasonable precaution (see
Newman
v Prinsloo and Another
1974 (4) SA 408
(W) 411A;
Zweni v
Minister of Law and Order (1)
1991 (4) SA 166
(W) 170A). That
being so, I can find no justification for allowing the costs of two
counsel.
In the result I grant an order for the
separation of issues in terms of prayers 1 and 2 of the notice of
motion and in addition
thereto, order the second defendant to pay the
costs of this application.
FHD VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE PLAINTIFF
ADV
J B BERRIDGE SC
ADV
C STEINBERG
PLAINIFF’S
ATTORNEYS
EVERINGHAM
RODGER NEL
COUNSEL
FOR THE SECOND DEFENDANT
ADV
R STOCKWELL SC
SECOND
DEFENDANT’S ATTORNEYS
.
WEBBER
WENTZEL
DATE
OF HEARING
1
FEBRUARY 2010
DATE
OF JUDGMENT
1
FEBRUARY 2010
DATE
REVISED
9
SEPTEMBER 2011
iAfrica Transcriptions
(Pty) Ltd
IN THE SOUTH GAUTENG HIGH
COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
:
3623/2006
DATE
:
2010-02-01
In the matter between
THE
WANDERERS CLUB
PLAINTIFF
and
CHRIS
BOYES MOFFAT
FIRST
DEFENDANT
CITY
OF JOHANNESBURG
SECOND
DEFENDANT
J
U D G M E N T
VAN OOSTEN J:
This is an interlocutory application
in which the plaintiff seeks an order for the separation of issues in
terms of Uniform Rule
of Court 33(4). The application is opposed by
the second defendant. The first defendant abides the decision of this
court.
The plaintiff seeks a separation of
issues which if allowed, will result in a two phased process,
firstly, a trial on the merits
and, secondly, a hearing on the
quantification of damages. The second defendant, however, raised the
reservation that a separation
of the determination of the quantum of
damages, as a whole, would necessitate again leading evidence on the
factual issue relating
to the question as to when its duty to
extinguish the fire commenced having regard to the fact that the
second defendant's fire
brigade arrived on the scene after the fire
had already started and thus after certain damage had already been
caused.
The objection in essence raises the
possibility of a duplication of evidence which, in my view, is more
apparent than real. This
aspect plainly cannot involve the leading of
a large body of evidence and would therefore even in the event of it
having to be
led again, not substantially affect the length of the
proceedings. The time of arrival of the second defendant’s fire
brigade
at the scene of the fire is an aspect that should be readily
capable of agreement between the parties. The possibility of this
minor issue still being alive after conclusion of the trial on the
merits therefore seems to me to be so remote that it can best
be
disregarded. I am accordingly satisfied that it will be both
convenient and cost effective to separate the issues of merits
and
quantum of damages.
That leaves for determination one
further refinement contended for by the second defendant. It concerns
the by now well-known “insurance
defence” raised by the
first defendant, which I have previously pronounced upon. What the
second defendant now contends for
is a two phased trial on the merits
of the matter, firstly, to determine the insurance defence and,
secondly, thereafter the remainder
of the defences that have been
raised. I am unable to find merit in the contention. As counsel for
the plaintiff correctly pointed
out, causation has specifically been
pleaded by the plaintiff in support of the alleged joint and several
liability of the defendants.
A determination of the insurance defence
in favour of the first defendant will therefore not automatically
release the second defendant
from liability. Although the insurance
defence raises a crisp issue, I am not satisfied that it warrants a
separate trial.
In my view it will be both convenient
and expedient if the merits as a whole and the quantum of damages are
determined in separate
trials in accordance with the order sought by
the plaintiff as set out in the notice of motion.
I turn now to consider the costs of
this application. The plaintiff as the successful party will
generally be entitled to costs
(see, for example,
Union Government
(Minister of Railways and Harbours) v Heiberg
1919 AD 477
484). I
see no reason in the present matter to depart from the general rule.
A separation of issues along the lines sought in this
application has
long been proposed by the plaintiff, obviously in an attempt to
curtail the proceedings, but was opposed by the
second defendant
right from the outset. Counsel for the plaintiff asked for the costs
of two counsel. Reliance was placed on the
judgment of Van Wyk J in
Davis v Caledon Municipality and Another
1960 (4) SA
885
(C) 887H, where the learned Judge, having dismissed an exception
with costs, directed that such costs were to include the costs
of two
counsel on the sole basis that “if the main action justifies
two counsel then two counsel
must
be allowed in all
interlocutory applications” (underlining added). The award of
costs of two counsel in similar circumstances
has consistently been
followed in a number of cases. In
Ex parte Palmer NO: In re Hahn
1993 (3) SA 359
(C) 370B-D, Berman J, having referred to
Davis
as well as the apparent approval thereof by Friedman J (as he then
was) in
Gorfinkel v Gross Hendler & Frank
1987 (3) SA 766
(C) 776H, remarked that it had become the practice, certainly in the
Cape, to allow costs of two counsel in interlocutory or subsidiary
applications “where two counsel are properly employed in the
main matter by the party to whom costs have been awarded”.
In
Trust Bank van Afrika Bpk v Bitzer
1978 (4) SA 115
(O) Viljoen
AJ, placing reliance on
Davis
and the
obiter dictum
of
Broome JP in
Ebrahim’s Estate v Inanda Rural Licencing Board
1953 (4) SA 490
(N) 493H, allowed the costs of two counsel in an
opposed application to strike out, which in itself the learned Judge
found, did
not justify the costs of two counsel but on the basis that
it would be unfair not to allow those costs where the main
application
deserved two counsel. In this Division, Zulman J (as he
then was), in
Davies v Chairman Committee of the Johannesburg
Stock Exchange
1991 (4) SA 24
(W) 57 F-H, in determining the
costs reserved at an earlier hearing of the application before
another Judge, where two counsel
had appeared, with reliance on
Davis,
allowed the costs of two counsel.
I have given careful consideration to
the cases I have referred to. In none of those cases was costs of two
counsel either challenged
or argued. Insofar as Van Wyk J’s
remarks may be interpreted as to lay down a general rule that costs
of two counsel must
always be allowed in all interlocutory
applications relating to a main application that deserves two
counsel, I am in respectful
disagreement with the reasoning he
adopted and therefore do not regard myself as bound by it. The
general principle regarding the
award of costs is well-settled: it is
entirely a matter for the discretion of the court which is to be
exercised judicially upon
a consideration of the facts of each case
and in essence it is a matter of fairness to both sides (cf
Gelb v
Hawkins
1960 (3) SA 687
(A) 694A;
Graham v Odendaal
1972
(2) SA 611
(A) 616A; Cilliers
Law of Costs
2.03-2.05). A
general rule of thumb as stated by Van Wyk J, in my view, detracts
from the wide discretion which exists with regard
to costs. Or, as it
has been succinctly stated by Lloyd LJ in
Bolton Metropolitan
District Council v Secretary of State for the Environment
[1996]
1 All ER 184
186 (
Cilliers
op cit 1.04) “As in all
questions to do with costs, the fundamental rule is that there are no
rules. Costs are always in the
discretion of the court”.
In
De Naamloze Vennootschap Alintex
v Von Gerlach
1858 (1) SA 13
(T) Bresler J, with reference to
South African Railways and Harbours v Mills
1924 CPD 110
and
the authorities there reviewed, enumerated as relevant considerations
to the granting of the costs of two counsel, the length
of the
hearing of the argument, the importance of questions of principle or
of law involved and the number of authorities quoted.
Applying these guidelines to the
present matter, the complexity of the issues to be determined at the
trial of this matter justifying
the employment of two counsel is of
course one consideration, but on the other hand is outweighed by an
absence of any of the other
factors I have already referred to: the
present application reveals nothing out of the ordinary and the
issues, in my view, are
not of any legal or factual complexity. Nor
was it argued, or can it be said, that the employment of two counsel
in this application
was a wise and reasonable precaution (see
Newman
v Prinsloo and Another
1974 (4) SA 408
(W) 411A;
Zweni v
Minister of Law and Order (1)
1991 (4) SA 166
(W) 170A). That
being so, I can find no justification for allowing the costs of two
counsel.
In
the result I grant an order for the separation of issues in terms of
prayers 1 and 2 of the notice of motion and in addition
thereto,
order the second defendant to pay the costs of this application.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE PLAINTIFF
ADV
J B BERRIDGE SC with him
ADV
C STEINBERG
PLAINIFF’S
ATTORNEYS
EVERINGHAM
RODGER NEL
COUNSEL
FOR THE SECOND DEFENDANT
ADV
R STOCKWELL SC
SECOND
DEFENDANT’S ATTORNEYS
WEBBER
WENTZEL
DATE
OF HEARING
1
FEBRUARY 2010
DATE
OF JUDGMENT
1
FEBRUARY 2010