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[2011] ZAGPJHC 172
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Sher v Lazarus (43167/2010) [2011] ZAGPJHC 172 (15 November 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
43167/2010
DATE:15/11/2011
In the matter between:
SHER,
ALAN
IVOR
..................................................................................
Applicant
and
LAZARUS,
MICHEL
.......................................................................
First
Respondent
NORTHERN
MANOR INVESTMENTS (PTY) LTD
….......
Second
Respondent
J U D G M E N T
KGOMO, J
:
[1] In this application, the first respondent is applying for leave
or opportunity to file an answering affidavit to an application
launched by the applicant for postponement of an application he
(first respondent) launched on 3 November 2011, set down for 8
November 2011, for certain specified paragraphs of the applicant’s
replying affidavit together with the annexures thereto,
to be struck
out from the record of these proceedings;
alternative to the above;
That the first respondent be granted leave to file a further
affidavit in reply to the said replying affidavit, in order to deal
with the new matters raised therein. He also asked for the costs
thereof.
THE FACTS
[2] The parties herein have exchanged pleadings up to the stage
where the applicant filed a replying affidavit on 19 July 2011.
He
also filed a formal application for the condonation of the late
filing thereof on 20 July 2011.
[3] On Wednesday 2 November 2011 the first respondent filed a
supplementary affidavit to his answering affidavit. The filing
of
this supplementary affidavit followed the enrolment of the matter for
hearing on 23 August 2011 upon which date the first respondent
sought
a postponement of the matter for purposes of filing the supplementary
affidavit.
[4] The application was granted and the costs were reserved when this
ruling was made by the court on 26 August 2011.
APPLICANT’S VERSION OF SUBSEQUENT EVENTS
[5] According to the applicant, on 1 September 2011 he addressed a
letter to the first respondent in terms whereof, among others,
the
former placed the latter on terms to take whatever steps he deemed
necessary by no later than 9 September 2011, failing which
they
(applicants) would re-enrol the matter for hearing. This letter
confirmed to the first respondent the applicant’s receipt
of
notices in terms of Rule 35 from the former and which they allegedly
responded to and complied with. It further confirmed that
the
applicants afforded the first respondent an opportunity to inspect
the documents sought in terms of those two notices. The
applicant
also confirmed that the first respondent had requested a further
inspection of the same documents. He had tendered such
inspection at
a date and time nominated by the latter provided 24 hour notice was
given to the applicants. It was reiterated that
such inspection
should have taken place by the abovementioned cut-off date of 9
September 2011. The applicant also referred to
informal requests for
a variety of documents by the first respondent on 13 and 16 May 2011
and reminded the latter that if he wished
to inspect them, he should
follow prescribed procedures but see to it that such inspection had
been done by 9 September 2011.
[6] It is common cause that an inspection of documents by the first
respondent pursuant to the above was made around 9 and 14
September
2011.
[7] On 22 September 2011 the
first respondent’s attorneys, CK Friedlander Attorneys, wrote
to the Applicant asking for an
indulgence from the applicant to file
the supplementary affidavit as soon as possible. In his response
thereto dated 3 October
2011 the applicant mentioned the following
among others:
“
1.
… we afford your client 15 (fifteen) days from 23 September
2011 being the date referred to in paragraph 7 of your letter
to file
the supplementary affidavit which means the due date will be 14
October 2011.
We shall thereafter require 10 (ten) days to file a reply, if we
deem it necessary, which will make the reply due on 28 October
2011.
Thereafter we shall set the
matter down to be heard so that it will be finalised this year.
”
[8] The first respondent
responded through his attorneys on 20 October 2008 that his
supplementary affidavit (will) be prepared
and filed by 28 October
2011 subject to counsel’s availability.
[9] Applicant replied on 27 October 2011 in which the first
respondent was warned that:
“
…
if your affidavit is not in our office by 3 p.m. on the 28 October
2011 we will immediately thereafter enrol this matter for hearing.
”
[10] It is common cause that the said supplementary affidavit was
not filed by the first respondent on 28 October 2011. On 1 November
2011 the applicant enrolled the matter for hearing on 8 November
2011.
[11] On 2 November 2011 at 16h07 a copy of the first respondent’s
supplementary affidavit was filed. According to the applicant,
this
affidavit contained a number of new issues to which he was entitled
to or had a right to reply to. In terms of the Rules,
he had 10 days
to file a reply to that supplementary answering affidavit.
[12] Obviously the requisite period to reply could not be
accommodated within the period between its receipt (2 November 2011)
and the date of hearing, being 8 November 2011.
[13] To compound matters, the
first respondent’s the notice to strike out dated 3 November
2011 was filed together with a
further replying affidavit on the same
date at 15h10 – some 3 hours after the court roll had already
closed for the hearing
of 8 November 2011.
[14] According to the applicant, these two affidavits or sets of
papers were not paginated and ran into some 70 to 80 pages.
[15] It is also common cause that the above state of affairs falls
foul of the South Gauteng High Court Practice Manual.
[16] It is on the above grounds that on 4 November 2011 the
applicant addressed a letter to the first respondent notifying him
that he was seeking a postponement and that the latter should pay for
such a postponement.
[17] On the same day at about 15h28 a response was received from the
first respondent in which the latter agrees that the applicant
is
entitled to a postponement but not to an order of costs.
[18] Upon realising that the
issue of the costs to accompany the postponement was not going to be
resolved, the applicant brought
the formal application for a
postponement with costs against the first Respondent on attorney and
client scale on 7 November 2011.
[19] The applicant submitted that due to the fact that he struggled
for two (2) months to get a supplementary affidavit from the
first
respondent coupled with the latter’s recalcitrance to offer
costs for the indulgence he was seeking, he had no option
but to
enrol the matter for hearing. He averred further that the punitive
costs were called for as a redress for the first respondent’s
unnecessary and continued or continuous delay in filing his
affidavits after he (applicant) bent backwards to accommodate him,
even allowing or suffering cut-off dates to pass without
repercussions to the first respondent.
FIRST RESPONDENT’S VERSION
[20] The first respondent’s averments, submissions and
arguments are that after filing his supplementary affidavit on 2
November 2011 the applicant, well knowing that he (applicant) would
most likely amend his replying affidavit, proceeded to set
the matter
down for hearing on 8 November 2011.
[21] At the applicant’s request he, on 4 November 2011 agreed
to have the matter postponed on 8 November 2011 for him (applicant)
to amend his replying affidavit accordingly. It was on this basis
that the first respondent proposed on 4 November 2011 that the
costs
of the postponement be reserved as this course would save counsel
having to appear and representations could be properly
made at a
hearing in due course as to who was the cause of the postponement and
that a later court would also be better placed
to determine if the
applicant was actually required or necessitated to make any
consequential amendments to his replying affidavit.
[22] According to the first respondent the launching of the formal
application for postponement with punitive costs on 7 November
2011
was a bolt from the blue. He only became aware of it the morning of
the hearing on 8 November 2011.
[23] In the circumstances, so argued the first respondent, there was
simply no need to bring the postponement application as a
postponement was already agreed to.
[24] The first respondent also
denies being to blame for the 2½ months it took when the
parties exchanged letters as set
out in the applicant’s
exposé
above. He thus asks
for an opportunity to deal fully with the applicant’s
allegations justifying the punitive costs sought.
[25] First respondent submits and argues that the applicant will be
suffering no prejudice as a postponement have already been
consented
to and that on the contrary, he will suffer prejudice if he is unable
to respond properly to the postponement application.
[26] Counsel for the first respondent handed in at the hearing
hereof an affidavit by the first respondent in which he substantiates
his case for a chance or opportunity to file an answering affidavit
in this application for a postponement by the applicant. He
emphasis
and reiterates therein that it is his firm belief that this
application:
“
…
has been necessitated as a direct consequence of t he applicant
and his attorney unnecessarily and prematurely setting the main
application down for hearing on 8 November 2011 when the matter is
not ripe for hearing and that it is the applicant who should
in fact
pay the costs of the application.
”
[27] He stated further that he only saw this application for
postponement at his counsel’s chambers in Sandton on 8 November
2011 at 12h30 after he was only alerted by fax of its existence when
in court. According to him, his correspondence attorneys,
Krishnee
Pillay Attorneys received the application at 15h00 on 7 November 2011
but did not alert him to its existence immediately.
[28] He stated further that when they perused the applicant’s
affidavit, they realised that it did not fully and accurately
deal
with the circumstances surrounding the set down of the matter or main
application for 8 November 2011 or deal with various
other relevant
matters incidental thereto. He suggests that the applicant has been
unfairly selective in his disclosure of the
correspondence between
the parties over the past 2 to 3 months and of the facts leading up
to the set down of the main application
on 8 November 2011. According
to him further, there were other relevant written and oral
communications between the parties which
have been omitted in the
application. In addition, there are, according to him, circumstances
falling outside the knowledge of
the applicant which are required to
be disclosed and which will have an impact on the postponement
application, especially on an
order of costs, if any, to accompany
it. He further states that in order that he be able to fully state
his case in answer, he
will have to consult and obtain full
particulars from his Cape Town attorneys who corresponded on his
behalf with the applicant’s
attorneys over the past few months.
He will also have to obtain confirmatory affidavits from them
regarding what transpired between
his attorneys and applicant’s
attorneys. He will also have to peruse all his files and papers
pertaining to the main application
and the substantial correspondence
which as passed between the parties in the main application. He also
needs to consult with one
Mr Greenfield, a handwriting expert he has
instructed in this matter.
WHAT IS BEFORE THIS COURT NOW
[29] The first respondent has
certainly come up with an impressive “
to-do
”
list in reply to a simple issue of whether the postponement which is
common cause between the parties, should be accompanied
by a punitive
costs order against him. While I agree that the lead up to this
application is material and relevant to explain
who was to blame for
the delaying of the finalisation of this matter, it is my considered
view and finding that most of the details
he talks about in his
affidavit are not closely related to the issue in dispute here. The
common cause correspondence that has
been quoted and attached to the
application are in my view sufficient to helping this Court arrive at
a decision. Certainly one’s
handwriting expert’s evidence
may be relevant to the trial of the main action, not an interlocutory
application for a postponement,
which, worse still, is not opposed.
[30] Justice delayed is justice denied. It is clear from the papers
filed in this case that there is a lot of dilatoriness in
the conduct
of proceedings.
[31] The first respondent acknowledged the applicant’s letter
of 1 September 2011 wherein he was given a cut-off date of
9
September 2011 to do whatever he needed to do but be certain his
supplementary affidavit was filed by that date. This was accompanied
by a clear warning that should this deadline pass the main matter
will be enrolled. At this stage the first respondent had already
been allowed to inspect the documents he needed to inspect.
[32] The first respondent, through his Cape Town attorneys, asked
for an indulgence on 22 September 2011 to file the affidavit
late.
That was long after the 9 September 2011 cut-off deadline had passed.
The applicant relented and gave him 15 days calculated
from 23
September 2011 to do the necessary. The new cut-off date was 14
October 2011, with the applicant’s deadline to respond
being 28
October 2011. Again this indulgence was granted accompanied by the
threat to set the matter down should the deadlines
pass without the
first respondent complying. Instead, the first respondent waited
until 20 October 2011 before granting himself
a new deadline of 28
October 2011. The applicant bent backwards again and allowed him that
latitude, again with the proviso that
should he not have filed the
supplementary affidavit by 15h00 on 28 October 2011, he will:
“
…
immediately thereafter enrol this matter for hearing …
”
[33] All the above was done
through correspondence which is common cause.
[34] Upon realising that the applicant has indeed executed his
threat and enrolled the matter on 1 November 2011 for hearing on
8
November 2011, the first respondent went to work : He promptly
served a supplementary affidavit which the applicant says contained
new matters and thus needed to be responded to. And the period in
terms of the Rules for a response is 10 days. There was only
6 days
to the date of hearing. To add insult to injury, on 3 November 2011
he (first respondent) served the applicant with a notice
to strike
out and a further replying affidavit, 3 hours after the court rolls
have closed.
[35] The above were, in my
considered view, premeditated and conscious steps by the first
respondent to force a postponement of
the hearing of the main matter
on 8 November 2011. The applicant had no option but to broach the
subject of a postponement to which
the first respondent promptly
agreed or consented to. However, he was not prepared to tender costs.
[36] The general rule when postponements are sought is that he who
asks for an indulgence must pay or tender the costs. In this
case
the applicant started the talk of a postponement. However, the cause
and source of the need for a postponement is the first
respondent.
[37] He (first respondent) caused a protraction of this simple
matter by refusing to tender costs. It is my considered view and
finding that the odds are heavily stacked against the first
respondent. On the facts and probabilities he should be ordered to
pay the costs occasioned by the postponement. When this matter was
earlier postponed by my sister, Mayat J on 26 August 2011 she
ordered
that costs be costs in the cause. The parties were mistaken to state
that costs were reserved.
[38] The only question to be answered is whether the costs should be
on a party and party scale or an attorney and client scale.
[39] In awarding costs the court has a discretion to be exercised
judiciously upon a consideration of the facts of each case.
That
decision is a matter of fairness to both sides.
See:
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA 1045
(SCA) at 1055F-G.
Jonker
v Schultz
2002 (2) SA
360
(O) at 364A-H.
[40] The court is expected to take into consideration the
circumstances of each case, carefully weighing the issues in the
case,
the conduct of the parties and any other circumstance which may
have a bearing on the issue of costs and then make such order as
to
costs as would be in the discretion of the court. No hard and fast
rules have been set for compliance and conformity by the
court unless
there are special circumstances.
See:
Fripp
v Gibbon & Co
1913
AD 354
at 364.
[41] The applicant has asked for costs on attorney and client scale.
[42] Attorney and client costs are those costs which the attorney is
entitled to recover from his client in respect of disbursements
made
on behalf of the client and for professional services rendered by him
to his client. They are normally payable by the client
whatever the
outcome of the case and do not depend upon any award of costs by the
court.
[43] As against the above, party
and party costs are those costs which the winner of legal proceedings
can properly ask of his
opponent. The purpose thereof was clearly
set out in
Die
Voorsitter van die Dorpsraad van Schweizer-Reneke v Van Zyl
1968 (1) SA 344
(T) at 345 as follows:
“
As
uitgangspunt is dit nodig om in gedagte te hou dat ons te doen het
met ‘n kosterekening tussen party en party en dat in
the
algemeen gesproke die breë opset van so ‘n kosterekening
is om die party aan wie koste toegestaan is ten volle te
vergoed vir
kosts en uitgawes redelikerwys deur hom aangegaan en volgens die
oordeel van die takseermeester nodig en gepas om reg
te laat geskied
of om die regte van die partye te beskerm.
”
[44] There are rules of practice which courts follow in exercising
their discretions in the award of costs, namely:
The general rule is that the successful party is entitled to his
costs;
Where a successful application is made for the grant of an
indulgence the general rule is that costs do not follow the event;
In determining who is the successful party the court looks to the
substance of the judgment and not merely its form;
The court has the power to deprive a successful party of portion or
all of his costs and, in a proper case, to order him to
pay portion
or all of the costs of the unsuccessful party;
The court may order the losing party to pay the costs of the
successful party on an attorney and client scale basis; and
The court may order an
unsuccessful party, suing or being sued in a representative
capacity, to pay costs
de
bonis propriis
.
[45] Attorney and client costs
are only awarded under extraordinary circumstances or where they are
part of the parties’
agreement. For a party to be saddled with
an order of costs on attorney and client scale, such a party should
have acted clearly
mala
fide
and/or
misconducted itself in one way or another during the litigation
process. Such a party would have been capricious, brazen
and
cow-boyish in its approach to attract such an order.
[46] In our present case, it is my finding and view that the first
respondent was somewhat indolent in dealing with request and
time
frames. He did not act with the requisite diligence and alertness or
timeously. However, his conduct in my view had not crossed
the line
between the basis for an award of party and party costs and one on
attorney and client scale.
[47] It is thus my finding that this order of postponement should be
accompanied by an order of costs on a party and party scale.
ORDER
[48] Due to delay in the typing
of cases that was occasioned by the indisposition of the only
judgments typist at this Court, I
only read out the order in this
judgment to the parties on 15 November 2011.
[49] That order as handed down forms part of this judgment.
[50] After listening to submissions and argument from both sides,
perusing the papers filed of record, comparing and contrasting
the
authorities relevant hereto and considering the matter:
It is hereby ordered that the applicant’s/plaintiff’s
application for the amendment of his particulars of claim
dated 11
April 2011 be and is hereby dismissed with costs;
The application for the
postponement of this matter is granted. It is postponed
sine
die.
The applicants/plaintiff are ordered to pay the costs of the
application, which costs shall include the costs incurred by the
respondents/defendants in opposing the application in terms of
Uniform Rule 28 on 11 July 2011.
_____________________________
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANTS: ADV
A P HARTOG
INSTRUCTED BY: YOUNG-DAVIS
INC
ROSEBANK, JOHANNESBURG
TEL NO: (011) 994 6000
COUNSEL FOR THE RESPONDENTS: ADV
ADRIAN JACOBS
INSTRUCTED BY: JACOBS MOODIE
LITIGATION INC
and
MCGREGOR STANFORD KRUGER
ATTORNEYS
DATE OF ARGUMENT: 9 NOVEMBER
2011
DATE OF JUDGMENT: 15 NOVEMBER
2011