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[2015] ZAGPJHC 224
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Le Roux and Others v Standard Bank of South Africa Ltd and Others; Le Roux and Another v Standard Bank of South Africa Ltd and Others; In re: Standard Bank of South Africa Ltd v Plaston Boerdery CC (36381/2011; 67261/2009) [2015] ZAGPJHC 224 (16 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 36381/2011
67261/2009
DATE:
16/9/2015
In
the matter between:
-
JOHAN
FRANCOIS LE ROUX
First
Applicant
PIETER
DANIEL LE ROUX
Second
Applicant
JPP
BOERDERY (PTY) LTD
Third
Applicant
DELKOP
BOERDERY BELEGGINGS CC
Fourth
Applicant
K’SHANI
PRIVATE GAME RESERVE (PTY) LTD
Fifth
Applicant
and
STANDARD
BANK OF SOUTH AFRICA LTD
First
Respondent
MICHAEL
LAWRENCE STUART N.O.
Second
Respondent
MARGUERITE
ROUX N.O.
Third
Respondent
PETRUS
JACOBUS CORNE VAN STADEN N.O.
Fourth
Respondent
KHASHANE
LA MMAPOWANA MANAMELA NO.
Fifth
Respondent
JERRY
SEKETA KOKA N.O.
Sixth
Respondent
ENVER
MOHAMED MOTALA N.O.
Seventh
Respondent
AND
Case
No. 67261/2009
JOHAN
FRANCOIS LE ROUX
First
Applicant
PIETER
DANIEL LE ROUX
Second
Applicant
and
STANDARD
BANK OF SOUTH AFRICA LTD
First
Respondent
PETRUS
JACOBUS CORNE VAN STADEN N.O.
Second
Respondent
KHASHANE
LA MMAPOWANA MANAMELA NO.
Third
Respondent
JERRY
SEKETA KOKA N.O.
Fourth
Respondent
ENVER
MOHAMED MOTALA N.O.
Fifth
Respondent
In
re
:
STANDARD
BANK OF SOUTH AFRICA LTD
Applicant
and
PLASTON
BOERDERY CC
Respondent
JUDGMENT
JANSEN
J
Background
:
[1]
Two
applications were set down as a special motion to be heard on 17 and
18 February 2015. The applications have a very long
and
tortuous history which is, to a large extent, incomprehensible, due
to the applicants’ haphazard way of litigating.
[2]
When
the matter was called, Mr van Zyl sought to seek a postponement on
behalf of the applicants on the basis that he had been briefed
the
previous Friday and had been briefed to seek a postponement of the
matter only. No formal affidavit seeking a postponement
was
filed and the application for a postponement was argued from the
bar. Needless to say, it was refused. Thereafter,
Mr van
Zyl excused himself as he had not been briefed on the merits.
In addition, his attorney was not present in court but
allegedly at
the Supreme Court of Appeal. Both the advocate for the
respondent, Mr N Konstantinides and his attorney phoned
the offices
of the applicants’ attorney of record only to ascertain that he
was in his office and not at the Supreme Court
of Appeal. As a
result, the court informed Mr van Zyl to warn his attorney that the
court was considering making a costs
order
de
bonis propriis
against
him.
[1]
To date, no
affidavit has been filed by the applicants’ attorney of record
to seek to explain his conduct and the reason
why Mr van Zyl found
himself in the invidious position in which he was. (According
to Mr Van Zyl all the previous advocates
had been fired –
allegedly due to a lack of instructions). Mr van Zyl also
mentioned that his attorney of record had
filed complaints against
three advocates of the Pretoria Society of Advocates, whom the said
attorney had used in these matters.
This would appear, in the
absence of an explanation from the attorney, to be an attempt to
transfer blame given the attorney’s
conduct referred to above.
[3]
Ledwaba
DJP directed that the two applications (case no. 36381/2011 and
67261/2009) be heard together. The applicants had
been ordered
to file their heads of argument by the 14
th
of November 2014 and Standard Bank by the 28
th
of November 2014.
[4]
Contrary
to the practice directive issued by Ledwaba DJP, the applicants
delivered a practice note and heads of argument under case
number
36381/2009 only, and briefly therein referred to case number
67261/2009. The heads of argument filed were entitled
“short
heads of argument” and the applicants omitted to file any heads
in case number 67261/2009.
[5]
As
stated by the respondent’s counsel in his in its heads of
argument on behalf of the respondents: —
“
The
application under case number 36381/2011, which was launched by the
applicants in that matter during June 2011, amounts in essence
to an
application for rescission of the Summary Judgment entered by His
Lordship Mr. Justice Du Plessis (‘Judge Du Plessis’)
against four of the applicants under case number 36381/2011 and an
entity known as Plaston Boerdery CC:
Although
rescission is pursued by Applicants as the main relief, alternative
grounds of relief are also prayed for under the notice
of motion,
albeit that The Standard Bank of South Africa Ltd (‘Standard
Bank’) contends that the said alternative relief
amounts in
essence to a prayer for rescission;
”
[6]
The
grounds cited for rescission are far ranging – from impropriety
on the part of the applicants’ erstwhile legal representatives,
attacks against the advocate appearing before Du Plessis J, an
alleged release of the principal debtor from a debt thus allegedly
prejudicing the sureties (the applicants), a sale in auction
allegedly not being properly advertised, an alleged novation of a
debt by Standard Bank with an entity called Magnolia Ridge etc. It is
unnecessary to traverse this plethora of grounds for rescission
in
view of what is set out below.
[7]
The
second application, 67261/2009 relates to the liquidation of Plaston
Boerdery CC as set out in the respondent’s heads
of argument: —
“
On
account of the actions on the part of the First and Second
Applicants, who attended the sale in execution and purchased the
items on sale (in the name of K’Shani Private Game Reserve
(Pty) Limited) and never paid for them, the attempt to execute
was
subverted.
The
inability successfully to execute against Plaston Boerdery CC
resulted in Standard Bank incepting liquidation proceedings against
it.
”
[8]
As
a result, Poswa J, on the 18
th
of December 2009, placed the estate of Plaston Boerdery CC under
liquidation.
[9]
Leave
to appeal Poswa J’s judgment was sought and declined. Ditto
regarding a petition to the Supreme Court of Appeal.
Yet
another appeal to the Constitutional Court met with no success.
To state that the applicants are serial litigants seems
to be
somewhat of an understatement.
[10]
In
an astonishing turn of events, the second application is an
application for leave to appeal the order of Poswa J – in the
face of all the unsuccessful applications for leave to appeal.
This approach is breathtaking in its insouciance. It
is
accompanied by a so-called application for condonation for the late
filing of the application for leave to appeal. This
application
is so flawed that one is hard-pressed to believe that it was actually
launched.
The
first application
:
[11]
The
facts and circumstances surrounding the summary judgment granted by
Du Plessis J on the 6
th
of March 2009 are that because of the agreement entered into between
the respondent and Magnolia Ridge on the 30
th
of May 2007 (after Standard Bank had initiated proceedings against
the principal debtor on the 25
th
of September 2008) a novation of the debt had occurred and the
sureties had been prejudiced. The first four applicants in
case
number 36381/2011 were sued as sureties and co-principal debtors for
the indebtedness of Magnolia Ridge to Standard Bank.
[12]
No
affidavit resisting summary judgment was filed by the sureties
including Plaston Boerdery CC (the principal debtor which had
also
signed as a surety).
[13]
The
agreement was that Magnolia Ridge would return the earthmoving
equipment which it had purchased from Standard Bank, pending
an
undertaking to make payment of the outstanding monies in terms of its
ten instalment sale agreement with Standard Bank. As a
result, the
summary judgment set down for the 20
th
of November 2008, was postponed. Magnolia Ridge returned the
equipment but failed to make payment of the outstanding amounts.
[14]
As
a result of the breach by Magnolia Ridge of its undertaking, Standard
Bank brought the application for summary judgment against
the
sureties for the week commencing the 23
rd
of February 2009.
[15]
Advocate
“X”, whom the court knows for his honesty, appeared on
behalf of the sureties and requested Du Plessis J to
stand the matter
down until the next Friday in order to grant the sureties time to
make payment in full to Magnolia Ridge.
Du Plessis J acceded to
the request. Advocate “X” further told Du Plessis J
that he held instructions that, insofar
as payment was not made as
undertaken, he tendered judgment.
[16]
Because
payment was not made, Du Plessis J entered summary judgment against
the sureties.
[17]
Standard
Bank has various defences against the rescission application, namely
as stated above, the applicants’ attack on each
previous legal
representative; that the application deals with previous litigation
in which they were embroiled with ABSA BANK;
that the application
sets out the alleged wealth of the Le Roux brothers and deals with
other matter which do not have any bearing
on the issues and which
are wholly irrelevant to the rescission application which application
runs into 980 pages. As stated,
prejudice to the sureties is
also raised as a defence (due to Standard Bank liquidating Magnolia
Ridge), and an alleged cancellation
of the original instalment sale
agreements. As a result it was stated by the applicants that
the instalment sale agreements
had been cancelled.
[18]
In
essence therefore it was argued that at the time of the grant of the
summary judgment, the sureties were no longer indebted to
Standard
Bank, having been prejudiced, and furthermore the ten instalment sale
agreements had been cancelled. In addition,
the reason for the
non-filing of an affidavit in opposition of the summary judgment is
stated by the applicants to be the following: —
“
As
the goods had been voluntarily returned by Magnolia to the first
respondent as set out above, the second applicant and I were
confident that, as the goods were of sufficient value to cover
Magnolia’s indebtedness to the first respondent, the sureties
would in any event not have to pay anything to the first respondent.
”
[19]
Allegedly
the applicants’ erstwhile attorneys grievously wronged them by
not informing them of all of the defences raised
in the rescission
application.
[20]
However,
when the le Roux brothers became aware of the fact that a summary
judgment had been granted against them, they did nothing
and in fact,
in written documents, admitted the liability of Magnolia Ridge to
Standard Bank for the shortfall in the liquidation
of Magnolia Ridge.
[21]
Hence,
the applicants are no longer in a position to contest their liability
to Standard Bank.
[22]
Furthermore,
notwithstanding all the allegations aforesaid, the applicants waited
two and a half years before launching the rescission
application
against the judgment of Du Plessis J. Although termed a rescission
application it does not fall within the provisions
of Rule 31(2)(b)
of the Uniform Rules of Court because no defence is made out which
can be termed
bona
fide
(not to mention the non-compliance with the time period set out in
the rule).
[23]
In
its heads of argument, Standard Bank argues that: —
“
The
Applicants have misconstrued the legal effect of Magnolia Ridge
having handed over possession of the farm and earthmoving equipment
to Standard Bank in November 2008. The Applicants advance the
proposition that the effect of the handover was to bring about a
cancellation of the ten instalment sale agreements. On the
strength hereof the Applicants mount the challenge that the sale
of
the goods and the sale of the farm and earthmoving equipment by the
liquidators of Magnolia Ridge was incompetent, given that
the said
farm and earthmoving equipment no longer form part of the estate of
Magnolia Ridge (in liquidation).
The
above construct is misguided and fails to head the legal consequence
of the common cause agreement concluded in November 2008.
The
facts established that on a proper construction of the agreement of
November 2008 it admits of only one consequence.
The ten
instalment sale agreements were kept alive. However, it was an
express term of the agreement that, insofar as Magnolia
Ridge
discharged its obligations to Standard Bank by 17 February 2009,
Standard Bank would return the farm and earthmoving equipment
to
Magnolia Ridge, whereafter the ten instalment sale agreements would
run their course. There would be no basis upon which
Magnolia
Ridge would become entitled to the return of the equipment and for
the resumption of the ten instalment sale agreements
after the
arrears were settled in February 2009, if the giving up the
possession of the farm and earthmoving equipment had the
consequence
of cancelling the agreement.
”
[24]
Furthermore,
to add insult to injury, with full knowledge of the summary judgment,
on the applicants’ version, they attended
the sale of the
movable assets of Magnolia Ridge in August 2009 and, after purchasing
the equipment, failed to pay therefor.
[25]
This
conduct, and the Le Roux brothers’ admission of their
indebtedness to Standard Bank, is incongruent with an intention
to
seek the rescission of Du Plessis J’s judgment.
[26]
However,
and most importantly, no grounds are advanced for a hiatus period of
some two and a half years after the grant of the summary
judgment.
[27]
As
a result of Standard Bank’s belief that the rescission
application is scurrilous and vexatious, as envisaged by Rule 47(1),
the applicants were requested to furnish security. All the
applicants admitted that they had to furnish security, which they
did, hence conceding Standard Bank’s allegations of scurrilous
and vexatious conduct and an abuse of court proceedings.
The
second application
[28]
The
applicants’ argument that the second application (allegedly “an
appeal”) for rescission of Poswa J’s
judgment based on
the fact that it is allegedly a nullity, and hence void
ab
initio
is, in the court’s opinion, nonsensical.
[29]
As
stated, this judgment was unsuccessfully appealed against and all
further applications for leave to appeal to the Supreme Court
of
Appeal and the Constitutional Court met with failure.
[30]
The
current “appeal” application and condonation application
have absolutely no foundation in law whatsoever and is
devoid of
merit.
Conclusion
on the merits of the applications
[31]
As
a result of the complete lack of any merit in any of the two
applications and the applicants’ conduct in launching them
nonetheless, warrants a punitive costs order.
[32]
Furthermore,
the oral application from the bar for a postponement at the hearing
of the matter, is shocking. The attorney
did not even have the
courtesy to inform the court that a postponement would be sought.
In this regard, Standard Bank referred
to correspondence which had
been exchanged between the parties before this sudden twist of
events.
[33]
From
what has been set out above, the applicants’ conduct has been
dilatory and obstructive to the extreme. In fact,
the court has
never encountered such conduct.
[34]
In
addition, Standard Bank had to threaten the applicants with an
application to strike out before they provided security for costs,
and, as stated, no proper heads of argument were ever filed.
[35]
Standard
Bank’s attorney, Roy Suttner Attorneys (“
Mr
Suttner
”)
on the 19
th
of March 2014 and the 25
th
of March 2014 pointed out to Louis Benn Attorneys (“
Mr
Benn
”)
that proper heads of argument had not been filed by the applicants.
[36]
These
e-mails were neither acknowledged nor responded to. In
desperation, Mr Suttner approached Ledwaba DJP per letter placing
Mr
Benn’s conduct on record: —
“
The
response which was forthcoming was a letter from Mr. Benn to Mr.
Suttner, dated 29 May 2014, in which the applicants noted that
on
their version the undertakings in regard to Heads of Argument was
that the 23
rd
of May 2014 represented a date on which the heads ‘…could
not be finalised…’, recording further that
it was not
the intention of the Applicants ‘…to provide you with a
firm date when the Heads of Argument would be finalised.’,
adding that ‘the matter is receiving urgent attention and the
heads of Argument will be served on your offices soon.
’”
[37]
On
the 18
th
of June 2014 and the 7
th
of July 2014 Mr Suttner once again recorded that no heads of argument
were forthcoming: —
“
On
4 August 2014, Mr. Suttner addressed an e-mail to Mr. Benn recording
that ‘Our emails dated 13 May, 2014, 18 June, 2014
and 7 July
have reference….You have ignored all our correspondence.
’”
[38]
Mr
Suttner then approached Ledwaba DJP seeking a meeting with him on the
28
th
of October 2014. This fact was communicated to Mr Benn by way
of e-mail and Mr Suttner also confirmed the date per e-mail
with
Ledwaba DJP. No response, as per usual, was forthcoming from Mr
Benn.
[39]
On
the 29
th
of September 2014 Mr Suttner addressed a further letter to Mr Benn,
by way of email and fax.
[40]
On
the 30
th
of September 2014 Ledwaba DJP indicated per e-mail that he would see
the parties on the 7
th
of October 2014. Given the earlier date, Mr Suttner enquired
per e-mail from Ledwaba DJP whether the date was correctly reflected
in his e-mail.
[41]
Furthermore,
on the 1
st
of October 2014, Mr Suttner addressed a further e-mail to Mr Benn
referring to his earlier e-mails of the 23
rd
and 24
th
of September 2014 and the new date of the 7
th
of October 2014.
[42]
Mr
Suttner informed Ledwaba DJP that he and his counsel would make
themselves available on the 7
th
of October 2014 and would inform Mr Benn accordingly, which Mr
Suttner duly did.
[43]
The
applicants did not attend the meeting of the 7
th
of October 2014, and Mr Suttner again duly addressed an e-mail to Mr
Benn dated the 10
th
of October 2014, enclosing his e-mails of the 23
rd
and 24
th
of September 2014, and the communication from Ledwaba DJP.
[44]
On
the 24
th
of October 2014 Mr Benn awoke from his slumber. Mr Benn wrote
an e-mail to the following effect: —
“
We
also record our dismay with the expediting of the meeting with the
Deputy Judge President from the 28
th
of October 2014, which was the original date allocated, to the 7
th
of October 2014. Your notification by email that the meeting
has been moved to the 7
th
of October 2014, was unnoticed. We were involved in a trial and
could not attend the meeting in any event. We reserved
counsel
for the 28
th
of October 2014 which date suited both us and counsel
.”
[45]
On
the 14
th
of November 2014 Mr Benn filed a practice notice and there was no
indication that it would be impossible to file heads of argument.
[46]
On
the 18
th
of November 2014 Mr Suttner recorded that no heads of argument had
been received under case number 67261/2009.
[47]
On
the 27
th
of November 2014 Mr Suttner addressed an e-mail to Mr Benn recording,
inter
alia
: —
“…
the
conduct of our client or the filing of the heads of argument or
practice note is to in any way be construed
(sic)
as
a waiver of any of our client’s rights to, inter alia, resist
any attempt on the part of your clients to file either ‘long
heads’ under case number 36381/2011 or heads of argument out of
time in case number 67261/2009.
”
[48]
Mr
Benn remained mum again until the 3
rd
of February 2015, blaming counsel.
[49]
On
the 4
th
of February 2015, Mr Suttner beseeched Mr Benn to file proper heads
of argument, although out of time and expressly stated he would
not
stand in the applicants’ way should they wish to file their
heads of argument, albeit belatedly. Mr Benn was also
invited
by the applicants’ to draft an application for postponement if
they were unable to file heads of argument timeously.
[50]
Nothing
further was heard until the 13
th
of February 2015 when the first applicant in both applications (Mr.
Johan Le Roux) addressed a letter to Mr. Suttner containing
proposed
amendments to the notices of motion and setting out some basis upon
which Mr. Le Roux intended to deal with the matters.
Mr. Le
Roux also attached a 94 page document setting out a very wide array
of allegations.
[51]
The
refusal by this court, against the background aforesaid, to grant a
postponement is self-evident. No proper heads of argument
were
filed and neither was an application for postponement drafted. Mr
van Zyl was sent as the proverbial sacrificial lamb
to seek to argue
away Mr Benn’s conduct on the first hearing date.
[52]
A
postponement is not to be had for the asking. Factors to be
taken into account are:—
[52.1]
Whether the application has been timeously made;
[52.2]
Whether the explanation given for the postponement
is full and
satisfactory;
[52.3]
Whether there is prejudice to any of the parties and whether
the
application is opposed.
[2]
[53]
In
the matter of
National
Police Service Union and Others v Minister of Safety and Security and
Others
2000 (4) SA 1110
(CC)
at 1112 C-F, the Constitutional Court held as follows
: —
“
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement
seeks
an indulgence from the Court. Such postponement will not be granted
unless this Court is satisfied that is in the interests
of justice to
do so. In this respect the applicant must show that there is cause
for the postponement. In order to satisfy the
Court that good cause
does exist, it will be necessary to furnish a full and satisfactory
explanation of the circumstances that
give rise to the application.
Whether a postponement will be granted is therefore in the discretion
of the Court and cannot be
secured by mere agreement between the
parties. In exercising that discretion, this Court will take into
account a number of factors,
including (but not limited to): whether
the application has been timeously made, whether the explanation
given by the applicant
for postponement is full and satisfactory,
whether there is prejudice to any of the parties and whether the
application is opposed.
”
[54]
During
Mr Van Zyl’s oral application for a postponement it transpired
that Mr Benn had, as mentioned above, filed complaints
against not
only advocate “X” but also two other advocates of the
Society of Advocates. It appears to the court
that the third
advocate briefed in these matters had been fired in order to ask for
a postponement on the hearing date. Given
the warning conveyed
to Mr Van Zyl to advise Mr Benn that the court was considering an
order
de
bonis propriis
against
him, it is surprising that no affidavit has been forthcoming from Mr
Benn.
[55]
In
view of the flagrant conduct by Mr Benn: —
[55.1]
In ignoring directions issued by Ledwaba DJP;
[55.2]
Not answering e-mails;
[55.3]
Not filing proper heads of argument;
[55.4]
Blaming counsel;
[55.5.]
The absolute lack of any merit in the applications
launched by him;
[55.6]
The total waste of the court’s time in preparing for
the
special motion consisting of two applications; and
[55.7]
A lack of any endeavour to bring a substantive
application for
postponement, such an order seems to find application.
[56]
The
matter of
January
v Standard Bank of South Africa Ltd
(2235/2008) [2010] ZAECGHC 6 (28 January 2010)
at
paragraphs [35] to [70] contains a useful summary of cases which
demonstrate when costs orders
de
bonis propriis
will be granted.
[57]
In
the said paragraphs it is stated that the general principle at common
law is that a party who litigates in a representative capacity
(such
as a trustee) cannot be ordered to pay the costs
de
bonis propriis
unless he or she has been guilty of improper conduct.
[3]
Such party may however be ordered to pay such costs where there is a
want of
bona
fides
on his or her part or if he or she has acted with gross
negligence.
[4]
[58]
Orders
of this nature have been made against attorneys where, for example,
in the prosecution of appeals, there has been a flagrant
disregard of
the rules applicable to appeals and in particular the preparation of
the record.
[5]
[59]
Where
a legal practitioner has conducted himself flagrantly in disregard of
the rules of court such a cost order marks the Court’s
disapproval of such conduct.
[6]
[60]
In
particular, the citation from the case of
South
African Liquor Traders Association and Others v Chairperson Gauteng
Liquor Board and Others
2009 (1) SA 565
(CC)
at paragraph [54] is particularly relevant: —
“
An
order of costs de bonis propriis is made against attorneys where a
court is satisfied that there has been negligence in a serious
degree
which warrants an order of costs being made as a mark of the court’s
displeasure.
[18]
An attorney is an officer of the court and owes a court an
appropriate level of professionalism and courtesy. Filing
correspondence
from the Constitutional Court without first reading it
constitutes negligence of a severe degree. Nothing more need be added
to
the sorry tale already related to establish that this is an
appropriate case for an order of costs de bonis propriis on the scale
as between attorney and client. The order is made against the office
of the State Attorney, not personally against the attorney
concerned.
This Court’s displeasure is primarily directed against the
office of the State Attorney in Pretoria whose systems
of training
and supervision appear to be woefully inadequate.
”
[61]
In
Mcpherson
v Teuwen and Another
(2009/27002)
[2012] ZAGPJHC 18 (22 February 2012)
the
following case was cited with approval at paragraph [64]: —
“
In
Webb v Botha
1980 (3) SA 666
(N) at 673D–F,
an
attorney was saddled with an order to pay costs de bonis propriis for
obstructing the interests of justice, and have occasioned
unnecessary
costs to be incurred by all the parties to an appeal and delayed the
final determination of the action resulting in
a situation which was
seen as being potentially prejudicial.
”
[62]
In
Khan
v Mzovuyo Investments (Pty) Ltd
1991
(3) SA 47
(Tk)
the
court ordered the plaintiff’s attorneys to pay the costs of a
postponement of the matter
de
bonis propriis
in circumstances where the matter was set down when it was not ripe
for hearing after it had been removed from the roll on seven
previous
occasions. Hancke J outlined the approach (at page 48) as
follows: —
“
The
principle of awarding costs de bonis propriis is summed up by Innes
CJ in Vermaak's Executor v Vermaak's Heirs
1909
TS 679
at
691 as follows:
'
The
whole question was very carefully considered by this Court in
Potgieter's case
(1908
TS 982)
,
and a general rule was formulated to the effect that in order to
justify a personal order for costs against a litigant occupying
a
fiduciary capacity his conduct in connection with the litigation in
question must have been mala fide, negligent or unreasonable.'
See
also Estate Orr v The Master
1938
AD 336
;
Gangat v Bejorseth NO
1954
(4) SA 145
(D)
at 150; Grobbelaar v Grobbelaar
1959
(4) SA 719
(A)
at 725B - C; Venter NO v Scott
1980
(3) SA 988
(O)
at 993H.
In
my view plaintiff's attorney's slack and apparently unconcerned
handling of his client's case in the present matter, namely to
enrol
the matter while it was not ripe for hearing at a stage when it had
been either postponed or removed from the roll on seven
previous
occasions, amounts to such unreasonable conduct as to warrant the
present order as to costs. In my opinion it would be
grossly unfair
to order the plaintiff to bear the costs occasioned by his attorney's
unreasonable and negligent conduct, particularly
in view of the fact
that plaintiff was mulcted with costs on three previous occasions.
”
[63]
The
court hereby orders Mr Benn to pay the costs of the hearing days and
the further preparation of heads of argument setting out
the
background correspondence preceding the oral request for postponement
referred to by counsel for the respondents during oral
argument.
[64]
In
consequence, the following order is made: —
Order
1.
The
two applications are dismissed.
2.
Mr
Benn of the firm of attorneys of Louis Benn Attorneys is ordered to
pay the costs of the two hearing days
de
bonis propriis on
an
attorney and client scale as well as the costs incurred in drafting
heads of argument, at the court’s behest, setting out
the
e-mails which were exchanged between the parties’ attorneys,
preceding the hearing, on the same punitive scale.
3.
The
remaining costs pertaining to the applications are to be paid by the
applicants on an attorney and client scale, the one paying,
the other
to be absolved including any costs which may have been reserved on
previous occasions.
4.
All
such costs order are to include the costs of two counsel in the
instances where the services of two counsel were employed.
JANSEN
J
JUDGE
OF THE HIGH COURT
For
the Applicants
Advocate
Van Wyk
Instructed
by Louis Benn Attorneys (012 991 771/1115)
For
the First Respondent
Advocate
Konstantinides
Instructed
by Roy Suttner Attorneys c/o Jacobson & Levy Inc (012 342
3311)
[1]
The
court is in no position to delay the delivery of this judgment any
further.
[2]
Shilubana
v Nwamitwa (National Movement of Rural Women and Commission for
Gender Equality as Amici Curiae
[2007] ZACC 14
;
2007 (5) SA 620
(CC)
at paragraph
[10]
;
AG
Petzetakis International Holdings Ltd v Petzetakis Africa (Pty) Ltd
and Others (Marley Pipe Systems (Pty) Limited and Another
Intervening)
2012 (5) SA 515
(GSJ)
at paragraphs [7] to [8].
[3]
Cooper
NO v First National Bank of South Africa Limited
2001
(3) SA 705
(SCA)
.
[4]
Blou
v Lampert and Chipkin NNO and Others
1973
(1) SA 1
(A)
.
[5]
cf.
Napier
v Tsaperas
1995
(2) SA 665
(A)
;
H
Merks & Co (Pty) Ltd v B-M Group (Pty) Ltd and Another
[1995]
ZASCA 45
;
1996
(2) SA 225
(A)
;
Salviati
& Santori (Pty) Ltd v Primesite Advertising (Pty) Ltd
2001
(3) SA 766
(SCA)
;
Jeebhai
and Others v Minister of Home Affairs and Another
2009
(4) SA 662
(SCA)
.
[6]
Khunou
and Others v M Fihrer & Son (Pty) Ltd and Others
1982
(3) SA 353
(W)
;
see also
Washaya
v Washaya
1990
(4) SA 41
(ZH)
.