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[2020] ZAGPJHC 68
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Levin v Corrigan (45456/17) [2020] ZAGPJHC 68 (16 April 2020)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
no: 45456/17
In
the matter between:
ROBERT
DAVID
LEVIN
Applicant/Plaintiff
and
MARK
CORRIGAN
Respondent/Defendant
Case
Summary
:
Practice – Uniform Rules of Court, r 39(22) – Transfer of
action proceedings from high court to magistrates’
court –
Whether high court should decide liability for costs incurred up to
stage when matter is transferred.
JUDGMENT
MEYER
J
[1]
The applicant, a senior counsel at the Johannesburg Bar, seeks an
order that an action, which he instituted in this court against
the
respondent for payment of an amount of R46 056 plus interest, be
transferred to the Randburg Magistrates’ Court and that
all
costs incurred to date be reserved for determination by the trial
court. The respondent, a businessman in Sandton, in
a
counter-application also seeks an order that the action be
transferred to the Randburg Magistrates’ Court, but that the
applicant be ordered to pay all his legal costs incurred in the
action ‘from inception until the date of this order’
on
the attorney and client scale, alternatively on the party and party
scale.
[2]
The applicant instituted the action on 22 November 2017.
Therein he claims damages, due to breach of contract, in the
amount
of R46 056.00, representing the fair and reasonable cost to him of
employing a contractor to plaster and paint a boundary
wall on the
side facing his property, constructed by the respondent following
building work which he undertook on his neighbouring
property.
[3]
In his particulars of claim the applicant relies on an oral agreement
that was concluded between him and the respondent in terms
of which:
(a) the applicant consented to the respondent demolishing the common
boundary wall between their two neighbouring properties
in Inanda,
Sandton; (b) the respondent would, on or before the completion of the
development, at his sole cost take all necessary
steps to replace the
demolished common boundary wall, construct a replacement new brick
common boundary wall, cause the side of
the new wall facing the
applicant’s property to be plastered and painted a dark green
colour and at a standard of finish
to match the remaining boundary
walls on the applicant’s property; and (c) the respondent would
ensure that the erected wall
was built in accordance with approved
building plans. It is the applicant’s case that the
respondent failed to cause
the side of the newly built boundary wall
facing his property to be plastered and painted, as agreed, and hence
the claim for damages.
[4]
The respondent, in his plea, dated 22 February 2018, denies the terms
of the agreement as pleaded by the applicant. According
to him
they only agreed that he ‘would build a new boundary wall in
accordance with building plans’. But, pursuant
to the
completion of the building of the boundary wall during May 2017, they
orally agreed that he would pay to the applicant an
amount of R20 000
for plastering and painting the boundary wall on the side of the
applicant’s property. He tendered
payment of that amount,
but the applicant refused to accept payment of that amount, and
repeats the tender in his plea. The
respondent further denies
that the amount claimed by the applicant constitutes the fair and
reasonable cost to employ a contractor
to plaster and paint the
boundary wall on the side facing the applicant’s property, and
pleads that the amount of R20 000
constitutes the fair and reasonable
amount.
[5]
The applicant denies the conclusion of the May 2017 oral agreement
upon which the respondent relies. At an early stage,
according
to him, he sent an electronic message to the respondent in which he
said this:
‘
Hi Mark, it is now weeks later
than you said you would be coming back to me about plastering and
painting our side of the wall.
I can have the work done for R20
000.00. If you like I will do but need to pay the contractor
virtually all up front.
Please let me know what you would like
to do failing which I shall have to hand the matter over for legal
redress.’
The
applicant states that his proposal was rejected by the respondent
when he repeatedly promised to have the work done by his own
contractor. As it happens, he states, the quotation he ‘had
from a workman proved entirely inadequate. This emerged
once
[he] obtained professional advice and a full quote on the cost and
requirements for the work’.
[6]
On 13 December 2017, following the receipt of the summons commencing
the action in this court, the respondent’s attorneys
wrote a
letter to the applicant’s attorneys urging the applicant to
withdraw the action and to tender the respondent’s
costs,
because, according to them, the matter belonged in the magistrates’
court and not in the high court. By letter
of even date, the
applicant’s attorneys advised the respondent’s attorneys
that summons ‘was advisedly issued
out of the High Court’
and that the applicant ‘will not withdraw the instant action or
tender [their] client’s
costs’.
[7]
In correspondence between the attorneys that followed in the
subsequent months, the respondent’s attorneys repeatedly
protested or suggested that the summons should have been instituted
in the magistrates’ court. The respondent required
the
applicant to withdraw the action or to launch an application to have
the matter transferred to the magistrates’ court
with
jurisdiction and he also intimated that he was going to launch such
an application, but he required the applicant to pay the
costs which
he had incurred in the high court or to ‘make an appropriate
tender of [his] costs thus far’. That
was unacceptable to
the applicant who believed he had good and sufficient reasons for
having instituted the matter in the high
court.
[8]
The applicant explains that he initiated the action in the high
court, because of the ‘circumstances which prevailed at
that
time
,
inter alia,
the
unfounded and scurrilous allegations made against [him] personally by
the defendant, which could potentially have impacted on
[his]
reputation and credibility – a serious issue for a senior
counsel of this Court.’ He states ‘that
the
respondent did not only dispute the quantum of the claim, but at that
time, disputed the existence of any agreement, including
casting
aspersions on [his] integrity in alleging such an agreement.’
T
he
dispute, according to him, at that stage ‘included allegations
of mala fides and impropriety made by the defendant against
[him]’.
He states that ‘until such time as the respondent belatedly
contended that we agreed on the payment of
R20, 000.00, which I
dispute, he strenuously denied that there was any agreement with me
as contended by me, or at all, relating
to plastering the wall.
’
Other than for bare
denials, the respondent does not engage with these factual averments
made by the applicant.
[9]
The registrar allocated 15 February 2019 as the trial date for the
action in this court. The applicant’s attorneys
served
the notice of set down for trial on the respondent’s attorneys
on 24 May 2018. On 28 June 2018, pursuant to admissions
sought by the
applicant at a pre-trial conference that was held on 13 June 2018,
the respondent admitted that he agreed to plaster
and paint the new
boundary wall on the side facing the applicant’s property and
he admitted his liability for ‘the
reasonable amount claimed
by the Plaintiff initially, in the sum of R20,000-00 (twenty
thousand rand), as tendered in his
plea’. According to
the applicant, although there had been good reason for him to
initiate the action in the high court,
once the respondent conceded
the existence of the agreement as well as a portion of the quantum of
his claim, ‘the only outstanding
matters for trial are the
issues of quantum and costs. The difference in quantum is not
an issue that should occupy the High
Court.’
[10]
On 15 November 2018 the applicant’s attorneys wrote to the
applicant’s attorneys, stating that-
‘
. . . on a conspectus of the
evidence filed in this matter, the remaining issues in the matter are
the quantum of the claim and
costs. On any basis, the gap
between the amount of the claim and your client’s settlement
figure leaves the dispute
as to quantum relatively small. In
those circumstances, it is incumbent on the parties to attempt to
resolve the issue as
to quantum and forum without incurring further
costs of suit, and you and your client are invited to engage in
‘without prejudice’
discussions to that end.’
The
respondent’s attorneys answered the same day, saying that
their-
‘
. . . client remains adamant
that given,
inter alia
,
the quantum of your client’s claim the action should never have
been brought in the High Court. All our client’s
rights
regarding same remain strictly reserved. In the interim, our
client once again invites your client to withdraw the
action in the
High Court and tender our client’s costs in order to avoid
further costs in this matter.’
The
applicant’s attorneys replied the next day, saying their-
‘
. . .
client
will not withdraw the action and tender costs, as suggested by you.
Your requirement that he does so is without merit,
unhelpful and
futile.’
[11]
The issue regarding the quantum of the applicant’s claim was
not resolved. On 30 November 2018, the applicant’s
attorneys again wrote to the respondent’s attorneys, saying-
‘
. . . in the
circumstances, our client hereby agrees to the transfer of the matter
to the Magistrate’s Court, having competent
jurisdiction, with
the costs thereof to be costs in the cause, alternatively that the
costs thereof be reserved for determination
by the eventual Trial
Court, including the removal of the matter from the High Court Trial
Roll, by consent. Our client would,
in those circumstances,
attend to the necessary steps to achieve the aforegoing.’
[12]
The respondent’s attorneys replied on 4 December 2018,
reminding them that it was the applicant who ‘was reluctant
and
refused to transfer the matter to the Magistrates Court . . . despite
repeated requests and later demands to have the matter
so
transferred’, and stating:
‘
5. Our client consents to the
transfer of the matter to the Magistrates Court but reserves his
rights to argue that the matter never
belonged in the High Court,
thereby our client will be seeking all costs occasioned by your
client in the High Court.
6. Your client should attend to the
removal of the matter from the High Court roll and all steps should
be taken by your client
to have the matter transferred. Our
client will provide whatever notices necessary with the reservation
of our client’s
aforesaid rights.’
[13]
On 5 December 2018, the applicant’s attorneys wrote back,
saying that-
‘
[i]n light of your
aforementioned correspondence, we shall now take appropriate steps to
cause the action to be transferred to the
Magistrate’s Court
with jurisdiction to hear the matter, costs reserved, by consent.
The High Court will be advised
accordingly.’
And in a follow-up letter
the next day:
‘
2.
Pursuant to the aforegoing, and in accordance therewith, kindly find
attached hereto, a Notice of Removal from the Trial Roll,
for you to
kindly sign at the appropriate space provided.
3. Once you have signed the attached
Notice of Removal from Trial Roll, kindly transmit a copy thereof to
us via e-mail, upon receipt
of which, we shall counter-sign same, and
thereafter attend to formally serve same on yourselves, and file same
at Court with the
Civil Trial Registrar.’
[14]
The respondent’s attorneys wrote back the same day, saying:
‘
3. Our client consents to
the matter being transferred to the Magistrate’s Court with
jurisdiction to hear the matter.
Our client does however, so
consent with the proviso that all costs (reserved or otherwise) in
the High Court matter be dealt with
before the matter is
transferred. Our client is of the view that your client should
tender to pay the costs associated with
the High Court matter and its
subsequent transfer. Should your client not tender costs, we
have instructions to address the
issue of costs in the High Court
before the transfer. One of the reasons for this is because the
Magistrate’s Court
cannot deal with historic High Court costs.
4. Our client further consents
to the removal of the matter from the trial roll with costs
reserved. We attach a copy
of the signed removal as requested.’
[15]
The applicant’s attorneys attended to the filing and service of
the notice of removal of the matter from the trial roll.
The
applicant maintains that the respondent did an about turn on 6
December 2018, in consenting to the transfer of the matter to
the
magistrates’ court only on the pre-condition that all costs in
the high court be dealt with before the matter is transferred
or that
the applicant tenders all costs associated with the high court matter
to that point and the costs of the transfer.
This,
according to the applicant, was contrary to the express agreement
reached between the parties in terms of their respective
attorneys’
letters dated 30 November 2018 and 4 December 2018 for the matter to
be transferred to the magistrates’
court, which agreement did
not assert those pre-conditions for the transfer. The
respondent, on the other hand, maintains
that paragraphs 5 and 6 of
his attorneys’ letter upon which the applicant relies do not
state that the costs incurred in
the high court would be reserved.
On the contrary, according to him, it was specifically stated that he
will be seeking all
costs occasioned by the applicant in the high
court.
[16]
The action has not run its full course in this court. The
pleadings and pre-trial procedures have been concluded, but
there was
not a trial. The parties, however, consented to the transfer of
the action to the Randburg magistrates’ court,
and the only
issue between them is the question of the costs incurred in the high
court before the transfer and of the present
application.
[17]
The respondent’s repeated demands in the correspondence from
his attorneys for the applicant to withdraw the action or
for the
matter to be transferred to the magistrates’ court and for the
applicant to pay his legal costs incurred in the high
court, and his
present claim for such costs, are premised,
inter alia
, on the
contention that ‘[t]he main action will effectively start
afresh in the Magistrate’s Court once the matter
was
transferred’, as stated by him in his affidavits. That
premise is clearly wrong. A case simply proceeds further
in the
magistrates’ court from the stage when it is transferred from
the high court to the magistrates’ court, and
does not start
afresh. The relevant costs at issue to date can thus only be
the difference between those in the magistrates’
court and
those in the high court, since, as the applicant correctly points
out, the relevant preparation of pleadings, discovery
and any other
process would have been necessary anyway. The matter is ripe
for hearing and simply requires a hearing and
a finding on the
limited issues that remain.
[18]
Rule 39(22) of the Uniform Rules of Court provides as follows:
‘
By consent the parties to a
trial shall be entitled, at any time, before trial, on written
application to a judge through the registrar,
to have the cause
transferred to the magistrate’s court: Provided that the matter
is one within the jurisdiction of
the latter court whether by
way of consent or otherwise’.
[19]
And r 50(9) of the Rules Regulating the Conduct of the Proceedings of
the Magistrates’ Courts of South Africa provides
thus:
‘
The summons or other initial
document issued in a case transferred to a court in terms of rule
39(22) of the Rules Regulating the
Conduct of the Proceedings of the
Several Provincial and Local Divisions of the High Court of South
Africa shall stand as summons
commencing an action in the court to
which such case has been so transferred and shall, subject to any
right the defendant may
have to except thereto, be deemed to be a
valid summons, issued in terms of the rules and any matter done or
order given in the
court from which such case has been transferred
and the case shall thereupon proceed from the appropriate stage
following the stage
at which it was terminated before such transfer.’
[20]
Furthermore, the respondent does not substantiate with evidence that
the costs he had thus far incurred have been any different
to or
greater than those he would have incurred to date had the action been
initiated in the magistrates’ court. The
remaining issues
at trial will be ventilated on the existing pleadings and pre-trial
procedures which have been completed.
[21]
The respondent’s contention to the effect that, because the
amount of the applicant’s claim falls within the jurisdiction
of the magistrates’ court, he was not entitled to initiate the
action in the high court, is also not entirely correct.
It is
trite, as a general rule, that ‘a litigant instituting
proceedings in the High Court when he or she ought to have proceeded
in a lower court will be mulcted in costs in so far as such litigant
will, if successful in his or her claim, be awarded costs
only on the
scale applicable in the forum he or she ought to have chosen’.
(
LAWSA
Vol 3 Part 2 Second Edition para 299.) However, a
plaintiff may justify his recourse to the high court, and the
question whether
high court costs or magistrates’ court costs
are to be awarded is a matter within the discretion of the trial
judge, to be
exercised judicially upon a consideration of all the
facts. (
Ramsuran and another v Yorkshire Insurance Co Ltd
1965 (2) SA 263
(D) at 264G-265A.)
[22]
The main considerations which may lead to a deviation from the
general rule under consideration, said De Wet J in
Barnard v SA
Mutual Fire & General Insurance Co Ltd
1979 (2) SA 1012
(SE)
at 1015H-1016A,
‘
. . . appear to be (a) where
the case presents considerable difficulties in fact or in law; (b)
cases of public interest; (c) cases
where the decision is of great
importance to the plaintiff, and (d) cases involving fraud and
misrepresentation. It would, therefore,
be wrong to suggest that,
whenever an award falls within the jurisdiction of the magistrate’s
court, the costs should automatically
be allowed on the magistrate’s
court scale and not on the Supreme Court scale. This decision
can be taken only after
the Court has considered all the facts before
it.’
[23]
The considerations mentioned by De Wet J are not exhaustive.
Other factors which may be relevant in permitting a deviation
from
the general rule, include that the plaintiff was justified in coming
to the high court to vindicate his reputation or professional
reputation or where he is an officer of the court. In awarding costs
on the high court scale in
Udwin v May
1978 (4) SA 967
(C) at
976C, Van Winsen J said that ‘[a]lthough the award of damages
[for defamation] is within the jurisdiction of a magistrate’s
court this case has involved important matters of principle and the
parties both occupy important professional positions in the
community’. And in
Gelb v Hawkins
1960 (3) 687 (A)
at 694B, Holmes AJA took into account
inter alia
that the
‘accusation was an extremely serious one’ and that the
‘appellant’s professional good name was
involved’.
In
Raliphaswa v Mugivhi and others
[2008] ZASCA 17
;
2008 (4) SA 154
(SCA), para
22, Snyders AJA held that, ‘[b]earing in mind that the
appellant is an officer of the court, he was entitled
to approach the
High Court’, even though his claim for damages based on
defamation and indecent assault fell well within
the jurisdiction of
the magistrates’ court.
[24]
I realise that this is not an action brought to vindicate the
applicant’s character or reputation, but whether the
considerations
referred to by him justified his initiation of the
action in the high court, should, together with all other relevant
factors,
best be considered by the trial court in exercising its
discretion in respect of costs at the conclusion of the trial.
To
require this court to do so at this stage in these proceedings is
premature. This decision can be taken only after the trial
court has considered all the facts before it.
[25]
Rule 39(2) of the Uniform Rules of Court is silent on the question of
costs incurred in the high court up to the stage when
an action is
transferred to the magistrates’ court, but r 50(10) of the
Magistrates’ Courts Rules provides that
such costs
‘shall, unless the court otherwise directs, be costs in the
cause.’ The costs incurred in the high
court before the
transfer, therefore, are generally costs in the cause. The
general rule, it is trite, is that costs follow
the event, in other
words the successful party should be awarded costs, and it should be
departed from only where good grounds
for doing so exist.
(
LAWSA
Vol 3 Part 2 Second Edition para 299.) This
general rule seems to me to be the ratio underlying r 50(10) of the
Magistrates’
Court Rules that the costs incurred before the
transfer of a case to the magistrates’ court shall ordinarily
be costs in
the cause. Here, the action has not yet been finalised
and it remains to be seen who the successful party would be.
Furthermore,
allowing a party to seek the costs of an action incurred
in the high court before the transfer of the matter to the
magistrates’
court would lead to piecemeal adjudication, the
wasteful use of judicial resources, increased legal costs and prolong
the litigation.
[26]
The magistrates’ court may award such costs as it deems fit and
as may be just. It may, for example, in its discretion
order
that the whole of the costs of the action be paid by the parties in
such proportions as it may direct. It may also
in certain
circumstances award costs as between attorney and client. (Section
48(d) of the Magistrates’ Courts Act and rules
33(1) and (11)
of the Magistrates’ Courts Rules.) Should the respondent
ultimately be the unsuccessful litigant and the general
rule that
costs follow the event is applied, then he would be in precisely the
same position of having to pay the costs of suit
on the magistrates’
court scale than he would have been had the action ran its full
course in the high court and the general
rule was applied that a
litigant instituting proceedings in the high court when he ought to
have proceeded in a lower court will
be awarded costs only on the
scale applicable in the forum he ought to have chosen.
[27]
The result is that in my view the sensible and appropriate order is
to reserve all costs incurred to date for determination
by the trial
court at the appropriate time. This conclusion is dispositive
of the application and counter-application and
renders it unnecessary
to consider the question whether paragraphs 5 and 6 of the
respondent’s attorneys’ letter dated
4 December 2018
amounted to a consent for the matter to be transferred to the
magistrates’ court with costs reserved, as
contended for by the
applicant, and the alternative awards of costs that ought to be made
should an award of costs as claimed in
the counter-application not be
made, as contended for by the respondent.
[28]
There remain, however, to be considered the costs of the present
application and counter-application. No good grounds
exist for
a departure from the general rule that costs follow the event.
The applicant as the overall successful party is
clearly entitled to
his costs of the application and of opposing the
counter-application. He requests costs on a punitive
scale.
But, in my view, this is not one of those ‘rare’
occasions where a deviation from the ordinary rule that
the
successful party be awarded costs as between party and party is
warranted, not as far as the application or the counter-application
is concerned. (See
LAWSA
Vol 3 Part 2 Second Edition
para 320.)
[29]
In the result the following order is made:
(a) The application
succeeds with costs.
(b) This action is
transferred to the Randburg Magistrates’ Court, all costs
incurred to date being reserved for determination
by the trial court.
(c) The
counter-application is dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Judgment:
16 April 2020
Counsel
for Applicant/Plaintiff: Adv JMA Cane SC (assisted by Adv AD Stein)
Instructed
by: Nowitz Attorneys, Hyde Park
Counsel
for Respondent/Defendant: Adv W Wannenburg
Instructed
by: Brits Muller Attorneys, Northcliff