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[2020] ZAGPJHC 223
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Waste Group Projects (Pty) Limited v Reshumile Environmental Co-operative Limited (33395/2018) [2020] ZAGPJHC 223 (6 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 33395/2018
In
the matter between:
THE
WASTE GROUP PROJECTS (PTY)
LIMITED Applicant/Defendant
and
RESHUMILE
ENVIRONMENTAL
CO-OPERATIVE
LIMITED Respondent/Plaintiff
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time
for
hand-down is deemed to be on 6 August 2020
GILBERT
AJ:
1.
The defendant in the main action launched an interlocutory
application on or about during 20 September 2019 seeking to set aside
the delivery by the plaintiff on 16 September of amended pages to its
particulars of claim.
2.
Both parties delivered full sets of affidavits and heads of argument
in the interlocutory application, and the matter was eventually
enrolled on 19 June 2020, by the plaintiff as respondent, for hearing
on the opposed roll for 3 August 2020.
3.
At the commencement of the argument, defendant’s counsel
indicated that he had instructions to remove the application from
the
roll as the application lacked merit. When asked whether in those
circumstances it was rather appropriate that the application
be
withdrawn, the defendant’s counsel agreed and subsequently
during the hearing confirmed that his mandate included withdrawing
the application.
4.
The plaintiff’s attorney, who appeared for the plaintiff as the
respondent, unsurprisingly had no difficulty with the application
being withdrawn but sought costs consequent upon the withdrawal, and
that such costs be paid on an attorney and client scale as
a result
of the manner in which the defendant conducted itself in relation to
its interlocutory application. The plaintiff had
given notice in its
heads of argument that punitive costs would be sought. Defendant’s
counsel, who had no instructions in
relation to costs, justifiably in
the absence of instructions could not accede to tendering costs.
Instead he argued that the defendant
should not be ordered to pay
costs consequent upon the withdrawal of its application, but that if
such costs were to be awarded,
such costs should not be on an
attorney and client scale.
5.
The application having been withdrawn by the defendant, the remaining
issue for me to determine is costs, including the scale
of those
costs.
6.
As the defendant withdrew its application, ordinarily it should pay
the costs of that application. Upon the defendant’s
counsel being asked why the ordinary costs order should not then
follow, the submission was that as the defendant as applicant
had not
set down its application but rather the plaintiff as respondent had
done so, the defendant should not be penalised for
having had to deal
with an application that it had not set down. The defendant’s
counsel further submitted that as it acted
reasonably in seeking not
to persist with its application, it should not be ordered to pay the
costs of the application.
7.
These submissions merely have to be stated in order to be rejected.
The defendant should have withdrawn its application a long
time ago,
particularly as it conceded at the commencement of argument that the
application was without merit. Instead the defendant
waited until the
commencement of the hearing of its application before withdrawing the
application. By that stage both the court
and the plaintiff as
respondent had prepared for the hearing of the application on an
opposed basis, particularly as the practice
notes and heads of
argument that had been filed all indicated that the matter was to
proceed on an opposed basis.
8.
It is extraordinary that the defendant as applicant can seek to fault
the plaintiff as respondent for setting down the defendant’s
application when the defendant, notwithstanding that it was
dominus
litis
in relation to its application, failed to do so. The
defendant as
dominus litis
in respect of the application
should have taken steps as to finalise its application, whether by
way of timeously withdrawing the
application, or by enrolling it. As
the defendant did not do so, the plaintiff was fully entitled to take
the initiative and enrol
the defendant’s application. Indeed,
the plaintiff had to do so in order to dispose of the defendant’s
application.
9.
The overall
impression created is that the manner in which the defendant as
applicant advanced, or more accurately failed to advance,
its
interlocutory application was designed to delay the plaintiff in its
prosecution of its action in the main proceedings. This
is no
reflection on the defendant’s counsel, who by all accounts
appeared to have been briefed late in the proceedings, and
then only
to be the bearer of the news that the defendant would not be
persisting its application.
[1]
10.
Also relevant in the exercise of a discretion as to an appropriate
costs order is the extent of the lack of merit of the defendant’s
application.
11.
The defendant’s objection to the delivery by the plaintiff of
its amended pages to its particulars of claim on 16 September
2019
were two-fold:
11.1. the plaintiff’s
notice of amendment delivered on 15 August 2019 in terms of
rule 28 was defective;
11.2. that the amended
pages that were subsequently delivered by the plaintiff on 16
September 2019, upon the defendant failing
to object to the intended
amendment within the prescribed ten-day period, were delivered a day
late.
12.
In relation to the first ground of objection, the defendant does not
set out in what respect the plaintiff’s notice to
amend was
irregular. Neither is the defect evident from a consideration of that
notice. In any event, the defendant took no steps
to raise any
complaint consequent upon receipt of what it contended was the
defective notice. It did not seek to invoke the provisions
of
rule 30, such as by giving notice to remove cause of complaint
in terms of rule 30(2)(b) in respect of what is contended
was the
irregular delivery of that notice. Instead, the defendant remained
silent, allowed amended pages to be delivered by the
plaintiff and
then only raised its objection when launching the present
interlocutory application, on 20 September 2019. Even then,
as
stated, the defendant did not specify what the defect was in the
plaintiff’s rule 28 notice,
13.
In relation to the second ground of objection, although the amended
pages were served one day late, the defendant makes out
no case
whatsoever as to the prejudice it suffered by the plaintiff’s
delivery of the amended pages one day late. As with
the first ground
of objection, the defendant did not first seek to furnish notice to
remove cause of complaint in terms of rule
30(2)(b) but instead
launched this present interlocutory application on 20 September
2019.
14.
In both the defendant’s founding and replying affidavits no
attempt is made to deal with such prejudice as the defendant
may have
suffered because of its grounds of complaint. It is trite that absent
prejudice, an application such as this cannot succeed.
It is
therefore not surprising that the defendant as applicant did not seek
to argue the application when it came time to do so.
15.
It is clear that the interlocutory application had no merit from
inception. At the very least, this should have been plain to
the
defendant upon receipt of the plaintiff’s opposing affidavit
during October 2019, where the deficiencies in the defendant’s
application are set out. Instead the defendant persisted, filing a
replying affidavit in November 2019 that does not address any
of the
identified deficiencies. That persistence in what proved to be an
abortive application lasted until the commencement of
the opposed
hearing on 3 August 2020. For some eleven months the parties were
engaged in what proved to be a pointless interlocutory
application,
consuming the litigants’ and the court’s time, and also
the litigant’s financial resources.
16.
The defendant’s conduct in raising frivolous objections was not
limited to the Rule 28 procedure. The defendant also sought
to raise
various objections to the manner in which the plaintiff as respondent
opposed the interlocutory application itself.
17.
The defendant objected that the answering affidavit in the
interlocutory application had been delivered late. Apart from the
defendant not alleging any prejudice arising therefrom, as the
application is an interlocutory application and so is regulated
by
rule 6(11) rather than by rule 6(5), it is questionable, at
least, whether the plaintiff as respondent could have
been said to be
late in delivery of its answering affidavit.
18.
The second
objection raised by the defendant to the plaintiff’s opposition
in the interlocutory application is that the attestation
of the
answering affidavit was defective in that the Commissioner failed in
the attestation to specify the gender of the deponent.
The
attestation reads “
Thus
signed and sworn to at Johannesburg on this the 10
th
day of October 2019, the deponent having acknowledged that
he/she
knows and understands the contents of this affidavit, that it is both
true and correct to the best of
his/her
knowledge and belief, that
he/she
has no objection to taking the prescribed oath and that the
prescribed oath will be binding on
his/her
conscience.
”
(The emphasis is mine). The complaint is directed at the
Commissioner’s failure to have made the relevant deletion
in
the wording of the attestation so as to specify the gender of the
deponent. This objection has no merit, particularly where
the
deponent is expressly described in paragraph 1 of that affidavit as a
male, no prejudice is alleged by the defendant as arising
therefrom
and where no concern is raised by the defendant that the affidavit
may not have been attested to before a commissioner.
[2]
19.
The defendant as applicant has raised an array of objections, which
are either ill-founded or of such a technical nature that
the
defendant could not reasonably have anticipated that they would have
been upheld, and where in all instances there was no cognisable
prejudice that the defendant may have suffered because of those
objections.
20.
In
Oos-Randse Bantoesake Administrasieraad v Santam
Versekeringsmaatskappy Bpk en Andere (1)
1978 (1) SA 160
(W) the
plaintiff applied to set aside an irregular notice of intention to
defend. The defendant subsequently remedied the defect
but the
plaintiff persisted in claiming the costs of the application. The
court refused to grant such costs, finding at 164D that:
“
The application
was, therefore, an empty but expensive exercise in formalism which
did not yield, and could not have been expected
to yield, any
advantage to the applicant.
”
21.
The present instance is an
a fortiori case
in that the
objections raised by the defendant as applicant did not have merit.
All that the interlocutory application achieved
was an expensive
exercise that yielded no benefit to the defendant and which delayed
the plaintiff in the prosecution of its action.
22.
The defendant’s counsel sought to rely on the recent decision
of
Maribatsi v Minister of Police and another
[2020] ZAGPJHC
150 (17 June 2020) for support that a punitive costs order
should not be granted, particularly paragraph 12:
“
[12.] The
consideration behind punitive costs is to punish a litigant who is
in the wrong due to the manner in which he or she approached
litigation or to deter would-be inflexible and unreasonable litigants
from engaging in such inappropriate conduct in the future.
”
23.
The principles governing punitive costs are usefully set out in
Maribatsi
and are trite. For example, Molahlehi J found that:
“
[13] It
has generally been said in several of the cases that the Court will
issue a cost award on attorney and client scale
as a matter of
showing its displeasure against a litigant’s objectionable
conduct...
[14] In determining
whether the behaviour of a litigant is objectionable, the Court will
have regard to the nature of the litigant’s
conduct. As stated
in Telkom SA SOC Limited and Another v Blue Label Telecoms Limited
and Others,
[3]
costs
are ordinarily ordered on the party and party scale. The Court will
in the exercise of its discretion and in exceptional circumstances,
award costs on a punitive scale.”
24.
Whichever phraseology is adopted, the defendant as applicant was
wrong and handled itself inappropriately in the conduct of
its
interlocutory application. The defendant’s behaviour was
objectionable. The defendant should be deterred from such
conduct in
the future. There exists exceptional circumstances for the court in
the exercise of its discretion to award costs on
a punitive scale.
25.
In the circumstances, I in the exercise of my discretion find that
the defendant as applicant is to pay the costs of its withdrawn
interlocutory application, and that such costs should be on an
attorney and client scale.
26.
The following order is made:
26.1. The defendant as
applicant is to pay the costs of its application dated 19 September
2019 and as withdrawn on 3 August
2020;
26.2. The defendant as
applicant is to pay the costs of that application on an opposed basis
and on an attorney and client scale.
_________________
Gilbert
AJ
Date
of hearing: 3 August 2020
Date
of judgment: 6 August 2020
For
the Applicant/Defendant: Mr Baloyi
Instructed
by: Mphoke P.K. Magane Inc.
For
the Respondent/Plaintiff: Mr Ndabeni (Attorney)
Instructed
by: M Ndabeni Attorneys
[1]
For
example, the defendant’s heads of argument served on 19 May
2020 appear to have been prepared by the defendant’s
attorneys
and not by counsel.
[2]
Capriati
v Bonnox (Pty) Ltd and Another
(101816/2016)
[2018] ZAGPPHC 345 (10 May 2018), para 4 to 14, distinguishing
ABSA
Bank Limited v Botha NO and others
2013 (5) SA 563 (GNP).
[3]
2014 (4) All SA 346
(GNP) at paras 34 and 35.