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2021
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[2021] ZAGPJHC 558
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Maureen Allem Inc and Another v Jooste and Others (43692/2018) [2021] ZAGPJHC 558 (6 April 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO.: 43692/2018
REPORTABLE
:
NO
OF
INTEREST TO OTHER JUDGES
: NO
REVISED
6
April 2021
In
the matter between:
DR
MAUREEN ALLEM INC
First Plaintiff / Applicant
SKIN
RENEWAL CC
Second Plaintiff / Applicant
and
DR
BURT JOOSTE
First Defendant / Respondent
THE
LONGEVITY INSTITUTE (PTY)
LTD
T/A THE LONGEVITY CENTRE
Second Defendant / Respondent
DR
BURT JOOSTE AND
ASSOCIATES
INC
Third Defendant / Respondent
ESTEE
VEALE
Fourth Defendant/ Respondent
TAMARA
MOEN
Fifth Defendant / Respondent
XENEPHIN
LUDICK
Sixth Defendant / Respondent
Coram:
Molahlehi J
Delivered:
This
judgment is handed down electronically by circulation to the parties'
legal representatives through email and released to the
court's
library. The date for hand-down is deemed to be 6 April 2021.
Summary:
Leave
to appeal against the cost order granted in favour of the applicant
in the discovery interlocutory application. The court
has a
discretion which has to be exercised judiciously in considering the
issue of costs
JUDGEMENT-
LEAVE TO APPEAL
[1]
This is an
application for leave to appeal by the first, second, third and sixth
defendants ("the defendants") against
the cost orders, in
the interlocutory discovery proceedings, handed down on 13 January
2021 by this court under case number 43692/2018.
[2]
The
interlocutory application was instituted by the plaintiff concerning
the demand for the discovery of various documents in terms
of rule 35
(7) of the High Court Rules. The one part of the discovery related to
various medical information of the patients. The
patients were not a
party to the application. The other part concerning personal payslips
and bank statements of the defendants
is intended to prove quantum.
In the broader sense the plaintiff succeeded in showing that it was
entitled to the discovery. In
this respect the court ordered the
defendants to discover some of the requested items for discovery and
the request for the others
items was postponed
sine
die.
[3]
Although the
costs order technically includes the fourth and the fifth defendants,
they were not a party to the proceedings, as
the plaintiff withdrew
the application against them.
[4]
In opposing
the application, the defendants contended that they were entitled to
refuse to discover the requested documents because
they were private
and confidential. In its judgment the court found that the plaintiff
was entitled to the disclosure of the information
requested. It,
however, also noted that the information was private and confidential
and deserved to be protected. It was for this
reason that it crafted
an order that restricted the manner of the discovery.
[5]
The critical
challenge to the cost order is that the court failed to exercise its
discretion properly and fairly in making the order.
The defendants
contend that the order ought not to have been made because they were
seeking to protect the entrenched constitutional
and statutory rights
of the patients in opposing the interlocutory application.
[6]
The plaintiff
opposed this application and contended that the application should be
dismissed because the defendants failed to show
that the discretion
was improperly exercised and failed to show special circumstances to
demonstrate prospects of success on appeal.
[7]
The
plaintiff's Counsel argued that the plaintiff was entitled to the
costs order because it was substantially successful in its
interlocutory application. He further argued that the costs are not
substantial to warrant an appeal.
[8]
The
fundamental principle governing consideration of the issue of cost is
that the successful party that has unjustly been made
to initiate or
defend proceedings, is entitled to be indemnified for the expenses
incurred.
[1]
[9]
It
is trite that in awarding costs, the court exercises a discretion
which had to be exercised judiciously. It is equally trite
that in
exercising its discretion, the court has to consider the facts and
circumstances of the case to ensure fairness to both
parties.
[2]
[10]
I am afraid I
have to disagree with the defendant's proposition that their defence
had to do with defending the patients' constitutional
rights. The
patients were not joined as parties neither is there any suggestion
that they had authority to assert such rights on
their behalf.
[11]
I
am, however, inclined to agree with the defendants that another court
would take into account the circumstances relating to their
defence
and arrive at a different conclusion than that of this court. They
opposed the application in the circumstances where they
were
resisting the release of private and confidential information. It
cannot in this regard be said that they acted unreasonably
or
maliciously in opposing the application. Furthermore, they lost the
case in circumstances where the plaintiff was not awarded
everything
it had asked for in the notice of motion. The other part of the
discovery requested by the plaintiff in the notice of
motion was
postponed
sine
die
.
[12]
Applying the
test of reasonable prospects of success test as envisaged in section
17 (1) (a) of the Superior Court Act of 2015,
I am persuaded that the
defendants have made a case for leave to appeal. In other words, the
defendants have prospects of success
that the court on appeal would
find that the circumstance did not justify the costs order.
Order
[13]
In the
circumstances, I make the following order:
1.
The defendant
is granted leave to appeal to the Full Court of this Division.
2.
The cost shall
be in the appeal.
E
Molahlehi
Judge
of the High Court,
Gauteng
Division.
Johannesburg.
Representation:
Counsel
for Plaintiffs: Adv S Miller
Instructed
by: Schindlers Attorneys
Counsel
for Defendants: Adv G Amm
Instructed
by: Fluxmans Incorporated
Heard:
04 March 2021
Delivered:
6 April 2021.
[1]
See
Union Government v Gass
1959 (4) SA 401.
(A) at 413.
[2]
See
Intercontinental Exports (Pty) Ltd v Fowles 1999 [2] SA 1045 (SCA)
at 1055 F – G.