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2011
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[2011] ZAGPPHC 20
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Wraypex (Pty) Ltd v Barnes and Others (25173/05, 30729/05, 32648/05, 32649/05) [2011] ZAGPPHC 20; 2011 (3) SA 205 (GNP) (11 February 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
Numbers:25173/05
30729/05
32648/05
32649/05
DATE:11/02/2011
Wraypex
(Pty)
Ltd
...................................................................................................
Plaintiff
and
Barnes,
Arthur and
Others
.....................................................................................
Defendants
JUDGMENT
Costs
Coram
Sapire AJ
I
dismissed the Plaintiffs' claims against the four Defendants in the
actions identified by the case numbers above. During argument,
and
before the outcome of the litigation was known the parties requested
to be given an opportunity of arguing what the appropriate
order for
costs should be depending on the outcome of the cases. No order was
made when judgment was given and the question of
costs was separately
argued.
The
four cases were heard together. The four Defendants having succeeded
in their defence of the Plaintiffs claims are entitled
to their costs
including the wasted costs occasioned by the postponement of the
hearings of all four matters in 2009.
Such
was the nature of the case, that it was not seriously disputed that
the employment of two counsel was justified.
Defendants'
counsel asked that a special order be made that such costs should be
taxed on the scale as between attorney and client.
The
submissions in this regard by Plaintiffs counsel were that; the
actions were vexatious.
In
so arguing he referred to
The
timing of the institution of the actions.
The
actions were instituted when the Plaintiff had already obtained
approval for the establishment of a township and when the Gauteng
Environment Authorities had issued a ROD permitting the Plaintiff to
proceed with its project. The Defendants had applied to appeal
against this latter decision and the appeal was pending.
The
inference which the Defendants argue should be made is that the
purpose of the institution of the actions was either by intimidation
to induce the Defendants to withdraw their appeal, or to punish them
for opposing to the end the granting of permission for the
establishment of the golfing estate in the rural area. The inference
accords with the probabilities as they emerged during the
hearing.
The
extraordinarily extravagant amount claimed by the Plaintiff The
amounts claimed in the Summons from each of the Defendants
are
prodigious. Nothing emerged in evidence from which indicate that
the plaintiff could have had a bone fide reasonable expectation
that it would succeed in obtaining an award more than an
infinitesimal fraction of the amounts claimed. The amounts
claimed,
in each case between forty to fifty million rand were made
severably from each defendant.. The parties had agreed that the
determination
of the question of the amount of damages, if any would
stand over and be decided separately, after a decision on the merits.
This
meant that no evidence of the amount plaintiffs alleged damages
was led. This led Plaintiffs counsel to submit that the
reasonableness
of the amounts claimed could not be assessed merely
from the large amounts claimed. There is no force in this argument as
the plaintiff
failed to prove that the words complained of caused it
any loss at all, either as damages for defamation, or from delays in
the
process of obtaining the requisite authorities to proceed with
its development scheme. Limited publication
The
statements of which the Plaintiff complains were published by the
Defendants as alleged by the Plaintiff in each case to one
person.
Even if the statements were shown to be defamatory, damages in
respect thereof would never be awarded in anything like
the amounts
claimed by the plaintiff
In
the case of Barnes where the allegations of defamation included two
instances which if proved might have been serious I did not
accept
the reliability of the evidence of publication to the one witness who
was called. The other witnesses to whom publication
is alleged was
made were not called to testify. These words were not published to
anyone who was involved in the process of obtaining
permission for
the establishment of the township or in the application for a ROD.
The
evidence did not disclose that the procedure of seeking approval had
been delayed. Although it was conceded that the making
of a complaint
could take time the Plaintiff did not even attempt to show- which of
the statements complained of caused delay,
the length of any such
delay . Clearly some of the statements could not have affected the
process at all.
The
Defendants also made reference to the belligerent tone of Plaintiff's
attorney's letters which were calculated to intimidate
and create
enmity. There is much justification for this view taken by the
Defendants.
The
generally weak merits of the cases became obvious during the trial.
The statements complained of were generally made to public
officials
mostly in the course of the administrative procedures. In some
instances the allegations were trivial.
Plaintiff's
counsel likened the case to what is known in other jurisdictions as
"SLAPP". The acronym stands for Strategic
Litigation Aimed
against Public Participation. No instances of cases so described are
to be found in local law reports but the
concept of vexsatiousncss
corresponds very closely with the features of a "SLAPP"
suit.
The
Defendants should not have been called upon to contest the Plaintiffs
claims especially not in the High Court. The litigation
was
purposeless from an economic point of view and if anything was more
harmful to the Plaintiff than the words complained of.
At the same
time the four Defendants were unnecessarily involved in heavy
expenditure in defending the cases brought against them.
This
is a case where the Court should exercise its discretion to make an
order as prayed for by the Defendants.
The
order made therefore is:
(a)
Costs in all four matters are awarded against the Plaintiff to be
taxed on the scale as between attorney and client and to include
the
costs occasioned by the employment of two counsel.
(b)
The wasted costs occasioned by the postponement of the hearing in all
four matters in 2009 are to be paid by the Plaintiff and
to be taxed
as between attorney and client and including the costs of two
counsel.
(c)
Gerhard van Wele is declared to have been a necessary witness.
Counsel
for defendants; MR C R Jansen
…
...................................
Mr
Adv A Voster
Defendants'
attorneys; VAN DEN BOGERT GOLDNER INC
…
..................................
520
Spuy Street Sunnyside
…
..................................
Pretoria
…
.................................
Tel
No: 012-3442040
…
.................................
Fax
No ; 01 2-344 081 9
…
.................................
Ref;
wra1 /0001
Plaintiff'S
counsel; Mr Theron
…
...........................
Johannesburg
Bar
Plaintiff'S
attorneys: Schwarz-North Attorneys
…
.............................
c/o
Edelstein & Bosman Inc
…
.............................
220
Lange Street
…
.............................
NlEUW
Muckleneuk
…
.............................
Pretoria
…
............................
Tel;
012 452 8900
…
............................
Fax:012-452
8901/2
…
............................
Ref:
Mr N van Heerden/rf/BM001 1 1 6