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[2011] ZAGPPHC 74
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G.S v G.S.S and Another [2011] ZAGPPHC 74 (27 May 2011)
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IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
/ES
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 14702/2011, 20317/09
DATE:27/05/2011
IN
THE MATTER BETWEEN
G:
S
.........................................................................................................................
APPLICANT
AND
G:
S
S
..........................................................................................................
1ST
RESPONDENT
THE
SHERIFF LENASIA NORTH
(ACTING
SHERIFF SOWETO
WEST)
....................................................
2nd RESPONDENT
JUDGMENT
LEGODI.
J
[1]
This is a judgment on costs that was reserved on 12 April 2011 in a
matter that was initially argued in an urgent motion roll
and beyond
the urgent motion roll.
[2]
The applicant had initially brought on an urgent basis an application
in terms whereof relief was sought as follows:
2.1
staying all execution steps arising from an order handed down by
RAULINGA, J on 12 May 2010 under case number 20317/09:
2.2
declaring that the execution steps carried out under the aforesaid
case number after the service and filing of the applicant's
application for variation dated 1 July 2010 are unlawful;
2.3
ordering the second respondent to release from attachment all assets,
items, goods, interests and shares attached as a result
of the order
mentioned above;
2.4
costs of suit only in the event of this application being opposed,
against such party that opposes same.
[3]
A background to the dispute between the parties might be necessary.
The applicant and first respondent are married to each other.
The
first respondent instituted the divorce proceedings against the
applicant. The divorce action at the time of the hearing of
the
present application was enrolled for hearing on 26 April 2011.
[4]
On 12 May 2010 and under Rule 43, the first respondent obtained an
interim maintenance order against the applicant in the amount
of R42
000,00.
[5]
On 13 July 2010 the applicant delivered an application for variation
in terms whereof he sought R42 000,00 to be substituted
with R13
000,00. He further sought a declaratory order in the following terms:
5.1
declaring that to the extent that section 20(7) of the Supreme Court
Act 59 of 1959 prohibits an appeal of a decision for payment
of
interim maintenance and a contribution towards legal costs in terms
of Rule 43, that such section is unconstitutional;
5.2
declaring that to the extent that Rule 43(6) only permits variations
of a Rule 43(1) order under changed circumstances, that
such rule is
too narrow and unconstitutional.
[6]
The first respondent opposed the application and challenged the
applicant's alleged unaffordability. Whilst the application
was still
to be heard, on 17 February 2011 the first respondent proceeded to
have the applicant's 50 percent interests or shares
in Gatfam
Investments (Pty) Ltd be attached. This was intended to have the said
shares be sold on a public auction. The move had
led the applicant to
approach the court on an urgent basis and for relief as set out in
paragraph 2 of this judgment.
[7]
Till when the warrant of execution was issued on 9 February 2011
against the applicant's shares in the company aforesaid, the
applicant had been paying monthly the sum of RI3 000,00 to the first
respondent contrary to the order in the amount of R42 000,00.
[8]
The application on an urgent basis was initially laid before
FABRICIUS, J on 22 March 2011. On that date, the matter was postponed
to 31 March 2011. On this latter date the matter was laid before me.
[9]
Counsel for the first respondent was engaged on a number of issues
that worried the court. Much more time was spent by counsel
on behalf
of the first respondent and on occasions repeating herself despite
concerns by the court with such repetitions. The matter
indeed took
much more time than one would expect in a busy urgent motion roll.
[10]
Seeing that the issues could not be properly ventilated in the busy
urgent motion roll, and much worried about other matters
waiting to
be attended to, I then decided to adjourn the matter until 12 April
2011. This was outside the urgent motion roll and
this was done to
accommodate the parties and to dispose of the matter as soon as
possible.
[11]
Again on 12 April 2011 counsel for the first respondent addressed the
court. She was engaged, this time, particularly with
regard to
whether this was not an appropriate case to wait for the finalisation
of either the application under Rule 43(6) or the
divorce matter
which was on the roll for 26 April 2011.
[12]
Having taken instructions, an agreed draft order was placed before me
and it reads as follows:
"7.
The execution of the warrant of execution dated 7 February 2011 and
any further execution steps arising from the order
handed down by
RAULINGA, J on 12 May 2010 under case number 2009/20317, is suspended
pending the finalisation at the trial action
or the application in
terms of Rule 43(6), whichever comes first.
2.
The Rule 43(6) has been allocated the date of 3 May 2011 for hearing
by the Registrar.
3.
Judgment on the issue of costs and the scale thereof in the urgent
application is reserved."
[13]
The draft order was made an order of court. I found it necessary to
deal with the issue of costs regard been had to the issues
that were
argued before me. It might well be prudent to mention the two letters
that were written to the first respondent's attorneys
by the
applicant's attorneys.
[14]
The first letter is dated 29 March 2011. It reads as follows:
"The
application scheduled for hearing on Thursday may he resolved by your
client agreeing to stay further execution steps.
The court most
suited to adjudicate the issues in the pending variation application
will be the trial court. The trial is scheduled
for the 26'h April
2011, less than 20 court days from now. No one will be prejudiced.
Your urgent response is awaited."
[15]
When this letter was produced, a suggestion by the first respondent
was that the letter was not received and that there was
no knowledge
of the letter. But of course the letter was addressed to the
attorneys and at the top left of the letter there is
a transaction
report. The forwarding fax number is Oil 7287597. The date is 29
March 2011 and the time is 15:46. The fax number,
by looking at some
letters previously addressed to the applicant's attorneys, is the
same as the one appearing on the letterhead
of the first respondent's
attorneys. I am therefore prepared to accept that the letter was
received, as indicated on the transaction
report.
116]
Remember, on 31 March 2011 was when the matter was laid before me.
Therefore, the proposal contained in the letter of 29 March
2011 was
made two days before the matter was laid before me.
[17]
The other letter is dated 4 April 2011 and the relevant portion
thereof reads as follows:
"The
trial is less than 14 court days ahead.
You
are again requested to acquiesce that the current proceedings before
LEGODIJ be stopped on the following basis:
i)
with costs of these proceedings and the scale of such costs, more
specifically for the proceedings on the 22nd March 20 J1 and
31s'
March 2011 be reserved;
ii)
Your client stops further execution steps until after the trial.
(iii)
Our client's variation applications be adjudicated by the learned
Judge
adjudicating the trial. Undertakings given by/on behalf of your Mr
Natha to return our calls were never upheld."
[18]
The reply to this letter was three pages the letter, dealing with
things that had happened outside court between the respective
legal
representatives. I had previously indicated to the parties that I did
not want to get involved with what had happened outside
court whilst
still ceased with the matter.
[19]
It would suffice to quote the following response to the letter of 4
April 2011:
"5.3.1
The writer does advise that if you are prepared to discuss matters
with him in a professional manner and without losing
your temper then
the writer will be prepared to discuss matters with you verbally.
5.3.2
Should you be unable to curb your unprofessional conduct then
unfortunately our communications will have to be via written
correspondence."
[20]
An order for costs is an exercise of a discretion. The discretion has
to be exercised judicially and fair, having regard to
the facts of
each case. Where the conduct of another party is wanting, a punitive
costs order might be made as an indication of
displeasure by the
court.
[21]
The two letters were obviously intended to avoid the costs of 12
April and 31 March respectively. Just perhaps to start with
the
response to the letter of 4 April 2011, it looks like the first
respondent or her attorney was pre-occupied with personal issues
than
what is actually addressed or proposed in the letter from the
applicant's attorneys.
[22]
This is the difficulty of litigating by personalising issues than
attempt to separate what is before the court with personal
issues.
For example, instead of responding to the suggestion to stop the
proceedings scheduled for 12 April 2011. and give an undertaking
as
requested, the first respondent and her attorney concerned themselves
with things that had happened outside court.
[23]
Having dealt with the issue of unprofessional conduct allegedly by
the applicant's attorney- in a letter of more than two and
a half
pages, it is then concluded as set out in paragraph 5.3.2 quoted in
paragraph 19 of this judgment. The first respondent's
attorney having
stated as he did in paragraph 5.3.2 of his letter, failed or
neglected to take "via written correspondence"
their
communications to the proposal contained in the letter of 4 April
2011. The opportunity to curb the costs of 12 April 2011
was allowed
to be stolen by personalising the issues.
[24]
From 5 April 2011, days had gone by without having a rethink on the
costs implication to be caused by the attitude. On 12 April
2011 when
the matter was called for further submissions, nothing was mentioned
about the proposal to deal with the matter as suggested
by the
applicant's attorneys in their letter of 4 April 2011. Even at the
time when the court engaged counsel for the first respondent
whether
this was not an appropriate case to wait for the finalisation of the
trial in the divorce case or finalisation of the Rule
43(6)
application, the proposal made in the letter of 4 April 2011 was not
mentioned. It was only when the court insisted that
the parties
should argue costs that the first respondent through her attorney had
to produce the response dated 5 April 2011.
[25]
What should have been resolved long time ago, was only resolved on 12
April 2011 after all the efforts. The conduct of the
first respondent
in dealing with the matter is, in the circumstances, unreasonable
deserving a sancture.
[26]
Similarly, with regard to the costs of 31 March 2011. there is just
no explanation why the proposal in the letter of 29 March
2011 was
not responded or heeded thereto. Attempts to try and play no
knowledge of the letter of 29 March 2011 should be seen as
displaying
uncooperative conduct of the first respondent in dealing with
applicant. For example, her attorney had received the
letter on 29
March 2011 at 15:41. The letter was therefore either ignored or was
seen as not being important deserving a response.
Of course it was
important. The draft order of 12 April 2011 could have been sorted
out before 31 March 2011. Had this been done,
costs of 31 March 2011
and 12 April 2011 could have been avoided.
[27]
Lastly, the attitude of the first respondent with regard to the two
letters should be seen in context. Not very long after
the order of
10 May 2010 wherein R42 000,00 was made against the applicant, there
was a suggestion that the applicant may not afford
it. For example,
on 1 June 2010 he paid R12 000,00. Thereafter he delivered on 13 July
2010 an application for variation in terms
of Rule 43(6). By this
time. 1 want to believe that the parties were aware that the trial in
the divorce case was scheduled for
26 April 2011. Secondly, either
party could have set down the application in terms of Rule 43(6) for
hearing after close of the
pleadings. I am just mentioning this
inasmuch as the first respondent might have wished to suggest that
the applicant was playing
a delaying tactic in not complying with the
order of 10 May 2010.
[28]
Therefore, when the application under Rule 43(6) was launched,
particularly taking into account the nature of the relief sought,
the
fact that the applicant continued to pay R13 000,00 and even most
importantly the fact that the divorce action was set down
for hearing
on 26 April 2011, one would have thought the first respondent would
not seek to execute or put in motion the order
of 10 May 2010.
[29]
For whatever it is worth, in the application under Rule 43(6) the
applicant also seeks to challenge the application of Rule
48(6) in so
far as it might be applied to say it relates only to "changed
circumstances". Secondly, the applicant seeks
to challenge
section 20(7) of the Supreme Court Act 59 of 1959 in so far as it
tends to prohibit an appeal for payment of interim
maintenance and a
contribution towards legal costs in terms of Rule 43. Perhaps put the
issue differently this way, "What
should a respondent under Rule
43(1) do where there are no changed circumstances, but cannot under
Rule 43(1) for financial reasons
afford to comply with an order for
maintenance and a contribution towards legal costs?"
Fortunately, I do not have to deal
with this issue in the light of
the undertaking which has now been made.
[30]
I am raising the question as I do, just to show that I do not think
that in the present case, the application under Rule 43(6)
could be
seen as having been so hopeless that the first respondent in the
instant case, was entitled to proceed to enforce the
order of 10 May
2010 in the face of the pending application under Rule 43(6).
[31]
In the urgent application seeking to interdict the first respondent,
another issue was raised. That is, whether an application
for
variation under Rule 43(6) had in terms of Rule 49(11) automatically
suspended the operation of the order of 10 May 2010. It
is this issue
on which more time was spent by counsel on behalf of the first
respondent. This issue too has now been rendered academic
in the
light of an undertaking contained in the draft order which was made
an order of this court on 12 April 2011.
[32]
But I should still be concerned about the attitude of the first
respondent. When the urgent application was served after having
been
issued on 4 March 2011, the first respondent in my view, should have
made the undertaking not to proceed with the execution
of the
attachment. That is, the first respondent should have undertaken not
to sell the attached shares. One is expected to persist
with
execution in the face of a challenge to the judgment or order upon
which the execution is based, if say for example, it is
clear that
the first respondent has an unanswerable case against the applicant.
[33]
In the present case, I do not think that the first respondent can say
she has an unanswerable case to the extent that she was
entitled to
proceed with the attachment of the applicant's shares and sale or
transfer thereof. For example, the applicant in his
papers states
that when the order was made, his financial inability was not
properly before the court. For example, that his salary
was not
before the court, although same was submitted to his attorney at the
time. Dispute around this is the subject of the proceedings
in terms
of Rule 43(6). I did not have to deal with it fully or finally,
bearing in mind that the proceedings before me was interlocutory.
Prima facie, the salary establishes a case of inability.
[34]
Remember, gross on the salary advice is indicated as R50 000,00 and
nett thereof is said to be R35 000.00 per month. Confronted
with all
of these, and bearing in mind that the divorce proceedings was to
take place on 26 April 2011, coupled with the fact that
at the time
the first respondent sought to enforce the order of 10 May 2010, the
pleadings under Rule 43(6) were closed, one would
have expected the
first respondent not to oppose the urgent application, without making
the undertaking as it now did. As I said
earlier in this judgment,
the least the first respondent could have done, would have been to
set down for hearing the proceedings
under Rule 43(6).
[35]
The conduct of the first respondent was therefore as a whole in the
circumstances of the case unreasonable, and it unnecessarily
invited
costs of litigation. Challenge on the applicant's alleged financial
inability as pointed out by the applicant in the letter
of 29 March
2011 when the first respondent was told that: "the court most
suited to adjudicate the issues in the pending variation
application
will be the trial court" was unreasonable. Perhaps the other
court best suited for pending variation application
is the court that
has to hear the variation application itself in terms of Rule 43(6)
and when the latter proceedings were instituted,
at the risk of
repealing itself, the first respondent should have thought twice
before seeking to enforce the order of 10 May 2010.
[36]
I am mindful of the fact that litigants should not be scared away
from ventilating issues in court for fear of a punitive costs
order
against them. Such an order would not lightly be granted. The court
will be dictated by the facts of each case. I find in
the present
case that the first respondent's conduct in enforcing the order of 10
May 2010 before finalisation of the proceedings
under Rule 43(6), and
in not making an undertaking not to dispose of the shares attached
before finalisation of the trial scheduled
for 26 April 2011 or the
Rule 43(6), the latter which was said to be enrolled for 3 May 2011,
warrants a punitive costs order.
[37]
Consequently, the first respondent is hereby ordered to pay the costs
of the application including the costs for 22 March 2011,
31 March
2011 and 12 April 2011 on an attorney and client scale.
M
F LEGODI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
14702-201
I
HEARD
ON:
FOR
THE APPLICANT:
INSTRUCTED
BY:
FOR
THE RESPONDENT:
INSTRUCTED
BY: