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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
Case No: 20121/2021
In the matter between:
RED TREE CAPITAL (PTY) LTD Plaintiff / Respondent
and
KINNEY OOSTHUIZEN Defendant / Applicant
JUDGMENT
___________________________________________________________________
ANDREWS, AJ
Introduction
[1] This is opposed Rule 33(4) application in terms of which the Applicant seeks an
order separating the issues identified in prayer 1 of the Notice of Motion in the following
terms:
(a) That the following issues be heard in initio and that all other issues stand over for
later determination:
(i) Whether the agreements relied upon demonstrate benefit to Defendant, as
required by CPA Regulation 5(1);
(ii) If not, whether the agreements are void by reason of their contravening CPA
Regulation 5(1);
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(iii) Alternatively, whether Defendant duly cancelled the agreements, exercising
the right she has under Section 14(2) read with 14(3) of the CPA.
Factual Background
[2] According to the Particulars of Claim, t he Plaintiff instituted action against the
Defendant pursuant to having entered into two Master Rental Agreements on or about
18 April 2019 and 5 June 2019 respectively.
1 The agreements provide for the rental of
the equipment set out in paragraph 6.5 of the Particulars of Claim for a sixty (60) month
period.2
[3] On or about 25 February 2019 and 5 June 2019 respectively, the Defendant
signed two Consumer Confirmation Letters. The goods were duly delivered to the
Defendant on or about 19 April 2019 and 6 June respectively. On or about 20 April
2021, the Defendant addressed a letter to the Plaintiff which purported to terminate the
agreements as envisaged under section 14(2)(b)(ii) of the Consumer Protection Act 68
of 2008. The agreements were accordingly terminated 19 May 2021.
[4] The Plaintiff alleges that in breach of the agreements, the Defendant failed to
immediately return the g oods to the Plaintiff pursuant to the termination as certain
goods were only returned on or about 30 July 2021. It is alleged that as a result of the
Defendant’s holding over of the said goods for the period 19 May 2021 to 30 July 2021,
the Plaintiff has suffered damages which are equal to the market rental value of the
goods in the amount of R44 342.99 being an equivalent to the combined monthly
rentals payable in terms of the agreements for the period 19 May 2021 to 30 July 2021.
[5] The Plaintiff’s Second Claim against the Defendant is as a consequence of the
termination. The Plaintiff alleges that the Defendant is liable to the Plaintiff for the
payment of the Net Present Value at the Prime Interest Rate of the rentals which would
have been payable by the Defendant had the agreements continued until their expiry
in the amounts of R576 951 and R124 348.65 respectively. The Plaintiff furthermore
alleges that the Defendant is indebted to it in the total amount of R701 300.59.
1 Index Pleadings: Particulars of Claim, paras 4 and 5, page 4; See also Annexures “B1” and “B2”
attached to the Particulars of Claim.
2 Index Pleadings: Particulars of Claim, para 6.5, page 5
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[6] The Plaintiff’s Third Claim also flows from as a consequence of the t ermination
in terms of which the Plaintiff alleges that the Defendant is liable to make payment to
the Plaintiff of a reasonable cancellation penalty. In this regard, the Plaintiff avers that
the unex pired rental periods under the agreements were 34 and 36 months
respectively. The Plaintiff asserts that the reasonable cancellation penalty in respect of
the agreements is equal to three months’ rental in the sum of R57 276.36.
[7] On 25 August 2021 and 13 October 2021 respectively, the Plaintiff sold the goods
procured to Integro and WeBuyCopiers respectively, for an amount of R50 000 and
R400 respectively. The Plaintiff tendered the set-off of these amounts received against
the damages that it allegedly suffered leaving a remaining amount of R744 959.94 still
due owing and payable by the Defendant.
[8] Alternatively, the Plaintiff alleges that the Defendant has been enriched at the
Plaintiff’s expense in the amount of R744 959.94 due to the Plaintiff’s performance in
terms of the allegedly void agreements.
Principal Submissions by the Defendant
[9] It is the Defendant’s contention that the issues identified in the N otice of Motion
ought to be decided in initio. In augmentation thereof, the Defendant submitted that the
terms of the agreement as set out in A nnexure “A” are a clear acknowledgement that
the terms of the CPA apply, which provides an assurance to the consumer with whom
the agreement is entered that the consumer is afforded the protection measures
promulgated by the Act, and the Regulations. Specific reference to the provisions of
Sections 14(2)(b) and 14(3) of the CPA were made.
[10] The Defendant highlighted that the two agreements on which the Plaintiff
relies, are for a period in excess of 24 ( twenty-four) months w hich is contrary to the
provisions of Regulation 5(1) of the CPA, that states that the maximum period of a fixed
term consumer agreement is 24 months from date of signature, unless such longer
period is expressly agreed with the consumer and the supplier can show a
demonstrable benefit to the consumer. It was contended that the Plaintiff failed to
specifically aver that the agreements have any demonstrable benefit to the consumer.
It is the Defendant’s contention that there are not such benefits. The Defendant argued
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this this would render the agreements unlawful and void as it is contrary to the
provisions contained in Regulation 5(1).
[11] The Defendant further asserts that it is in any event entitled to cancel the
agreements on 20 days’ notice, which cancellation was duly effected. According to the
Defendant all amounts owing up to the date of cancellations were paid. In addition, the
Defendant avers that the agreements are unlawful and void and that the Plaintiff’s
claim, being for the enforcement of such unlawful and void agreements, falls to be
dismissed. In the alternative it is contended that the Defendant is entitled to exercise
her right in terms of Section 15 of the CPA and cancelled the agreements in the
exercise of such rights and paid all amounts owed by her up to date of cancellation.
[12] According to the Defendant once the Reply to the Request for Further
Particulars are received the only issue outstanding will be whether the demonstrable
benefits which Plaintiff avers exist are proved. On this issue the Defendant is of the
view that the parties would be able to agree on the following common cause facts inter
alia:
(a) The value of the monthly payments;
(b) The price at which the goods once repossessed were sold by Plaintiff;
(c) The Defendant will be prepared to admit the allegations in paragraphs 42 and
43 of the Particulars of Claim;
(d) The exact nature of the demonstrable benefit to the consumer on which Plaintiff
relies for purposes of CPA Regulation 5(1).
[13] The Defendant submitted that the reasoning applied in Basson v Chilwan
and Others
3 can be of assistance to the matter in casu even though it applies to a
restraint of trade matter. In this regard it was argued that it is for the court to decide
what is reasonable.
3 1993 (3) SA 742 ‘The parties’ own views, as reflected in the agreement, as to what is reasonable can
never be decisive. Firstly, the reasonableness of the restraint is judged only after consideration by a
court on the basis of factors which might not necessarily have been present to the minds of the parties.
Secondly, the content of the agreement cannot itself be the exclusive measure of what is reasonable
because that would result in the propriety of the agreement being tested against itself.’
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[14] It was further argued that the holding over amount cannot constitute an
enrichment claim and as such it was submitted that the Plaintiff has not discharged the
onus of proving that the separation is not convenient.
[15] Lastly, the Defendant contended that the separation of iss ues will be in
the interest of the parties and reduce costs significantly and curtail the length of the trial
which could be dealt with as a matter of legal argument only without requiring evidence.
Principal Submissions by the Plaintiff
[16] The Plaintiff contended that the Defendant is not entitled to a separation
of the identified issues for the following reasons that:
(a) the Defendant wishes to separate issues for determination by the Court which
are already common cause;
(b) the proposed separation is not convenient to either of the parties, or to the
Court.
[17] In amplification it was submitted that the Defendant cannot allege that the
agreements did not present a financial benefit to her as contemplated under Regulation
5 as the Defendant in her Plea expressly admits that the agreements were concluded.
Moreover, the Plaintiff set out averments in the Particulars of Claim to demonstrate
what the rental payments due by the Defendant would have been, had the agreements
endured for 24 months rather than 60 months. It was furthermore contended that the
computation set out in “D2” to the Particulars of Claim do not appear to have been
disputed by the Defendant and that its exchange is expressly admitted in the Plea.
[18] Additionally, it was contended that there is no need to separate to
determine whether the agreements were cancelled as it is common cause that the
agreements were cancelled by the Defendant as contemplated under section 14(2)
read with section 14(3) of the CPA.
[19] The Plaintiff furthermore submitted that the separation proposed by the
Defendant will not result in an expeditious resolution of this action. In this regard, it was
contended that the Plaintiff has an alternative enrichment claim in the event of a finding
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that the agreements are void. In addition, the Plaintiff holds the view that the evidence
to be led in the separate trials will overlap significantly insofar as it pertains to the
agreements, their terms, the parties’ intentions, the goods supplied by the Plaintiff to
the Defendant and the Defendant’s use thereof.
[20] It was argued that the proceedings will as a result not be shortened. Lastly,
the Plaintiff contended that the possibility exists of an appeal against the findings in the
separation hearing, which will potentially exacerbate the delay. The Plaintiff requested
the court to consider the potential prejudice and as such, it was submitted, that the
proposed separation of the issues is not convenient.
Legal Principles
[21] Rule 33 (4), provides that:
‘If, in any pending action, it appears to the court mero motu that there is a question
of law or fact which may conveniently be decided either before any evidence is led
or separately from any other question, the court may make an order directing the
disposal of such question in such manner as it may deem fit and may order that all
further proceedings be stayed until such question has been disposed of, and the
court shall on the application of any party make such order unless it appears that
the question cannot conveniently be decided separately.’
[22] In Rauff v Standard Bank Properties 4 Flemming DJP stated the
following:
‘The entitlement to seek the separation of issues was created in the Court Rules
so that an alleged lacuna in the plaintiff’s case or an answer to the case can be
tested; or simply so that a factual issue can be determined which can give
direction to the rest of the case and in particular to obviate a parcel of evidence.
The purpose is to determine the fate of the plaintiff’s claim (or one of the claims)
without the costs and delays of a full trial. Proper handling of litigation – and
accordingly professional handling of litigation – requires that this avenue be
explored to the advantage of the own client, the flow of Court hearings and even
of the other client.’
4 2002 (6) SA 693 (W) at 703.
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[23] In Consolidated News Agencies (Pty) Ltd (in liquidation) v Mobile
Telephone Networks (Pty) Ltd and Another5, it was held that:
‘Piecemeal litigation is not to be encouraged. Sometimes it is desirable to have
a single issue decided separately, either by way of the stated case or
otherwise. If a decision on the discrete issue disposes of a major port part of a
case, or will in some way lead to expedition it might well be desirable to have
that issue decided first. This court has warned that in many cases, once
properly considered, issues initially thought to be discrete are found to be
inextricably linked. And even where the issues are discrete, the expeditious
disposal of the litigation is often best served by ventilating all the issues at one
hearing. A trial court must be satisfied that it is convenient and proper to try an
issue separately.’
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[24] Regulation 5 of the CPA deals with the m aximum duration for fixed-term
Consumer Agreement, states as follows:
‘(1) For the purposes of section 14(4)(a) of the Act, the maximum period of
a fixed-term consumer agreement is 24 months from the date of signature
by the consumer –
(a) Unless such longer period is expressly agreed with the consumer and
the supplier can show a demonstrable financial benefit to the
consume…’
[25] Section 14 (2) of the CPA deals with the expiry and renewal of fixed-term
agreements states as follows:
‘ …
(2) If a consumer agreement is for a fixed term –
5 [2009] ZASCA 130; [2010] 2 All SA 9 (SCA), paras 89 - 90.
6 See also Edward L Bateman Ltd v C A Brand Projects (Pty) Ltd 1995 (4) SA 128C – D; Berman &
Fialkov v Lumb 2003 (2) SA 674; Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) at 485A – B
where the following was stated:
‘In many cases, once properly considered, the issues will be found to be inextricably linked, even
though, as first sight, they might appear to be discrete. And even where the issues are discrete,
the expeditious disposal of the litigation is often best served by ventilating all the issues at one
hearing, particularly where there is more than one issue that might be readily dispositive of the
matter. It is only after careful thought has been given to the anticipated course of the litigation as
a whole that it will be possible properly to determine whether it is convenient to try an issue
separately.’
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(a) that term must not exceed the maximum period, if any, prescribed
in terms of subsection (4) with respect to that category of
consumer agreement;
…
(3) Upon cancellation of a consumer agreement as contemplated in
subsection (1)(b) –
(a) the consumer remains liable to the supplier for any amounts owed
to the supplier in terms of that agreement up to the date of
cancellation; and
(b) the supplier –
(i) may impose a reasonable cancellation penalty with
respect to any goods supplied, services provided, or
discounts granted, to the consumer in contemplation of the
agreement enduring for its intended fixed term, if any; and
(ii) must credit the consumer with any amount that remains
the property of the consumer as of the date of cancellation
as prescribed in terms of subsection (4).
(4) The Minister may, by notice in the Gazette, prescribe –
(a) the maximum duration for fixed-term consumer agreements,
generally or for specified categories of such agreements;
…’
Issues not in dispute
[26] The following issues appear to not be in dispute between the parties,
namely:
(a) the conclusion of the two agreements, annexed to the Particulars of Claim marked
“B1” and “B2”;
(b) the agreements provided for the rental of the equipment set out in paragraph 6.5 of
the Particulars of Claim for a period of sixty (60) months;
(c) the two agreements on which the Plaintiff in the main action constitute transactions
as defined by Section 1 of the Consumer Protection Act (“the CPA”) and were fixed
term agreements as contemplated in Section 14 of the CPA;
(d) the CPA Regulations published in the Government Notice 293 gazetted in April
2011 (“the CPA Regulations”) are applicable and
(e) the Defendant cancelled the agreement.
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Issues for determination
[27] The crisp issue for determination is whether the identified issues should
be decided in initio.
Onus
[28] It is trite that a party who opposes an application for separation made
bears the onus to satisfy the court that the questions sought to be separated cannot
conveniently be decided separately and, accordingly, that the application should not be
granted.
Discussion
[29] The Defendant seeks an order separating the issues as identified in the
Notice of Motion. It is apparent that the parties in both Agreements agreed that the
term of the agreement exceeded 24 months, and as such constituted a financial benefit
to the Defendant.
7 Regulation 5 of the CPA applies to the transaction, as set out above
which specifically deals with the maximum duration for fixed- term consumer
agreements and unequivocally states that a longer period is to be expressly agreed
upon and the supplier is to show a demonstrable financial benefit.
[30] The Defendant argued that if the demonstrable benefit to the consumer
existed as contemplated in Regulation 5(1), the Particulars of Claim should have
pleaded that such benefit exi sted and what such benefit was. In this regard, it is the
Defendant’s contention that Uniform Rule 18(4) is clear in that Particulars of Claim must
contain a clear and concise statement of the material facts constituting the claim. The
Plaintiff contended that the letter referred to as Annexure “D2” has been admitted by
the Defendant in her plea and in particular, the benefit is specified as the lower monthly
instalment due to the extended period.
[31] The Plaintiff contended that separation is not convenient for the following
reasons:
7 Clause 2.3 “The Parties agree that the Initial Rental Period of the Agreement shall exceed a fixed term
of 24 (twenty-four) months in the circumstances where the rental amount has been calculated based on
your affordability and the economic life of the Goods rented is of a financial benefit to you and we are
able to demonstrate this should you so request.”
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(a) It will not result in an expeditious resolution of this action. In amplification it was
mooted that even if the agreements are void, the Plaintiff’s alternative claim will
remain;
(b) The cause of action will still need to be ventilated in a trial in due course. In
augmentation of this submission it was submitted that the evidence to be led in the
separate trials will overlap significantly in terms of the parties’ intentions, the goods
supplied by the Plaintiff to the Defendant, and the Defendant’s use thereof will have
to be canvassed more than once;
(c) There would be an unnecessary duplication of efforts, which would only serve to
escalate the parties’ legal costs and unnecessarily take up court time;
(d) If, on the premise that the issues to be separated are crisp as contended by the
Defendant, it could be canvassed at the main hearing together with the balance of
the action;
(e) It is contended that whilst the Defendant accepts that her agreement constituted a
demonstrable benefit, the defence is centred around this and could be canvassed
together at the main hearing without it being done in a fragmentary fashion;
(f) A separation will not shorten proceedings and will ultimately have the effect of
splintering the matter into at least 3 hearings comprising of inter alia, the
applicability of the CPA, unjust enrichment and quantum;
(g) The possibility of an appeal may ensue, which may not serve to curtail the action
and
(h) The parties as well as the court will suffer prejudice.
[32] The accepted legal principle is that a litigant is required to plead material
facts that are necessary to support his right to judgment. It is trite that a Defendant
must know the case he needs to meet and plead to it. The matter of McKenzie v
Farmers’ Co-operative Meat Industries Ltd
8 clearly defined meaning of a “cause of
action”.
‘…every fact which it would be necessary for the plaintiff to prove, if traversed, in
order to support his right to judgment of the court. It doe[ s] not comprise every
piece of evidence which is necessary to prove its fact, but every fact which is
necessary to prove.’
8 McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 23.
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[33] The Defendant is essentially requesting the court to apply the test akin to
that on an Exception. In this regard the court dealing with the separation would have to
determine whether on all possible readings of the facts, no cause of action may be
made out. The Defendant would therefore have to satisfy the court that the conclusion
of law from which the Plaintiff contends cannot be supported on every interpretation
that can be put upon the facts in much the same way as the court would have if this
aspect was raised by way of E xception.
9 It has been held that to the extent that the
procedure envisaged by the subrule and the procedure of E xceptions may overlap, it
is not contemplated that questions of law arising from the pleadings and capable of
being resolved on Exception should be the subject of the more cumbersome procedure
of an application under this subrule.
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[34] The question that calls to be answered is whether it would be
convenient to deal with the issues identified in the separation order; more
particularly, the lacuna identified by the Defendant in the Plaintiff’ s case. The
purpose of this subrule has been aptly crystallised as follows:
‘… is to confer on the court the power of shortening the duration or facilitating the
final determination of actions, the court has a wide discretion under the subrule
and it can decide any question of law or fact separately from any other question
in the dispute in a case if it is convenient to do so. There is no room in the rule
for a court, on ordering of separation of issues, to make an order in respect of
what evidence may or may not be relevant. The fashioning of an order assists in
defining the preci se ambit of the enquiry to be undertaken. Unless an order is
made, the court is required to deal with the action as a whole.’11
9 Theunissen v Transvaalse Lewende Hawe Koop Beperk 1988 (2) SA 493 (A); Lewis v Oneanate (Pty)
Ltd and Another 1992 (4) SA 811 (A) at 817; TSI Communications CC v Omega M Projects (2022/13169)
[2023] ZAGPJHC 1081 (27 September 2023) at paras 3 – 4; H v Fetal Assessment Centre 2015 (2) SA
93 (CC) at 199B
‘The test on an exception is whether, on all possible readings of the facts, no cause of
action may be made out. It is for the excipient to satisfy the court that the conclusion of
law from which the plaintiff contends cannot be supported on every interpretation that
can be put upon the facts.’
10 Superior Court Practice, Vol 2, Uniform Rules of Court: Rule 33, [SERVICE 20, 2022], D1-437.
11 Superior Court Practice, Volume 2, Uniform Rules of Court: Rule 33 [Service 20, 2022] D1-440.
12
[35] The procedure envisages the convenient and expeditious disposal
of litigation. The aspect of convenience consists of many layers, including inter
alia appropriateness and fairness. 12 It is therefore incumbent on the court to
consider the nature and extent of the advantages and disadvantages which
would flow from the granting of the order sought. In addit ion, the court is to
consider whether or not a preliminary hearing for the separate decision of
specified issues will materially shorten the proceedings.
[36] This court is mindful that even if the application were to be granted,
which may result in curtailing days of evidence in court, there may be other
delays before a final decision is ultimately reached which includes but are not
limited to the following scenarios, namely; the interlude between the hearing of
the separation and the commencement of the main trial. This will no doubt also
have cost implications. Moreover, there is the likelihood that an appeal against
the separated issues may ensue, which will exacerbate the delay.
[37] Of seminal importance is the potential overlapping of evidence
required to prove issues in the separation and that of the remaining is sues for
the trial hearing. Witnesses may have to be recalled to cover issue which they
had already testified about, resul ting in duplication of evidence and again cost
implications as well as the potential of conflicting findings of facts and credibility
findings.
[38] In this matter, it is manifest the most of the issues are common cause,
more especially the issues identified in paragraphs 1.1 and 1.3 of the Notice of Motion.
It appears that the main issue in contention is rooted in whether the Plaintiff has
properly pleaded a cause of action based on the CPA on which reliance is placed. This
aspect in my view, could have been dealt with by way of exception as it is trite that the
purpose of an exception is to raise a substantive question of law which may have the
effect of settling the dispute between the parties.
12 Gometis (Pty) Ltd v Fountainhead Property Trust and Others (2021/16959) [2022] ZAGPJHC 487 (27
July 2022).
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[39] I am furthermore of the view that even if t he court were to find that the
agreements are void by virtue of contravening CPA Regulation 5(1), (I make no finding
in this regard), the claim for damages suffered as a result of the holding over of the
goods for the period 19 May 2021 to 30 July 2021, cannot be ignored as well as the
penalty which the t ermination may have attracted. I am mindful not to make a
pronouncement on what evidence may or may not be relevant, and I make no such
finding(s) in this regard.
[40] These aspects will need to be ventil ated at a trial in due course. I t is not
for this court to decide whether , for example, the holding over amounts to an unjust
enrichment claim, neither can this court determine that the only issues pertaining to the
penalty would be the reasonableness thereof. To suggest that the Plaintiff should deal
with this issue in the Magistrates Court would in my view not curtail proceedings ,
especially as piecemeal litigation is not encouraged. Furthermore, the possibility exists
that the issues are inextricably linked necessitating the same witnesses to be called to
testify. The mere fact that the quantum for certain claims falls within the jurisdiction of
the Magistrates Court does not prevent the High Court from making an appropriate
costs order on the appropriate Magistrates Court tariff. The Defendant in any event
makes the following submission ‘[t]he fact that, subsequent to retaking possession of
their goods, Plaintiff sold the goods for an amount of R50 400 may well constitute an
important factor in assessing the reasonableness of the penalty.’
13 This in and of itself
is suggestive that there is a triable issue and as such, separation may prove to not be
dispositive of the matter in its entirety.
Conclusion
[41] This court heeds the caution as expressed in Consolidated News
Agencies (Pty) Ltd (supra) ‘that in many cases, once properly considered, issues
initially thought to be discrete are found to be inextricably linked. And even where the
issues are discrete, the expeditious disposal of the litigation is often best served by
ventilating all issues at one hearing.’14
13 Defendant’s Heads of Argument, para 2.
14 Para 91.
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[42] I am therefore satisfied that the Plaintiff has sufficiently placed cogent
facts before this court to show that separation would be inconvenient. Consequently,
in the exercise of this court ’s wide discretion in mat ters of this nature, the application
falls to be dismissed.
Costs
[43] The Plaintiff argued that the application was blatantly stillborn from the
outset and is tantamount to a delay tactic which Plaintiff likened to textbook Stalingrad
litigation, justifying a punitive cost order. The Plaintiff contended that paragraph 18 of
the agreements provides for the payment of costs on an attorney and client scale. In
light of the fact that the agreements are common cause, the Plaintiff seeks an order of
costs on the scale agreed to between the parties. It was placed on record that Counsel
for the Defendant is acting pro amico.
[44] It has been held that ‘a party who failed to raise an exception at the stage
when he could have done so and at the trial invokes the procedure under this subrule
may be mulcted for costs.’
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[45] Taking into consideration that the crisp issues which Defendant contended
ought to be dealt with in initio, will now be dealt with in the hearing of this action in due
course; the trial court will best be placed with making a determination as to whether the
issues raised are indeed inextricably linked with the evidence required to prove any of
the remaining issues. Thus, it is my considered view that a cost order at this stage will
be premature.
[46] Therefore, in the exercise of my judicial discretion, I am of the view that
the issue of costs should stand over for later determination.
15 Superior Court Practice, Vol 2, Uniform Rules of Court: Rule 33, D1 -437.
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Order:
[47] In the result, the Court, after hearing the submission on behalf of the respective
parties and having considered the documents filed on record makes the following
orders:
(a) The Application is dismissed.
(b) Costs are to stand over for later determination.
____________________________________
ANDREWS, AJ
Acting Judge of the High Court, Western Cape Division
Appearances
For the Plaintiff / Respondent: Advocate L Van Zyl
Instructed by: Vanderspuy, Cape Town
For the Defendant / Applicant: Advocate A C Oosthuizen S.C.
Instructed by: Schnetlers Inc.
Date of Hearing: 02 February 2024
Date of Judgment: 19 February 2024
NB: The judgment is delivered by electronic submission to the parties and their legal
representatives.