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[2023] ZAFSHC 141
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Vehicle Delivery Services a division of Onelogix (Pty) Ltd v Key Group and Another (4655/2021) [2023] ZAFSHC 141 (11 May 2023)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. 4655/2021
In the matter between:
VEHICLE
DELIVERY SERVICES
a
division of
ONELOGIX
(PTY) LTD)
REGISTRATION
NUMBER: […]
PLAINTIFF
And
KEY
GROUP
REGISTRATION
NUMBER: […]
1
st
Defendant
SIFISO
MTSHALI
IDENTITY
NUMBER: […]
2
nd
Defendant
CORAM
:
GUSHA,
AJ
HEARD
ON:
25
APRIL 2023
DELIVERED
ON
:
This judgment was delivered electronically by circulation to the
parties’ representatives by way of email and
by release to
SAFLII. The date and time for delivery is deemed to be at 13h00 on 11
MAY 2023.
JUDGMENT
[1] The plaintiff is a
duly incorporated private company and the registered owner of a heavy
motor vehicle with registration number
[…]
[2] The 1
st
defendant is a duly incorporated private company and the owner of a
heavy motor vehicle with registration number[..]. The 2
nd
defendant is an adult male employee of the 1
st
defendant.
[3] The dispute between
the parties has its genesis from a motor vehicle collision that
occurred between the aforesaid heavy motor
vehicles on the 19
th
October 2020. The main dispute between the parties has since become
settled. The defendants conceded the merits and the plaintiff’s
quantum is settled at R739 460.23. Having conceded the merits and the
quantum, it follows that the costs should follow that result.
[4] The nub of the
current dispute between the parties is the scale on which such costs
order should be made.
[5]
The
primary underlying purpose of any costs award is to minimise the
extent to which a successful litigant will be out of pocket
as a
result of litigation that he or she should not have had to endure.
Costs orders often do not even achieve that objective,
and fall short
of assisting the successful litigant in fully recovering his or her
expenses. It will at times be just and equitable
to award costs on a
punitive scale, not just to punish vexatious litigation, but also to
assist the successful litigant in recouping
their often substantial
expenses. Generally, punitive costs orders are not frequently made.
Exceptional circumstances must exist
before they are warranted
[1]
.
[6]
It
is a well-established principle of our law that the general rule
regarding costs is that the unsuccessful party pays the costs
of the
successful party on the party and party scale. Equally established is
the principle that the court exercises a discretion
when considering
an appropriate costs order and should, of necessity, exercise same
judiciously
[2]
. In the exercise
of its discretion, the court must carefully weigh the issues in the
case, the conduct of the parties and any other
circumstance which may
have a bearing on the issue of costs and then make such order as to
costs as would be fair and just between
the parties. In
Van
der Walt v Murray and Another
[3]
Naidoo J held that the aforesaid position is particularly so if the
court intends to depart from the general rule.
[7] In
its particulars of claim the plaintiff initially prayed for costs of
suit. It appears that the parties had engaged in some
negotiations
[4]
in an endeavour to settle this matter. During those negotiations the
plaintiff proposed that costs be awarded on a party and party
scale
and that such costs should include costs of counsel, experts and the
correspondent
[5]
. This proposal
was however spurned by the defendants who insisted on an order
providing for costs, which costs would include costs
of counsel and
no more.
[8] It would seem that
the plaintiff has now made an about turn and now prays for a punitive
costs order on the attorney and client
scale. In arguments it was
submitted that in awarding costs on a punitive scale, this court
would be expressing its displeasure
at the defendants conduct as well
as ensuring that as a result of such conduct, the plaintiff was not
left unnecessarily out of
pocket.
[9]
For brevity’s sake, I do not propose to repeat their
submissions in full herein, as same has been comprehensively
canvassed
in their heads of argument.
[6]
.
Truncated, their reasons are as follows; firstly, the plaintiff
employed the services of an expert witness and were thus entitled
to
fees in this regard. Secondly, the plaintiff resides in Gauteng and
his attorneys of record are also in Gauteng, thus it was
justified in
appointing a correspondent attorney within the court’s area of
jurisdiction, Bloemfontein. Lastly, in order
to fortify their
submissions
re
the
punitive costs, they relied on the defendants’ pre-settlement
conduct, which conduct they deemed vexatious.
[10]
The defendants in turn submitted that costs should be awarded on a
party and party scale as originally prayed for by
the plaintiff.
Further, that the plaintiff submitted its expert notice 12 days
before set down
[7]
. It is on the
strength of this expert notice that, 7 days after receipt, a
settlement offer was made. The defendants contend that,
had the
plaintiff filed its expert notice timeously, the settlement offer
would similarly have been made sooner. It was further
submitted that
due to the notice being filed out of time, the plaintiff was not
entitled to these fees. However, if the court was
inclined to award
costs in this regard, it was submitted that the plaintiff was only
entitled to fees in respect of the 1 expert
report they filed. The
defendants further contended that the conduct complained of was prior
to the settlement offer being made,
and was thus irrelevant for
purposes of deciding present the issue before the court.
[11]
In
casu
this
court must now determine what constitutes a just and equitable costs
order. In arriving at that determination I have taken
into account
that the main dispute between the parties became settled as a result
of the settlement offer made by the defendants.
Furthermore, that
same was occasioned by the plaintiff’s expert report which was
submitted a few days before set down. It
is illuminating that even
after the defendants’ alleged vexatious conduct, and more
specifically on the 21
st
April
2023, the plaintiff was still keen on costs being awarded on the
party and party scale. What brought about the plaintiff’s
sudden change of attitude in this regard escapes me. It certainly
could not have been as a result of the plaintiff feeling aggrieved
by
the defendants’ alleged vexatious conduct, this on their own
version, predates the settlement negotiations. On this aspect
only, I
do not deem it necessary to make a finding whether the defendants’
conduct prior to settlement was vexatious or not
[12]
Accordingly, I am not persuaded that this is a case where a punitive
costs order is warranted. I am mindful of the fact
that the plaintiff
may as a result of this order be left out of pocket. I am further
mindful of the fact that costs orders generally
may not assist a
successful
party
to fully recover expenses occasioned by litigation,
I am
satisfied however that the costs order hereunder will assist the
plaintiff to recoup some, if not all, of its litigation expenses.
[13] In the result
I make the following order;
13.1. The
First and Second defendants are ordered, to jointly and severally,
pay 100% of the plaintiff’s damages.
13.2. The
First and Second defendant’s counterclaim is withdrawn.
13.3. The
First and Second defendants must pay, within 30 calendar days from
the date of this order, jointly and severally,
the other paying the
other to be absolved, the amount of R739 460.23 (SEVEN HUNDRED AND
THIRTY NINE THOUSAND, FOUR HUNDRED AND
SIXTY RAND AND TWENTY THREE
CENTS)
13.4. No
interest shall accrue on the outstanding amount, should the amount be
paid as directed under paragraph 3, whereafter
interest shall accrue
at the prescribed mora interest rate from the date of this order to
date of final payment.
13.5. The
defendants to pay, the one paying the other to be absolved, the
plaintiff’s taxed or agreed party and
party costs on the High
Court scale, until the date of this order, which costs shall include
the costs of 2 counsel and the reasonable
qualifying fees of the
following expert: Mr Shaun Basil Le Roux.
13.6. Payment
to be made into the trust account of the plaintiff’s attorneys
which details are as follows:
ACCOUNT HOLDER, :
ROETS & VAN RENSBURG
BANK : […]
BRANCH CODE :
[…]
ACCOUNT NUMBER : […]
REFENCE NUMBER : […]
NG
GUSHA, AJ
On
behalf of the plaintiff
Adv.
BP GEACH (SC) and FHH KEHRHAHN
Instructed
by:
HILL
MCHARDY & HERBST INC
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
LA VISSER
Instructed
by:
PWC
INC ATTORNEYS
BLOEMFONTEIN
[1]
LAWSA, Volume 10, Third Edition, 284
note 15.
[2]
Trencon Construction
(Pty) Limited v Industrial Development Corporation of South Africa
Limited and Another
[2015] ZACC 22
at para 85.
[3]
(2554/2019)
[2019] ZAFSHC 169
at
para 9
[4]
On the 21
st
April 2023.
[5]
Plaintiff’s heads of arguments
page 2 para 3.
[6]
Ibid fn 1 at para 6 – 73.
[7]
The plaintiff conceded in arguments
that only 1 expert notice was filed and not plural as per their
heads of arguments.