About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 241
|
|
Standard Bank of South Africa Limited v Meyer (149/2021) [2023] ZAFSHC 241 (22 June 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:
149/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In the matter between:
THE STANDARD BANK OF
SOUTH AFRICA LIMITED
Plaintiff
[
Registration
number
: 1[...]]
and
MARTHINUS TOBIAS MEYER
[Identity number
:
6[...]]
Defendant
CORAM:
P R CRONJÉ, AJ
HEARD
ON:
15 JUNE 2023
DELIVERED
ON:
22 JUNE 2023
JUDGMENT
BY:
P R CRONJÉ, AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 12h30 on 22 June 2023.
I
BACKGROUND
[1]
The Plaintiff is a Commercial Bank (“
the Bank
”)
which instituted action against the Defendant (Mr Meyer) pursuant to
Mr Meyer’s default in payment of instalments
under a home loan
agreement and bond. On 28 September 2020, Mr Meyer was
R35 434.04 in arrears and the balance outstanding
was
R207 151.84. Clause 1.1.3 of the bond provides that the Bank
shall be entitled to attorney and own client costs for recovery
of
the debt.
[2]
The only material defence to the liability in the plea was that Mr
Meyer was not in
arrears as advised by an advocate. It would
appear that the advocate was later found guilty on a charge or fraud
and theft
under false pretences.
II
THE SUMMARY JUDGMENT APPLICATION
[3]
On 19 October 2021, an application for summary judgment was issued
wherein the bank
claimed R219 581.09, interest and to have the
immovable property be declared as executable.
[4]
The application was set down for hearing for 18 November 2021. On 18
November 2021,
Page AJ, by agreement between the parties, removed the
matter from the roll and paragraph 2 of the order states that Mr
Meyer will
pay the cost of the application for summary judgment.
[5]
On 4 August 2022, one Elsie Wall deposed to a supplementary affidavit
on the Bank’s
behalf wherein she gives an overview of attempts
to settle the matter with Mr Meyer.
[6]
On 27 October 2022, Pohl AJ, by agreement between the parties removed
the matter from
the roll with Mr Meyer to pay the costs occasioned by
the removal. On 1 December 2022, Mathebula J postponed the
matter to
26 January 2023, with no order as to costs.
III
MR MEYERS’ DEFENCE
[7]
Mr Meyer had by then not yet filed an opposing affidavit. On 24
January 2023, Mr Meyer’s
attorney at Krugersdorp, Mr Kapp,
served a notice to oppose and an opposing affidavit deposed to by
himself.
[8]
It is stated that the majority of the litigation against Mr Meyer
became settled,
which includes the claims of the Bank. A
property at Mossel Bay was sold with the intention of settling
creditors and to
avoid Mr Meyer from losing all his properties.
According to Mr Kapp, the parties entered into an agreement on 18
November
2021 with the understanding that Mr Meyer would be granted
an opportunity to pay all his creditors and that the creditors would
be treated equally. Subsequent to that agreement, Mr Meyer made
payment of R50 000.00 on 18 November 2021. He
states that
the Bank then issued a
second
application
for summary judgment whereafter Mr Meyer made payment of R50 000.00
on 26 October 2022. It is stated that the Bank neglected
and/or
refused to make mention of the payment arrangement or monies
received. He states that the Bank persisted with the
second
application
and it was postponed to 27 October 2022. According to him, the
Bank’s attorneys was requested to deal with the payments
already received, which the Bank’s attorneys allegedly refused
to do and notified Mr Meyer that they will proceed with the
application. After he sent a letter to the Bank, to which a
judgment in
Standard
Bank of South Africa Limited v Young and Another
[1]
was
attached
,
the application was removed from the roll on 1 December 2022. In the
Standard
Bank
matter the Court emphasized judicial oversight to ensure that a
Plaintiff make full and frank disclosure of all relevant
circumstances
and that the Bank in that matter failed to inform the
Court that a prior arrangement was made to settle the arrears.
[9]
Thereafter Mr Meyer made payment on 20 December 2022 of R20 000.00
which settled
the arrears leaving Mr Meyer with between R3 500.00
and R4 000.00 in credit, costs excluded. The only issue that
needs
to be addressed is costs.
IV
CONCLUSION ON THE ALLEGED AGREEMENT
[10]
I am satisfied, comparing the versions of the parties, and
considering the various orders granted
after the alleged settlement
was reached, that there was no agreement to settle the debt to the
extent that it would obviate the
summary judgment application from
proceeding.
[11]
It is apparent that the Bank was resolute to get paid and that it
would not allow a situation
to develop where the sword no longer
dangled over Mr Meyer’s head. His intermittent payments
indicate that the Bank granted
him an indulgence but did not abandon
its rights to enforce payment.
[12]
I could not find any support for the allegation that there was more
than one summary judgment
application. The Bank merely re-enrolled
the existing application and supplemented the papers when the Court
made such a request.
V
COSTS
[13]
On 5 January 2023, the Bank’s attorneys informed Mr Kapp that
the cost of the summary judgment
application up to that date would be
R93 597.43. Mr Meyer’s view is that the Bank is not
entitled to the costs
subsequent to the payment arrangement. He
advised that the matter must be referred to the opposed roll and that
the Bank
would only be entitled to cost on party and party scale on
an unopposed basis to date of issue of the
first application
.
[14]
Mr Meyer tenders the cost of litigation “
which will be
confirmed in a formal tender up to the stage of the issuing of the
first application for summary judgment and the
parties entering into
a payment arrangement
”. Reference is made to three
(3) applications for summary judgment which is not correct. No formal
tender could be
found in the Court file.
[15]
On 26 January 2023, Boonzaaier AJ, by agreement removed the matter
from the roll with costs to
stand over.
VI
ARGUMENTS ON COSTS
[16]
Ms Macakati appeared for the Bank when the matter came before me.
In her Heads of Argument
she set out the background facts referring
to the dates of engagement between the parties. She submits
that the matter was
removed from the roll on 1 December 2022 as the
Bank was requested to deliver a supplementary affidavit with updated
statements
and an updated certificate of balance. Mr Meyer only
remedied his default on 20 December 2022. The matter was set down for
26 January
2023 only in respect of costs. Only two days prior
thereto did Mr Meyer file his opposing affidavit.
[17]
Ms Macakati refers to
Ferreira
v Levin N.O. and others; Vryenhoek and others v Powell N.O. and
others
[2]
:
“
[155]
… One of the general rules is that, although an award of costs
is in the discretion of the Court, successful
parties should usually
be awarded their costs and that this rule should be departed from
only where good grounds for doing so exist.”
[18]
She submits that when the last payment was made, the credit agreement
was re-instated but that
there was no offer to settle the costs of
the whole application. The matter was removed from the
unopposed motion court roll
on various occasions either at the
instance of Mr Meyer or in an attempt to settle the matter. The
matter was not finalized
when it came before Page AJ. She submits
that Clause 5.3.7 of the home loan agreement provides that costs
shall be on attorney
and own client scale. The alleged
settlement agreement was merely an indulgence granted to Mr Meyer to
make payments to regularize
his arrears and could not be seen as a
waiver of any of the Bank’s rights. There has always been
only one summary judgment
application which was re-enrolled. There
was no reason to have a full-blown application only on costs as now
occasioned by Mr Meyer’s
insistence.
[19]
Mr Chaka, who appeared for Mr Meyer, argued that when the alleged
settlement was reached, the
summary judgment application became
moot. The only reason why the matter continued was the Bank’s
persistence and to
penalize Mr Meyer with costs. The Bank had
an obligation to place all the correct information before the Court
and Mr Meyer
now has to pay costs. The Bank is no longer seeking
summary judgment and the Respondent has successfully shown that the
matter
is moot. He submits that costs is always in the
discretion of the Court and a successful party should as general rule
be
awarded his/her/its costs. He submits that the matter was
removed from the roll as Mr Meyer extinguished the arrears and that
the Bank should be penalized for setting the matter down on several
occasions and persisting despite payments made. Mr Meyer
should
be entitled to his costs on punitive scale as between attorney and
client. The cost of R93 597.43 is exorbitant.
The
Court is not bound to the provisions of the underlying contract which
provides for the scale of costs. Mr Meyer did not
exhibit any
malice and one has to look at his circumstances. He submitted
that the costs of the opposed application should
be borne by each
party itself/himself.
VII
CONTRACTUAL AGREEMENT ON COSTS – EXERCISING A DISCRETION
[20]
In Intercontinental Exports (Pty) Ltd v Fowles the Supreme
Court of Appeal affirmed that
the discretion to award costs remains,
notwithstanding an agreement, unfettered and equitable:
“
[25]
The basic rule is that, statutory limitations apart, all costs awards
are in the discretion of the court (Kruger Bros &
Wasserman v
Ruskin
1918 AD 63
at 69, a decision which has consistently been
followed). The court’s discretion is a wide, unfettered and
equitable one.
It is a facet of the court’s control over the
proceedings before it. It is to be exercised judicially with due
regard to
all relevant considerations. These would include the nature
of the litigation being conducted before it and the conduct of the
parties (or their representatives). A court may wish, in certain
circumstances, to deprive a party of costs, or a portion thereof,
or
order lesser costs than it might otherwise have done, as a mark of
its displeasure at such party’s conduct in relation
to the
litigation. Is it to be precluded by agreement from doing so? A court
should not be obliged to give its imprimatur to an
order of costs
which, in the circumstances, it considers entirely inappropriate or
undeserved. In my view, as a matter of policy
and principle, a court
should not, and must not, permit the ouster of its discretion because
of agreement between the parties with
regard to costs.
[26]
Because a court exercises its discretion judicially, not
capriciously, it would normally be bound to recognise the parties’
freedom to contract and to give effect to any agreement reached in
relation to costs. But good grounds may exist, depending upon
the
particular circumstances, for following a different course. This
might result, on a proper exercise of discretion, in a party
being
deprived of agreed costs, or being awarded something less in the way
of costs than that agreed upon.”
[21]
The fact that Mr Meyer was advised by an advocate that he is not
obliged, for whatever reason, to honour
his commitments to the Bank
is unfortunate for him. It is, however, not a sufficient
consideration to exercise my discretion in
respect of costs in his
favour.
[22]
I find nothing in the papers or in the conduct of the Bank that would
justify a diversion from the
contractual agreement to pay costs on
the scale agreed on.
[23]
Orders as to costs were previously made. To the extent that costs
stood over, and in respect of the
balance of the proceedings, I grant
the Bank costs on the scale sought.
[24]
I make the following order.
ORDER
1.
The Defendant pays the costs of the Plaintiff on attorney and client
scale.
P R CRONJé, AJ
On
behalf of the Applicant/Plaintiff:
Adv
I Macakati
Instructed
by:
Bokwa
Inc.
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.PG
Chaka
MJ
Kapp (Heads of Argument)
Instructed
by:
Horn
Van Rensburg
BLOEMFONTEIN
[1]
(D8880/2021)
[2022] ZAKZDHC 30 (4 August 2022)
[2]
1996
(2) SA 621 (CC); Also reported at (CCT5/95) [1995] ZACC 13; 1996 (1)
SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)