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[2023] ZAFSHC 483
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Ferreira v Senekal and Others (223/2020) [2023] ZAFSHC 483 (8 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
223/2020
In
the matter between
:
MACHTILT
SUSANNA FERREIRA
PLAINTIFF
and
FREDERICK
JACOBUS SENEKAL
1
st
DEFENDANT
MATSEPES
INC
2
nd
DEFENDANT
FJ
SENEKAL INC
3
rd
DEFENDANT
CORAM:
NAIDOO, J
HEARD
ON:
3 & 4 May 2022, 23 AUGUST
2022, 1 August 2023, 7 November 2023
DELIVERED
ON:
8 DECEMBER 2023
JUDGMENT
[1]
The plaintiff issued summons against the three defendants, namely the
first defendant, Frederick Jacobus
Senekal (Mr Senekal), the second
defendant, Matsepes Inc ( Matsepes or the 2003 company), the third
defendant, FJ Senekal Inc for
payment of monies owed to her, which
she alleges was paid to the first and second defendants for
professional services rendered
to her. She alleges that the first
defendant made certain fraudulent misrepresentations to her which
resulted in her paying the
money to him and the second defendant. I
also mention that the plaintiff’s claim arose when the
Attorney’s Act 53 of
1979 (the Act) and the Rules and
Regulations relevant thereto, were applicable. The relief claimed in
the summons reads,
inter alia
, as follows:
“
1.
Payment of the amount of R412 042.74;
2.
Payment of interest on the amount of R412 042.74 at the rate of
9.5% per annum
a tempora morae
;
3.
Costs of suit.”
Adv
FG Janse van Rensburg represented the plaintiff, Adv MC Louw
represented the first and third defendants and Adv W Groenewald
represented the second defendant (the 2003company) in this court.
[2]
The third defendant filed a Claim in Reconvention against the claim
of the plaintiff enunciated above,
in the amount of Ninety Three
Thousand Three Hundred and Sixty Nine Rand and Seventeen Cents
(R93 369.17). The basis of the
Claim in Reconvention is that,
when Mr Senekal commenced practising for his own account under
the name of the third defendant,
the second defendant (the 2003
company), and the third defendant, represented by Mr Senekal, entered
into an agreement that in
all litigation matters, where clients
requested Mr Senekal to take over their files on behalf of the third
respondent, the latter
will be entitled to recover all outstanding
fees and be liable for all disbursements in connection with such
files. The third defendant
alleges that this agreement with the 2003
company was concluded on 1 February 2018, and that the third
defendant took over the
file of the plaintiff relating to the
application under High Court case number 1582/2017 at the
latter’s specific
instance and request. The amount claimed in
reconvention is allegedly in respect of work done and professional
services rendered
by Mr Senekal and senior counsel in the
aforementioned application, which the plaintiff specifically mandated
Mr Senekal and senior
counsel to do. I will return to this aspect and
the plea of the defendants later, to the extent necessary
[3]
The plaintiff applied for an amendment to the summons, mid-way
through the trial. A written judgment
was prepared in that
application which set out the background to this matter. For
convenience, I repeat here the relevant paragraphs
of that judgment
relating to the background. During 2016, the plaintiff instructed Mr
Senekal to represent her in motion proceedings
in this Division, and
Mr Senekal accepted the mandate, and subsequently launched an
application on her behalf, in this court. The
plaintiff alleges that
Mr Senekal, in representing her, as a director of the second
defendant, fraudulently represented to her
that he was an admitted
attorney, who was in possession of a valid Fidelity Fund Certificate
(FFC) and had complied with all legal
requirements to represent her,
as set out in the Attorney’s Act 53 of 1979, which was
applicable at the time. It is not
in
dispute that over a period of time, he issued several invoices for
disbursements and professional services rendered, which the
plaintiff
paid in the total amount of R412 042.74. Such payments
were made into the Trust Account of the second defendant.
4]
The plaintiff asserts that she was induced by the fraudulent
misrepresentation made by Mr Senekal
to pay the said amount in the
belief that he was entitled to charge such fees and disbursements and
that such amounts were due,
owing and payable to him. The plaintiff
claims that she is entitled to be reimbursed in the amount of
R412 042.74. together
with interest thereon, as claimed in the
summons.
[5]
The evidence of the plaintiff and Ms Christina Jacoba van der Merwe
(formerly Marais), the former Chief
Executive Officer of the then
Free State Law Society, was led, at the end of which the matter was
adjourned for the plaintiff to
properly investigate and consider the
issues raised in Ms van der Merwe’s evidence, after the late
introduction by the first
and third defendants of a FFC, which they
alleged was relevant to this matter. When the matter resumed on 23
August 2022, the applicant
applied to file a supplementary affidavit
to deal with new evidence in respect of the second defendant’s
identity, that had
come to her attention after the previous
adjournment and shortly before the hearing on 23 August 2022. There
was no opposition
to this application and it was accordingly granted
as prayed. The plaintiff also filed an application to amend her
Summons and
Particulars of Claim by deleting the reference to the
second defendant as “Matsepes Inc” and replacing it with
“Matsepes
(Bloemfontein) Inc, with registration number
1998/020850/21.” The plaintiff sought costs of the application
in the event
that the application was opposed. This application was
opposed by the second defendant, Matsepes Inc, which had also filed a
Notice
of Objection to the proposed amendment.
[6]
I pause to mention that during the course of the plaintiff’s
viva voce
evidence in court , it emerged that the second
defendant (Matsepes Inc) and Matsepes (Bloemfontein ) Inc are two
separate entities
with different registration numbers, who practise
from the same premises. The registration number of the second
defendant is 2003/023083/21
(the 2003 company), while that of the
Matsepes (Bloemfontein) Inc is 1998/020850/21 (the 1998 company). The
plaintiff asserts that
at the time that Summons was issued she was
unaware of the existence of two separate entities, as Mr Senekal,
when he rendered
the services to her, appears to have done so as a
representative of both entities. He intermittently used the
letterheads of both
in the course of dealing with her matter. She
made all payments into the Trust Account of Matsepes (Bloemfontein)
Inc.
[7]
As indicated, the amendment sought by the plaintiff was granted, the
court ordering that the plaintiff’s
Summons and Particulars of
Claim be amended by deleting the reference to the second defendant as
“Matsepes Inc” everywhere
it appeared and replacing it
with
“
Matsepes
(Bloemfontein) Inc, Registration number 1998/020850/21”.
Thereafter, the 1998 company Matsepes (Bloemfontein) Inc
withdrew its
defence and filed a Notice to Abide by the court’s decision.
The 1998 company, which was the entity with which
the plaintiff
interacted and into whose account she paid all the monies she now
claims, was after the amendment to the summons,
correctly reflected
as the second defendant in this matter. I will henceforth refer to
this entity as the second defendant. It
was common cause between the
parties that Mr Senekal was a director of second defendant and that
it was into its Trust account
that the plaintiff deposited all
amounts that she was invoiced for.
[8]
When Mrs van der Merwe initially testified, she confirmed that a
letter was sent, via email, by a Mr
Frank Sudron, ostensibly from the
Fidelity Fund to a functionary at the Free State Law Society advising
that Mr Senekal was in
possession of a valid FFC for the 2017, which
was issued on 14 December 2016, with the expiry date being 31
December 2017. When
dealing with the true identity of the second
defendant (the 1998 company), Mrs Van der Merwe earlier testified
that Mr Matsepe
who was a director of the second defendant was not in
possession of a FFC, which information was extracted from the records
of
the Law Society. She further testified that if a FFC was denied to
one director of a company, no other director would be issued
with a
FFC.
[9]
While she was being cross-examined, a further FFC came to hand from
the instructing attorneys of the
defendants. As it was allegedly very
relevant to the issue raised earlier in the evidence that Mr Senekal
and other directors did
not hold a valid FFC for 2017, the court
provisionally allowed the document to be introduced into evidence for
the purpose of cross-examining
Mrs van der Merwe thereon. The
plaintiff consented to the document being shown to Mrs van der Merwe
for the purpose of cross-examination
and reserved her right to deal
with its admissibility later. It was a FFC issued to Mr Matsepe by
Mrs van der Merwe for the 2017
year. She confirmed that it was her
signature that appeared thereon, and explained that at that time, the
Law Society was migrating
to the digital system, where practitioners
who had complied with the Act and qualified for receipt of the FFC
could download the
certificate from a digital portal.
[10]
She further explained that, due to the systems of the Law Society and
that of the Fidelity Fund being different,
there were problems with
the system, and manual corrections had often to be made, after
contacting the Fidelity Fund and advising
them accordingly. If the
practitioner met the requirements, the system would automatically
place her signature on the certificate,
without input from her. When
asked if the certificate was validly issued, she explained that it
could have been done in error,
or it may thereafter have been
withdrawn because a qualified audit was submitted. Without looking at
the Law Society’s system
and/or files, she would be
speculating, as she was unable to say whether the certificates were
validly issued or whether they had
been withdrawn. I pause to mention
that it is common cause between the parties that the second
defendant’s financial year-end
is 30 September each year, that
the audited financial audit statement for 2016 was submitted to the
Law Society on 2 June 2017
and that the audited statement for 2016
was a qualified statement.
[11]
At the end of Mrs van der Merwe’s evidence, the plaintiff
applied for leave to allow Mrs van der Merwe to
inspect the records
of the Law Society in order to ascertain the true position in respect
of the FFC’s issued to Mr Senekal
and the directors of the
second defendant. The plaintiff also reserved her right to recall Mrs
van de Merwe. At the next hearing
of the matter, and as I indicated
earlier, the plaintiff applied to file the supplementary affidavit in
respect of the true identity
of the 1998 company and the 2003
company, which was granted, and she also applied for the amendment of
the summons and Particulars
of Claim, which was granted in the terms
I have indicated earlier in this judgment.
[12]
Mrs van der Merwe was subsequently recalled to testify in respect of
the further investigations that she conducted,
at the plaintiff’s
request, in respect of the FFC’s that were introduced during
her previous testimony, and the 2016
audited statement of the second
defendant. She traversed in detail the relevant content of the
audited statement and indicated
that it was a qualified audit, which
was not acceptable to the Law Society, and the firm would be given an
opportunity to explain
the qualification and rectify the audit report
in order to comply with the Rules. In respect of the FFC’s that
were issued
to the directors of the second defendant, Mrs van der
Merwe explained that where the financial year end of a firm is
different
to that of the Law Society, which is the end of February,
then the practitioners are allowed a six-month grace period from the
end of their financial year to file their audited financial
statements.
[13]
In the case of the second defendant in this matter, whose financial
year-end was 30 September 2016, they would
have had until 31 March
2017 to file their audited statements. However, practitioners
required a FFC to practice from 1 January
each year. They would apply
for the FFC in December of the previous year and it would be issued
by the Law Society, in good faith
and in the hope that an unqualified
audit would be submitted. Mrs van der Merwe indicated that the FFC
would be issued out of leniency
on the part of the Law Society to
enable the practitioner to practice from 1 January. This is what
occurred in the current matter,
where the FFC’s for Mr Senekal
and the other directors of the second defendant were issued on the 14
December 2016, to enable
them to resume practice on 1 January 2017.
[14]
They filed their audited statements on 2 June 2017 (instead of 31
March 2017), and it was a qualified audit. Mrs
van der Merwe
testified that when a qualified audit is filed, the electronic system
flags the firm or practitioner and the FFC
that was issued
immediately becomes invalid and is withdrawn. The FFC becomes
invalid,
ab
initio
, that is, from the date it was
issued. The practitioner is requested to immediately return the FFC,
but her experience was that
they rarely did so. In this case a copy
of the FFC was in the Law Society’s file, so she assumed that
it was either returned
by Mr Senekal or the Law
Society
had made a copy for its records. However, in terms of the Law
Society’s Rules and practice, the FFC would have become
invalid
from the date of issue, being 14 December 2016. The second respondent
did rectify the qualification in respect of its audited
statement and
upon filing same with the Law Society, was issued with a fresh FFC’s
on 22 June 2017, for the remainder of
that year. The only reason a
fresh FFC was issued for each director was that the previous one
(issued in December 2016) was withdrawn.
[15]
The plaintiff closed her case after Mrs van der Merwe testified on
the second occasion. The first and third defendants
thereafter closed
their respective cases, without leading any evidence. The issues that
are common cause between the parties, and
which are most pertinent to
the matters to be adjudicated, are that:
15.1
the plaintiff instructed Mr Senekal during 2016 to represent her in a
High Court application;
15.2
Mr Senekal was at the time a director in the 1998 company and the
2003 company; He held a valid FFC for 2016
15.3
he rendered invoices to the plaintiff on letterheads of the 1998
company as well as the 2003 company, which each bore
different
banking details;
15.4
the plaintiff paid all invoices that were rendered to her from time
to time, in the amount of Four Hundred and Twelve
Thousand Forty Two
Rand and Seventy Four Cents (R412 042,74);
15.5
All payments made by the plaintiff were deposited into the account of
the 1998 company;
15.6
Mr Senekal was, on 14 December 2016, issued with a Fidelity Fund
certificate for the year 2017;
15.7
the second defendant (the 1998 company) submitted a qualified audit
in respect of its 2016 financial statements on 2
June 2017;
15.8
the FFC issued on 14 December 2016 was withdrawn and deemed to be
invalid;
15.9
the audit qualification was rectified and a new FFC was issued to Mr
Senekal on 22 June 2017;
[16]
The primary defence raised by Mr Senekal in his plea is that he was
in possession of a valid FFC for the year ending
31 December 2017.
Although the plaintiff initially raised the issue that he could not
have been in possession of the FFC as he
did not produce a copy
thereof, it appears that Mrs van der Merwe’s evidence that the
certificate was issued electronically
and could be downloaded by the
practitioner, watered down the plaintiff’s challenge that Mr
Senekal was never in possession
of the FFC. Furthermore, her evidence
was that a copy thereof was found in the file of the Law Society. The
real, and seemingly
the only, dispute between the parties is whether
the qualified audit invalidated the FFC from the date of submission
of the qualified
audit statement (2 June 2017) or from the date of
issue thereof (14 December 2016). The plaintiff asserts that it was
from the
latter date, whereas the first defendant alleges that it
could only be from the former date.
[17]
The provisions of the Attorneys Act which the plaintiff relies on as
relevant to this matter are sections 41(1)
and (2), and 42 (4), read
with section 83(10).
In
terms of section 41(1) and (2):
(1)
A practitioner shall not practise or act as a practitioner on his or
her own account or in partnership unless he or she
is in possession
of a fidelity fund certificate.
(2)
Any practitioner who practises or acts in contravention of subsection
(1) shall not be entitled to any fee, reward or
disbursement in
respect of anything done by him or her while so practising or acting.
Section
42(4) provides that:
Any
document purporting to be a fidelity fund certificate which has been
issued
contrary
to the provisions of this Act shall be null and void and shall on
demand be returned to the society concerned.
Section
83(10) stipulates that:
Any person who directly
or indirectly purports to act as a practitioner or to practice on his
or her own account or in partnership
without being in possession of a
fidelity fund certificate, shall be guilty of an offence and on
conviction liable to a fine not
exceeding R2 000 or to imprisonment
for a period not exceeding six months or to both such fine and such
imprisonment.
[18]
In support of his defence that he was in possession of a valid
FFC, the first defendant highlighted the provisions
of section 42
(1), (2) and (3), which set out the requirements to be complied with
to enable the secretary of the Law Society to
issue a FFC:
(1)
A practitioner practising on his
or her own account or in partnership, and any practitioner intending
so to practise, shall apply
in the prescribed form to the secretary
of the society concerned for a fidelity fund certificate.
(2)
Any application referred to in subsection (1) shall be
accompanied by the contribution (if any) payable in terms
of section
43.
(3)
(
a
) Upon receipt of the application referred to in subsection
(1), the secretary of the society concerned shall, if he or she is
satisfied
that the applicant has discharged all his or her
liabilities to the society in respect of his or her
contribution and
that he or she has complied with any other
lawful requirement of the society, forthwith issue to the applicant a
fidelity fund
certificate in the prescribed form.
(
b
)
A fidelity fund certificate shall be valid until 31 December of
the year in respect of which it was issued
[19]
The first defendant, in essence, contends that he did in fact apply
for the FFC, paid the necessary contributions
and satisfied the other
legal requirements of the Society. It is for this reason that the FFC
was issued to him. The evidence of
Mrs van der Merwe in this regard
is that the first defendant must have complied with all other
requirements of sections 42 and
43 of the Attorneys Act, save the
filing of an audited financial statement, in order for her to have
issued the FFC on 14 December
2016. The Practice Rules of the Law
Society authorised her to issue the FFC in that situation to enable
the practitioner to practice,
pending the filing of the audited
statement. When a qualified audit is filed, the Law Society is
entitled to invalidate and withdraw
the FFC, until the qualification
of the audited statement is rectified. A fresh certificate would then
be issued for that year.
[20]
Mrs van der Merwe’s further evidence was that the FFC would
become invalid retrospectively from the date
of issue, and not from
the date of filing of the qualified audit. She was unable to say
where it is stipulated that the FFC becomes
invalid retrospectively
from the date of issue thereof, whether in the Act, the Practice
Rules or the Regulations to the Act. At
best, the court would have to
treat that aspect as Mrs van der Merwe’s opinion. I pause to
note that she conceded that the
purpose of issuing the FFC (in
December) was to enable the practitioner to practice and to afford
him cover with the Fidelity Fund,
for the protection of the public
and “others as well”, which I take to be a possible
reference to the clients of the
practitioner.
[21]
The plaintiff provided no further information or evidence with regard
to the retrospectivity of the invalidity,
which could have been of
assistance to the court. It would have been useful for the plaintiff
to have supported Mrs van der Merwe’s
testimony by leading
evidence of or introducing into evidence the Practice Rule referred
to by Mrs van der Merwe. As I indicated,
the first defendant
did not testify, and bearing in mind that the plaintiff bears the
onus to prove her claim, the court is obliged
to look to the evidence
led by the plaintiff, together with the law as well as facts and
circumstances to decide this aspect. In
view of Mrs van der Merwe’s
concession that she would not have issued the FFC had the first
respondent not complied with
all the other requirements of the Law
Society, section 42(3) comes into play, and it would appear that the
first respondent complied
with the provisions thereof. The provisions
section 41(1) and (2) would therefore not find application. Mrs van
der Merwe’s
confirmation
that the FFC for 2017 was validly issued in December 2016, similarly
renders section 42(4) inapplicable to this matter,
more especially
in view of evidence on behalf of the plaintiff that the provisions of
section 42(1), (2) and (3) had to be
complied with, before the FFC
could be issued.
[22]
In most of the cases referred to in the plaintiff’s Heads of
Argument, the attorney did not apply for or
have a validly issued
FFC. Similarly, in the matter of
NW Civil Contractors CC v
Anton Ramaano Inc and Another 2020(3) SA 241 (SCA)
,- which the
plaintiff relies on, the attorney there was not in possession
of a validly issued FFC. The court undertook a
useful and
comprehensive exposition of the interpretation, meaning and
consequences that flow from a contravention of the provisions
of
section 41(1) and the effect of section 83(10). The court also dealt
with the provisions of section 42. However, in my view,
that case can
be distinguished from the present matter, as the first respondent is
in a different position to the plaintiff in
that matter., having been
validly issued with a FFC.
[23]
The primary purpose of sections such as 41, 42 and 83 of the
Attorneys Act was to protect the public. The intention
of the
legislation becomes relevant in deciding whether the invalidity of
the FFC upon submission of a qualified audit, took effect
on the date
of such submission or retrospectively to the date of issue of the
FFC. The Practice Rule referred to by Mrs van der
Merwe would have
enacted to give effect to the purpose of the Act, so that the
practitioner was allowed to practice, before submitting
an audited
financial statement, if he fulfilled all other requirements of the
law and of the Law Society.
In
this way the public would be protected against any loss they would
suffer as a result of the theft of money or property entrusted
to an
attorney, which is the primary purpose of the Fidelity Fund.
[24]
That being said, the interpretation contended for by the plaintiff
would lead to absurd and dire consequences.
If the FFC was rendered
invalid with retrospective effect to the date of its issue, then
members of the public would have no recourse
in respect of loss or
damages they may suffer in the period prior to the submission of a
qualified audit. Great inconvenience,
hardship and prejudice would be
visited upon unsuspecting members of the public, which could never
have been the intention of the
legislation and/or the Practice Rules.
Therefore, the provisions of a statute, contract, court order or
similar document should
be subject to the rules of interpretation,
which are well established in our law, and which require that a
business-like interpretation
must be given to such provisions or
documents, having regard to the context, surrounding circumstances
and facts known to those
involved in the production thereof.
[25]
Applying these rules of interpretation to the present matter, it
would render nonsensical a finding that a certificate
which was
validly issued, after compliance with the legal requirements relevant
thereto in terms of section 42(3) of the Attorneys
Act was invalid ab
initio, upon submission of a qualified audit report. The contentions
of the first defendant in this regard,
that the FFC would have been
invalid only from the date of submission of the qualified until the
date a new FFC was issued, make
more sense and give the business-like
meaning to the provisions of the Attorneys Act that our rules of
interpretation require.
Mrs van der Merwe testified that when a
qualified audit is filed, the FFC is withdrawn and flagged on the
system as invalid. The
practitioner is then given an opportunity to
explain and rectify the qualification, which appears to have been
done in this matter,
as the qualification was rectified within 20
days and a new FFC was issued on 22 June 2017. I am in agreement with
Mr Louw’s
submission that the only period during which the
first respondent can be said to have practised without a Fidelity
Fund is from
2 June 2016, when the qualified audit was filed and 22
June 2016, when the new FFC was issued.
[26]
This would fall outside the period that the plaintiff bases her claim
on. Although she pleads that her claim consists
of fees and
disbursements for services rendered during the period 1 January 2017
to 21 June 2017, she conceded during her testimony
that some items on
the invoices relevant to this matter bore no specific dates, so she
was unable to say when those services were
rendered. In any event,
there was no evidence from her that services were rendered or
invoices raised in respect of work done between
2 June 2017 and 22
June 2017. In the plaintiff’s Heads of Argument and during oral
address in court, Mr Janse Van Rensburg
indicated that the plaintiff
reconsidered the invoices and that she now claims an amount of
R316 397.43, as opposed to the
amount of R412 042.74
initially claimed in the summons, fortifying the point I just made
about lack of evidence to sustain
the claim in respect of the period
2 June 2017 to 22 June 2017.
[27]
The plaintiff’s claim was based on
condictio indebiti
.
She alleged that the misrepresentations Mr Senekal fraudulently
misrepresented to her that he was in possession of a valid Fidelity
Fund Certificate and that he was entitled to charge fees and incur
disbursements. As a result of the fraudulent misrepresentation,
she
was induced to pay the amount claimed in the summons. In view of my
finding that the version contended for by the plaintiff
regarding the
retrospective invalidity of the FFC, is untenable, it follows that Mr
Senekal was in possession of a validly issued
FFC during all times
material to the plaintiff’s claim. Hence, her contentions based
on the premise that he was not in possession
of a valid FFC and not
entitled to charge fees or disbursements cannot be sustained. It is
not in dispute that all the work invoiced
for, was done and that the
amounts invoiced for were paid voluntarily in the belief that such
amounts were due and payable. The
contention that such amounts were
not due and payable similarly, cannot be sustained. I deem it
unnecessary to traverse the merits
of the plaintiff’s claim in
any further detail, as such claim hinged on the court finding that Mr
Senekal was not in possession
of a valid FFC, when he performed the
work on her behalf, which she paid for. She has not, in my view, made
out a case for the
relief she claims.
[28]
I pause to reiterate that my findings in this matter are based on the
evidence placed before me and, as such, are
specific to this matter.
A different outcome may well have resulted, had the plaintiff placed
further and better evidence before
me regarding the retrospectivity
of the invalidation and withdrawal of the FFC.
[29]
I turn now to deal with the third defendant’s Claim in
Reconvention. As I alluded to earlier, the first and
third defendants
closed their respective cases, without leading any evidence. There
is, consequently, no evidence before me in
respect of the Claim in
Reconvention. Mr Louw correctly conceded that the Claim in
Reconvention should be dismissed with costs.
[30]
With regard to the issue of costs, the defendants sought the
dismissal of the plaintiff’s claim with costs.
It is trite that
the award of costs is a matter in the discretion of the court,
exercising such discretion judiciously and taking
into consideration
all relevant circumstances of the matter. In this matter, the
plaintiff was placed under a misapprehension about
the identity of
the second defendant through the deliberate and intentional actions
of Mr Senekal and other functionaries of the
1998 and 2003 companies.
She was obliged to go through protracted litigation before she
learned the true identity of the second
defendant. Upon the court
granting the amendment to the summons sought by the plaintiff, the
second defendant withdrew its defence
and indicated its intention to
abide by the decision of the court. The court frowns upon such
conduct and is of the view that although
the first defendant is
substantially successful in this matter, a costs order reflecting the
court’s displeasure should be
made.
[31]
In the circumstances, the following order is made:
31.1
The plaintiff’s claim is dismissed;
31.2
Each party is directed to pay its own costs;
31.3
The third defendant’s Claim in Reconvention is dismissed with
costs
_______________________
S NAIDOO J
On
behalf of the Plaintiff:
Adv FG Janse Van Rensburg
Instructed
by:
Conradie Attorneys
14
Bontebokboog Street
Woodlands
Wildlife Estate
Bloemfontein
(A
Conradie/FER0001/22)
On
behalf of the 1st
Adv
MC Louw
&
3
rd
Defendant:
Attorneys:
FJ Senekal Inc
42
Pres Steyn Avenue
Westdene
Bloemfontein
Ref:
Mr Coetzee/KS0021)