About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2023
>>
[2023] ZAGPPHC 1152
|
|
Pienaar and Another v Sassman and Another (25559/2022) [2023] ZAGPPHC 1152 (11 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 25559/2022
(1)
REPORTABLE: YES /
NO.
(2)
OF INTEREST TO OTHER JUDGES: YES /
NO.
(3)
REVISED.
DATE:
11/9/2023
SIGNATURE
In
the matter between:
HARRISON
HURSINEY PIENAAR
First Applicant
HEIDI
JULIA
PIENAAR
Second Applicant
and
NATHAN
EDWIN
SASSMAN
First Respondent
DESIREE
ELIZABETH SASSMAN
Second Respondent
JUDGMENT ON COSTS
ORDER
POTTERILL
J
[1]
I have received an affidavit opposing the proposed costs order.
I have read
same and taken note of its content.
[2]
The factual and chronological history of the matter recording the
conduct of the parties
themselves, has no bearing on the costs order
because the costs order is based on the conduct of the counsel, not
the parties.
[3]
Counsel admits that he made a grave mistake by insisting to pursue
the costs order
against the applicants’ attorney on a
de
bonis propriis
scale. This was not the only “mistake”.
Attacking the integrity of the attorney and using unbecoming language
in the answering affidavit and the heads of argument was highlighted
in the judgment. Surprisingly counsel still persists
with this
in paragraph 50 of the affidavit.
[4]
Although counsel is not a party to the proceedings, costs can be
granted against him
if there was adherence to the
audi
alteram partem
rule. In this matter there was. The judgment explained
what counsel had to answer to and he was afforded an opportunity
to
do so. An award of costs against counsel is thus procedurally
sound.
[1]
[5]
The substantive reason for granting costs on a
de bonis propriis
scale against counsel is also sound. Such costs are granted
when there is wilfulness or gross disregard for professional
responsibilities
or negligence of a serious degree. The basic
notion is thus material departure from the responsibility of office
and the
actual parties to the litigation cannot be expected to bear
the costs. However, in this matter an affidavit was
filed by Mr Nathan Sassman (not his full names) wherein he asserts
that “he gave the instructions to pursue the costs
de bonis
propriis
against the Pienaars’ legal team …”
[6]
What is alarming is that counsel seemingly still does not comprehend
how unprofessional
and defamatory his heads of argument were
drafted. However, since I have it under oath from this client
that it was counsel’s
instructions to persist with the
de
bonis propriis
costs order against the attorney of the
applicants, I will reconsider my order and it will read as follows:
“
All costs
occasioned by the opposition to the
de bonis propriis
costs
order against the applicant’s attorney are to be paid on
attorney and client scale by the respondents.”
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE NO:
25559/2022
FOR THE APPLICANTS:
ADV. M. JACOBS
INSTRUCTED BY:
Klagsbruin
Edelstein Bosman Du Plessis Inc.
FOR THE
RESPONDENTS:
ADV. M. KUFA
INSTRUCTED BY:
Machaba Attorneys
DATE OF JUDGMENT:
11 September 2023
[1]
CB
and Another v HB
[202]
ZASCA 178 par [20]