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[2022] ZAKZPHC 60
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Matchett v Pretorius and Others (3119/2022) [2022] ZAKZPHC 60 (12 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 3119/2022
In
the matter between:
MAJ-BRITT
FABRICIUS MATCHETT APPLICANT
and
HENNING
PETRUS NICOLAAS PRETORIUS
FIRST RESPONDENT
CAPITAL
STUD (PTY) LIMITED SECOND
RESPONENT
SUMMERHILL
EQUESTRIAN (PTY) LIMITED
THIRD RESPONDENT
JUDGMENT
[1]
On 10 March 2022 Applicant brought an application against Respondents
set down for
12 April 2022 wherein she sought
inter alia
the
return to her of certain horses, that the whereabouts of the said
horses be disclosed and costs on an attorney and client scale
against
First Respondent. The application papers were served on
Respondents and a notice of intention to oppose was filed
on 18 March
2022. On 28 March 2022 First Respondent filed his answering
affidavit. On 1 April 2022 Applicant’s
attorney filed a
notice of withdrawal of the application and tendered the wasted costs
occasioned thereby on a party and party
scale. On 4 April 2022
a notice of removal of the matter from the roll on 12 April 2022 was
served and filed stating that
the action had been withdrawn. On
4 April 2022 the attorney of Respondents addressed a letter to the
Registrar stating that
the notice of withdrawal was not by consent
and that the notice was therefore invalid and that the matter had to
be enrolled for
12 April 2022. It appears that the matter was
then enrolled on 12 April 2022 and was adjourned
sine die
and
costs reserved. The matter was then set down on the opposed
roll by Respondents for hearing on 5 October 2022.
[2]
Heads of argument were filed on behalf of Applicant and Respondents
from which it
is apparent that the basis for the set down of the
matter on the opposed roll by Respondents was that it required costs
to be paid
on an attorney and client scale. There is no
objection by Respondents that the matter had been removed from the
roll.
The tendering of costs on a party and party scale was not
accepted by Respondents.
[3]
It was submitted on behalf of Respondents that in the application of
Applicant and
in the opposing affidavit of Respondents costs were
sought on an attorney and client scale. It was further
submitted that
when an application was brought on an urgent basis all
material facts must be disclosed. It was submitted that to mark
its
disapproval of fraudulent, dishonest and
mala fide
conduct
or vexatious conduct then costs can be awarded on an attorney and
client scale. I was referred to the decision of
Public
Protector v South African Reserve Bank
2019 (6) SA 253
CC. It
was accepted on behalf of Respondents that a costs order on an
attorney and client scale, which is a punitive costs
order, is in the
discretion of the court which it must exercise judicially.
[4]
It was submitted that factors which had to be considered in this
matter was that it
was an abuse of the court process in that it
lacked urgency and was vexatious. Applicant failed to bring to
the Court’s
attention the entire contents of the letter “H1”
annexed to Respondents affidavit. There was a clear dispute of
fact which was not disclosed to court and spurious allegations were
made against First Respondent. The conduct of Respondents
attorneys were described as “flippant” where no grounds
therefore existed. It was submitted that this justified
costs
on an attorney and client scale.
[5]
It was submitted on behalf of Applicant that at the hearing on 12
April 2022 it was
confirmed by Respondents counsel that the only
issue that remained was the issue of costs which Respondents required
to be on an
attorney and client scale. The withdrawal of the
application was accepted. It was also submitted that the set
down
by Respondents of the matter on the opposed roll did not comply
with Rule 41 (1) (c). There was a costs order tendered and
the
notice of set down does not set out what it was set down for.
It was further submitted that the conduct of Respondents
were
unreasonable in pursuing costs on an attorney and client scale.
I was referred to paragraph 8 of the decision of Public
Protector v
South African Reserve Bank. It was submitted that Applicant did
not conduct herself in any manner which warranted
a punitive costs
order. Respondents are entitled to party and party costs up to
and including the date when such costs were
tendered. The costs
on an attorney and clients scale should therefore be dismissed and no
costs be granted after 31 March
2022. Applicant also sought
that Respondents pay the costs of 12 April 2022 and the costs of the
opposed hearing.
[6]
Both counsel for Respondents and Applicant submitted that in the
event of their respective
submissions not being accepted that
Applicant pay the costs but on a party and party scale.
[7]
Before considering whether costs should be awarded on a punitive
scale it is necessary,
in my view, to set out that from the papers it
appears that Applicant and First Respondent had been in a
relationship from which
two minor children were born. It
appears that there has been litigation with regard to the minor
children and also that there
has been other litigation regarding
horses as both First Respondent and Applicant are owners of horses.
It must be borne
in mind that the dispute in this matter does not
only relate to a purely commercial transaction but originates from a
domestic
relationship between the parties which has resulted in
various interdicts and also settlements reached between the parties.
Accusations which are made by the two parties in their respective
affidavits concerning the conduct of the other party must accordingly
be seen in the light of the domestic relationship which appears to
have broken down between the parties.
[8]
Costs on an attorney and client scale is not to be awarded lightly
and should be considered
in the light that a person who exercised a
right to obtain a judicial decision should not be penalised for doing
so. The
grounds upon which such an order may be granted is
where a party has been guilty of dishonesty or fraud or was vexatious
or malicious
or for frivolous motives brought the said application or
action.
[9]
In the present matter, although it was submitted that there are
averments in the affidavits
which are incorrect and malicious, it has
not been submitted that there is any scandalous matter included in
the affidavits.
[10]
In the case of The Public Protector v African Bank in paragraph 8
thereof it refers to a decision
of the Labour Appeal Court in Plastic
Converters Association of South Africa on behalf of Members v
National Union of Metal Workers
of South Africa 2016 (ZALAC39) with
which it agrees and states as follows:
“
The
scale of an attorney and client is an extra ordinary one which should
be reserved for cases where it can be found that the litigant
conducted itself in a clear and indubitably vexatious and
reprehensible manner. Such an award is exceptional and is
intended
to be very punitive and indicative of extreme opprobrium”
[11]
It is therefore, in my view, when considering the facts of this case
and having to apply ones
judicial discretion in such circumstances,
only in very exceptional circumstances that one would award costs on
attorney and client
scale. In the present matter Applicant, as
soon as the affidavit of Respondents was filed, immediately filed a
notice of
withdrawal of the application and removing it from the
roll. It was only the insistence of Respondents that resulted
in the
matter being placed on the roll on 12 April 2022 when it was
adjourned with the only issue that remained was that of costs on an
attorney and client scale.
[12]
As the leave of the Court had not been sought nor was it by consent I
will accept that the matter
was still set down on 12 April 2022.
The necessity of senior counsel is however not apparent, as only the
issue between party
and part costs or costs on an attorney and client
scale remained in issue.
[13]
The setting down of the matter on the opposed roll for argument for a
costs order on an attorney
and client scale rather than on a party
and party scale, in my view, with the facts as set out above, does
not warrant a costs
order on an attorney and client scale.
[14]
In terms of Rule 41(1) (c) a tender for costs in the withdrawal of a
matter is equivalent to
an order of court. However due to the
fact that in this case the notice at that stage was not by consent or
with leave of
the court but was accepted at the hearing of 12 April
2022 it may be necessary that an order be made in that regard.
[15]
Accordingly the following order is made:
1.
Applicant is ordered to pay the costs of the application up to and
including 12 April 2022.
2.
In respect of the costs of the opposed matter on 5 October 2022 no
costs order is made.
BEZUIDENHOUT
J.
JUDGMENT
RESERVED: 5
OCTOBER 2022
JUDGMENT
DELIVERED: 12
OCTOBER 2022
COUNSEL
FOR APPLICANT: B
S OSBORNE
Instructed
by: Birgit
Cronau Attorney
Tel:
083 657 8890
c/o
Viv Greene Attorneys
Ref:
V Greene/tvdb/MAT3337
Tel:
033 3422766
COUNSEL
FOR RESPONDENT: D
SCHAUP
Instructed
by: Mason
Inc.
Ref:
Mr Peter Coetzee
015/P0031/0000003
Tel:
033 3454230