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[2021] ZAGPPHC 401
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Mostert and Other v Nash and Others (56338/2019) [2021] ZAGPPHC 401 (11 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no: 56338/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
ANTONY
LOUIS MOSTERT
First
Applicant
ANTONY
LOUIS MOSTERT
N
.
O.
Second
Applicant
A
L MOSTERT
& CO. INCORPORATED
Third
Applicant
And
SIMON
JOHN NASH
First
Respondent
MIDMACOR
INDUSTRIES
LIMITED
Second
Respondent
FINANCIAL
SECTOR
CONDUCT
AUTHORITY
Third Respondent
JUDGEMENT
NE
NKOSI
AJ
[1]
The applicants seek an order declaring that, properly interpreted,
the cost order granted against the applicants and three other
third
parties was granted against them jointly and severally, and
further that the applicants are absolved from liability
for the cost
order as a result of the first and second respondents abandoning
their cost order against the three other parties.
The application is
opposed by the respondents.
[2]
It is common cause that:
2.1
On 5 April 2017, Tuchten J handed down judgment in a matter involving
the parties to the present application. In respect of
costs, the
judgment records:
"
104
As
to
costs:
although
the
applicants
sought
in
the
notice
of
motion
as originally framed
an
accoun
t
from
Mr
Mostert, the curator
and
ALM
Inc,
counsel
for
the
applicant's
conceded
that
the
d
uty
to
account
was
on
these papers
restricted
to the curator
only.
On
that
issue,
therefore,
M
r
Mostert
and
ALM
Inc
were
successful.
But
the
key
issue
in
the case,
on
which all
the
respondents
except the
Sable
Fund
joined
issue
with
the
applicants,
related
to
the
question
whether
the remuneration
agreement
could
survive
scrutiny.
On
that
issue
the
applicants
were
successful and
thus
substantially
successful
in
the
case.
The
applicants
sought
no
reli
e
f
against
the
Sable
Fund
. On this basis, I shall
or
d
er
the respond
ents
other
than
the
Sable
Fund
t
o
pay
the applicants'
costs.
All
the
parties
used
the
services
of
two
counsel
and
the
papers
and
the
issues
involved
certainly
justified their employment
[1]
.
"
2.2
The order in respect of costs records:
The
first, second, fourth, fifth, sixth and seventh respondents must pay
the
applicants'
costs
of
suit
in
relation to
this
application,
including the costs
consequent
upon
the
employment of both senior and
junior
counsel
[2]
.
2.3
The effect of this order on the parties to the present application is
that the applicants, who were the first, second and fourth
respondents, and the Financial Sector Conduct Authority ("Conduct
Authority"), who at the time was the fifth, sixth and
seventh
respondents, were ordered to pay the costs of Nash and Midmacor, who
were the applicants.
2.4
On 8 February 2019, Nash and Midmacor withdrew a pending appeal in
the Supreme Court of Appeal involving the Conduct Authority
. It was
agreed that each party would bear their own costs in the matter
withdrawn. This was subject to Nash and Midmacor agreeing
to abandon
the
aliquot
liability of the Conduct Authority in the Tuchten
J costs order, which they did. The applicants launched the present
application
being aggrieved by the abandonment of the cost order.
[3]
The issues to be determined by this court are:
3.1
Whether the court order by Tuchten J, in respect of costs, properly
interpreted, was granted against the applicants and the
three other
parties "jointly and severally" (my emphasis); and
3.2
Whether the applicants are absolved from their liability for costs as
a result of the first and second respondents abandoning
the cost
order against the three other parties.
[4]
Regarding the first issue, Mr. Wasserman, appearing for the
applicants, submitted that the cost order should be understood to
mean jointly and severally. Mr. Wickins, for the first and second
respondents supported that view. He further submitted that it
was
always the respondents understanding that the costs were granted on
joint and several basis and that there was never a need
for an order
to clarify the cost order.
[5]
Mr. Theron, representing the third respondent disputed that the cost
order of Tuchten J caters for several liability of the
respective
parties. The third respondent is of the view that although the court
has authority to clarify its order, the declaratory
order sought by
the applicants amount to a variation of the cost order of Tuchten J
and the applicants have not made out a case
for variation of the
order.
[6]
The
applicants
and
the
first
and
second
respon
d
ents'
submission
s find
support
from
the
following
passage
in
H
erbstein
and
Van
Winse
n
[3]
:
"In
Minister
of
Labour
v
Port
Eli
z
abeth
Municipali
t
y
[4]
the
Appellate
Division,
considering
that
a
part
y
is
compelled
to
join
all
other
parties
who
have
a
direct
interest
in
the proceedings,
expressed
the
view
that
if
one
of
those
other
parties is not
in
a .financial p
o
sition
to pay
his
aliquot
share
of
the
costs
awarded,
an
order
simply
for
costs
would
result
in
the
successful
party
not
being
able
to
recover all
his
taxed
costs,
which
would
be
inequitab
l
e
in
cases
where the
parties
con
d
emned
to
pay
costs
make
common
cause with
one
another.
The
Ap
p
ellate
Division
dismissed
the
appeal)
or
d
ering
the appellants
to
pay
the
respondent’
s
costs
of
appeal
jointly
and severally)
the
one
paying
the others to
be
absolved
.
This
case
has
been
followed
since
by
the
Appellate
Divisio
n
.
Or
d
ers
to
pay
costs
jointly
and
several
l
y
where
the
litigants
concerned
had
made
common
cause
with
one
another
have
subsequen
t
ly
been
granted
.”
[7]
Rule 10 (4)(c) of the Uniform Rules of Court confirms that a "joint
and several" cost order is a competent order in
circumstances
similar to the case at hand and it provides that:
"4....
(a)..
(b)...
(c)
If
judgment
is
given
in favour of
the plaintiff against
more
than one
of
the
d
efend
ants) the
court
may
or
d
er
those
d
efen
d
ants
against
whom
it
gives
judgment
to pay the plaintif
f’
s
costs
jointly
and
several
l
y
)
the
one
paying
the
or
d
er
to
be
absolved)
and
that if one
of the
unsucces
s
ful
d
e
f
en
d
ants
pays
more
than his
pro-rata
share
of
the
costs
of
the plaintiff,
he shall
be entitled
to recove
r
from
the other unsuccessful
d
efen
d
ants
their
pro
-rata share of such excess.
”
[8]
An order against unsuccessful defendants to pay costs jointly and
severally is prevalent and this has been the approach of our
courts
since the decision in the Minister of Labour v Port Elizabeth
Municipality. Although the cost order by Tuchten J is not
explicit,
it should still be understood in light of a principle which has now
become a widely accepted practice. In the circumstances
of this case,
understanding the cost order to mean jointly and severally does not
amount to a variation of the said order.
[9]
As regards to the second issue, and in accordance with a proper
interpretation of Rule 10 (4)(c), the abandonment of the cost
liability of the three parties does not extinguish the entire cost
liability. The applicants are excused from paying the pro-rata
share
of the three parties in whose favour the costs were abandoned. The
applicants remain liable to pay their respective pro-rata
share
jointly and severally, the one paying the other to be absolved.
[10]
It was certainly not the intention of the respondents to abandon the
entire cost order. In my view, the abandonment of the
cost order does
not in any way prejudice the applicants to an extent that they would
be expected to pay more than they would be
required, had there been
no abandonment.
[11]
In the circumstances, I order that:
1.
The application is dismissed;
2.
The applicants, jointly and severally are to pay the first and second
respondents' costs inclusive of costs of two Counsel if
so employed.
NE
NKOSI AJ
Acting
Judge of the
High
Court
Date
of hearing: 31 May 2021
Date
of Judgement: 11 June 202 1
For
the Applicants: Adv JG Wasserman SC
Instructed
by: Assheton - Smith Ginsberg Incorporated Cape Town
For
the Second
Respondent:
Adv GD Wickins SC
Instructed
by: KWA Attorneys Johannesburg
For
the Third
Respondent:
Adv EL Theron SC
Instructed
by: Rooth &Wessels Incorporated Pretoria
[1]
Caselines 001: p54,para
1
04.
[2]
Caselines 001: p56, para 7.
[3]
Herbstein and Van Winsen -The Civil Practice of the High Court of
South Africa 5th Edition, Volume 2 at page
992.
[4]
Minister of Labour v Port Elizabeth Municipality
1
952
(2) SA 522
(A) at 537G -
538A. Also
see Maclean v Haasbroek
1
957(i)
SA 464 (A).