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[2021] ZAGPPHC 898
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Pienaar N.O. v Silver Lakes Home Owners Association NPC (A391/2019) [2021] ZAGPPHC 898 (12 July 2021)
REPUBLIC
Of SOUTH AFRICA
IN
THE
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
CASE
NO:
A391/2019
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
Date:
12 July 2021
In
the
matter
between:
Pierre
Pienaar N.O.
Appellant
And
Silver
Lakes Home Owners
Association
NPC
Respondent
This
judgment
is
issued
by
the
Judge
whose
name
is
reflected
herein and is
submitted
electronically to the parties/their legal representatives
by
email.
The
judgment
is further uploaded to the
electronic
file of
this matter on Caselines by
the
Judge
or his/her secretary. The date of this judgment is deemed to be 12
July 2021.
JUDGMENT
L
I
VORSTER;
AJ (COLLIS J
Concurring)
INTRODUCTIONS
1.
The Appellant
was
the Defendant
in
an action
instituted
by
the
Respondent.
The Appellant defended the action.
The trial was
set-down for
16
th
of
July
2019
.
On the day
before the trial, 15
th
of
July 2019, the Respondent
served a
notice
of
withdrawal on the Appellant.
The notice was
not filed at Court
.
2.
The notice of
withdrawal stated that the Respondent withdraws its action and
tenders
to
pay
the
Appellants
costs
of
the
action
.
The
Appellant
was
not
satisfied with the
tender for costs, as the Appellant wanted Attorney and Client costs.
When the trial
commenced, the Appellant informed the Court that the Appellant is
dissatisfied with the tender for costs in the notice
of withdrawal
and wanted to proceed with an application in terms of Rule 27(3) of
the Magistrate's Court Rules to argue the question
of costs
.
The Court
accepted the withdrawal and agreed with the Appellant that the
Appellant was to bring the application in terms of Rule
27(3)
.
On the
5
th
of
November
2019,
the Appellant
brought
its
application in
·
terms
of Rule 27(3), as envisaged at the date of the trial.
The Court
found that the
application
for
costs
on the
scale
of
Attorney
and
Client
was not
competent
after
the withdrawal
of the matter
and where
a tender
for costs was
embodied in the notice of withdrawal.
ISSUE
TO BE DETERMINE
3.
The first
issue for determination is the reinstatement
of this appeal
which has lapsed due to effluxion of time. The appeal lapsed through
no fault of the Appellant or its attorney but
through undue lapse of
time as a result of constraints caused by Covid- 19 restrictions and
access to typing facilities and court
facilities. These factors are
beyond control and cannot serve as
reasons
for dismissing
an application for late prosecution of the appeal. Consequently, the
application for condonation should succeed.
The
issue
in this appeal
is whether
the
findjn9 of the
Magistrate that it was not competent to decide
the
application in
respect of costs because the notice of withdrawal embodied a tender
for
party
and party costs, was correct. That question entails an interpretation
of Rule 27 and particularly Rule 27(3) of the Magistrate
'
s
Court Rules
.
4.
Rule 27 of the
Magistrate's
Court Rules
provides
as
follows
:
"(1)
Where a
summons has not been served or the period limited for the delivery of
notice of intention to defend has expired and no such
notice has been
delivered the plaintiff may withdraw the summons by notice to the
Registrar or Clerk of
the
Court.
(2)
Save
as
provided by
subrule (1)
.a
plaintiff or applicant desiring to withdraw
an
action or application
against
all or any
of
the parties
thereto, shall deliver
a
notice of
withdrawal similar to Form
6
of Annexure
"1
”
.
(3)
,
Any
party
served with
a
notice of
withdrawal
may
within
20 days thereafter apply to the Court for an order that the party so
withdrawing shall pay the applicant's
costs
of the
action or application withdrawn, together with the costs incurred in
so
applying.
Provided that where the plaintiff or application in the notice of
withdrawal embodies a
consent
to pay the
costs
,
such
costs consent shall the force of an order of Court and the Registrar
or
Clerk
of
the
Court shall tax
the
costs on the request of the defendant."
5.
A literal
reading
.
of
Rule 27(3) illustrates the problem.
On the face of
it
,
any
party served with a notice of withdrawal may apply to the Court for
an order that the party withdrawing shall pay the costs
of the
Applicant.
6.
The same
subrule however provides that where a notice of withdrawal embodies a
consent to pay the costs of the other party such
costs consent shall
have the force of an order of Court.
Therefore, on
a literal interpretation of Rule 27(3), a Plaintiff who realizes
that it is at risk to
attract a punitive costs order if the matter proceeds,
can serve a
notice of withdrawal and can tender the party and party costs, which
costs will then in terms of Rule 27(3) have the
effect of an order
of
Court.
In
that
way
such
a
person
can
avoid
the
possibility
of
a punitive
costs order against it. On a proper construction of the rule and
wh.at it seeks to achieve, this could not have been
the intention of
the
legislature.
7.
It follows
that, an interpretation of the rule according to the literal meaning
of the words used, is not correct.
8.
Rule 27 is a
statutory enaction and it is trite that it must be interpreted in a
purposive way to get to the true meaning taken
into account the
fundamental values
which
are
referred
to
in
the
Constitution.
Vide:
Re
Hyundai
Motor
Distributors
(Pty)
Ltd & others v Smit NO & others
2001(1) SA
545
.
9.
One has to
have particular
regard to the
context
of
the legislation
as a means
-
to
establish the true meaning of the words used.
The context of
Rule 27(3) indicate
s
that it is dealing
with the situation where either a Plaintiff or a Defendant de
ides to
withdraw its claim or defence, as the case may be, before the matter
is heard and decided
.
by
a Court of law
.
It deals with
the position where a litigant unilaterally decides to end litigation
and to withdraw its claim or defence
.
Natural
.
ly
the question of liability for costs of the action incurred by the
other party in whose favour the withdrawal operates is then
a factor
to be adjudicated or settled between the parties
.
It may differ
from case to case.
The amount a d
scale of such
cost will not be the same or even comparable in different situations.
Therefore, the
rule- must be interpreted in a way that the party in whose favour the
withdrawal
operates will
be entitled to its costs of suit, as the case may be.
10.
As the
rule
now stands, only a party in whose favour a withdrawal operates and
where costs have not been tendered as
part of the
withdrawal
has
the right to
apply to Court for an order
for costs which would include also the
scale of
costs.
11.
In the case
where a withdrawal
is made and
costs is tendered as part of the withdrawal the rule provide$ that
such costs offered will be having the force of an
order of Court and
must be taxed by the Taxing Master.
12.
There -can be
no reason why a litigant in whose favour a withdrawal is made by the
opposing party should be tied down to the amount
or scale of costs
which the withdrawing party states in the
notice
of withdrawal, to
avoid that
result
the
rule must
be interpreted
to safeguard
in the right
of the party
in whose
favour
the
withdrawal
operates
to approach the Court for an appropriate
order
as to
costs.
Any
other interpretation will be discriminatory without
a lawful basis
for
such
discrimination
.
13.
In casu
the Magistrate
considered himself bound by the provision
.
in
Rule 27(3) that, where costs are offered as part of the withdrawal,
such offer as to costs has the effect of an order of Court
.
Literally
that would be
correct
.
The
point
is that it is not however the correct
interpretation
of Rule 27(3).
The Courts
have warned against the slavish following of the provisions of
Magistrate's Court Rule 27(3).
In
Harding
v Ma clear 2016 (JDRl 2188 (WCC) at 32
the
following is said:
"/
n
this matter Magistrate slavishly followed the provisions of
Magistrate's Court Rule 27(3)
The
Magistrate manifestly did not apply
his
mind to .the background
facts
and the circumstances
giving
rise to
the
application, nor the pedantic and obstructive fashion in which
the
respondent
and
her
attorney
has
conducted
the
matter
thus
far
.
Importantly,
he
failed
to
consider
the
fact
that
he
had
an
overriding
discretion in relation to
the award of costs and was not bound by the stricture of :the rule in
question. Simply put, the Magistrate
did
not
properly
apply his mind
to
the matter
at hand.
"
14.
Clearly, that
is also what happened .in the instant case
.
It follows
that the slavish following of the Iiteral wording of Rule 27(3) of
the Magistrate's Court Rules by the learned Magistrate,
was
irregular
and must be
set-aside
.
15.
When the
withdraw.al of the action was made known to the Appellant, the day
before the trial, the Appellant indicated that it wanted
to argue
the
question of
cots in the
notice
of withdrawal. The Magistrate found the wording of Rule 27 as
peremptory and that he Was powerless to entertain the argument
about
costs.
16.
That was not
regular or correct and
is
a reason to
interfere with the decision of the Magistrate It follows that the
interests of justice require that the overriding discretion
of a
Court
,
including a
Magistrate
'
s
Court in relation to orders of costs cannot be limited to the extent
that a party
is,
precluded from
having its
case decided
by the Court
.
17.
Consequently,
J am of the
view that the appeal must succeed with costs
.
In
the
result, I
propose the
following
order:
17.1.
Condonation is
granted for
the reinstatement
of the lapsed
appeal in terms of Uniform Rule 50(1) with no order as to costs
.
17.2.
The appeal
succeeds.
17.3.
The
Respondent
is
ordered
to
pay
the
costs
of
the
appeal.
17.4.
The order
of the
Magistrate
or finding of the Magistrate that the Court
was -
functus
officio
in
terms of Rule 27(3) is set-aside and replaced by the following order
:
17.4.1
Plaintiff is
ordered to pay Defendant's cost in the main action under case number
1296/2014 on the scale of between Attorney and
Client.
17.4.2
The Respondent
is ordered to pay the Applicant's costs in the Rule 27(3) application
for costs on the scale of Attorney and Client,
including costs of
counsel on the higher scale which shall include the preparation of
heads of argument in terms of Rule 33(8)(d).
L.I
.
VORSTER
ACTING
JUDGE OF THE HIGH COURT
I
agree
C.J.
COLLIS
JUDGE
OF THE HIGH COURT
It
is so
ordered:
Appearances:
For
Appellant
:
Adv
,
H.P.
Wessels 0610 528 6860; 012 4244 017
For
Respondent
:
Adv.
L.C.M. Morland
0824977657
Attorneys:
For
Appellant
:
E.W. Serfontein & Associates. Pretoria.
For
Respondent
:
Warrener De Agrella & Associates c/o Prinsloo vd Linde.
Attorneys, Pretoria
Date
of Hearing
:
03/06/2021
Date
of
Judgment
:
12/07/2021
Judgment
transmitted electronically