About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2020
>>
[2020] ZALMPPHC 89
|
|
Murray N.O and Others v Burger N.O and Others (5797/2019) [2020] ZALMPPHC 89 (16 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO/
YES
(3)
REVISED.
CASE
NO:
5797/2019
In
the matter between:
ANTOINETTE
MURRAY N.O
FIRST APPLICANT
COURTNEY
CHANEL MURRAY N.O
SECOND APPLICANT
KEIGHTON
MURRAY N.O
THIRD APPLICANT
(In
their capacities as the trustees of the
Jack
Family Investment Trust, IT No 7409/98)
and
LEONE-KELLY
BURGER N.O
FIRST RESPONDENT
KELLY
MEYER N.O
SECOND RESPONDENT
(In
their capacities as the trustees of the
Lauyer
Trust, IT No 1134/12)
THE
SHERIFF OF THE HIGH COURT
FOR
THE DISTRICT OF MOOKGOPHONG
THIRD RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
The
Applicant ("the Jack Family Trust"), duly represented by
Antoinette Murray, and the Respondent ("the Lauyer Trust"),
duly represented by Andre Meyer, entered into a lease agreement
during August 2017. In terms of the lease agreement the Respondent
would rent the immovable property situated at Erf 9, Erf 8 and
Portion 3 on the Farm Buffeldoorns, Registration Division K.R.
together with the movable property therein.
[2]
On
or about 1 August 2019 the Respondent's legal representative, gave
the Applicant's legal representative written notice of the
Respondent's intention to vacate the property. It was allegedly
agreed between the parties that an inspection of the property would
be held on Saturday, 31 August 2019.
[3]
On
30 August 2019 the 1
st
Applicant met with Sonja van Rensburg, the maternal mother of the 2
nd
Respondent and at that stage realised that all the movable property
as set out in the Notice of Motion were removed from the immovable
property by the Respondents.
[4]
Several
Whatsapp messages were exchanged between the legal representatives of
the parties on 31 August 2019, but the most important
crux of the
messages were that the movable property were removed and that the
Respondents would return the movable property under
protest on a date
mutually agreeable between the parties. The Applicant's attorney
requested from the Respondent's attorney that
an undertaking be given
by no later than 12h00 (noon) on Monday, 2 September 2019 for the
return of the movable property by the
Respondents to the Applicants.
In the interim, the Applicants proceeded to lay a criminal charge of
theft against the Respondents
and their representatives.
[5]
On
2 September 2019 at 12h37 the legal representative on behalf of the
Applicant wrote yet another letter to the Respondent's legal
representative wherein the following was requested:-
"Would you please indicate
whether your clients have any intention of returning the property
belonging to my client to the
main house and the cottage situated on
the farm, and should your client have same intention, would you
please indicate when we
can expect your client to return the
property".
No
response was received to the aforesaid letter.
[6]
The
Applicants then proceeded to issue an urgent ex parte application for
vindicatory relief against the Respondents on 5 September
2019 which
application was set down for hearing on 10 September 2019. The
Applicants brought this urgent application without service
thereof on
the Respondents and without any prior notice in the form of a notice
of demand to the effect that should the movable
property not be
returned, the Applicant will proceed to bring an urgent application.
[7]
On 10 September 2019 Madavha AJ granted
an interim order as per the Notice of Motion returnable on 19
November 2019. In terms of
prayer 9 of the order costs of Part A was
reserved until the finalization of Part B. In terms of paragraph 13
of Part B, the Applicants
applied that the Respondent be ordered to
pay the costs of this application on a scale as between attorney and
client.
[8]
On
12 September 2019, the movable goods were returned to the Applicants
and as from 12 September 2019 the application in terms of
Part B,
except for costs became academic in nature. The counsels for the
parties are ad idem that this application, save for costs,
became
academic.
[9]
The
Respondents filed a notice to oppose on 15 November 2019, only 4
(four) days prior to the return date of the interim order and
more
than 4 (four) weeks after service of the court order and application
on the Respondents. This late filing of the Respondents'
notice to
oppose caused the rule nisi to be extended on 19 November 2019 to 3
March 2020. The Respondents filed their Answering
Affidavit on 29
November 2020. No application for condonation for the late entry of
an intention to oppose was applied for by the
Respondents. This issue
was however not raised by any of the parties before court and am I
not going to elaborate thereon except
to state that the rules of
court in respect of procedure and time frames are to be complied with
by litigants.
[10] The
application was set down on the unopposed roll of 3 March 2020 by the
Applicants despite the rule
nisi having become academic on 12
September 2019 (date of return of movable property) and despite the
application having become
opposed on 19 November 2019 already. The
rule nisi was once again extended on 3 March 2020, but this time to
the opposed roll of
13 August 2020 for an argument in respect of
costs only.
[11]
On 8 July 2020 a letter was sent to the
Applicant's attorney by the Respondent's attorney which stated as
follows:-
"1.
We refer to the matter which is set down for hearing on the
opposed roll on 13 March 2020.
2.
The
only issue that needs to be determined is the question of costs.
3.
My
clients remain of the view that your application for an order for
costs on attorney and client scale necessitated their opposition
to
the initial application.
4.
My
clients deny that they stole
the furniture and they deny that they were about to dissipate the
furniture. In addition, the fact
that all the goods claimed by your
client were never in their possession also necessitated their
opposition of the application.
5.
At
no stage did my clients act ma/a fide or vexatious. It is our view
that the application for
a
cost
order on attorney and client scale is unreasonable. Therefore, after
consultation with my client, I have received instructions
to offer to
your client, which is done herewith, payment of your client's party
and party costs on an unopposed basis, to be taxed
or agreed upon,
until date hereof, on condition that the application is removed from
the roll of 13 August 2020.
6.
Should
your client however persist with the application for costs on an
attorney and client scale, we will have no option but to
instruct
counsel to appear on 13 August 2020 to oppose your application."
No reply was received from the
Applicant's attorneys of record to the aforementioned letter and
offer.
[12]
On
21 July 2020, the Respondent's attorney sent another letter to the
Applicant's attorney which read as follows:-
"My
letter dated the 8th instant, which is attached hereto, refers.
When
can I expect the courtesy of a reply thereto?"
[13]
On
26 July 2020, the Applicant's attorneys replied to the Respondent's
correspondence in a letter as follows, and I only quote paragraph
3,
4 and 5 thereof:-
"3.
Communication was transmitted in which communication an offer was
made that your clients
be responsible for the costs which our clients
had to incur for the urgent application which your clients were not
willing to accept.
4.
We
find it strange to say the least that your clients have now at the
11th hour proposed a settlement offer, which offer our clients
rejects at the outset in its totality. Our clients remain steadfast
in their approach and have done so accordingly as from the
inception
of the matter.
5.
Our
clients have instructed us to proceed with the matter which has been
enrolled on the opposed motion court roll for the 13th
of August
2020."
[14]
This application before me is in respect
of costs only as stated here above. The purpose of an award of costs
to a successful litigant
is to indemnify him for the expense to which
he has been put through having been unjustly compelled to initiate or
defend litigation,
as the case may be. A cost order is not intended
to be compensation for a risk to which a litigant has been exposed,
but a refund
of expenses actually incurred. See
Payen
Components South Africa Ltd v Bovie Gaskets CC
1999 (2) SA 409
(W)
417.
[15]
In
Herbstein
& Van Winsen, The Civil Practice of the High Courts of South
Africa, 5th Edition, Volume 2, page 954-955
the
author stated as follows:-
"The award of costs is
a
matter wholly
within the discretion of the court, but this is
a
judicial
discretion and must be exercised on grounds upon which
a
reasonable person
could have come to the conclusion arrived at. In leaving the
magistrate (or judge) a discretion,
...
the law contemplates that
he should take into consideration the circumstances of each case,
carefully weighing the various issues
in the case, the conduct of the
parties and any other circumstances which may have a bearing upon the
question of
costs
and then make such order
as
to
costs
as
would be fair and Just between the parties ...
Even the general rule, viz that
costs follow the event, is subject to the overriding principle that
the court has a judicial discretion
in awarding costs."
[16]
Both, Counsel on behalf of the
Applicants and Counsel on behalf of the Respondents in the present
application before court, conceded
that this matter should not have
been on the roll. Counsel for the Applicants argued that the
Respondent should not have opposed
the matter in November 2019 and
that appearance to oppose was only entered into
ma/a
fide.
Counsel for the Respondents
argued that the Applicants sought cost on a punitive cost scale and
had they not opposed, the Applicants
would simply have moved for an
order discharging the
Rule Nisi
with
costs on an attorney and client scale. I do not agree with this
argument by the Applicant's Counsel and am I of the view that
the
Respondent had an interest which needed protection in respect of the
punitive cost scale award prayed for against the Respondents
opposed
to a normal cost scale of party and party. When asked by the court
whether the Applicants intend to insist on costs on
an attorney and
client scale, Applicants counsel confirmed that they insist on a
punitive cost scale as between attorney and client.
When asked by
Court on what grounds do the Applicants apply for costs on a punitive
cost sale, Counsel for the Applicants could
not sufficiently justify,
in my view, any grounds for such a higher cost scale order. In my
view the Respondents correctly opposed
the application and did not
act vexatious or malicious in doing so. I do however agree with both
parties' Counsel that this matter
should not have been on the roll.
[17]
I am of the view that the Applicants are
not entitled to costs on a punitive cost scale as there exists no
reason or grounds for
such a higher cost scale especially in light
thereof that the Applicants brought this application
ex
parte
and without prior notice or
service to the Respondents. Had the Applicants given proper notice
and/or served the application, the
issue regarding costs might have
been a bit different.
[18]
The Applicants were however successful
in their application in that only after the interim order was granted
by the court on 10
September 2020, were the immovable property
returned to the Applicants'. It is a fundamental principle that, as a
general rule,
the party who succeeds should be awarded costs, and
this rule should not be departed from except on good grounds. See
Pelser v Levy
1905 TS 466
at 469 and
Fripp v Gibbon & Co
1913 AD 354.
[19]
Innes CJ stated in Pelser v Levy
supra
that:
"The question of costs is
one largely in the discretion of the court which tries the case. At
the same time it is essential
that that discretion, which is
a
judicial one,
should be exercised
as
far as possible
in accordance with definite principles. One of those principles seems
to me to be this: where a man is compelled
to come to court, and
recovers a substantial portion of what he claims, then he should have
his costs. Of course, this rule is
subject to exceptions; but it is a
general rule, and one important to be observed in adjudicating upon a
question of costs."
[20]
In
Fripp
v Gibbon & Co supra , Lord De Villiers CJ held:
"In appeals upon questions
of cost two general principles should be observed. The first is that
the court of first instance
has a judicial discretion as to costs,
and the second is that the successful party should, as a general
rule, have his costs. The
discretion of such court, therefore, is not
unlimited, and there are numerous cases in which courts of appeal
have set aside judgments
as to costs where such judgments have
contravened the general principle that the successful party should be
awarded his costs."
[21]
In
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA
839 (A) 863
as
follows:
"A litigant's right to
recover the costs of an opposed application from his opponent will,
in general, depend on whether he
was in the right, either in making
the application or in opposing it
as
the case may be
(provided always there are no grounds for exercising a judicial
discretion to deprive him of these costs). The form
in which this
rule is usually stated is that the successful party is entitled to
his costs unless the Court for good reason in
the exercise of its
discretion deprives him of those costs. Now, discarding for the
moment the idea of discretion, in an appeal
against an order for
costs the court of appeal does not judge a party's right to his costs
in the Court a quo by asking the question
was he the successful party
in the Court. It asks ought he to have been the successful party in
the Court and decides the question
of costs accordingly. It may or
may not be necessary in such
cases
to deal with the
order which was actually made on the merits. It may even be that no
order on the merits was made in the Court a
quo because by the time
the matter came before that Court the necessity for an order was gone
and the sole question was one of
costs. This shows that the merits of
the dispute in the Court below must be investigated, in order to
decide whether the order
as
to costs made in
the dispute was properly made or not. In deciding whether or not the
Court below made the correct order
as
to costs the
reasons which prompted the Court to make its order must be examined
and those reasons must be the actual reasons and
no others."
[22]
In the result the Applicants are
entitled to their costs as successful litigants and are awarded costs
on a party and party scale
up to and including costs for 3 March
2020. The costs incurred from 3 March 2020 to date of hearing of this
matter on 13 August
2020 were unnecessary and both parties' legal
representatives had a duty to limit or curtail proceedings and costs.
I do not see
why the Applicants and/or Respondents should be liable
for these costs - both parties legal representatives are at fault and
could
easily having applied their minds have solved this issue
without incurring further costs in order to obtain a cost order and
in
the result I am of the view that each party should pay his/her own
costs from 3 March 2020 up to and including the costs of 14 August
2020.
[23]
In addition, I do not view the
continuous litigation in respect of costs only, in the best interest
of either the Applicants or
Respondents. The only parties whom stand
to benefit from this continues vexatious and frivolous litigation are
the respective parties'
legal representatives. Both, the Applicant's
counsel and the Respondent's counsel, conceded during the hearing of
the matter that
the only cost orders a court can make is a cost order
on a party and party scale or attorney and client scale and there is
no distinction
between costs on an unopposed basis and an opposed
basis. The issue in respect of the costs on an unopposed or opposed
basis is
an issue to be debated before the taxing master.
[24]
The Respondent's attorneys made a tender
for costs only on 8 July 2020. Respondent's counsel confirmed that
the tender for costs
is still valid and was it still the Respondents'
tender which can be accepted as a formal tender at the hearing on 13
August 2020.
Although the cost tender stated that the tender is made
on an unopposed basis, this application was on the unopposed roll up
to
3 March 2020 and as already stated both counsel conceded that the
correct tender would have been costs on a party and party scale.
This
misunderstanding, in my view, especially in light thereof that both
counsels conceded that the correct wording was on a party
and party
scale, could easily have been resolved through correspondence, but
did the Applicants attorney simply not engage in any
negotiations
after 8 July 2020 in order to attempt to settle the matter.
[25]
I therefore make the following order:-
1.
The
rule
nisi
issued on 10 September 2019 is
discharged.
2.
The 1
st
and 2
nd
Respondents in their capacities as trustees of the Lauyer Trust, It
No 1134/12, are ordered to pay the costs of this application
on a
party and party scale up to and including the costs of 3 March 2020.
3.
Each party to pay its own costs from 4
March 2020 to and including 13 August 2020.
M. NAUDE
ACTING JUDGE OF
THE HIGH COURT
APPEARANCES:
HEARD
ON:
13 AUGUST 2020
JUDGMENT
DELIVERED ON: 16 SEPTEMBER 2020
For
the Applicants:
Adv. Jaques H Groenewald
Instructed
by:
Dawid H Botha, Du Plessis & Kruger Inc.
For
the Respondent:
Adv. J H Mollentze
Instructed
by:
Franco Rossouw Attorneys