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[2019] ZAFSHC 163
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Venter and Others v Matsepe NO and Others (5719/2019) [2019] ZAFSHC 163 (29 August 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 5719/2019
In
the matter between:-
EM
VENTER
1
st
Applicant
LECHWE
LODGE GAME FARM (PTY)
LTD 2
nd
Applicant
SJ
WESSELS 3
rd
Applicant
And
TV
MATSEPE
N.O.
1
st
Respondent
OA
NOORDMAN
N.O.
2
nd
Respondent
MATSEPES
INC. 3
rd
Respondent
THE
MASTER OF THE HIGH
COURT
4
th
Respondent
SEBASTIAAN
JACOBUS
WESSELS 5
th
Respondent
CORAM:
MOLITSOANE, J
HEARD
ON:
15 AUGUST 2019
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED:
29 AUGUST 2019
[1]
The Applicants seek an order for costs against the First and Second
Respondents in their personal capacities. No relief is sought
against
the remainder of the respondents. For convenience the First and
Second Respondents will jointly be referred to as ‘the
respondents’.
[2]
The respondents are practising attorneys at Matsepes Incorporated, a
firm of attorneys practising as such and were appointed
liquidators
of Sebal Beleggings (Pty) Ltd Registration number 2006/012369/07 (
herein after referred to as Sebal) –Master’s
Ref B98/12.
[3]
On the 24
th
June 2014 the respondents were interdicted by
this Court to proceed with the liquidation of Sebal pending the
finalisation of a
review application to the Master to remove them as
liquidators, alternatively by an application to Court for their
removal by the
Applicants in terms of section 379(2) of the Companies
Act 61 of 1963. The application for an interdict (herein after
referred
to as ‘the application’) became moot after this
Court set aside the liquidation of Sebal on the 28
th
April
2016.
[4]
In June 2016 the Master again re-appointed the respondents as
liquidators together with an independent liquidator, one Phillip
Fourie.
[5]
This Court dismissed a review application brought by the Respondents
to remove them as liquidators on the 20
th
May 2019 and the
court granted an order of costs against the respondents in their
personal capacities, jointly and severally.
[6]
On the 6
th
June 2019 under case number 4528/2018 this
court declared that Sebal was not in liquidation.
[7]
The issue for determination is whether the respondents should be
ordered to the pay costs of the initial relief sought in the
interdict seeing that the respondents were finally removed as
liquidators including the costs reserved on previous occasions.
[8]
It is submitted that the Applicants were successful in the relief
sought under case number 2688/2014 and that the respondents
were
ultimately removed as liquidators and as a result the Applicants are
entitled to the relief sought in this application.
[9]
It is trite that the award of costs lies in the discretion of the
court. The purpose of an award for costs to a successful party
is to
indemnify him or her for the expense to which he or she was put
through, having been unjustly compelled to initiate or defend
litigation
[1]
.
[10]
The basic rules for awarding costs were set out as follows in
Ferreira
v Levin NO and Others
[2]
:
“
The Supreme Court
has, over the years, developed a flexible approach to costs which
proceeds from two basic principles, the first
being that the award of
costs, unless expressly otherwise enacted , is in the discretion of
the presiding judicial officer, and
the second that the successful
party should, as a general rule, have his or her costs. Even this
second principle is subject
to the first. The second principle is
subject to a large number of exceptions where the successful party is
deprived of his or
her costs. Without attempting either
comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs
can depend on circumstances such
as, for example, the conduct of the parties, the conduct of their
legal representatives, whether
a party achieves technical success
only, the nature of litigants and the nature of the proceedings.”
[11]
As a starting point, I need to emphasise that this Court is not
called upon to decide whether the successful litigant ought
to be
awarded the costs of the litigation. Mine is to determine whether the
respondents should be ordered to pay the costs in their
personal
capacities. It is common cause that the respondents were duly
appointed by the Master as liquidators in the then Sebal
(in
liquidation). It is further common cause that at the time when an
application was launched in case number 2688/2014 the respondents
acted in
nomine officio
in opposing it. It is the contention
of the respondents that in opposing the granting of the relief sought
in the said application
they were executing their duties as
liquidators. This contention in my view remains uncontested. It is in
my view axiomatic that
in executing their mandate as liquidators,
they were entitled to oppose the application if in their view that
would serve to protect
the interests of the creditors or to advance
them. The fact that the application became moot does not detract from
the fact that
the respondents were entitled to oppose the application
if in their considered view the interests of the creditors demanded
it.
[12]
It is not the case for the Applicants that the respondents acted
unreasonably or
mala fide
in opposing the application. It is
also not the case for the Applicants that the opposition of the
application by the respondents
was misconceived or for that matter
ill conceived. No untoward conduct was levelled or suggested against
the respondents in opposing
the application. No argument was advanced
to the effect that the respondents acted
ultra vires
in
opposing the application. The Applicants in a nutshell do not
seek any punitive cost order or an order
de boniis propriis
against the respondents.
[13]
The basis for the submissions of the Applicants that the respondents
should be mulcted with costs in their personal capacities
is simply
that the Court ultimately declared that Sebal was not in liquidation
and it would, therefore, be unfair to burden it
with costs. This
argument, in my view fails to appreciate that at the time of the
application, the respondents were acting in their
official capacities
and were acting within their course and scope of their mandate. I can
find no reason why the respondents should
be saddled with costs in
their personal capacities, in the absence of any recklessness, or
acting to the detriment of the creditors
or exceeding their mandate,
when they executed the mandate they were appointed to execute. On
this point alone, this application
ought to be dismissed.
[14]
Even if it could be said that I am wrong in my finding, the challenge
faced by the Applicants is that the respondents in their
personal
capacities are not before me. They have not been joined as
respondents in this application for a cost order against them.
Counsel for the Applicants referred this Court to the order made in
case number 5081/2017 in which this Court ordered, inter alia,
that
the respondents should pay the costs of the review application in
their personal capacities. In that case the respondents
were joined
as parties and they appeared before Court in both their official and
personal capacities. This is not the case in the
matter before me.
They are simply not before me in their personal capacities. I decline
to make an order against the parties who
are not litigants before me.
On this point also, this application stands to be dismissed. I can
find no reason why the costs should
not follow the successful party.
I make the following order:
ORDERS
1.
The application is dismissed with costs.
____________________
P.E.
MOLITSOANE, J
On
behalf of the Applicants: Adv FG Janse Van Rensburg
Instructed
by: Willers Attorneys
21
Walter Sisulu Rd
Park
West
Bloemfontein
On
behalf of the 1st and 2
nd
Respondents: Adv CJ Hendriks
Instructed
by: Matsepes Incoroparted
26/28
Aliwal Street
BLOEMFONTEIN
[1]
See Texas Co (SA) Ltd v Cape Town Municipality
1926 AD 467
at 488
[2]
1996(2) SA 621 (CC) 624 B-C par [3]