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[2019] ZAWCHC 26
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Van Tonder v Presiding Magistrate, Somerset West and Others (13282/18) [2019] ZAWCHC 26 (5 March 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO:
13282/18
In the matter
between:
CHRISTIAAN ERNST
VAN
TONDER
Applicant
and
THE PRESIDING
MAGISTRATE, SOMERSET WEST
First
Respondent
JURGENS
STEENKAMP
N.O
Second
Respondent
JOHAN
THERON
Third
Respondent
Coram: P.A.L.Gamble, J
Date of Hearing: 7 November 2018
Date of Judgment: 5
March 2019
JUDGMENT
DELIVERED ON TUESDAY 5 MARCH 2019
GAMBLE, J:
INTRODUCTION
[1]
This
is a judgment about the liability for the payment of costs which were
reserved on 7 November 2018 after an order was made directing
the
applicant (“
Van
Tonder”
)
to attend an insolvency interrogation by the second respondent (“
the
trustee
”)
before the first respondent (“
the
Magistrate
”).
Because it is only the determination of costs which falls to be
considered it is trite that the court will decide the
case along
broad and general lines without a full hearing on the merits. That
having been said, an award for costs remains within
the discretion of
the court, which discretion must be exercised judicially after
consideration of all the relevant factors.
[1]
BRIEF SYNOPSIS OF BACKGROUND FACTS
[2]
Van Tonder was previously a director of 2
companies – The Buying Exchange Company (Pty) Ltd and Neonbel
21 (Pty) Ltd –
which had a business relationship with a Mr.
L.J.J Grobbelaar and his wife Ms. E.E Grobbelaar who were both
sequestrated. In accordance
with his statutory functions the trustee
sought to interrogate van Tonder before the Magistrate in terms of
s65 of the Insolvency
Act specifically with reference to the
activities of the Grobbelaar’s.
[3]
From a relatively early stage it seems that
van Tonder exhibited some reluctance to be interrogated. For example,
at a meeting before
the Magistrate on 29 September 2016 his attorney,
Mr. Hurter, indicated that before any interrogation could commence
van Tonder
required a list of relevant documents so as to adequately
prepare himself. At reconvened meetings before the Magistrate on 12
December
2016 and 26 January 2017 van Tonder was apparently present
but was not called to testify.
[4]
On 20
th
April 2017 certain of the parties (excluding van Tonder) were not
present and the matter was further postponed to 10 August 2017.
Van
Tonder says that he was not specifically warned by the Magistrate to
appear again on that date but only informed of the necessity
for a
postponement. Van Tonder was irked by this because he had had to
return from his holiday home to attend the enquiry only
to be told
that the matter could not continue due to the absence of some of the
lawyers. In the result, Mr. Hurter took up the
question of witness
fees and travelling expenses with the trustee’s attorney, Mr.
Theron (the third respondent herein) in
a letter dated 26
th
May 2017.
[5]
After much to-ing and fro-ing the trustee’s
attorney eventually paid an amount of R4518 into Mr. Hurter’s
trust account
on 11 August 2017 in settlement of witness fees. This
was the day after the proposed resumption of the enquiry at which van
Tonder
was not present. Van Tonder did not attend further meetings 9
November 2017 or 14 December 2017, alleging that he had not been
advised thereof and so the matter dragged on without his appearance
being secured.
[6]
Eventually, the Sheriff was instructed to
serve a fresh subpoena on van Tonder to appear at the enquiry on 1
March 2018. His attempt
to do so at van Tonder’s business
premises in Bellville on 13 February 2018 was only successful to the
extent that an employee
(who refused to furnish her name) told him
that van Tonder was overseas and that the date of his return was
unknown.
[7]
On 22 February 2018 a further attempt at
service of the subpoena was made at van Tonder’s residential
address in Durbanville
by affixing it to the front gate after access
to the premises could not be obtained. The return of service reflects
6 previous
attempts at service when the premises were locked and one
occasion upon which the Sheriff was informed by an unknown woman that
van Tonder was away. A photograph of the subpoena attached to the
founding papers shows that it was firmly secured to the gate
and
could hardly not have come to the attention of the occupants of the
house. Notwithstanding these returns, the Magistrate declined
to
issue a warrant for the arrest of van Tonder when he failed to appear
on 1 March 2018 and directed that a new subpoena be served.
[8]
Fresh documents were drawn requiring van
Tonder’s appearance before the Magistrate on 20 April 2018.
Attached to that subpoena
was a list of documents that he was
required to bring along. Once again an attempt at service at the
commercial premises associated
with van Tonder was stymied on 6 April
2018 with a similar response as before, while service at his
residence in Durbanville on
5 April 2018 was again effected by
attachment to the gate. When van Tonder did not appear on 20 April
2018 the Magistrate issued
a warrant for his arrest and postponed the
interrogation to 31 May 2018.
[9]
On that day van Tonder did not appear
either and the Magistrate chairing the interrogation (a different
person to that that who
had presided on 20 April 2018) cancelled the
existing warrant and issued a fresh warrant of arrest, directing the
Sheriff to bring
van Tonder before the Magistrate on 26 July 2018
when the enquiry was scheduled to continue. The Sheriff duly complied
with the
directions of the Magistrate and took van Tonder into
custody on 26 June 2018 under the supervision of the SA Police
Services.
He was taken through to the Somerset West Magistrates’
Court where he was held in a communal cell with ordinary awaiting
trial prisoners. Later that day van Tonder appeared before the
Magistrate who ordered his release from custody and warned him to
appear again on 26 July 2018.
[10]
Van Tonder relates how he was threatened
with violence and sexual assault while in the communal cell and says
that he ultimately
consulted a psychologist, Dr Rossouw, as a
consequence thereof. The upshot of that intervention was a diagnosis
of Post Traumatic
Stress Disorder (“
PTSD
”)
and a recommendation by Dr Rossouw that Mr. van Tonder not return to
court as he might suffer further psychological stress
by being
associated with that venue and, in addition, that he not be
interrogated until his condition had been treated –
a period of
10 to 14 weeks was envisaged in that regard.
[11]
Mr.
Hurter therefore communicated with Mr. Theron in an endeavor to
secure an undertaking that van Tonder be excused from attendance
before the Magistrate on the 26
th
July 2018. He was unsuccessful in that regard and Mr. Theron demanded
that van Tonder present himself as instructed by the Magistrate.
Fearing the worst and anticipating further psychological injury if he
were to return to the environs of the Somerset West court,
van Tonder
launched an urgent application in this court on 26 July 2018 seeking
relief to the following effect.
(1)
That the trustee and Mr. Theron be
prohibited from applying for a warrant of arrest for van Tonder’s
failure to appear for
interrogation before the Magistrate on 26
th
July 2018 until such time as Dr Rossouw had furnished a report that
he was fit to attend such a meeting;
(2)
That the Magistrate be directed not to
issue such a warrant in the event that van Tonder failed to appear;
and
(3)
That the trustee and Mr. Theron be directed
to pay the costs of the application
de
bonis propriis
in the event of
opposition.
[12]
The matter was heard urgently during the
winter recess and the presiding judge required the attendance of Mr.
Theron and the trustee’s
counsel, Mr. van der Walt, before an
order would be considered. After discussing the matter with the judge
in chambers the parties
took an order by agreement which provided for
–
(1)
An undertaking by the trustee and Mr.
Theron not to apply for the arrest of van Tonder to his failure to
appear at the Magistrates
Court on 26 July 2018 pending the further
hearing of this application;
(2)
A timetable for the filing of supplementary
founding papers and answering and replying affidavits;
(3)
The reservation of costs; and
(4)
The postponement of the matter to the semi
urgent roll for hearing on 7 November 2018.
[13]
As set out above, the main issue was
resolved in terms of an agreed order on 7 November 2018 - essentially
that the trustee would
interrogate van Tonder at the offices of his
attorneys in the presence of a presiding officer duly appointed by
the Master. One
would have hoped that such an order would have put
paid to the dispute but of course as is so often the case the
ever-important
question of costs remained and was hotly debated by
counsel before me.
CONSIDERATION OF AN APPROPRIATE
ORDER
[14]
Mr. van der Merwe, counsel for van Tonder,
asked for the costs order to incorporate the following.
(1)
Firstly the costs of the urgent application
of 26 July 2018 were sought on the scale as between attorney and
client;
(2)
Then the costs of opposition of the
application were sought but not on the scale as between attorney and
client;
(3)
Finally van Tonder sought the costs of the
day on 7 November 2018 (including the costs of opposition) on the
party and party scale;
and
(4)
It was said that any such costs orders
should be made against the trustee and Mr. Theron jointly and
severally but not
de bonis propriis.
[15]
Mr. van der Walt submitted on behalf of the
trustee and Mr. Theron, firstly, that there was no basis at any stage
for a claim for
costs
de bonis propriis.
It was further submitted that, insofar
as the claim for such costs was only abandoned by van Tonder during
the course of the hearing
on 7 November 2018, it was reasonable for
those parties to have opposed the application and to have appeared at
the hearing through
counsel to resist both the costs orders and the
signification of opprobrium which would have accompanied the making
thereof. I
agree.
[16]
In my
view, there was nothing in the conduct of either the trustee or Mr.
Theron which warranted a personal costs order being made
against two
professional persons acting in their respective representative
capacities. Indeed such an order is not readily made
and, when it is,
it will only be granted in circumstances where the representative
concerned has exhibited a material departure
from the responsibility
of office.
[2]
Little surprise then that Mr. van der Merwe smartly abandoned that
prayer when pressed by the court to motivate it.
[17]
In the result, there is much to be said for
an order that, notwithstanding a measure of overall success in the
application, van
Tonder should carry the costs can by virtue of his
unwarranted brinkmanship against his opponent’s attorney.
However, that
is not the end of the affair.
[18]
One must also ask whether the bringing of
the urgent application on 26 July 2018 could have been avoided. I
have little doubt that
van Tonder’s prevarication and patent
attempts to evade service of the subpoenas on him were a contrivance
to avoid the inevitable.
And, it may be said that he received his
comeuppance in spades when he was eventually arrested and taken
through to the Magistrate
under the warrant of arrest of 20 April
2018. On that score it should be pointed out that the instructions of
Mr. Theron to the
Sheriff were expressly to avoid the incarceration
of van Tonder in the police cells, no doubt mindful of the horror
stories which
abound about the fate of white collar criminals being
attacked and molested by the common or garden variety when in
collective
custody.
[19]
The diagnosis of PTSD by Dr Rossouw was
attacked in the answering papers by Dr Panieri-Peter, an eminent
forensic psychiatrist in
the city. She points out in an affidavit
dated 20 September 2018 that Dr Rossouw was initially consulted by
van Tonder in a therapeutic
capacity and that any confirmed diagnosis
of PTSD ought thus to have been left up to an independent
psychiatrist with forensic
experience. Dr Panieri-Peter also
highlights concerns regarding van Tonder’s potential for
malingering, not an unreasonable
position to take in light of the
background circumstances of the matter.
[20]
But at the end of the day, the launching of
this application achieved two results. Firstly, it ensured that van
Tonder was not exposed
to any risk whatsoever of potential
psychological harm by being excused from attending at the alleged
source of his alleged injury.
To that extent I suppose it may be said
that the application was warranted. However, as a consequence of that
which transpired
subsequent to the initiation of this application,
van Tonder’s reluctance to be subjected to lawful insolvency
interrogation
was overcome. In this regard it might therefore be said
that on the first outcome van Tonder has achieved a fair measure of
success
while on the other hand the trustee has been able to
discharge his statutory function and has similarly been successful in
his
overall stratagem.
CONCLUSION
[21]
In the result there are those (other than
the legal representatives who, no doubt, have been handsomely
rewarded for their professional
services) who will claim to have been
successful in this spat. In my view, the applicant’s measure of
success falls to be
off-set by the unwarranted step of persisting in
a claim that contemplated that personal costs orders should be made
against professionals
acting in their representative capacities. In
the result, it seems to me to that the fairest and most equitable
order is that no
party be mulcted in costs.
ORDER OF COURT:
THERE WILL BE NO ORDER AS TO COSTS.
__________________
GAMBLE, J
[1]
Gamlan Investments (Pty)
Ltd and another v Trillion Cape (Pty) Ltd and another
1996
(3) SA 692
(C) at 700C – 701H
[2]
Blou v Lampert and Chipkin
NNO and others
1973 (1) SA
1
(A) at 14A – 15C