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[2018] ZAGPPHC 754
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Time Clothing (Pty) Ltd v School Stuff (Pty) Ltd and Another (67942/2013) [2018] ZAGPPHC 754 (28 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NUMBER:67942/2013
28/2/2018
In
the matter between:
TIME
CLOTHING( PTY)
LTD
FIRST DEFENDANT
And
SCHOOL
STUFF (PTY)
LTD
FIRST DEFENDANT
IZAK
JOHANNES
CROUCAMP
SECOND DEFENDANT
In
re:
SCHOOL
STUFF (PTY)
LTD
FIRST APPLICANT
IZAK
JOHANNES
CROUKAMP
SECOND DEFENDANT
JUDGEMENT-
LEAVE TO APPEAL
TLHAPI
J
[1]
The action related to the supply of school uniform to the defendants
and the fact
that it was alleged that defective garment s had been
delivered by the plaintiff . A certain amount remained owing to the
plaintiff
and action was instituted against the defendants. The main
agreement provided for the return of the defective goods and how the
returns would be accounted for in reducing the amount owed by the
defendants to the plaintiff. The defendant counterclaimed for
the
amount by which it had suffered loss as a result of the defective
goods. There was a further agreement concluded by the parties
on 7
October 2013 .
Furthermore, there was no
objection to the late filing of the condonation application and
condonation was granted.
[2]
The agreement of 7 October 2013
confirmed the status of the dispute between the parties and further
provided:
1
“
SCool Stuff returns the stock
listed in annexure A to Time.
2.
The stock is returned for the
values stated ,n Annexure A
3.
Time reserves the right to recover
any other amounts due by sCool Stuff.
4.
sCool Stuff reserves the right to
recover damages from Time.
5.
The parties agree that should
either party exercise its right in terms of paragraph 3 and 4 hereof,
legal action should be taken
against the other party (either by
service of a summons or service of an application) on or before 1
November 2013 . The parties
agree that any right to claim against the
other party, will prescribe on 1 November 2013."
The above agreement was discovered
by the plaintiff on 5 February 2016,
[3]
On 16 February 2017 the plaintiff filed
a notice in terms of Rule 28(10) to amend its replication to their
plea by inserting subparagraphs
3.SA and 3.58 under section 3.4 to
reflect that the parties had prior to the institution of the action
concluded a further written
agreement relating to any legal action
which the parties would institute regarding the dispute.
"3.4
Moreover, the plaintiff further pleads that any damages. which is
denied, are specifically excluded
by virtue of the provisions of the
written agreement concluded between the parties.
3.5A Further. on
or about 7 October 2013, the parties concluded a further written "
agreement in terms of
which it was agreed that any legal action
should be taken on or before 1 November 2013. A copy of the agreement
is attached and
marked as annexure "TIME1".
3.5B The first
defendant failed to institute its claim against the plaintiff before
1 November 2013 and as a result
is barred from doing so now. "
[4]
The
applicant applies for leave to appeal a costs order on the following
grounds:
"1. That
the... court materially misdirected itself alternatively failed to
exercise a Judicial
discretion or a proper judicial when it ordered
the applicant to pay the respondent's costs which costs included the
costs of defending
the counterclaim. The said costs order was
motivated on the basis that the respondent was successful in respect
of the counterclaim.
2.
The
court materially erred by failing to consider the following facts and
misdirected itself in respect of he respondent's success
by no
considering the following:
2.1
The
counterclaim was withdrawn on Friday, 17 February 2017, after the
respondent was granted leave on 16 February 2017 to amend
its plea to
the applicant's counterclaim (after the closure of the respondent's
case)
2.2
The
amendment resulted m the insertion of a plea that the first
applicant's counterclaim was time barred due to the fact that the
parties had previously agreed in writing that the first respondent's
action had to be instituted on or before the 1 November 2013.
2.3
The
first applicant's counterclaim was withdrawn as a result of the
aforesaid amended plea.
2.4
The
said agreement was discovered by the respondent on 5 February 2016
and if the respondent had filed the said plea at that stage,
that the
first applicant would have withdrawn its counterclaim .
2.5
The
....Justice failed to consider that the costs of the expert reports
of Ms Sanet Beyleveld and Mr Zeeman (auditor) and their
preparation
and reservation for trial: the applicant's discovery (in respect of
its counterclaim) and the trial bundle (in respect
of the
counterclaim), and the costs from the second day of trial, i.e from
10 February to 17 February 2017 were wasted. (The said
costs would
not have been incurred had the respondent raised the aforesaid plea
timeously)
3.
It
is contended that the ... court's failure:
3.1
to
consider the withdrawal of the first applicant's counterclaim (and
thus the respondent's "successful opposition "to
the first
applicant's counterclaim) in the aforesaid context; and/or
3.2
to
consider the afore said facts at all or adequately resulted in a
grossly unreasonable costs order
4.
………
..
4.1 …………….
4.2
The costs order should with respect,
have read as follows:
"4.
The defendant's are ordered to pay the costs of the plaintiff in
respect of the main
claim. The plaintiff is hereby ordered to pay the
first defendant's costs in respect of the first defendant's
counterclaim from
31 March 2016 which costs shall include he
following:
(a)
The costs of the expert reports of Ms
Sanet Beyleveld and Mr Zeeman (auditor) and their preparation and
reservation for trial;
(b)
The
applicant's discovery in respect of its counterclaim and the
preparation of the trail bundle in respect of the counterclaim
;
(c)
The
costs from the second day on trial, i.e. from 10 February 2017 to 17
February 2017."
[5]
The gist of argument
on behalf of the applicants is that had the amendment been sought
earlier on or had the issue relating to the
agreement been raised
earlier the parties would not have been involved in a lengthy trial.
It was contended that unnecessary costs
had been incurred by the
applicant in preparation for the trial and in conducting the trial as
well as other incidental costs as
indicated in the grounds of appeal.
Several authorities were referred to and only a few shall be referred
to.
[6]
The effect of the amendment as conceded for the applicants had the
result of brining
to an end the counterclaim of the applicant. He
contended that if the agreement had been discovered at pleading state
there would
never have been a counterclaim and that all the costs
were wasted, that a costs order against the plaintiff should have
been made,
at worst an order that each party pay his or her costs. It
was argued further, that a litigant was not entitled to wasteful
costs
by raising a defence late and that there were reasonable
prospects that another court might find differently. It was argued
that
the court when dealing with the costs of the counterclaim in its
judgement apart from pronouncing the order nothing was said.
[7]
It was argued for the respondent that
the grant of the costs order fell within the discretion of the court.
The test for upsetting
an award for costs on appeal was more
stringent. The appeal court was entitled to interfere where it had
acted capriciously or
upon wrong principle. It was contended that a
proper case was not been made out for the grant of
leave
to appeal. The reason for the
amendment was to attach a copy of an agreement that had been
discovered and was within the knowledge
of the applicant.
[8]
It is trite that the award of costs lies
within the discretion of the trial court and that a court of appeal
would only interfere
if the discretion was not exercised judicially,
or if it failed to act for good reasons or if the decision was based
on wrong principles.
I have read the authorities cited
on behalf of the applicant and am of the view that the facts are
distinguishable from the present
matter. The quotation cited in
counsel's heads of argument in Algoa Milling Company v Arkell &
Douglas
1918 AD 145
at 159 was considered again in Ashco r Secunda
(Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd(624/10) [2011] ZSCA 158
at paragraph
15 where it was stated:
" But
as Greenberg JA made it plain in Cohen v Hayward 1948(3) SA 365 (A)
at 374
.. I do
not think , however hat it was the intention of the Court in the
cases quoted to lay down an inflexible rule which would
deprive the
Court of its discretion in regard to costs and disentitle it. in a
proper case from departing from the Rule "
In both matters the issue was that
one of the parties could have avoided the leading of unnecessary
evidence by having excepted
because of the lack of averments to
sustain a cause of action.
In Barclays Bank (D.C.D & O)
and another v Rivers ide Dried Fruit Co Ltd 1949 (1) SA CPD 937 at
951 again the facts were distinguishable.
The hearing had lasted for
five full days and It's was only on the third day where there was
indication that the applicant's claim
against the respondent had been
ceded to the bank. and here the respondents had prior knowledge about
the cessions to the Bank.
The court found that had the issue of the
sessions been taken at an earlier point the hearing would have been
shortened by two
or three days,
[9]
The agreement in this matter that was discovered on 5 February 2016
and listed as
item 30 of schedule 1. It was a product of both the
applicant and the respondents and it was not something that the
applicants
did not know about. There was always a denial in the
pleadings to liability on the counterclaim. The agreement in evidence
was
entered into after a series of backwards and forwards between the
parties in their attempt to resolve the problems. It is not a
defence
that is new
[10]
It is also apposite to revert to the purpose of discovery. A party
discovers to the other side
all documents in its possess ion likely
to be used as evidence during the trial and the party to whom
discovery is made is placed
in a position to inspect such documents
well in advance in preparation for the trial. It is my view that the
agreement which was
annexed through the amendment was not such that
the defendants were prejudiced thereby because it had been discovered
. lt would
have been something else if the document had not been
discovered and listed or if it constituted new matter altogether.
Between
the 5 February 2016 and the first day of trial had the
applicants prepared they would have realized that their pursuance of
the
counterclaim in the presence of the agreement would have served
no purpose. they had bound themselves to time frames within which
to
institute action for the loss they had suffered. I am therefore of
the view that no other court would arrive at a different
conclusion
regarding the award of costs.
[11]
In the result the following order is given:
1.
The
application for leave to appeal is dismissed with costs.
TLHAPI
VV
(JUDGE OF THE HIGH COURT)
MATTER
HEARD ON
: 22 JUNE
2017
JUDGMENT
RESERVED ON
:
22 JUNE
2017
ATTORNEYS FOR THE PLAINTIFF
:
ALLAMS ATTORNEYS
C/O
GILDENHUYS MALATJI INC
ATTORNEYSFORTHEDEFENDANT
:
IZAK J CROUKAMP ATT.