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[2018] ZAGPJHC 486
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Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
no: 45403/14
In
the matter between:
JAY
INCORPORATED
Applicant
and
J
T
First
Respondent
L
T
Second
Respondent
Case
Summary:
Practice
- Superior Courts – Uniform Rules of Court – Rule
42(1)(b) - rescission or variation of an order ‘erroneously
sought or erroneously granted in the absence of any party effected
thereby’ - setting aside of costs order
de
bonis propriis
granted
against firm of attorneys in its absence – attorneys no longer
represented a party in the proceedings, were not a
party to the
proceedings and they were not participants at the hearing - they
should, at the very least, have been invited to make
submissions
regarding an adverse costs order against them - consequently, they
were not heard - therefore, an irregularity in the
proceedings - r
42(1)(a) finds application.
A
person against whom an order was granted in his or her absence in an
urgent application may, in any event, in terms of r 6(12)(c),
set the
matter down for reconsideration of the order.
JUDGMENT
MEYER
J
[1]
This is an application for the setting aside of the costs order
de
bonis propriis
, which this court (Makume J) granted in favour of
the first respondent, Mr J T, against the applicant, Jay Incorporated
(Jay),
on 30 September 2015 in a r 43 application under case no.
45403/14 that had been instituted by the second respondent, Ms L
T,
against Mr T. Jay acted as Ms T’s attorneys of record in
the r 43 application until 22 September 2015, when it filed
its
notice of withdrawal as attorneys of record for her. The
rescission application is brought in terms of r 42(1)(a) of
the
Uniform Rules of Court or under the common law.
[2] Jay acted as the
attorneys of record for Ms T in divorce proceedings, which Mr T had
instituted against her. Ms Melissa
van Zyl, an attorney at Jay,
represented her. They are sisters. Ms T was not
financially able to defend the divorce
action and she was only liable
for Jay’s disbursements. She instructed Ms van Zyl to
institute a r 43 application for
the payment of maintenance
pendente
lite
to her. The r 43 application was issued on 15 April
2015. An opposing affidavit was filed on 21 April 2015.
The
matter was not immediately enrolled for hearing for reasons that
are not presently relevant.
[3] Jay appointed
Scheepers Pretorius Inc. as its correspondent attorneys in
Johannesburg. Ms Chanel Scheepers dealt with
Ms T’s r 43
application. Ms Scheepers ultimately obtained a date, 11
September 2015, from the registrar’s office
for the enrollment
of the r 43 application. She had sent a messenger to the
registrar’s office to ensure that the file
was properly indexed
and paginated, and to finally enroll the matter for hearing on the
allocated date, 11 September 2015.
[4]
However, on the date allocated for the hearing of the r 43
application, it appeared that the matter had not been finally
enrolled
for hearing on that date. Ms van Zyl was advised that
the next available date for the enrollment of the hearing of the r 43
application was during the middle of November 2015. She
conveyed that to her sister. In this regard Ms van Zyl states:
‘
My sister,
the second respondent, informed counsel and me that she made
arrangements with the bank not to repossess her vehicle
that the
first respondent had stopped paying, as well as with her landlord to
await the outcome of the r43 application on 11 September
2015 before
taking any further steps against her. She was in tears and
informed us further that she could not hold her creditors
at bay and
requested if the application could be heard on an earlier date.
At her request counsel and I explained the positives
and negatives of
an urgent application to her as well as the aspect of urgency.
The second respondent then instructed me
to proceed with an urgent
application.’
[5]
Ms van Zyl requested Ms Scheepers to enroll the urgent r 43
application on Friday, 18 September 2015, for hearing on Tuesday,
29
September 2015, and the matter was so enrolled. The urgent r 43
application was served at the offices of Mr T’s
attorneys of
record, Klinkenberg Inc. (Klinkenberg), on 18 September 2015.
Mr Peter Breedt, the attorney dealing with the
matter on behalf of Mr
T, forwarded a letter to Jay on the same day wherein he,
inter
alia
, advised s T’s attorneys as follows:
‘
Your attempt
to have this matter dealt with in the urgent court is an abuse of
process and should you proceed herein, we will request
that the court
grant a
de
bonis propriis
costs order against your firm as it is clear that your client is
being poorly advised.
…
We require confirmation by close of
business today whether it is your attention to proceed with your
application on an urgent basis
and place on record that should you do
so we will seek a costs order
de bonis propriis
against you.’
[6]
Ms van Zyl discussed the content of the letter with her sister, Ms
T. In this regard she states the following:
’
21.1 I
contacted the second respondent and discussed the content of the
letter with her in detail. I specifically stated that
the
applicant is not going to expose itself to
de
bonis propriis
costs orders, specifically where the second respondent could not make
any contribution towards the legal costs of the urgent application
but still insisted that we proceed therewith even though the inherent
risks therein were explained to her.
21.2 I made it very clear that as the
applicant is in any event withdrawing from record she should decide
if she wanted to proceed
or not.
21.3 The second respondent stated that
she wanted to proceed but requested and pleaded for my assistance.
I told her that
I would take it up with the directors of the
applicant but made no promise in this regard. The directors of
the applicant
insisted that I withdraw from record due to the second
respondent’s lack of funds. They were not prepared to act
as
attorneys of record where there was no reasonable prospect that
the second respondent at least cover the costs of disbursements.’
[7]
Jay filed its notice of withdrawal as attorneys of record, which
notice was delivered to Klinkenberg on 22 September 2015.
Ms T
approached the Legal Aid Board, Johannesburg on the same day.
The Legal Aid Board, however, did not become Ms Theron’s
attorneys of record nor did it represent her at the hearing of the
urgent r 43 application. The reason why the Legal Aid
Board did
not represent her has not been disclosed by Ms T.
[8]
On 29 September 2018, the matter stood down in the urgent court to
the next day. On 3 September 2015, Makume J made the
following
order:
‘
1. The
urgent application dated 18 September 2015 is dismissed.
2. The applicant’s
attorneys are to pay the costs
de bonis propriis
.
3. Applicant’s r 43 application
dated 26 March 2015 stays pending.’
Neither Jay nor Ms van
Zyl was present at the hearing of the urgent r 43 application when
the question of costs was argued or when
the order to pay the costs
de bonis propriis
was made against Jay. Mr T was
represented and Ms T appeared in person.
[9] Ms T’s former
attorneys, Jay, were no longer representing her, they were not a
party to the proceedings before the urgent
court and they were not
participants at the hearing of the urgent r 43 application.
They should, at the very least, have
been invited to make submissions
regarding an adverse costs order against them. That did not
happen. Consequently,
they were not heard. There was,
therefore, an irregularity in the proceedings. Rule 42(1)(a)
provides for the rescission
or variation of an order ‘erroneously
sought or erroneously granted in the absence of any party effected
thereby.’
An order is erroneously granted if there was an
irregularity in the proceedings. Rule 42(1)(a), therefore,
finds application
in this instance. (See
Promedia Drukkers
and Uitgewers (Edms) Bpk v Kaimowitz and others
1996 (4) SA 411
(CPD) at 417 G – I.) A person against whom an order was
granted in his or her absence in an urgent application may,
in any
event, in terms of r 6(12)(c), set the matter down for
reconsideration of the order.
[10] Jay and Ms T agreed
that she would abide the decision of this court and that Jay would
not seek an order for the costs of the
present application against
her. I am of the view that it would be appropriate in all the
circumstances to make no order
as to costs, also against Mr T.
Klinkenberg advised Jay on 18 September 2015 of its intention to seek
a
de bonis propriis
costs order. Jay did not respond to
that letter, nor did it appear at court when the urgent application
was heard.
[11]
In the result the following order is made:
Paragraph
2 of the court order granted in this court on 30 September 2015 under
case no. 45403/2014 is hereby rescinded and the
matter of costs of
that application is reserved.
________________________________
P.A. MEYER
JUDGE OF THE HIGH
COURT
Date
of hearing: 5 September 2018
Date
of judgment: 10 September 2018
Counsel
for the Applicant: Adv AJ Swanepoel
Instructed
by: Jay Inc Attorneys, Johannesburg
Counsel
for the 1
st
Respondent: Adv Heineke
Instructed
by: LP Baartman Attorneys, Roodepoort
Counsel
for the 2
nd
Respondent: Adv M Vermeulen
Instructed
by: Vermeulen Attorneys, Roodepoort