About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 722
|
|
Meecham v Naude and Another (41450/2017) [2018] ZAGPJHC 722 (9 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 41450/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
JAMES
JOHN
MEECHAM PLAINTIFF
AND
WYNAND
NAUDE FIRST
DEFENDANT
WYNAND
NAUDE INCORPORATED SECOND
DEFENDANT
JUDGMENT
WINDELL,
J:
INTRODUCTION
This
is a dispute about money between two erstwhile partners, Leon Meecham
and the first defendant, Wynand Naude. On 6 May 2008
Meecham and
Naude, representing JR 10 Investments (Pty) Ltd ("JR10"),
entered into a written joint venture agreement
to develop and sell a
specific immovable property and to share the profits 50/50. After
five years of developing and marketing
the property, it was
eventually sold to the Gauteng Department of Local Government and
Housing in June 2013 for an amount of R
30 million. Meecham avers
that the joint venture agreement was amended on 10 April 2013 with an
email and Naude/JR 10 was no longer
entitled to 50% of the nett
profit, but was only entitled to an amount of R 6 million in respect
of his loan and profit-sharing
in the development. Naude admits that
the joint venture agreement was amended on 10 April 2013 to allow for
only R 6 million, but
avers that it was only in the event that a
portion of the property, and not the whole property, was sold to a
specific buyer, namely
G3 Umnombo Consortium. When the transaction
with G3 Consortium did not materialize the parties reverted back to
the joint venture
agreement that provided for 50/50 profit sharing.
In addition Naude pleads that the parties in any event concluded a
new agreement
on 15 July 2013, when the profits were shared. In terms
of the new agreement Meecham received R 13 283 660.50 and Naude
received
R 9 516 339.50 (R 7 million profit and R2 516 339.50 for
expenses incurred). Meecham denies entering into a new agreement and
avers
that Naude was only entitled to R 6 million and an amount of R3
516 339.50 must be paid back.
The
plaintiff is James John Meecham, Leon Meecham's son. He was in
receipt of an offer to purchase and was therefore entitled to
sell
the immovable property at the time of the sale to the Department. He
was however never involved in the development of the
property or in
any business dealings with Naude. The second defendant is Wynand
Naude Inc, a company duly registered and incorporated
in accordance
with the Company Act
[1]
read
together with the Attorney's Act
[2]
.
The proceeds from the sale of the property were received by the
second defendant as transferring attorneys.
BACKGROUND
AND COMMON CAUSE FACTS
During
March 2008 Meecham was informed about a business opportunity in
respect of immovable property, more specifically, Portion
6 and
Portion 7 of the farm Leeuwspruit Fochville
[3]
,
by an attorney, Mr. Viljoen who thought he might be interested in
developing it. Meecham saw an opportunity to make money as he
had
previously been involved in a similar project. On 31 March 2008 he
made an offer to purchase the property in an amount of R
7 million
from the owner, Mr. Olwagen, which offer was accepted. In the sale
agreement the parties confirmed that Meecham wished
to establish a
Township on the property which had to be established on or before 31
October 2009. It was also agreed that a deposit
of R 50 000 was
payable within 7 days of the due diligence enquiry and the payment of
the balance of the purchase price was payable
on registration which
amount was to be secured by the delivery of guarantees within 30 days
of 31 October 2009. (Olwagen was aware
of Meecham's plans with the
property and was prepared to give him time to secure the balance of
the purchase price. It is common
cause that the deadline was extended
every year for the delivery of the guarantees until a final deadline
of 31 October 2013 was
granted in October 2012.)
At
that stage Meecham was in possession of a letter from the Merafong
City Local Municipality confirming that the property had been
identified by the Council for future residential development to
address the housing backlog in Merafong City. This was a huge project
and Meecham needed a partner. He got to know of Naude through an
acquaintance who indicated that Naude might be interested in such
a
project. He approached Naude during April 2008 and they entered into
an oral joint venture agreement ("the JV") to
develop
and/or sell the property at the best possible return and agreed that
they will share the nett proceeds thereof. The nett
proceeds
consisted of the total costs of the property less all the related
expenses. It was agreed that Naude would not get involved
in his
personal capacity but would operate under JR 10 and the terms of the
JV reduced to writing on 6 May 2013. In terms of the
JV, Naude paid
the deposit of R 50 000 to Olwagen on behalf of Meecham. It was
agreed that Meecham would get involved in the project
full-time basis
and JR 10 would pay him an amount of R 20 000 per month (this amount
later increased to R 22 000), plus all expenses.
Meecham was also
granted a loan of R 100 000. On the same day JR 10 and Meecham
entered into a sale agreement in terms of which
JR 10 bought the
property for an amount of R 28 million from Meecham. Naude conceded
during the trial that the intention with this
sale agreement was not
for JR 10 to purchase the property but to use the sale agreement as a
bargaining tool in marketing the property
to prospective clients.
Meecham
and Naude worked on the project for the next five years. Due
diligence was done, the township application was well on its
way, and
numerous developers and investors had been consulted. By April 2013
all the parties were jittery. Olwagen had given a
final extension
until October 2013. Naude had paid for all the expenses and had
already spent around R 1, 9 million on the project.
The property
needed to be sold. Meecham approached Olwagen and Naude (the details
of the discussion with Naude is in dispute) and
requested them to
indicate what the minimum amount was that they would accept at that
stage if an offer was to be received now.
Olwagen agreed to reduce
the price of the property from R 7 million to R 6,1 million, on
condition that he is paid fully by end
of July 2013. (A letter was
sent to Olwagen on 10 April 2013 wherein this was confirmed.) Naude
also responded to Meecham's request
and sent the following email on
10 April 2013:
"Hi Leon
1.
Hiermee
my skrywe vir Ollie. Laat weet indien jy iets wil verander.
2.
Ek
bevestig dat ons ooreengekom het op 'n betaling van 6 miljoen aan my
vir my lening en winsdeel in die ontwikkeling mits dit teen
einde
Julie afgehandel is.
3.
Ek
sal verhaal uit die opbrengs van die oordrag.
4.
Druk
sodat ons dit kan afhandel."
Naude
contends that the email was sent under circumstances where (1) the
only interested buyer was G3 Consortium; (2) G3 Consortium
was only
interested in buying a portion of the property; (3) The purchase
price was for approximately R 15 million; and Meecham
wanted to get
involved in a joint venture with the G3 Consortium and/or the
Department as owner/developer in which he was not interested.
Meecham
contends that the email was written with the intent to cover any sale
to any buyer for any price. Five days after the email
was sent, and
on 15 April 2013, an offer was received from G3 Consortium for a
portion of the property (Portion B =1750 stands)
in an amount of R 15
750 000. The agreement was subject to several suspensive conditions
i.e. that the agreement will only come
into force if Meecham and
Department concluded a purchase transaction agreement in respect of
the remaining portion of the property
(Portion A) on or before 30
April 2013. The conditions were not met and the sale did not
materialize.
After
the sale with G3 Consortium fell through, the Department on 16 May
2013 called for a meeting to discuss the sale of the whole
property.
On 20 May 2013 a meeting was held with the Department which was
attended by both Meecham and Naude. At that stage Olwagen
had already
agreed to a reduced purchase price of R 6,1 million for the property
and had also agreed to cancel the agreement between
him and Meecham
and to enter into a new sale agreement with the plaintiff at the
reduced price. One of the reasons for this decision
was Meecham's
health as it was feared that he might not be able to see the project
through to the end. A new sale agreement was
therefore concluded on
22 May 2013 between the plaintiff and Olwagen in terms of which the
property was bought for R6,1 million.
Guarantees had to be delivered
by 15 August 2013.
On
3 June 2013 the Department made an offer to buy the whole property in
an amount of R 30 million. The offer was accepted and the
property
was registered in the name of the Department on 12 July 2013. The R30
million was received in the account of the second
defendant on 13
July 2013. Meecham and Naude met for a final reconciliation of the
amount received. The parties differ on the date
of the meeting;
Meecham avers it was on 12 July 2013 and Naude on 15 July 2013. In
any event, the parties met in July 2013 at the
offices of the second
defendant to discuss the final distribution of the money. When
Meecham arrived a statement had already been
prepared. The statement
reflected the income and expenditure and the nett profit, amounting
to R 15 950 284.64, were divided between
Meecham and Naude (50/50).
On receipt of the statement Meecham disputed the 50/50 split and held
Naude to his email of 10 April
2013 wherein he stated that he would
be satisfied with an amount of R 6 million in respect of his loan
and
profit-sharing. Naude explained to him that the email only
pertained to the G3 Consortium sale and as the sale fell through the
original JV in terms of which profits are shared 50/50 applied. A
discussion followed, changes were made to the first statement
and a
second statement was prepared which was signed by both parties. The
parties parted with Meecham receiving an amount of R
13 283 660.50
that was paid into the plaintiff's bank account on the same day.
Naude
avers that the second statement constituted a new agreement between
the parties in terms of which they agreed that his expenses
in an
amount of R 2 516 339.50 and an amount of R 7 million in profit be
paid to him. Naude also contends that it was agreed that
Meecham
would be responsible to pay capital gains tax on the total profit of
R 20 583 680.50 and it is for that reason that the
inscription
"Seller to pay capital gains tax"
was made on the
second statement. Meecham disputes the conclusion of a new agreement
and avers that they agreed that the R 7 million
was in dispute and
that it should be held in Trust until the dispute is resolved and
that he never agreed to pay tax on the total
profit.
On
26 July 2013 Naude got a phone call and an email from Patricia Gumbi
(G3 Consortium) demanding commission in an amount of R 1
million. He
contacted Meecham and a meeting was arranged. The parties differ on
what the initial purpose of the meeting was, but
it is common cause
that the parties met on 3 August 2013 at the second defendant's
offices. Meecham's attorney and advocate accompanied
him to the
meeting where Naude was confronted about what happened on the day the
money was paid out. Email communication followed
between Naude and
Meecham's attorney, and a written demand was sent on 14 August 2013
to Naude to pay back the amount of R 3,5
million. Naude responded to
the demand on 26 August 2013 setting out his version of events. On 7
March 2014 Meecham laid a complaint
against Naude at the Law Society.
A meeting was held on 12 May 2014 between the parties in an attempt
to settle the matter but
it was unsuccessful. The complaint to the
Law Society resulted in a hearing on 22 September 2014 during which
both Meecham and
Naude testified.
THE
EVIDENCE AND EVALUATION
The
plaintiff bears the onus to convince the court on a balance of
probabilities that his version is the correct one. This requires
the
court, upon a conspectus of the evidence as a whole and by balancing
probabilities, to select a conclusion which seems to be
the more
natural or plausible (in the sense of acceptable, credible or
suitable) conclusion, though that conclusion may not be
the only
reasonable one.
[4]
It is clear
that
"where
there are two mutually destructive versions the plaintiff can only
succeed if he satisfies the Court on
a
preponderance
of probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced
by the defendant is
therefore false or mistaken and falls to be rejected. In deciding
whether that evidence is true or not, the
Court will weigh up and
test the plaintiff's a/legations against the general probabilities.
The estimate of the credibility of
a
witness
will therefore be inextricably bound up with
a
consideration
of the probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will accept
his version as
being probably true. If however, the probabilities are evenly
balanced in the sense that they do not favour the
plaintiff's case
any more than they do the defendant's, the plaintiff can only succeed
if the Court nevertheless believes him and
is satisfied that his
evidence is true and that the defendant's version is false'
[5]
It is
only where a consideration of the probabilities fails to indicate
where the truth probably lies, that recourse is had to an
estimate of
relative credibility apart from the probabilities"
[6]
.
From
the pleadings and the evidence there are two material issues that
needs to be determined:
1. Is
the defendant bound to the email of 10 April 2013 and therefore only
entitled to R 6 million?
2. Did
the parties enter into a new agreement on the day the profits were
shared?
Meecham
and Naude, as well as the plaintiff and Mr. Viljoen, testified. The
plaintiff and Viljoen did not take the matter further.
The evidence
of Meecham and Naude was lengthy and they were both subjected to
extensive and prolonged cross examination. I do not
intend to repeat
all the evidence. I will only deal with aspects of their evidence
which in my view are relevant to the probabilities.
The
email
The
plaintiff's case is based on the email sent by Naude on 10 April
2013. It is common cause that the email, at the time, amended
the
agreement in the JV to split the nett profits 50/50. Meecham and
Naude's versions differ materially on this aspect. In my view
the
context in, and the circumstances under which the email was written
is an important factor that needs to be examined and considered
in
determining if the email was written with a specific transaction in
mind or if it was a intended to cover all future transactions.
Naude
testified that the R 6 million was not arrived at haphazardly, and it
was as a result of a series of discussions between him
and Meecham.
At that stage Meecham had been negotiating with G3 Consortium for
some time and an offer was imminent. Meecham wanted
to get involved
with the further development of the property as owner/developer and
the sale was only for a portion of the property
(79 hectares of 193
hectares). Naude was not interested in partaking in any future joint
venture with G3 Consortium or the Department.
For these reasons he
arrived at an amount of R 6 million. Meecham testified that he has no
idea on what basis Naude decided on
R6 million and was unable to give
any satisfactorily answer during cross examination. It is improbable
that Meecham would not have
known. Meecham and Naude worked together
on the project and spoke to each other frequently. Naude also made
discovery of all his
relevant handwritten notes pertaining to the
project. From these notes it is clear that amounts were discussed
between them on
more than one occasion. It is improbable that the
amount of R 6 million was just a random amount that was not discussed
between
partners that worked closely together for more than five
years. The probabilities favour Naude's version in this regard.
An
email dated 2 April 2013 is further confirmation that a specific
amount, namely R 15 or R 20 million was mentioned and considered
during the period before the writing of the email. The email reads as
follows:
"Wat die syfers
betref:
VERKOOP VAN HELE
EIENDOM:
KOOPPRYS
R20M/15M(50%)?
OLWAGEN: R 7M
KOSTE 500K
MY KAPITAAL: R 2M
ANDER:
LOUIS EN JOHAN? R500K
JOUSELF R1M
SUBTOTAAL R 11M
BALANS OF R 20M=R 9M
Tel terug R 1m
R10m
BALANS OP R 15M?
GEDEEL DEUR 2
=
LEON AND WYNAND: R5M ELK
VOORSJENING VIR KWB
BALANS OF R15M VIR 50%
AANDEEL-ONS MOET BESPREEK
Meecham
testified that Naude was aware of the fact that the Department was
interested in buying the whole property before he wrote
the email of
10 April 2013. The probabilities that Naude would have been satisfied
with only R 6 million had he know that there
was even a possibility
of an outright purchase of the whole property for an amount of R 30
million are slim.
As
stated before, Naude made discovery of notes he made during his
discussions with Meecham. The notes confirm that there was only
one
interested buyer at that stage namely G3 Consortium and further
confirm the ongoing discussions between Naude and Meecham relating
to
a possible sale transaction with G3 Consortium. I will refer to only
a few:
•
20
February 2013. Meecham advises Naude that he will have
a
meeting
with Patricia Gumbi and wanted to know the numbers on
a
purchase
price of R 20 million. Expenses more or less R 12 million. Nett
proceeds R 8 million. R4 million each.
•
11
March 2013. Meeting between Meecham, Naude, Patricia and two other
people. Offer to purchase discussed. R 40 million.
•
20
March 2013. Meecham indicated that he had talks with Rethabile Nkosi.
Reference is made that Department only interested in 100
hectares.
Wants to make Leon owner/developer. If he participates then he has
work. Meecham do not want Naude to Jose out. Wants
a
number so
that he can negotiate. Offer of R 20 million
•
8
April 2013: "Province" is going to make an offer for R 15
million for a
Joint Venture. Patricia, the Consortium and he
are going to work together on one portion and the Department is going
to buy the
other portion. They will get their money back within 6
months. Naude says to Meecham that he does not want any part in the
joint
venture. Meecham says he must furnish a letter to Department
setting out that 79 hectares will be selling at R 11000 per erven.
Ask Naude to write an e-mail.
Meecham
contends that there were several other parties interested in buying
the whole property at that stage, including G3 Consortium
and the
Department. In support of his contention that the Department was
interested in purchasing the whole property during the
period of
writing of the email, Meecham relies on an email of 9 April 2013.
This email was written by Naude on Meecham's request.
The subject of
the email is the agreement of sale for a portion of proposed Kokosi
Ext 7 Township. It reads as follows:
"Our meeting of
yesterday and you undermentioned email refers:
1.
I
confirm your interest in purchasing the aforementioned property.
2.
I
hereby confirm my willingness to sell my aforementioned property to
the Department.
3.
The
full description and extent of the property is as set out in the
heading hereto.
4.
Also
herewith is the layout of the proposed Township (a copy already in
your possession) and spesifically the following proposed
types of
mixed development erven:
4.1
RDP
erven -2086, approximately 79, 6 hectares
4.2
Freestanding
bonded erven -996
4.3
Walk
up double storey opportunities -1500
5.
You
have indicated your interest in acquiring the portion referred to in
4.1 above.
6.
The
asking price herefor is R 10 000 per opportunity excluding the fees
for the professional services of the engineer and town planner
7.
We
furthermore confirm, as discussed at our meeting, that you will
support the registration of FLISP Subsidies for erven referred
to in
4.2 and 4.3 above and the related proposed land owner/developer
agreement to be concluded herefor.
8.
Herewith
attached
a
letter from the transferring attorney regarding the
ownership of the properties and the transfer process.
9.
The
3D presentation requested is being prepared for delivery by the end
of next week."
The
following is clear from the above email (1) The Department is
interested in buying only a portion of the property namely
"RDP
erven -2086, approximately 79,6 hectares at R 10 000 per opportunity"
(the whole property was 193 hectares); (2) The Department will
support the registration for FLISP Subsidies for the remaining erven
and double storey opportunities; and (3) The Department will support
the related proposed land owner/ developer agreement to be
concluded.
Meecham
is clearly mistaken in his contention that this email supports his
version. The contents of the email corroborates Naude's
version
namely that there was no outright buyer at that stage.
Meecham
contends that this email is not relevant to the G3 Consortium. I
disagree. The email is clearly relevant to the transaction
with G3.
In cross examination Meecham confirmed that in discussions with
Department it was suggested that he would stay on as owner/developer,
but that he is unable to say if it was for Portion A or Portion B.
Naude's version is further supported by G3 Consortium's offer
to
purchase. In clause 1.2 of this agreement the Department had to
conclude a purchase transaction agreement in respect of Portion
A and
G3 Consortium was buying Portion B and in Clause 1.2 it is agreed
that
"this agreement shall come into force and effect upon
the signature by the last party signing this agreement and only upon
the second party (Meecham) and the Department concluding a purchase
transaction agreement in respect of Portion A of the land parcel".
The
plaintiff failed to prove on a balance of probabilities that the
email of 10 April 2013 was applicable on the outright sale
of the
property to the Department for an amount of R 30 million. The email
of 10 April 2013 was only applicable in the event that
the sale with
G3 Consortium materialized.
Was
there a new agreement entered into in July 2013?
It
is common cause that a statement of account (the first statement) was
prepared before Meecham arrived at the offices of the second
defendant. In terms of the first statement all the expenses, totaling
R 11 666 339.50, were deducted from the purchase price, leaving
a
nett income of R 15 950 284.64. That was then divided between Meecham
and Naude leaving an amount of R 7 975 142.32 for each
of the parties
The expenses reflected on the first statement was the purchase price
of R 6,1 million, Naude's expenses of R 2 516
339.50, Johan Viljoen R
300 000, Louis Bezuidenhout R 750 000, Other R 2 million (commissions
payable to
inter alia
Patricia Gumbi from G3 Consortium) and
capital gains tax (13%) in an amount of R 2 383 375.86. On receipt of
the statement Meecham
complained about the 50/50 split and held Naude
to the 10 April 2013 email. He also reduced some of the amounts
reflected as expenses
in the first statement. Louis Bezuidenhout's
amount of R 750 000 was reduced to R 500 000 and the R 2 million for
commissions were
taken out completely. The capital gains tax was also
taken out and an additional expense in an amount of R 300 000 was
allocated
to Van Wyngaardt for the purchase of motor vehicles was
included. A second statement was drafted reflecting the changes. In
the
second statement there was no 50/50 split but an amount of R 7
million was allocated under "other". Naude testified that
the amount of R 7 million was agreed upon for his share in the
profit. Meecham testified that the R 7 million under "other''
was not agreed upon but reflects the money that was in dispute and
that it was agreed that it will be held in the second defendant's
trust account. On the second agreement it was also reflected that
"seller to pay capital gains tax on gain at 13%"
Meecham
further testified that he only signed the second statement because
Naude told him to sign in order for the money to be paid
out to
Olwagen. Meecham avers that he also told Naude already at that stage
that if they are unable to sort out the dispute between
themselves
they must bring in a third party a mediator and Naude agreed with
that suggestion.
Naude
testified that after the G3 Consortium sale fell through the parties
reverted back to the JV that stipulated a 50/50 split.
He confirmed
that Meecham did not want to divide the nett profit in two. They then
discussed, looked at alternatives, looked at
the tax implication,
looked at the nett effect and agreed upon an outcome most favorable
to both. As a result the second statement
was drafted and agreed
upon.
Meecham
specifically asked for the tax portion (R 2 383 375.86) to be paid
over to him so that he can draw interest on the amount
until SARS
instructs him to pay over. Meecham also indicated that he will take
care of the commissions payable to
inter alia
Patricia Gumbi
and the R 2 million reflected on the first statement under "other",
earmarked for commissions was also
included in his share.
Meecham
testified that there was no agreement that plaintiff will pay the
capital gains tax and that he did not understand the tax
issue. He
however agreed during cross examination that Naude explained to him
that the seller of immovable property must pay the
capital gains tax.
It is common cause that capital gains tax was not paid over to SARS
and that no money was kept safe for that
purpose.
Naude
wrote an email to Meecham a few hours after the money was paid into
the plaintiff's account which confirms his version of
the events. In
the email, sent on 15 July 2013 at 6:34 pm he stated as follows:
"Hi Leon, soos
bespreek KWB dus betaalbaar op ten minste R20 583 680.50 (eintlik ook
op die R 150k wat teen die kapitale uitgawes
is) Eugene moet baie
mooi hanteer. Groetnis Wynand".
This
email was sent just after the money was paid into the plaintiff's
account. The email clearly states 'as agreed'. If it was
not agreed
why would Naude state so? Meecham did not respond to this email at
all. If he was so aggrieved by the second statement
and specifically
the tax portion why did he not dispute it? This was a perfect
opportunity to voice his complaint and for some
inexplicable reason
he failed to do so.
Meecham
testified that he was aggrieved by Naude's actions and that the trust
relationship between them had broken down. The money
was paid into
the plaintiff's account on 15 July 2013. From 15 July 2013 until the
meeting on 2 August 2013 Meecham never placed
on record that the R 7
million was in dispute. It was only when Patricia Gumbi demanded her
commission, which Naude avers Meecham
was responsible for, that the
dispute about the R7 million arose. Before the meeting of 2 August
2013 Naude and Meecham had a telephone
conversation. Meecham
testified that he said to Naude during this telephone call that he
wanted to have a meeting with him to discuss
Patricia Gumbi's
commission as well as the R 7 million. Naude wrote an email after the
telephone call that again corroborates his
version. In the email he
inter alia stated,
"Nie seker of vergadering nodig is nie."
Only Patricia Gumbi's commission was mentioned in this email. If
Meecham had also raised the R 7 million dispute during the telephone
call Naude would surely have mentioned it in the email.
Naude
testified in cross examination that he placed the R 7 million under
"other'' for tax purposes. He denied that it was
in an attempt
to evade tax, as Meecham undertook to pay the capital gains tax on
the total nett profit.
On
a conspectus of all the evidence the probabilities favour Naude's
version. A new agreement was entered into between the parties
that
resulted in the second statement.
In
my view, the plaintiff failed to prove its case on a balance of
probabilities.
THE
COUNTERCLAIM
Naude
also instituted a counterclaim against the plaintiff and avers that
Meecham and the plaintiff repudiated the new agreement
with the
institution of this action, which he accepts. Naude did not pursue
the counter claim and no evidence was led supporting
the
counterclaim.
COSTS
Counsel
for the plaintiff argued that plaintiff incurred wasted costs as a
result of defendant's insistence that all correspondence
should be
produced. At the trial only one bundle of documents was used. Counsel
requested the court to make an order against the
defendant to pay the
wasted costs incurred in making copies of documents that were never
used.
In
the result the following order is made:
1. The
plaintiff's claim is dismissed with costs.
2. The
counterclaim is dismissed with costs.
3. The
defendant is ordered to pay the wasted costs incurred by the
plaintiff in making copies
at the request of the defendant and which
were not utilized during the trial.
L
WINDELL
JUDGE
OF THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
Attorney
for plaintiff: J.P.
van Schalkwyk Attorneys
Counsel
for plaintiff: Advocate
A van der Merwe
Attorney
for first and second defendant: Smit
& Marais
Counsel
for defendant: Advocate
H.F. Geyer
Date
matter heard: 19
April 2018, 20 April 2018, 21 April 2018, 22 April 2018, 23 April
2018, 24 April 2018, 26 June 2018, 27 June 2018
Judgment
date: 9
October 2018
[1]
Act 71 of 2008
[2]
Act 53 of 1979
[3]
The remainder of Portion 6 (a Portion of Portion 1) of the farm
Leeuwspruit 148 Q, measuring 132,6496 ha and Portion 7 (a Portion
of
Portion 1) of the farm Leeuwspruit 148 Q, measuring 61,5276 ha)
[4]
Hattingh
v Roux N.O and Others
2011
(5) SA 135 (WCC)
[5]
National
Employers General Insurance v Jagers
1984
(4) SA 437
(E) at 444 D-G
[6]
Jagers
supra
at
441 A