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[2017] ZAGPPHC 101
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Superway Construction (Pty) Ltd v Swafo, In re: Swafo v MEC for Roads and Transport, Limpopo and Others (2013/32786) [2017] ZAGPPHC 101 (14 February 2017)
IN
THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA, PRETORIA
CASE
NO.: 2013/32786
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: NO
14
February 2017
In
the matter between: -
SUPERWAY
CONSTRUCTION (PTY) LTD
APPLICANT
And
NGWETSAMA
ELIKA SWAFO
RESPONDENT
IN
RE:
NGWETSAMA
ELIKA SWAFO
PLAINTIFF
And
MEC
FOR ROADS AND TRANSPORT, LIMPOPO
FIRST DEFENDANT
SOUTH
AFRICAN NATIONAL ROADS
AGENCY
LIMITED
SECOND DEFENDANT
SUPERWAY
CONSTRUCTION (PTY) LTD
THIRD DEFENDANT
JUDGMENT
TSATSAWANE AJ
Introduction
1
In this application, the applicant
(
"Superway"
)
seeks an order in terms of which the respondent’s attorney
of record
(
"Le Roux"
)
is
ordered to pay its costs of the action
de bonis propriis,
alternatively, that such costs be paid by the respondent itself
on an attorney and client scale.
2
The application is opposed by the respondent. The other
parties in the action proceedings are not involved in this
application.
The action proceedings
3
The respondent issued summons against the three defendants in
the action, with Superway cited as the third defendant. As against
Superway, the respondent relied on an alleged breach of a duty of
care in respect of certain road works which breach allegedly
resulted
in the respondent suffering damages arising from a motor vehicle
accident.
4
Superway delivered a notice of intention to defend the action
proceedings. Thereafter, Superway entered into correspondence with
the respondent with the view to show that it is not liable to the
plaintiff. In this regard, in a letter dated 8 August 2013, Superway
advised the respondent that-
"2.
We confirm that we have consulted with our client and counsel and it
came to our attention
that our client was not under contract to
maintain, improve or make safe the R71 road at the time of your
client's accident.
3. In this regard we attach hereto
a copy of the taking over certificate from which it appears that the
conditions of the contract
was completed by our client on 12 October
2010. Further to the above our client's defects notification period
ended on 12 April
2011."
5
On the basis of the above quoted paragraphs, Superway
contended that it was wrongly joined as a defendant and that the
claim against
it should be withdrawn, failing which it would file a
special plea. Despite further correspondence in this regard, the
respondent
did not withdraw its claim against Superway and Superway
delivered its plea to defend the claim against it and further filed a
discovery affidavit.
Whether the action against Superway
has been withdrawn
6
At a pre-trial conference held on 6 May 2015, Le Roux, acting
on behalf of the respondent, withdrew the respondent's claim against
Superway. This, however, was not a withdrawal of claim against
Superway as contemplated in Rule 41(1)(a). In paragraph 3.19 of
its
founding affidavit, Superway says that it insisted
"on the
plaintiff tendering the third defendant's costs in their notice of
withdrawal."
7
On 26 October 2015, the respondent served a notice of
withdrawal of its claim against Superway. Superway took issue with
the notice
of withdrawal due to the fact that it did not contain a
tender for costs as requested by it at the aforesaid pre-trial
conference.
It demanded that this notice of withdrawal be withdrawn
and that a fresh notice of withdrawal tendering Superway's costs be
delivered,
failing which this Court would then be approached for the
costs order sought in this application.
8
In a letter dated 6 November 2015, Le Roux advised Superway
that the respondent
"tender to withdraw
the
action against your client, but that the plaintiff cannot afford to
pay your client's legal bill and cannot tender any further
costs than
that already paid"
Superway rejected this. The
"tender
to withdraw"
must have been made on the basis that it was
accepted that the notice of withdrawal served on 26 October 2015 was
not sufficient.
9
In the aforesaid letter, the respondent further advised
Superway that -
"6.
Should your client not be in a position to agree hereto, our client
cannot
afford to withdraw the matter against your client and a
meeting will have to be held to establish the way forward
…
8.
Should your client therefore not be in agreement that the matter be
withdrawn and settled between the plaintiff and your client
immediately on the basis that you accept the proposal that no further
costs will be paid and the matter be withdrawn, we will have no
choice but to continue without withdrawing the action against your
client and costs can then be determined at finalisation of the
matter, against the unsuccessful defendant.
9.
Your client's insistence on costs against a indigent, poor, injured
plaintiff are not understood and we plead with your client to
reconsider their position as mentioned by yourself in the
conversation
of 5 November 2015.
10.
We will now proceed to withdraw the previous notice of withdrawal
formally but
place on record that it was at all relevant times the
understanding of writer that an agreement was reached that merely the
abovementioned
costs of the cost account of 13 July 2015 are tendered
by the plaintiff and will be paid immediately and that the action
will be
withdrawn."
10
Superway clearly did not accept any of the above. In paragraph
3.27.6 of its founding affidavit, Superway says that the
"threat
of a non-withdrawal of the notice of withdrawal in the circumstances
described by the plaintiff is vexatious and borders
on blackmail.
Such conduct should not be tolerated by any Court."
I do not
agree that the plaintiffs position that it would rather proceed with
the claim against Superway as opposed to withdrawing
its claim
against Superway
"borders on blackmail."
For
purposes of this application, the parties argued their respective
cases without reference to the pleadings filed in the action
proceedings and I was not referred thereto. In the premises, I am not
in a position to determine whether, on the face of the pleadings,
the
plaintiffs persistence with its claim against Superway is vexatious.
11
In opposing this application, the respondent relies on an
affidavit deposed to by Le Roux. Therein, it is denied that Superway
is
entitled to the relief which it seeks for the reasons set out
therein.
12
In paragraph 4 of the respondent's answering affidavit, the
following is stated-
"The relief sought herein is
premised on the basis that the Plaintiff/Respondent has withdrawn the
action under Case number
32786/13 against the Third
Defendant/Applicant. This appears from paragraph 3.24 of the Founding
Affidavit. However the notice
of withdrawal of that action has itself
been withdrawn. A copy of such subsequent notice of withdrawal is
attached hereto as Annexure
"Z". The result of this is that
the action of the Plaintiff/Respondent under case number 32786/13
against the Third Defendant/Applicant
is still pending; and has not
been withdrawn. This was done with the acquiescence of the Third
Defendant/Applicant."
13
In the light of the above, it is contended on behalf of the
respondent that the jurisdictional prerequisite for an order which
the
applicant seeks in this application is absent due to the fact
that the claim against Superway has not been withdrawn. This
contention
is based on the respondent's notice of withdrawal of the
notice of withdrawal of his claim against Superway. In simple terms,
the
respondent's defence is that the notice of withdrawal of the
claim against Superway has itself been withdrawn, it is no longer
there and the claim against Superway remains pending.
14
It is correct that the jurisdictional prerequisite for a costs
order in terms of Rule 41(1)(c), the rule upon which Superway relies,
is a notice of withdrawal
delivered
by the withdrawing party.
Without such a notice having been
delivered
there is no
entitlement to costs and there is no obligation to pay any costs.
15
The respondent's contention that it has withdrawn its notice
of withdrawal can only be correct if there was a notice of withdrawal
properly delivered
in the first place. If, in the first place,
there was no proper delivery of a notice of withdrawal, the question
whether there
has been a withdrawal of a notice of withdrawal does
not arise because in that event, there is nothing to withdraw.
16
The general rule is that a litigant who withdraws an action
must pay the defendant's costs unless
"very sound reasons
exist why the defendant should not be entitled to costs."
See
Germishuys v Douglas Besproeiingsraad
1973 (3) SA 299
(NC)
;
Wildlife and Environmental Society of South Africa v MEC for Economic
Affairs and Tourism, Eastern Cape and Others
2005 (6) SA 123
(ECD).
In
Reuben Rosenblum Family Investments (Pty) Ltd and Another v
Marsubar (Pty) Ltd
2003 (3) SA 547
(C)
it was held that it is
only in
"exceptional circumstances"
that a defendant
will not be entitled to all the costs where a plaintiff withdraws an
action.
17
The aforesaid general rule only applies in circumstances where
a plaintiff has withdrawn an action against a defendant and the
withdrawal
is a withdrawal within the meaning contemplated in Rule
41(1)(a), i.e. there has been a notice of withdrawal
properly
delivered.
18
Rule 41 deals with, amongst others, the withdrawal of
proceedings. In terms of Rule 41(1)(a) a plaintiff such as the
respondent
herein may at any time before the matter has been set down
withdraw the proceedings without the consent of the other parties or
the Court. The consent of the other parties or the leave of the Court
is required after the matter has been set down for hearing.
19
A matter is withdrawn
by delivering a notice of withdrawal
in which may or may not be included a tender for costs by the
withdrawing party.
20
Rule 41(1)(c) provides that if a notice of withdrawal does not
contain a consent to pay costs, the receiving party may apply to
Court for a costs order.
21
On a proper reading of Rule 41(1)(a) a matter is withdrawn
upon the delivery of a notice of withdrawal of the proceedings.
The subrule says that a person who wishes to withdraw a matter
"shall deliver"
a notice of withdrawal.
22
It follows that until such time that the withdrawing party has
"delivered'
the notice of withdrawal, it cannot be said
that the matter has been withdrawn. In terms of Rule 1
"deliver"
means serving the document upon the relevant parties
and
filing it with the Registrar. Until these two steps are
performed, delivery within the meaning of the Rule has not taken
place.
In simple terms, delivery within the meaning of Rule 41(1)(a)
read with Rule 1 cannot be said to have taken place until such time
that the notice of withdrawal has been served upon the defendant
and
the original thereof filed with the Registrar in the Registrar's
office.
It is the filing of the original notice of withdrawal
which completes the delivery as contemplated in the aforesaid
subrule.
23
Rule 41(1)(c) upon which Superway relies, can only apply once
a notice of withdrawal without a tender for costs has been delivered.
The jurisdictional prerequisite for the application of Rule 41(1)(c)
is the delivery of a notice of withdrawal. For this reason,
in order
to succeed in this application, Superway must first establish that a
notice of withdrawal has been delivered in the sense
that such a
notice has been served upon it and has been filed in the Registrar's
office with the Registrar. If this is not established,
Superway
cannot be entitled to the costs order which it seeks in this
application.
24
The notice of withdrawal upon which Superway relies was not
filed with the Registrar. In paragraph 5 of
Le Roux's
answering
affidavit on behalf of the respondent, reference is only made of the
notice of withdrawal having been
"served”
and
nothing more. The notice of withdrawal does not have the Registrar's
date stamp to show that it was in fact filed with the Registrar
and
therefore delivered as contemplated in Rule 41(1)(a).
25
In paragraph 3.24 of its founding affidavit, Superway also
refers to an
"undated and unsigned notice of withdrawal'
having been
"served".
Superway has not placed
any evidence before me to show that there was
"delivery”
of a notice of withdrawal as contemplated in Rule 41(1)(a) to
entitle it to the costs order which it seeks.
26
In
Le Roux's
answering affidavit, the respondent did
not rely on there not having been proper delivery of the notice of
withdrawal. This issue
was raised for the first time in the
respondent's heads of argument. Superway received the respondent's
heads of argument on I
March 2016 and did not object to this issue
being raised for the first time in the respondent's heads of
argument. It also did
not object to this at the hearing of this
application. In any event, this is an application which is ordinarily
decided on the
material before the Court without the need for
affidavits and could in that event have been raised in the heads of
argument. I
am also of the view that Superway was not prejudiced by
the raising of this point in the respondent's heads of argument
because
it in any event ought to have proved that there was proper
delivery of the notice of withdrawal to entitle it to the costs which
it seeks. Furthermore, the fact that there was no filing of the
notice of withdrawal with the Registrar is apparent from the notice
itself in that it does not bear the Registrar's date stamp to show
that it was indeed filed with the Registrar.
27
In the premises, I am of the view that there was no delivery
of a notice of withdrawal as contemplated in Rule 41(1)(a) read with
the definition of
"deliver"
in Rule 1. Accordingly,
Superway is not entitled to the costs order which it seeks.
The costs of this application
28
Mr. Geach
who appeared on behalf of the respondent
argued that the application should be dismissed with costs on an
attorney and client scale
and that such costs should include the
costs consequent upon the employment of two counsel.
29
Mr. Le Roux
who appeared on behalf of Superway
persisted with costs as prayed for in Superway's notice of
application. Superway has not succeeded
and it is for this reason not
entitled to any costs order.
30
Mr. Geach
contended that the costs of two counsel are
justified when regard is had to the nature of the costs sought
against Le Roux and the
basis upon which such costs are ordinarily
awarded. Whilst this is correct, I am not satisfied that the
employment of two counsel,
a senior and a junior, was justified.
31
In my view, no evidence was placed before the Court to suggest
that Le Roux acted dishonestly, obstructed the interests of justice,
mislead the Court or the opponent, or that she was guilty of gross
negligence and the like so as to warrant the employment of two
counsel. There was therefore, no complexity to justify the employment
of two counsel.
32
For the reasons set out above, I make the following order-
32.1
the application is dismissed with costs of one counsel.
Kennedy Tsatsawane
Acting Judge of the Gauteng Division
of the High Court of South Africa.
For
the applicant:
JRoux
Hutten
and Odendaal, Pretoria
For
the respondent:
BP
Geach SC and LJ Visser
Salome
Le Roux Attorneys, Pretoria.