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[2017] ZAFSHC 1
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Eskom Holdings Beperk v Nigrini NO and Another (4338/2015) [2017] ZAFSHC 1 (5 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: No
Of interest to other judges: No
Circulate to magistrates: No
Application
No.: 4338/2015
In
the matter between:
ESKOM
HOLDINGS
BEPERK
Applicant
and
CHRISTIAAN
FREDERICK MARTHINUS NIGRINI NO
First
Respondent
MARIECHEN
MARTINS t/a MARTINS ATTORNEYS
Second
Respondent
JUDGMENT
Delivered
5 January 2017
MOODLEY
J:
[1]
In this matter which served before me on the opposed roll on 2 June
2016, it was common cause that the issue which precipitated
the
urgent application on 9 November 2015, viz the preservation of the
applicant’s funds attached pursuant to the default
judgment
obtained against the applicant by the first respondent and paid over
to him, had been resolved by the rescission of the
judgment and the
repayment of the attached funds. The interdict sought against the
respondents had consequently become academic
and would be of no
practical effect.
[2]
I therefore discharged the rule nisi
issued on 9 November 2015 and reserved judgment on the sole issue for
determination: the costs
of the urgent application, including the
costs reserved on 10 March 2016.
Costs:
Legal Principles
[3]
In
President of the Republic
of South Africa and Others v Gauteng Lions Rugby Union and
Another,
[1]
the Constitutional Court reiterated the principle that costs are
awarded to a successful party to indemnify it for the expense
to
which it has been put through, having been unjustly compelled either
to initiate or defend litigation.
[4]
The general rule is therefore that costs follow the event, that is
the successful party should be awarded his or her costs,
which should
be departed from only where there are good grounds or special
circumstances which warrant such departure.
[2]
[5] The general rule is however
subject to the overriding principle that costs are in the discretion
of the court, which must be
exercised judicially upon a consideration
of the relevant facts and circumstances that prevail in a matter, and
must be fair to
the parties.
[3]
The main rules relating to awards of costs were stated by Van Reenan
J in
Graphic Laminates CC v
Albar Distributors CC
:
[4]
‘
It
is trite that liability for costs in civil proceedings is a separate
issue that is governed by its own criteria. The fundamental
principle
is that liability for costs is in the discretion of the court that is
called upon to adjudicate the merits of the issues
between the
parties on the basis of the facts and circumstances of each
individual case. In the absence of express statutory provisions
to
the contrary, the general rule that costs follow the result is
subservient to that fundamental principle.
’
[6]
Therefore, although I was not called upon to adjudicate the merits of
the issues between the parties, an appropriate costs order
can
nevertheless not be judicially determined without a consideration of
the relevant facts.
[5]
[7]
The applicant also seeks costs on a punitive scale as between
attorney and
client. In
Nel
v Waterberg Landbouwers Ko-operatieve Vereeniging
[6]
Tindall JA clarified that:
‘
[t]he
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of
special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party,
the court in a
particular case considers it just, by means of such an order, to
ensure more effectively than it can do by means
of a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to
him by the litigation.’
An
award of attorney and client costs is used by the court in order
to indicate its disapproval of the conduct of the party
which bears
the adverse costs order.
[7]
Summary
of Facts
[8]
I have briefly summarized the events, as recorded in the affidavits
filed by the parties and the correspondence annexed thereto,
that
culminated in the application which was moved urgently on 9 November
2015.
[8]
[9]
It is common cause that on 15 September 2012 a fault on an
electricity transmission power line operated and maintained by Eskom
Holdings (Soc) Limited (‘Eskom’) caused a fire which
spread to properties owned by Chrismar Besigheids Trust (‘the
Trust’).
[10]
On 10 September 2015 the Trust, represented by its sole trustee, Mr C
F M Nigrini (‘the Trustee’) instituted an
action for
damages in the sum of R4 061 329 plus costs against Eskom,
alleging that the fire was caused by the negligence
of Eskom.
[11]
The second respondent, Ms Mariechen Martins, who practices as Martins
Attorneys, (‘Ms Martins’) represented the
Trust when the
action was instituted and continued to do so at all times material to
this application. It is common cause that
Ms Martins is the wife of
the Trustee.
[12]
Eskom failed to defend the action, and default judgment was obtained
by the Trustee against Eskom for its claim and costs on
22 October
2015, and a warrant of execution was issued on the same date.
[13]
On 23 October 2015, the Sheriff of the High Court, Bloemfontein West
(‘the sheriff’), executed the writ and attached
the
amount of R4 061 329 from funds in four bank accounts of
Eskom held with First National Bank (‘FNB’).
[14]
When the default judgment came to the attention of Eskom on 23
October 2015, Eskom instructed its attorneys to take the necessary
steps to remedy the situation. The attorney representing Eskom, Mr D
Kapelus, contacted Ms Martins telephonically on 26 October
2015 and
advised her that Eskom intended launching an application for the
rescission of the default judgment.
[15]
Mr Kapelus met Ms Martins and the Trustee at her offices on 27
October 2015 and again advised Ms Martins that the rescission
application by Eskom would be launched timeously. He requested that
the Trustee agree to take no further steps in the execution
of the
writ and attachment order pending the application for the rescission
and to consent to the rescission. Ms Martins responded
that it was
not in the Trustee’s interest to comply with such request, and
no agreement was reached with the Trustee.
[16]
Neither Ms Martins nor the Trustee informed Mr Kapelus that Ms
Martins had, on 26 October 2015, instructed the sheriff to pay
the
attached funds, when received, directly to the Trust.
[17]
First National Bank made two payments to the sheriff in satisfaction
of the amount attached in Eskom’s accounts. On 27
October 2015
and 30 October 2015 the sheriff paid, after deduction of his costs,
the total sum of R4 058 859.19 into the bank
account of the
Trust as instructed by Ms Martins.
[18]
On 29 November 2015 Mr Kapelus wrote to Ms Martin referring to their
meeting on 27 November 2015 and again requested that the
Trustee
consent to the rescission.
[19]
Ms Martins responded to his letter on 3 November 2015 indicating,
inter alia,
that without the application for rescission and
supporting documents, she was unable to take instructions from her
client. Referring
to the certificate of balance reflecting the
interest and balance due to the Trust which she had forwarded to the
sheriff on 3
November 2015 and annexed to her letter, Ms Martins
recorded that the sheriff had been instructed to uplift the
attachment once
the balance due to the Trust had been paid, subject
to reservation of the execution creditor’s right to execute on
the writ
again as soon as the legal costs were taxed. She recorded
further that she held no funds in trust on behalf of the Trust.
[20]
Mr Kapelus thereupon attempted to ascertain telephonically from Ms
Martins whether she held the attached funds in trust, but
was unable
to reach her.
[21]
On 4 November 2015 Ms Martins sent three letters to Mr Kapelus. On
receipt of the application for rescission, she responded:
‘
In
die lig daarvan dat u aansoek om tersydestelling van die vonnis nou
vir die eerste keer na ‘n aansienlike tydsverloop realiser
onderneem ons om alle gelde wat ons van die Balju Bloemfontein Wes
ontvang in trust te hou hangende die uitslag van die aansoek
om
tersydestelling van die vonnis. Indien die vonnis tersyde gestel sou
word en verlof aan u klient verleen word om die aksie te
verdedig sal
ons sodanige fondse in terme Artikel 78(2)A van die Wet op prokureurs
bele hangende die uitslag van die hoofaksie.
Die balju Bloemfontein
Wes het reeds opdrag om in die lig van voornoemde nie met die
beslaglegging voort te gaan nie hangende dan
die uitslag van die
aansoek om tersydestelling van die vonnis.
’
[22]
Mr Kapelus replied to the correspondence from Ms Martins,
‘confirming’ her advices,
inter alia,
that she had
received payment of the full judgment debt excluding interest and
costs and that she had given ‘an unequivocal
undertaking’
to retain the aforesaid amount in her trust account pending the
finalisation of the rescission application.
He also advised her that
if the rescission were granted, Eskom would require immediate
reimbursement of the full judgment debt,
and would not agree to her
proposal that the funds be retained by her in an interest bearing
trust account in terms of s78(2A)
of the Attorneys Act, 1979.
[23]
In response thereto, in an email dated 5 November 2015 delivered on 6
November 2015, Ms Martins informed Mr Kapelus that the
sheriff had
paid the amount of R4 058 859.19 directly to the Trustee as
judgment creditor, and denied strenuously that
she had confirmed that
she was holding the aforesaid funds or the full judgment debt in
trust, or that she had given any undertaking
in respect of the
judgment debt, or that she had made any proposal about retaining the
full judgment debt in a Section 78(2A) account.
[24]
Ms Martins referred further to her statement in her letter of 3
November 2015 that she did not hold any funds for the Trustee
in
trust, and ‘clarified’ that in her letter dated 4
November 2015 she had only referred to the outstanding amount
of
R48 984.91 which was reflected in her certificate of balance
sent to the sheriff. She however, also pointed out that as
that sum
had had not been collected from FNB, the undertaking was of no force
or effect, and any contemplated action would be opposed,
with a
prayer for an adverse costs order.
[9]
[25]
Subsequent to the receipt of this letter by Mr Kapelus, Mr P Fischer
SC who had been briefed by Mr Kapelus to attend to the
urgent
application, communicated on 6 November 2015 with Ms Martins about
the intended urgent application. This and the discussions
that
followed between Mr Fischer and Ms Martin in respect of the urgent
application are in dispute.
[26]
It is nevertheless common cause that after the discussion between Mr
Fischer and Ms Martins, in an email dispatched on the
evening of 6
November 2015, Mr Kapelus ‘confirmed’ that Ms Martins had
telephonically undertaken that the funds paid
by the sheriff to the
Trustee as at 17h45 on that date would not be disbursed, and
requested a detailed response as to whether
the Trustee would, on 9
November 2015, pay the funds he had received into the trust account
of Martins’ Attorneys pending
the finalisation of the
rescission application, and to his questions about the payments
effected by the sheriff to the Trustee.
[27]
Mr Kapelus recorded further in his email that, in the absence of a
detailed response by 10h00 on 9 November 2015, his instructions
were
to proceed with an urgent application for ‘the appropriate
relief, and with an appropriate costs order.’
[28]
Ms Martins received the email from Mr Kapelus on Monday 9 November
2015 at 8h20. The urgent application was served at her offices
at
12h26 which reflected that the application was set down at 14h30.
After receipt of the application, Ms Martins wrote to Mr Kapelus
informing him that the undertaking as recorded in his letter of 6
November 2015 was not in accordance with the undertaking she
had
discussed with Mr Fischer. She also advised him that she had been
unsuccessful in contacting counsel who had represented the
Trustee
and that she would call the local correspondent for the applicant and
Mr Fischer. Her letter was not marked urgent.
[29]
According to Ms Martins
[10]
she subsequently spoke to Mr Fischer at approximately 13h51 on that
day and discussed the undertaking which she had conveyed to
him on 6
November 2016 and the difficulty she had with briefing counsel. She
then proceeded in accordance with the discussion between
them.
[30]
At 14h55 on 9 November 2015 Mr Fischer moved the urgent application
in which the applicant sought an interim order interdicting
the
respondents from disbursing any portion of the funds paid to them by
the sheriff pursuant to the attachment orders served on
FNB on 23
October 2015, and directing them to retain all the funds received in
an interest bearing trust account of the second
respondent pending
the finalisation of the application for rescission, before Rampai J,
who issued a rule nisi and granted the
interim relief sought.
[31]
Subsequent to the issuing of the rule nisi, at 15h19 Ms Martins
furnished to Eskom’s correspondent attorney an undertaking
by
the Trustee to pay R3 300 000 to the trust account of Ms
Martins.
[32]
Mr Kapelus confirmed shortly thereafter that his firm instructions to
Mr Fischer prior to the hearing of the application were
to proceed
with the urgent application, despite any difficulty Ms Martins had
with briefing her counsel.
[33]
On 10 November 2015 Mr Kapelus wrote to the sheriff requesting
information
on the payments
received from FNB and the amount of R4 058 859.19 paid to
the execution creditor. The sheriff confirmed
that Ms Martins had on
26 October 2015 instructed him to pay the funds directly to the
execution creditor, which he had effected
on the 27
th
and 30
th
November 2015.
[34]
On 10 November 2015 the sum of R3 300 000 only was
deposited by the Trust into Ms Martins’ trust account. The
balance of the funds paid by the sheriff to the Trust had already
been spent by the Trustee.
[35]
On 28 January 2016 the rescission application was argued before Van
der Merwe J, who reserved judgment and extended the rule
nisi to 10
March 2016. On 25 February 2016 Van der Merwe J handed down a
judgment in terms of which the default judgment
was rescinded, the
writs of execution and notices of attachment (including the notice in
terms of rule 45(12)(a)) were set aside
and the Trustee was ordered
to repay the amount of R4 061 329 to the applicant. Eskom
was ordered to pay the costs the
rescission application.
[36]
On 1 March 2016, Ms Martins wrote to the Judge President requesting
that a judge from another jurisdiction hear the opposed
application
on 10 March 2016, because of the parties involved in the disputed
discussions and the nature of their allegations.
On receipt of a copy
of this letter, the applicant’s correspondent attorneys also
wrote to the Judge President, confirming
that they were in agreement
with the request by Martins Attorneys, but because their counsel was
not available on 10 March, they
proposed that the application be
adjourned and the rule extended. On 10 March 2016 the
application was adjourned to 2 June
2016, the rule extended to that
date and the costs reserved.
The
Hearing: 2 June 2016
[37]
At the hearing Mr
Snellenburg
SC argued that Eskom was
entitled to costs of the application, including the reserved costs of
10 March 2016, on the scale as between
attorney and client, as it had
been compelled to bring the urgent application to preserve the
attached funds by the failure of
the respondents to disclose that the
attached funds had been paid to the Trust and that a portion of the
funds had been utilised
by the Trustee, and to furnish a satisfactory
undertaking to retain the funds so paid in the second respondent’s
trust account
pending the finalisation of the rescission application.
He contended that as an attorney, Ms Martins had a duty to disclose
the
facts when Mr Kapelus informed her that Eskom was going to apply
for rescission as well as when he twice requested an undertaking
that
no further steps would be taken in execution until the rescission
application was finalised. Mr
Snellenburg
submitted that even
when Ms Martins did give an undertaking on 4 November 2015, it was
‘an empty undertaking which had no
practical value’ as
she was not holding the funds. She had further failed to provide Mr
Kapelus with the required information
on 9 November 2015. Eskom was
consequently compelled to move the application urgently in order to
preserve the attached funds and
its counsel was instructed
accordingly. He contended that the respondents’ version of the
disputed discussions with Mr Fischer
was improbable and that they
should not be permitted to avoid liability for costs through the
alleged disputes.
[38]
In his heads of argument, Mr
Williams
who represented the
respondents stated:
‘
The
main reason for the opposition to the urgent application was
not
so much on the merits
but
based upon the assertions of the Second Respondent that the
application should never have been sought nor moved in the light
of a
prior agreement reached between Second Respondent (as attorney for
First Respondent) and the counsel for the Applicant.’
[11]
(My emphasis)
During
argument, Mr
Williams
conceded that the applicant was entitled to the costs consequent to
the preparation and drawing of the application and placing
it on the
urgent roll, up until the point when Mr Fischer communicated with Ms
Martins on the afternoon of 6 November 2015 and
indicated to her that
the matter was capable of resolution. He contended however that a
punitive order for costs was not warranted
as the respondents had not
acted
mala fide
and Ms Martins was not obliged to disclose the status of the attached
funds to Mr Kapelus or to provide an undertaking as he requested.
[39]
Mr
Williams
submitted further that, in the light of the
disputed discussions and events that subsequently transpired, it was
not appropriate
that the respondent be ordered to bear the costs
incurred thereafter, as Ms Martins had not acted
mala fide
but
in accordance with her discussions with Mr Fischer. He suggested that
it was appropriate that no costs be ordered against either
party from
the afternoon of 6 November 2015. Alternatively he proposed that the
disputed issue of the discussions between Ms Martins
and Mr Fischer
be referred to oral evidence.
[40]
In respect of the reserved costs, Mr
Williams
argued that the
application was enrolled on the opposed roll for 29 March 2016 and
the respondents had filed heads of argument
timeously while the
applicant had failed to comply with the relevant practice directive
by not filing heads of argument. Therefore
the respondent was
entitled to the reserved costs.
The
Costs of the Urgent Application: 9 November 2016
[41]
In the light of the concession by Mr
Williams
, the costs that
remain in dispute are the reserved costs and the costs incurred by
Eskom from the afternoon of 6 November 2015,
and the appropriate
scale of costs.
[42]
The urgent application was precipitated by the failure of the
respondents to furnish an undertaking to invest the attached
funds
which had been paid to the Trust in an account held in terms of
s78(2A) of the Attorneys Act pending finalisation of the
rescission
application, and to provide the details required by Eskom’s
attorney in respect of the attached funds. It is therefore
relevant
to consider the communications between the parties as summarised in
this judgment, and the attitude of the respondents
towards the
undertaking requested by Eskom’s attorney.
[43]
Although the respondents correctly argued that there is no statutory
provision which prescribes that a sheriff must pay attached
funds
into the trust account of the execution creditor’s attorney, it
is common cause that this is the general practice followed
by
attorneys. Ms Martins acknowledged this general practice when she
stated in her answering affidavit that
there
were two reasons why the money was paid directly to the Trustee:
1.
The Trustee is her husband so
it was not necessary to hold the funds in trust pending the
collection of fees, because she knew that
he would pay for the legal
services rendered.
2. Having the funds paid into trust
and then paying it to the Trustee would have involved a great deal of
administration and incurred
high bank fees.
[12]
[44]
As an attorney, Ms Martins would be aware of the
dies
prescribed
for the filing of the rescission application by the Uniform Rules of
this court and that Eskom therefore had adequate
time to deliver its
rescission application timeously, as advised by Mr Kapelus. She would
also know that should the rescission
be granted, the Trustee would be
obliged to pay back any money received in satisfaction of the
judgment so rescinded. It was therefore
in the interests of the
Trustee not to expend the funds received from the sheriff.
[45]
However, on 26 October 2015, when Mr Kapelus first advised Ms Martins
that he had been instructed to apply for the rescission,
she
instructed the sheriff to pay the funds directly to the Trustee. At
the meeting on 27 October 2015, although Ms Martins informed
Mr
Kapelus that it was not in the interests of the Trustee to consent to
the rescission, she did not inform him of her instructions
to the
sheriff. Again, as submitted by Mr Williams, Ms Martins was not
compelled to disclose her instruction by any rule or legislation,
although the ethics of permitting a colleague to labour under a clear
misapprehension is questionable.
[46]
Had Mr Kapelus been informed of her deviation from the usual practice
followed by attorneys, it is improbable that his conciliatory
attitude would not have been superseded by alacrity in bringing the
rescission application and taking any concomitant action required
to
keep the attached funds intact. However, despite his attempt to
ascertain the status of the funds by telephone on 3 November
2015, Mr
Kapelus remained unaware that the funds had been paid to the Trustee
until Ms Martins advised him on 5 November 2015 of
the direct payment
by the sheriff.
[47]
In my view, it was disingenuous on the part of Ms Martins when on 4
November 2015, she gave an undertaking on receipt of the
rescission
application to hold in trust
all
monies received from the sheriff
pending the outcome of the application for rescission and thereafter,
if the rescission were granted, to invest the
same
funds in a s78(2A) trust account pending determination of the
action.
[13]
This undertaking served only to perpetuate Mr Kapelus’
misapprehension, because he had not yet been made aware of Ms
Martins’
instructions to the sheriff or that the money had
already been paid out to the Trust.
[48]
Further her undertaking must be viewed in context: an amount in
excess of R4.5 million had already paid to the Trust and all
that was
outstanding in respect of the judgment debt was interest of
approximately R48 000. Ms Martins could have been under
no
illusion that Eskom or its attorney would have found an undertaking
to hold R48 000 in an investment account acceptable.
It is also
relevant that Ms Martins must have known that the Trustee had already
spent a portion of the attached money. I am in
agreement with Mr
Snellenburg
that by her undertaking and proposal, Ms Martins
attempted to conceal the fact that the Trustee was not in a position
to pay back
immediately the full amount he had received from the
sheriff.
[49]
Mr
Snellenburg
also contended, with a measure of merit, that
by the use of the word ‘ons’ in her undertaking, Ms
Martins deliberately
conveyed that the undertaking referred to the
money received by both respondents, albeit the ‘ons’
could have referred
to an undertaking by her firm and not the
respondents.
[50]
Ms Martins nevertheless attributed Mr Kapelus’
‘misunderstanding’ of her undertaking to his inability to
comprehend the Afrikaans language, and advances the same reason for
his ‘misunderstanding’ of the undertaking given
to Mr
Fischer on 6 November 2015. But she has failed to explain why Mr
Kapelus would have not have properly comprehended the terms
of the
undertaking tendered on 6 November 2015, when he was advised of the
undertaking by Mr Fischer, and not in Afrikaans by Ms
Martins.
[14]
On her own version that Mr Fischer was aware of Mr Kapelus’
limited comprehension of Afrikaans, it is improbable that Mr
Fischer
would have communicated the undertaking by the respondents to Mr
Kapelus in Afrikaans, thereby perpetuating his ‘misunderstanding’.
No such problem in respect of communication existed between Ms
Martins and Mr Fischer.
[49]
But it is apparent that Mr Kapelus was not satisfied with the
undertaking by the respondents, as communicated to him by Mr
Fischer
on the late afternoon of 6 November 2015, because in his email
transmitted to Ms Martins shortly thereafter, he recorded
the terms
of the undertaking but nevertheless placed the respondents on terms
to respond to his queries by 10h00 on 9 November
2015, failing which
his instructions were to proceed with the urgent application. In
short, the undertaking Mr Kapelus required
was in accordance with the
interim relief sought in the urgent application.
[50]
Despite her receipt of this letter from Mr Kapelus at 8h20 on the
morning of 9 November 2015, Ms Martins failed to respond
or to
communicate with Mr Kapelus in order to ‘rectify’ his
misunderstanding, until after the urgent application was
served. She
has offered no cogent explanation for this failure or why she
conceived that the applicant would change its instructions
in respect
of the urgent application in the absence of compliance by the
respondents, as required by Mr Kapelus. To the contrary,
she ought to
have realised that unless a clear and unequivocal acknowledgement of
the amount to be held in trust and an undertaking
for that amount was
furnished by the respondents, Eskom would pursue the urgent
application, particularly because of the disputes
which had arisen in
respect of Ms Martins’ previous undertaking on 4 November 2015.
[51]
It is therefore common cause that when the application was moved at
14h55 on 9 November 2015, the undertaking given by the
respondents on
6 November 2015 remained in dispute, and no further undertaking by
the respondents in accordance with the relief
sought by the
applicant, had been received by Mr Kapelus or his local correspondent
in Bloemfontein, and there was no reason for
Mr Kapelus to withdraw
his instructions to Mr Fischer to move the application as enrolled.
[52]
Consequently, the contention by Mr Williams that the respondents
should not be mulcted with costs of the application incurred
on 9
November 2015 because they had consented to the application cannot be
sustained.
[53]
I am, in the premises, satisfied that the merits of the urgent
application are clearly in favour of the applicant. The disputes
about the controversial discussions between Ms Martins and Mr Fischer
do not impinge on or detract from such merits and are consequently
not relevant to the present enquiry in respect of the costs of the
application.
[54]
I therefore make no determination or even express a
prima
facie
view on the disputes,
nor do I find it necessary to refer the issue to oral evidence, as
suggested by Mr Williams. I am of the
view that this is a matter in
which the court should make a proper allocation as to costs with the
material at its disposal, and
not ‘permit the question of
such costs to become an occasion for incurring a great many further
costs and, incidentally,
occupy the time of the Court’.
[15]
The respondents are consequently not precluded by this judgment from
availing themselves of any recourse they deem appropriate
to the
disputed discussions and conduct of Mr Fischer.
[55]
Adverting to the costs, had the
concession made at the hearing by the respondents in respect of their
liability for costs, albeit
limited to the costs incurred up to 6
November 2015, been made earlier, the matter may have been resolved,
thereby pre-empting
the costs incurred by the opposed hearing on 2
June 2016. Instead the respondents persisted that they would resist
any costs order
because of the disputed discussions with Mr Fischer
and not ‘so much’ because of the merits of the
application. An
award for costs is intended to indemnify the
successful
party
against costs incurred in the course of initiating of defending
litigation, and in the absence of an order for costs
de
bonis propriis
, costs are
borne by the
party or
parties
, and not their
legal representatives. Hence the resistance by the respondents to an
order for costs was ill-founded and they must
bear the adverse
consequences of their belated concession.
[56]
I am also satisfied that the conduct of the respondents, to which I
have alluded in paragraphs 47 – 50
supra
, warrants a
costs order on a punitive scale.
Reserved
costs: 10 March 2016
[57]
Although Eskom did not file its heads of argument by 2 March 2016 in
compliance with the practice directive when the matter
was enrolled
for argument on 10 March 2016, it was apparent that the matter would
not proceed on that day because of the respondents’
allegations
against Mr Fischer. Ms Martins expressed the reservation that the
matter ought not to be heard by a ‘local’
judge in her
letter dated 1 March 2016 to the Judge President. In its letter to
the Judge President, the applicant agreed with
her reservation and
also indicated that counsel who had been briefed in the place of Mr
Fischer was not available to argue the
matter on 10 March. It is also
apparent that it would not have been possible on such short notice to
arrange for a judge from another
jurisdiction to hear the matter on
10 March 2016. The costs of the hearing on that day could have
been avoided if the parties
consented to the removal of the matter
from the roll timeously. Consequently, in my view, the appropriate
order is that each party
bears its own costs in respect of the costs
reserved on 10 March 2016.
Order
[58]
I therefore make the following order:
1
The respondents are ordered,
jointly and severally the one paying the other to be absolved, to pay
the costs of the urgent application
on 9 November 2015, such costs to
include the opposed hearing on 2 June 2016, on the scale as between
attorney and client.
2
The parties are to bear their
own costs occasioned by the adjournment on 10 March 2016.
_________________
Moodley
J
APPEARANCES
For
the Applicant
Advocate N. Snellenburg SC
Instructed
by
Norton Rose Fulbright South Africa Inc
c/o
Webber Attorneys
Webber
Building
96
Charles Street
Bloemfontein
Ref
M Koller/jp/NOR8/0054
Tel:
051 430 1340
For
the Respondents:
Advocate A. Williams
Instructed
by
Martins Attorneys
Die
Stalle
Cnr
79 Aliwal and Third Street
Bloemfontein
Ref
L01349
Tel:
051 447 7880
Date
of hearing : 2 June 2016
Date
delivered
:
January
2017
[1]
2002 (2) SA 64 (CC).
[2]
Fripp v Gibbon & Co
1913
AD 354
363;
Sackville West
v Nourse & Another
1925
AD 516
;
South African
Association of Personal Injury Lawyers v Heath & Others
2001 (1) SA 883
(CC) 912;
Gauteng
Provincial Legislature v Kilian & Others
2001 (2) SA 68
(SCA) 76G–I.
[3]
Cronje
v Pelser
1967 (2) SA 589
(A) at 593; see also
Wanderers
Club v Boyes-Moffat & another
2012 (3) SA 641
(GSJ) at 643H-644B. : ‘The general principle regarding the
award of costs is well-settled:
it is entirely a matter for the
discretion of the Court which is to be exercised judicially upon a
consideration of the facts
of each case and in essence it is a
matter of fairness to both sides.’
[4]
2005 (5) SA 409 (C)
para 11 (footnotes omitted).
[5]
E
rasmus
v Grunow en ‘n Ander
1980
(2) SA 793
(O) at 798
[6]
1946 AD 597
at 607
[7]
Koetsier v SA Council
of Town and Regional Planners
1987
(4) SA 735 (W)
at
744J - 745A
[8]
See also the
judgment of Van Der Merwe J in the rescission application
delivered on 25 February 2016.
[9]
‘
Gemelde bedrag is toe nie van
die beslagsskuldenaar gevorder nie en vind die balans van u
paragraaf 6 geen inslag nie en soos
reeds genome any aksie wat u
goeddink om in te stel geoppeneer word met ‘n gepaste
kostebeval.’
[10]
Para 6.2
of
Ms Martins’ answering affidavit
[11]
This submission is consistent with
para 6.1 of the answering affidavit.
[12]
In accordance with
the rules of the Law Society, b
ank
charges incurred for transactions through a trust account may be
paid from the attorney’s trust interest account. There
is no
explanation why the administration would have been extraordinarily
burdensome, given the usual procedures regulating attorneys’
trust accounts.
[13]
See para 21 of judgment
supra
[14]
Answering
affidavit para 5.3:
‘
Soos
duidelik uit paragraaf 1 van vermelde skrywe blyk, het Kapelus
weereens nie dis Afrikaanse onderneming behoorlik begryp nie,
aangesien hy van mening was dat alle fondse wat deur die Balju aan
die Eiser oorbetaal is soos op 6 November 2015 om 17:45, nie
uitbetaal sal word nie.’
[15]
AC Cilliers
Law
of Costs
para 2.20 issue
32;
Mashaoane v Mashaoane
& another
1962(2)
SA684 (D) at 687G-H.