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[2017] ZAFSHC 51
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Botha and Others v Scholtz and Another; In re: Botha and Others v Member of the executive Council: Local Government and Housing Free State Province and Others (3424/2016, R182/2007) [2017] ZAFSHC 51 (9 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTE
I
N
APPLICATION
NO: 3424/2016
In
the application between:
JOSEPH
FRANCOIS
BOTHA
1
st
Applicant
JAN
JOHANNES
LUBBE
2
nd
Applicant
ADRIANA
CATHARINA PAUW
3
rd
Applicant
ANDREW
GEORGE
MURRAY
4
th
Applicant
HENNING
STABELBERG
5
th
Applicant
ANNA
JACOBA CECILIA
BOBBERT
6
th
Applicant
ANNALIEN
DIEDERICKS
7
th
Applicant
BART
JOHANNES
STEPHANUS
DIEDERICKS
8
th
Applicant
MARRIGJE
MARIANA
KOORTS
9
th
Applicant
RULHOF
(FIEF) VAN
DER
MERWE
10
th
Applicant
MATTHEUS
GERHARDUS
LOTTER
11
th
Applicant
I
ZAK
JOHANNES JANSE
VAN
VUUREN
12
th
Applicant
MICHAEL
NICOLUS GEORGIOU
N.O
13
th
Applicant
JOSEPH
REYNOLDS CHEMALLY
N.O
14
th
A
pplicant
STAMATIOS
TSANGARAKIS
N.O
15
th
Applicant
(In
their respective capacities as duly authorised
Trustees
of the Michael Family Trust)
and
ANDREW
GEORGE
SCHOLTZ
First Respondent
TAXING
MATTER, FREE STATE DIVISION OF
THE
HIGH COURT OF SOUTH AFRICA,
BLOEMFONTEIN
Second Respondent
In
re:
Application
Number:
R182/2007
In
the matter between:
JOSEPH
FRANCOIS
BOTHA
1
st
Applicant
JAN
JOHANNES
LUBBE
2
nd
Applicant
ADRIANA
CATHARINA
PAUW
3
rd
Applicant
ANDREW
GEORGE
MURRAY
4
th
Applicant
HENNING
STABELBERG
5
th
Applicant
ANNA
JACOBA CECILIA
BOBBERT
6
th
Applicant
ANNAUEN
DIEDERICKS
7
th
Applicant
BART
JOHANNES
STEPHANUS
DIEDERICKS
8
th
Applicant
MARRIGJE
MARIANA
KOORTS
9
th
Applicant
RULHOF
(FIEF) VAN
DER
MERWE
10
th
Applicant
MATTHEUS
GERHARDUS
LOTTER
11
th
Applicant
I
ZAK
JOHANNES
JANSE
VAN
VUUREN
12
th
Applicant
MICHAEL
NICOLAS
GEORGIO
N.O
13
th
Applicant
JOSEPH
REYNOLDS
CHEMALLY
N.O
14
th
Applicant
STAMAT
I
OS
TSANGARAKI
S
N.O
15
th
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL:
LOCAL
GOVERNMENT AND HOUSING
FREE
STATE
PROVINCE
1
st
Respondent
THE
CHAIRMAN OF THE TOWNSHI P BOARD
FREE
STATE
PROVINCE
2
nd
Respondent
THE
TOWNSH
I
P
BOARD:
CONSULTANTS
3
rd
Respondent
CEBO
ENVIRONMENTAL
CONSULTANTS
CC
4th Respondent
ANDREW
GEORGE
SCHOLTZ
5
th
Respondent
ANDREW
GEORGE
SCHOLTZ
N.O
6
th
Respondent
(In
his capacities as duly authorized
Trustees
of the Jo-Ann Trust)
MANGAUNG
LOCAL
MUNICIPALITY
7
th
Respondent
JUDGMENT
BY:
MOLITSOANE, AJ
HEARD
ON:
8 DECEMBER 2016
DELIVERED
ON:
9 MARCH 2017
[1]
This is an application in which the applicants seek a declaratory
order that the first respondent's right to quantify and recover
the
costs pursuant to the cost order granted in his favour in civil case
number R182/2007 of this court by means of presentation
of a bill of
costs for taxation and the taxation thereof has superannuated,
alternatively, has prescribed.
[2]
In brief, the background facts to this case are as follows:
The
applicants, as listed in the above heading, brought an application
under case cover number R182/2007 to have a decision of the
Township
Board, to grant leave to developers to develop the Preller Walk, in
Preller Plain, Dan Pienaar, Bloemfontein reviewed
and set aside.
[3]
The Applicants' review application was eventually dismissed with
costs on the 20th August 2009.
[4]
It would appear that an application for leave to appeal was initially
filed against the dismissal of the review application,
but was
abandoned.
[5]
About 3 years and three months later a bill of costs was presented
for taxation on the 15th November 2012. The bill of costs
was
objected to and it was removed from the roll. A further 3 months
later during February 2013, the same bill of costs was served
on the
applicants' attorney. This bill was again objected to and was again
removed from the roll.
[6]
During 2015 a bill of costs was again presented for taxation but same
was objected to after which it was again removed from
the roll.
[7]
On the 30th March 2016, a new date was allocated for the taxation of
the bill of costs which objected to again on the basis
that the right
to quantify the costs and tax the same by the respondent had
superannuated, alternatively had prescribed. This objection
is the
basis for these proceedings.
[8]
In argument before me counsel for the Applicants argued that a
litigant does not and cannot enjoy an unlimited period to quantify
and recover their costs. The argument was that an untenable situation
would arise, if the applicants were kept in suspense indefinitely
before costs were taxed.
[9]
On the other hand, it was argued on behalf of the first respondent
that the rule dealing with superannuation scrapped and the
applicants
could not aver that the costs order had superannuated.
[10]
The crisp question for determination is whether the first
respondent's right to quantity and recover his costs and to present
a
bill of costs for taxation was superannuated, alternatively, had
prescribed, in view of the fact that the bill of the costs granted
on
the 20th August 2009 was only presented for taxation on the 30th
March 2016, more than six years after the order was granted.
[11]
The question of superannuation was previously governed by the Uniform
Rule 66 of this court which was couched differently from
the present
rule bearing the same number. In terms of the said rule before it was
amended, the executability of a judgment debt
lapsed after a certain
period with the result that once a judgment debt was superannuated,
execution thereon could not be carried
out unless the judgment was
first revived.
[12]
In
Segal and
Another v
Segil
1992 (3) SA 136(CPD)
Howie J, on rationale explaining the rationale for superannuation
said:
"The
ratio for the superannuation rule was explained thus by
Van Zyl:
The Judicial
Practice
of
South
Africa
2
nd
ed.
(1902)
at
308:
'The
object
in requiring
a
revival
of
the
sentence
is to
prevent
a judgment
debtor being taken by surprise by the plaintiff suddenly
enforcing execution.
The rule
was
thus introduced
for
the benefit
of
a
debtor,
who,
however,
may
either
directly,
or
by
his
conduct,
waive it.'..
.
..
"
[13]
The full bench in the case of
Segal
and
Another
v
Segi
l
(
supra)
questioned the reason for the existence of Rule 66 as it then was
and the Rules Board has since seen it fit to amend it. Rule 66
has
since been substituted by Notice R214 of 28 March 2014 and it
currently provides thus:
"Duration
of Writs
of Execution.
Writs
of
Execution of a
judgment
once
i
ssued
remain
in
force, and
may,
subject
to
the provisions of
subparagraph
(ii) of
paragraph (a) of
section 11
of the
Prescription Act,
1
969 at any time be executed without being renewed until
judgment
has
been satisfied
in
full"
[14]
Rule 66 as it currently stands has done away with the aspect of
superannuation. On the other hand
section 11(a)
(ii) of the
Prescription Act 68 of 1969
provides that the period of prescription
of any judgment debt shall be 30 years. Further
section 12(1)
of the
Act provides that "subject to the provisions of subsections (2)
and (3), prescription shall 'commence to run as soon
as the debt is
due."
[15]
The court in the
Master v
I
L
Back and Co Ltd
and Others
1983 (1) 986 at 1004 said the following when it commented on
the words "debt is due" in
section 12
(1) of the Act,
"The
word 'debt
is
due' in
the
section
must
be
given
their ordinary
meaning.
I
t seems
clear that this means that there must be a liquidated
money obligation
presently claimable by the
creditor for which an
action
could
presently
be
brought
against
the
debtor,
stated
another
way, the
debt
must
be one
in respect of which the
debtor
is
under
an
obl
i
gation
to
pay
immediately."
[16
In the case of
List
v Jungers
1979 (3) SA 106
(A) the court further said that "the
date
on
which
the
debt
arises
usually coincides
with
the
date
on which
it
becomes
due,
but that
i
s
not
always
the
case.
The
difference
relates
to
the
coming into
existence
of
the
debt
on
the
one
hand
and
the recoverability
thereof on
the other hand."
[16]
Relying on the decision in
Santam
v Ethwar
1999(2) SA 244
SCA it was argued on behalf of the applicants that litigants do not
enjoy an "
unlimited
period
to
quantify
their
costs
".
Admittedly the rational to quantify and tax the bill of costs
was explained as follows in
Uitenhage Municipality
V
Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
T
742
H-1:
"One
of
the main
purposes of
the
Prescription
Act is
to protect
a
debtor
from
old claims
against
which
it cannot
effectively
defend
i
tself
because of
loss of records
or witnesses
caused by the
lapse of time.
If
creditors
are
allowed
by their deliberate
or
negligent
acts to
delay
the
pursuit
of their
claims without
incurring
the
consequences
of
prescription,
that
purpose would
be subverted."
[17]
This case should, however, be distinguished from the case of
Santam
v
Ethwar
(
supr
a
).
In that case
plaintiff (respondent on appeal) had instituted
an action for compensation.
Defendant made an
offer to the plaintiff in terms of
rule 34
for payment of damages and
also agreed to pay the costs of the plaintiff as agreed or
taxed. The offer was accepted by the
plaintiff and payment of the
offered damages was made subsequently. The
plaintiff, however, did not tax his costs
within three years and when
he presented his bill of costs after three years, an objection was
raised on the basis that the plaintiff's
claim for costs had
prescribed. The court held that the issue depended on whether the
debt was due on the day of the settlement.
As there was no agreement
or taxation on costs which was what the parties intended should occur
to render them payable, the court
held that prescription could not
have commenced to run. In that case, that settlement was never made
an order of the court as the
plaintiff, subsequent to the objection
to tax the bill of costs, applied for default judgment in terms of
Rule 31(5)
, which judgment was granted and a warrant of execution
issued, although it was later on stayed. Contrary to that case where
the
offer and acceptance were not made an order of the court, in the
instant case the first respondent was granted costs by the court.
[18]
In terms of
section 11(a)(ii)
of the Act where judgment has been
granted for costs, a claim for such costs would only prescribe after
thirty years. - See
Jordaan
a
n
d
Co td
v
Bulsara
1992 (4) SA 457
(E) at 460. It should
be noted that when the rule dealing with superannuation was still in
existence its effect was only to force
the creditor to revive the
judgment after every three years when he wanted to execute on it
until the thirty year period envisaged
in
section 11(a)(ii)
of the
Act had expired. It was never intended to extinguish the debt by way
of extinctive prescription. It could, therefore, not
have been the
intention that where judgment costs have been granted, which order
prescribed in thirty years, the right to
have them taxed should
prescribe while, an order for such costs had not prescribed. In view
of the fact that the rule dealing with
superannuation was scrapped,
the applicants cannot aver that the costs order granted herein was
superannuated or prescribed. In
my view the first respondent does not
enjoy an unlimited right to enforce his claim for costs insofar as he
can only quantify his
costs and present a bill for taxation as long
as the judgment from which his right derives has not prescribed.
[24]
I accordingly find that that the first
respondent's right to quantify and to recover the costs pursuant
to
the Court order granted in his favour in case number R182/2007 was
not superannuated or prescribed;
ORDER
The
application is dismissed with costs.
____________________________
P.E.
MOLITSOANE, AJ
For
the Applicants:
Adv.N
Snellenburg
SC
Instructed
by:
Rosendorff Reitz Barry
6 Third Street
BLOEMFONTEIN
For
the 1st Respondent: Adv. MJD Steenkamp
Instructed
by:
CM DU PLOOY
49 Parfitt Ave
PARK WEST
BLOEMFONTEIN