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[2017] ZAKZPHC 39
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Gani v Singh (AR348/16) [2017] ZAKZPHC 39 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION
PIETERMARITZBURG
CASE
NO: AR 348/16
In
the matter between:
Rashid
Gani Appellant
and
A
Singh Respondent
Judgment
Lopes
J
[1]
The appellant in the matter, as plaintiff, instituted action in the
Chatsworth Magistrates court against the respondent, as
defendant,
for payment of a total sum of R300 000-00 arising out of two
claims for defamation. The action was set down to
be heard on the
7
th
,
9
th
and 10
th
days of March 2016. I shall refer to the parties in this judgment by
their citations in the court
a
quo
–
i.e. the appellant as the plaintiff and the respondent as the
defendant.
[2]
The matter was not heard on the 7
th
March 2016 because of
the unavailability of the learned magistrate. When the matter was
called on the 9
th
March 2016 the plaintiff’s counsel
raised the following:
(a) The plaintiff had
served a notice to discover on the defendant on the 8
th
June 2015.
(b) The defendant had
delivered a discovery affidavit on the 19
th
February 2016.
(c) In terms of the
magistrates’ court rules, discovery was to have been made at
least twenty days before the trial date.
The plaintiff’s
attorney accordingly notified the defendant’s attorney on the
25
th
February 2016 that the defendant should remove the
matter from the trial roll and pay the plaintiff’s costs,
alternatively
proceed with the trial and not be able to use the
documents discovered by the defendant.
(d) On the 25
th
February 2016 the defendant’s attorneys notified the
plaintiff’s attorneys that they will be making an application
for condonation of the late filing of the defendant’s discovery
affidavit. They record in the letter that if the application
is
refused, the defendant has sufficient witnesses to run the matter
without the use of the documents.
(e) No application for
the condonation of the late filing of the defendant’s discovery
affidavit was made by Monday the 7
th
March 2016, nor
indeed by the 9
th
March 2016.
(f) The plaintiff’s
counsel informed the learned magistrate that if the defendant
intended to use the documents referred to
in his discovery affidavit,
the plaintiff would oppose the introduction of such documents during
the trial.
[3]
The defendant’s counsel criticised the raising of this issue by
the plaintiff’s counsel because the issue could
have been
raised on Monday the 7
th
March 2016, and the defendant would have prepared an application for
condonation by Wednesday the 9
th
March 2016. The defendant’s counsel then indicated that it was
necessary for the defendant to use the documents which it
had
discovered in order to establish its case. In those circumstances the
defendant’s counsel felt constrained to seek an
adjournment of
the matter, and the defendant’s counsel tendered the party and
party costs occasioned by the adjournment of
the action.
[4]
In reply the plaintiff’s counsel referred to the correspondence
between the parties’ attorneys. The plaintiff’s
counsel
argued that the costs payable for the 9
th
and 10
th
March 2016 should be paid on the scale as between attorney and
client, and should ‘
include
the reasonable costs of the plaintiff’s counsel as per his
invoice or his fee note…
’
The plaintiff’s counsel argued that if the plaintiff were only
allowed his counsel’s fee on the appropriate
magistrates’
court tariff of fees then the plaintiff would be severely out of
pocket in circumstances where the plaintiff
was not at fault, and the
defendant was seeking an indulgence. The plaintiff’s counsel
quoted the matter of
Smit
v Maqabe 1985(3) SA 974 (T)
to the learned magistrate as authority for the proposition that the
plaintiff was entitled to be paid his counsel’s fees.
In this
regard the plaintiff’s counsel submitted that there was no
distinction between counsel and senior counsel. He also
drew to the
learned magistrate’s attention, the complexity of the matter,
and the necessity for the plaintiff briefing senior
counsel.
[5]
Having heard protracted argument by both counsel, the learned
magistrate granted the application for an adjournment and directed
the defendant to pay the wasted costs on an attorney and client scale
for the adjournment of the matter on the 9
th
March 2016. The learned magistrate also ordered that there would be
no order for costs for the 10
th
March 2016 and that counsel’s fees for the costs awarded would
be excluded.
[6]
The plaintiff has appealed the decision of the learned magistrate,
seeking that the order of the court a quo should be substituted
with
the following:
‘
The defendant is
ordered to pay the plaintiff’s wasted costs occasioned by the
adjournment, for the 9
th
and 10
th
March 2016, on the attorney and client scale in respect of both the
plaintiff’s attorney and advocate.’
[7]
It is trite that a court of appeal will not likely interfere with the
exercise of a magistrate’s discretion with regard
to costs,
which discretion is judicially exercised.
[8]
In
Pretorius v Herbert 1966(3) SA 298 (T) at 301 at H-302B
Trollip J stated:
‘
The mere fact that
that is not the order that I would have made does not mean that this
Court is justified in interfering with the
exercise of the
magistrate’s discretion.
Penny
v Walker 1936 (A) 241 at p260
,
states specifically that the mere fact that the court of appeal would
have made a different order as to costs is no ground for
interfering
with the lower court’s order. The limits to which this Court on
appeal can interfere with an order made by the
magistrate as to costs
is, I think clear from
Merber
v Merber 1949(1) SA 446 (A) at pp 453
.
The effect of the passages there is that the discretion as to costs
must be judicially exercised by the trial court, that is,
there must
be some grounds on which a court, acting reasonably, could have come
to the particular conclusion; if there are such
grounds their
sufficiency to warrant that conclusion is a matter entirely for the
trial court’s discretion, and the court
on appeal cannot
interfere, even if it would itself have made a different order.’
[9]
With regard to the learned magistrate’s disallowance of the
order for costs on the 10
th
March 2016, she recorded that she was unable to understand or
appreciate the full complexity of the matter until the matter had
been dealt with fully and the trial ran before her. She stated that
by merely looking at the papers before her, she was not in
a position
to determine the complexity of the matter.
[10]
The learned magistrate further stated, with regard to the
disallowance of the costs of the 10
th
March 2016, that whilst the matter had originally been set down for
three days, there were only two days left and no one could
anticipate
what would have happened had the matter proceeded on the Wednesday
and the Thursday.
[11]
The learned magistrate referred to the
Smit
judgment
which records that it is undesirable that principles be defined to
indicate in what circumstances a magistrate exercising
his or her
discretion with regard to costs will be entitled to deprive a
plaintiff of his costs or a part thereof, for example
advocate’s
costs. The court in that case found that the magistrate had unfairly
deprived the party of the costs of an advocate.
The court recorded
that a litigant is entitled to use the services of an advocate in the
magistrates court without being penalised
in respect of the costs of
that advocate, and a court will not likely interfere with that right.
[12]
Plaintiff’s counsel referred us to
RAF v G P van Rhyn and
RAF v F J van Rhyn
[2002] ZAECHC 6
at paragraph 44
where Plasket
J stated:
‘
If a costs order
is arbitrary, it follows that it could not be said that the trial
court exercised a judicial discretion in making
that costs order. In
Road
Accident Fund v Forbes
,
Jones, J, with reference to a costs order, defined an arbitrary
decision as one that is ‘capricious, variable, uncertain,
an
unrestrained exercise of personal whim without reference to any
sensible matter or criteria.’’
[13]
Plaintiff’s counsel submitted that:
(a)
Smit
entitles a litigant to
counsel costs where he is successful;
(b)
that a lack
of complexity does not justify depriving a party of counsel’s
fees; and
(c)
that the
learned magistrate in this matter simply gave no indication why she
denied the plaintiff the costs of counsel.
[14]
Although the learned magistrate has not expressly said so, she
appears to indicate that counsel’s fees were disallowed
because
she was unable to assess the complexity of the matter until the trial
was heard. In my view it is clear from the pleadings
that the matter
is one of some considerable importance to the plaintiff. It is
alleged in the particulars of claim that the plaintiff’s
character has been publicly attacked by the defendant without proper
cause. In those circumstances it would be somewhat unusual
for a
litigant not to have elected to be represented by counsel, albeit in
the magistrates’ court.
[15]
In the circumstances I am of the view that the learned magistrate
misdirected herself in not allowing counsel’s fees
amongst
those to be paid by the defendant on an attorney and client scale for
the adjournment which took place on the 9
th
March 2016. In the circumstances I would make the following order:
(a) The appeal succeeds.
The ruling of the learned
magistrate in paragraphs 2 and 3 are amended to read as follows:
‘
2. The defendant
is to pay the plaintiff’s wasted costs occasioned by the
adjournment of the 9
th
March 2016, such costs to be calculated on the scale as between
attorney and client, and to include the taxed costs of counsel.
3. There is no order for
costs for the 10
th
March 2016.’
(b) The respondent is
directed to pay the costs of the appeal.
___________________
Lopes
J
I
agree.
___________________
Mnguni
J
Counsel
for the Appellant: Mr M S Khan SC
Instructed
by: Shenaaz B Habib
311
Lenny Naidu Drive
Bayview
Chatsworth
Counsel
for the respondent: Mr N Moosa
Instructed
by: Govender, Mchunu & Associates
1
st
Floor, 24-48 McKenzie Road
Windermere
Durban
Date
of hearing: 13 February 2017
Date
of Judgment: 3 March 2017