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[2016] ZAGPPHC 178
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South African National Roads Agency (SOC) Limited v Superway Construction (Pty) Ltd; In re: South African National Roads Agency (SOC) Limited (18628/2015) [2016] ZAGPPHC 178 (8 April 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 18628/2015
8/4/16
Not
reportable
Not
of interest to other judges
Revised
In the matter
between:
THE SOUTH AFRICAN
NATIONAL ROADS AGENCY (SOC) LIMITED
Applicant
and
SUPERWAY
CONSTRUCTION (PTY) LTD
Respondent
In re:
SUPERWAY
CONSTRUCTION (PTY) LTD
Plaintiff
and
THE SOUTH AFRICAN
NATIONAL ROADS AGENCY (SOC) LIMITED
Defendant
DATE OF HEARING
:
31 MARCH 2016
DATE OF
JUDGMENT :
08 APRIL
2016
JUDGMENT
MANAMELA AJ
[1] On 25 September
2015 in the unopposed motion court, I granted an exception on various
grounds in favour of the South African
National Roads Agency, the
applicant in terms of the current application.
[1]
The order granted did not make any reference to costs.
[2] The applicant
submits in terms of the current application that there was an error
in this regard. It is submitted that, based
on the oral exchanges
between counsel for the applicant and myself in court as
transcribed,
[2]
on the fateful
day. I had harboured an intention to grant costs in the applicant's
favour. I was only disabled by the handing up
of a draft order
without costs by counsel, which was erroneously made an order of
court. Therefore, the applicant submits that
error be corrected by an
award of costs for its successful exception to the respondent's
particulars of claim.
[3] In its quest to
correct the so-called "error", the applicant through its
representatives wrote to the Deputy Judge
President on 08 December
2015.
[3]
However, the matter was
only brought to my attention at the beginning of February 2016, when
I was coincidentally back at this
Court as an acting judge. Initially
I had considered it involved an obvious error capable of correction
through the provisions
of rule 42 of the Uniform Rules of this
Court.
[4]
I simply directed the
applicant's representatives to set down the matter in the subsequent
week, when I was to be in the unopposed
motion court again. This was
ultimately done and the matter came before me on 11 March 2016. The
respondent opposed the application
and complained that it was set
down without being afforded a reasonable time to file papers.
Eventually, the parties agreed to
an order and the matter was
postponed to 31 March 2016. I had indicated my availability on the
day to hear the matter.
[4] The parties
further exchanged voluminous papers. What was previously a simple
issue of costs became a matter of almost 300 pages
and authorities
bundle of over 400 pages. Although I am grateful for the heads of
argument filed on behalf of the parties, in my
view the parties went
overboard in their exchanges. Also, various aspersions were casted
and the junior counsel who moved the original
exception wasn't spared
the wrath. He was warned about his professionalism or lack thereof,
and even words like "fraud"
have been brandished. All these
brings some element of curiosity as to whether the subsequent costs
incurred by the parties in
their quest to fix "the error"
aren't ironically exceeding those of the costs order sought to be
enforced or avoided.
But apparently this application represents very
important matters to the parties and it appeared so when the
application was argued
on 31 March 2016. I was in the urgent court
and therefore thought it prudent to reserve this judgment for a few
days.
[5] I indicated to
counsel appearing before me on 31 March 2016 that I am not going to
allow any detention by the several submissions
in the papers. I also
indicated that I do not want my memory of the events of 25 September
2015 to be decisive of this matter.
This, I indicated, included
speculation of what appears or is missing from the transcript of that
day. I am in no way a party or
witness for or against the contending
parties.
[6] I further
indicated that, I intend determining the matter from a narrow angle,
which I consider justified under the circumstances,
as follows.
Should the applicant have given notice to the respondent that a costs
order will be sought upon granting of the exceptions,
such costs
order will be granted or confirmed. Absent prior notice, no costs
order is possible.
[7] It is common
cause that there was no prayer for costs in the notice of exception
and the exception.
[5]
The prayer
for costs came into the picture through heads of argument filed by
the applicant, just before the original hearing of
the unopposed
motion.
[6]
The document was
served by electronic mail which also alluded to the issue of costs in
that the senior counsel was to be replaced
by junior counsel in the
event of the respondent not opposing the exception.
[7]
In my view the heads of argument and the accompanying electronic mail
of 24 August 2015 gives an impression that the applicant
was at that
stage not aware that it had not included costs in the original
notices or pleadings. It was mentioning costs as if
it has always
been an issue of contention. There is no indication that it was aware
that there was a need for the change of stance
through a formal
amendment or formal notice to its opponent. It doesn't really matter
whether or not my observations are misplaced.
The matter was then
unopposed and the respondent submit that it was busy effecting
amendments to accommodate the causes of complaint
in the exception.
[8] I have
considered the authorities I was referred to by counsel in their
heads of argument. I reiterate that I am grateful for
their efforts
in this regard. However, the circumstances of this matter are clearly
distinguishable from the authorities I was
alerted to, and those I am
aware of. I consider it in the interests of justice to arrive at a
finding that will be fair and dispense
justice between the parties. I
will not grant any costs for the original application and this
application, including the accompanying
application. The costs for
all this will be part of the outcome in the action proceedings. To
the extent that I am considered to
have made a costs order on the 25
September 2015, such costs order should be considered withdrawn as
having been erroneously granted,
and replaced with the order made
herein.
[9] Therefore, I
make an order as follows:
(1) that, the
application and the counterapplication are refused.
(2) that, the costs
for the application and the counterapplication be costs in the cause.
_____________________
K. La M. Manamela
Acting Judge of
the High Court
08 April 2016
[1]
See annexure "ZM 1 " to the founding affidavit in indexed
pp 8-9.
[2]
See annexure "ZM2" to the founding affidavit in indexed pp
10-27.
[3]
See annexure "ZM3" to the founding affidavit in indexed pp
28-51.
[4]
Rule 42( 1 ) of the Uniform Rules of Court reads: "The court
may, in addition to any other powers it may have, mero motu
or upon
the application of any party affected, rescind or vary:
(a) An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected
thereby:
(b) An
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the
extent of such ambiguity, or a patent
error or omission;
(c) An
order or judgment granted as the result of a mistake common to the
parties."
[5]
See par 35.2 of the applicant's heads of argument; par 2 of the
respondent's heads of argument.
[6]
See par 1 6.2 of the applicant's heads of argument with filing
notice dated 22 July 2015 (annexure "MR l ") on indexed
pp
266.
[7]
See annexure "MR 1'' on indexed pp 268.