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[2016] ZAGPPHC 917
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Elsdon and Another v Schoeman and Others (9996/2015) [2016] ZAGPPHC 917 (17 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 9996/2015
DATE
OF HEARING: 11OCTOBER 2016
DATE
OF JUDGMENT: 17 OCTOBER 2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
ERROL
ELSDON
First
Applicant
TRACEY
ROSCHER
Second
Applicant
and
CHRISTIAAN
SCHOEMAN
First
Respondent
STEMELA
& LUBBE
INC
Second
Respondent
WILNA
LUBBE
Third
Respondent
JUDGMENT
AVVAKOUMIDES,
AJ
[1]
This is an application for the rescission of a judgment granted in
the absence of the applicants on 26 February 2015. The judgment
comprises a cost order alone, including the costs of senior counsel.
The application is brought in terms of common law. In doing
so, the
applicants have submitted that they have set out in their founding
papers, a reasonable explanation for the default, that
the rescission
application is brought
bona fide
and that they have a
bona
fide
defence including a
prima
facie case on the merits.
[2]
On 10 February 2015 the applicants brought an urgent ex
parte
application wherein they sought an interdict restraining the
second and third respondents from making payment to the first
respondent
of the proceeds emanating from a settlement agreement and
that the second and third respondents would retain the proceeds of
the
settlement agreement in their trust account, pending the return
date. The respondents were afforded the opportunity to anticipate
the
order on not less than 24 hours' notice.
[3]
The applicants submitted that they believed if notice of the
application was given, the funds held by the second respondent
would
be dissipated. The justification submitted by the applicants is that
the first respondent was in a dire financial situation
and that he
and the third respondent had been in a personal relationship. This
allegation, in my view, is quite astounding in the
light of the third
respondent being an admitted and practising attorney of this court.
In the absence of information supporting
the applicants' allegation,
more than just their belief, such allegation appears to be
conspicuous.
[4]
I would imagine that an attorney who receives a request for an
undertaking would either give such undertaking or furnish an
explanation why an undertaking could not be given. I can hardly
imagine that the third respondent, having been requested for an
undertaking, would simply transfer funds to the first respondent to
the prejudice of the applicants, thereby rendering her culpable
of
professional misconduct.
[5]
Be this as it may the
ex parte
application was based on the
aforesaid allegations. It is uncertain why the applicants deemed it
necessary to cite both the second
and third respondents. The second
respondent is a law firm, incorporated as such under the company laws
of South Africa. The third
respondent is a director of the law firm.
[4]
The return date of the
ex parte
order was 10 March 2015. The
second and third respondents anticipated the return date and the
application was scheduled to be heard
on 26 February 2015. In her
notice of anticipation of the return date the third respondent stated
that she would move for an order
discharging the rule
nisi
and a cost order would be sought against the applicants on the
scale as between attorney and own client.
[5]
The applicants argued that because the third respondent had stated in
her answering affidavit attached to the notice of anticipation
that
she would abide by the decision of the court, she is precluded from
attacking the decision of the court. Moreover, the fact
that she did
not deny that she had knowledge of the settlement between the first
respondent and the applicants, she should not
have taken the cost
order against the applicants in their absence.
[6]
This brings me to the conduct of the applicants. On 26 February 2015
the applicants were represented by their current attorneys.
The
applicants did not attend court, because, they argued, they were
under the impression that the matter was settled as against
the
second and third respondents as well. They conceded that this
assumption was incorrect. The attorneys for the applicants did
not
establish what would happen with the rule
nisi
that had been
anticipated.
[7]
The anticipated return date was heard before De Vos J in the urgent
court and a cost order was granted against the applicants,
including
costs of senior counsel. On the previous day, 25 February 2015, the
ex parte
application was settled between the applicants and
the first respondent. The parties thereto agreed to a draft order
which was made
an order of court. Neither the applicants not their
attorneys considered the second and third respondents or the
anticipated return
date.
[8]
The applicants first became aware of the cost order when the second
and third respondents' bill of costs was served. At that
stage it
would have been incumbent upon their attorneys or the applicants
themselves to take steps to. establish why the cost order
had been
granted in their absence and to take steps for the rescission
thereof. Instead, the attorneys for the applicants
embarked on
opposing the taxation of the bill of costs in the ordinary course of
events. This in my view is a clear indication
that
they did not intend applying for the
rescission of the cost order.
[9]
On 24 April 2015 the applicants, duly represented, despatched their
objections to the itemised bill of costs wherein they raised
arguments on the various items contained in the bill of costs. On 14
July 2015 the taxation process was completed and the taxing
master
signed the allocator. On 28 July 2015 the applicants served this
application on the second and third respondents. For the
second time
I find it strange that the applicants would go to the extent of
opposing the taxation of the bill of costs instead
of liaising with
the second and third respondents to stay the taxation process pending
the rescission application.
[10]
My questions to counsel on the conduct of the applicants in this
regard as also to the blatant disregard of the anticipated
return
date was met with submissions that there is much criticism that may
be levelled at the applicants but so too at the second
and third
respondents. This of course is not an acceptable explanation.
[11]
In my view the delay in launching the application is fatal. This
brings me to the requirement of a
bona fide
defence and
whether this application was brought
bona fide.
In my view,
and on the facts before me, the rescission application cannot be said
to have been brought
bona fide.
There is no acceptable
explanation for the applicants' conduct. Furthermore, the applicants
do not set out any facts to sustain
a
bona fide
defence. The
ex parte
order was in my view an abuse of process and the
second and third respondents should have been afforded the courtesy
of responding
to a request for an undertaking, at the very least.
Consequently I find that there is no
bona fide
defence.
[12]
Mindful that I am not sitting on appeal I remarked during the hearing
of this application that the costs of senior counsel
should not have
been included in the cost order. Counsel for the second and third
respondents agreed on the basis of the decision
in
City of
Johannesburg Metropolitan Municipality v Chairman of the Valuation
Appeal Board for the City of Johannesburg and Another
[2014] 2
All SA 363
(SCA) wherein Leach JA at paragraph 34 stated the
following:
"Secondly,
the first respondent was represented in this appeal by a senior
counsel who appeared alone. He asked for costs 'on
the scale of
senior counsel'. I know of no such scale. Should the complexity of a
matter and the amount involved justify the employment
of two counsel
as a wise and reasonable precaution, a court will make a special
order in that regard. Where a single counsel is
employed, no special
order is required and it is for the taxing master to determine a fair
and reasonable fee to be allowed on
taxation. Even where the matter
is one deserving of the employment of senior counsel (which this
clearly is) it would be wrong
for a court to somehow attempt to
fetter that discretion; just as it would be wrong for a taxing master
not to consider the reasonableness
of a senior counsel's fee in a
deserving case merely as the court did not order that the fee of a
senior counsel should be allowed.
I therefore see no need to make any
specific order as to costs."
[13]
I note however from the taxed bill of costs that a substantial
portion of senior counsel's charges were taxed off and in my
view
nothing more turns on this aspect. It is clear that the taxing master
exercised his/her discretion in reducing such costs.
In the premises
I make the following order:
[13.1] The application is dismissed
with costs.
_______________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
17 OCTOBER 2016
Representation
for Applicants:
Counsel:
L. Hollander
Instructed
by:
Fairbridges Wertheim Becker
Representation
for First Respondent: No appearance
Representation
for the Second and Third Respondents:
Counsel:
A. F. Arnoldi
SC
Instructed
by:
Stemela & Lubbe