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[2014] ZAGPPHC 61
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Clark v Reed (51064/2013) [2014] ZAGPPHC 61 (26 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:
26/2/2014
CASE
NO: 51064/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
TELANA
CLARK
........................................................................................
APPLICANT
And
HILTON
REED
....................................................................
RESPONDENT
JUDGMENT
KGANYAGO
AJ
[1]
In this application the court is called upon to determine the
question of costs for the urgent application which was heard on
the
27
th
August 2013.
[2]
During August 2013 the applicant brought an urgent application
against the respondent. The parties reached a settlement and
by
agreement, the draft order was made an order of court. The issue of
costs was reserved to be argued at a later stage.
[3]
The applicant and respondent were staying in a relationship. From
that relationship four children were born. Their relationship
ended
during July 2013. During the duration of their relationship the
applicant never worked, and was dependant on the respondent
for
maintenance. The respondent was giving the applicant a monthly budget
of R35 000. 00. The respondent was also buying extra
groceries
when there was a need.
[4]
After the relationship was terminated, the respondent made several
tenders to the applicant for the payment of maintenance.
The
applicant did not accept these tenders. However, the respondent kept
on paying the R35 000. 00 per month. The indication
from the
respondent was that he wanted to reduce the R35 000. 00 monthly
budget. During August 2013, the applicant was not
sure what amount
the respondent was going to pay at the end of August 2013. As a
result of that, the applicant launched an urgent
application in this
court.
[5]
On the 27
th
August 2013, the matter was settled on the respondent’s initial
tenders, except that in addition the respondent tendered
the Toyota
Fortuner in the place of Toyota Hilux which was initially tendered.
According to the applicant, the value of the Toyota
Fortuner is more
than that of a Toyota Hilux.
[6]
Counsel for the applicant contends that the urgent application was
necessary and that the applicant was substantially successful
at
court, and therefore, they are entitled to costs. Counsel for the
respondent contends that the applicant was not substantially
successful in court and that in fact what was made an order of court
was what the respondent has been tendering all along. The
respondent
is arguing that a costs order should be awarded against the
applicant, alternatively each party to pay his/her own costs.
[7]
The award of costs is in the discretion of the court, which
discretion should be exercised judiciously, having regard to what
is
fair for both sides.
[8]
In the case at Giulana v Diesel Pump Injector Services (Pty) Ltd 1966
(3) SA451 at page 453 B – E the court said the following:
“
The
language used by Lord Justice BOWEN in the case of Forster v
Farquhar,
(1893) 1 Q.B.D. 564
at p. 568, appears to me to reflect the
law with regard to costs which is appropriate to this case:
'The
measure of what is fair as to costs is not to be found in a
mere consideration of his conduct toward the opposite side.
It
may have been reasonable from his point of view to do that which it
would be unreasonable to make the opposite litigant pay
for. Although
he has won the action, he may have succeeded only upon a portion of
his claim under circumstances which make it more
reasonable that he
should bear the expense of litigating the remainder than that it
should fall on his opponent. The point is not
merely whether the
litigant has been oppressive in the way he waged his suit or
prosecuted his defence, but whether it would be
just to make the
other side pay. We can get no nearer to a perfect test than the
inquiry whether it would be more fair as between
the parties that
some exception should be made in the special instance to the rule
that the costs should follow upon success .
. . 'I cannot entertain a
doubt', says Lord HALSBURY, L.C., 'that everything which increases
the litigation and the costs, and
which places on the defendant a
burden which he ought not to bear in the course of that litigation,
is perfectly good cause for
depriving the plaintiff of costs'. The
language of Lord WATSON is to the same effect: 'I shall not attempt,'
he says, 'a complete
definition of what is meant by these words. They
at all events embrace in my opinion everything for which the party is
responsible
connected with the institution or conduct of the suit and
calculated to occasion unnecessary litigation and expense.''
(
See
Scheepers and Nolte v Pate,
1909 T.S. 353
at p. 359, and Kerwin v
Jones,
1958
(1) SA 400
(SR)
)”.
[9]
In my view, the urgent application was unnecessary. There is no way
in the papers where it is alleged that the respondent had
stopped
paying the R35 000. 00 budget. Despite making tenders, he
continued paying that amount. Besides the Toyota Fortuner,
the
applicant had accepted the tender which the respondent has been
tendering all along. Even for the Toyota Fortuner, that cannot
be
regarded as substantial success as it is merely replacing the Toyota
Hilux.
[10]
The papers had indicated that the applicant is not working. If I were
to make a costs order against her, she will take the
very same money
which she is being paid to take care of the children and use it to
settle the costs. I am therefore not inclined
to make any costs order
in favour of any of the parties.
[11]
In the result I make the following order:
11.1
That each party to pay his or her own costs.
M
F KGANYAGO
ACTING
JUDGE OF THE HIGH COURT