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[2014] ZAGPPHC 324
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Standard Bank of South Africa Limited v Blue Rainbows Bins CC and Others (29025/2013) [2014] ZAGPPHC 324 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number:29025/2013
Date: 30 May 2014
Not Reportable
Not of interest to
other judges
In
the matter between
STANDARD
BANK OF SOUTH AFRICA LIMITED
…...............................................
Plaintiff/Applicant
(Registration
number: 1962/000738/06)
and
BLUE
RAINBOW BINS
CC
.............................................................................
First
Defendant/Respondent
(Registration
number: 2003/100335/23)
COMPACT
PROPERTIES
CC
.....................................................................
Second
Defendant/Respondent
(Registration
number: 2002/063311/23)
CHARL
WHITE
...............................................................................................
Third
Defendant/Respondent
SHARON
MARGARET
WHITE
...................................................................
Fourth
Defendant/Respondent
JUDGMENT
BAM
J
1.
The applicant issued summons against the respondents for payment of
the amount of R678 613,40 as well as interest and costs,
and
that a certain fixed property be declared specially executable.
The claim was based on money borrowed by the respondents,
after
collateral security was furnished by the respondents in the form of
a mortgage over an immovable property, and the respondents'
failure
to repay the loan. The property was not the primary residence of
the respondents.
2.
On 19 August 2013 the applicant applied for summary judgement. The
application was opposed and the defendants were granted
leave to
defend.
3.
On 29 October 2013 the respondents filed their plea. The plea
pertaining to the averments in the applicant's particulars
of
claim in respect of paragraphs 4 to 28, in which paragraphs the
applicant made all the averments founding its claim against the
respondents, consisted of a bare denial. This prompted the applicant,
on 6 December 2013, to lodge an exception with the prayers
that
the exception be upheld, that the plea be struck out, and that
the respondents should pay the costs. The application
was served
on the respondents' attorneys of record on 12 November 2013. The
respondents failed to file a notice to oppose
the application and
the application was enrolled to be heard 19 February 2014 on the
unopposed roll after the Notice
of Set down was served on the
respondents' attorneys of record on 11 December 2013. The
applicant's Practice Note was filed
on the 14 February
2014 indicating that the application was not opposed.
4.
On 19 February 2014 at 9h30, the applicant moved for an order that
the exception be upheld, that the respondent's plea be
struck
out, and that the respondents be ordered to pay the costs. In
addition, the applicant moved for an order that judgement
by
default should be granted to the applicant in regards to the
amount owing to the applicant and an order declaring the
property in question to be executable as claimed. There was no
appearance on behalf of the respondents. The matter, however,
was stood down to l0h00, the standard time the court proceedings
in the unopposed court commence, in order to provide for
any
possible misunderstanding in regards to the time issue. At l0h00
I was informed by counsel appearing for the applicant
that the
respondents' legal representative has indicated that the
application was opposed. The matter was then stood down
to the end
of the unopposed roll.
5.
When the matter was again called the respondents were represented by
counsel. I was informed that the application was opposed.
Counsel for the respondents was however not briefed with any
affidavit or other document on behalf of the respondents
explaining the respondent's non-compliance with the Rules.
Counsel was unable to explain why there was no explanation
tendered
by the respondents. The applicant's counsel then moved
for the order as prayed and I granted the order by default.
6.
Subsequently the respondents filed an application for leave to
appeal. That application was enrolled for 17 March 2014 at
9hOO.
The applicant opposed the application and raised the point that
the respondents' remedy was to apply for the rescission
of the
order of 19 February 2014 in view of the fact that the order
was granted by default.
7.
The issue was debated by counsel for the respondent who conceded the
point. I agreed with the applicant's contention and
the
application for leave to appeal was struck off. I then raised
the point whether the respondent's attorney should not be ordered
to pay the wasted costs. I then postponed the matter in order to
grant the respondents' attorney the opportunity to address
the
issue.
8.
The respondent's attorney duly filed an affidavit explaining, amongst
others, that he experienced problems to get proper
instructions
from his clients and that, after having consulted with counsel
decided to lodge an application for leave to appeal.
9.
On 23 May 2014 the issue of the costs order was argued before me.
After having again considered the issue I arrived at the
conclusion that although it may be unfair to order the
respondents to pay the costs, it cannot be said that the
respondents' attorney
was
mala
fide
or
that he was grossly negligent in lodging the application for leave
to appeal. See
Multi-links
Telecommunications v Africa Prepaid
2014(3)
SA 265 GP.
This
may however be a borderline case.
10.
Accordingly I concluded that the respondent's should be ordered to
pay the costs. Order
1. The respondents
are ordered to pay the costs of 17 March 2014 and 25 May 2014 on the
scale as between attorney and client.
A
J BAM JUDGE OF THE HIGH COURT
28
May 2014