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[2013] ZAGPPHC 221
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Pypers and Others v Odendaal & Summerton Inc (A733/12) [2013] ZAGPPHC 221 (19 July 2013)
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
CASE
NO: A733/12
DATE:19/07/2013
In
the matter between:
CORNELIUS
GREGORIUS
PYPERS
...................................................................
First Appellant
FREEDOM
FRONT
PLUS
…............................................................................
Second
Appellant
JACOBUS
JOHANNES
HOFFMAN
.....................................................................
Third
Appellant
and
ODENDAAL
& SUMMERTON
INC
....................................................................
First
Respondent
ADRIAAN
IZAK
ODENDAAL
.........................................................................
Second
Respondent
TEFFO.
J:
[1]
This Court is required to determine whether the respondents are
entitled to the costs of the two applications they had filed
prior to
the appeal hearing now that the appeal has been withdrawn. The issue
will encompass a determination whether it was proper
for the
respondents to have brought the other application before Louw J and
not wait for the application to be heard simultaneously
with the
appeal.
[2]
The issue revolves around the following background facts: The
appellants filed an appeal against the judgment of Magistrate
K
Naidoo sitting at Meyerton in the Magistrate’s Court for the
district of Vereeniging on 13 June 2010, dismissing their
application
for rescission of a judgment dated 16 March 2012 with costs and
granting the respondents’ application for the
striking out of
their defence with costs.
[3]
The plaintiffs in the court below are respondents in the appeal and
the defendants are the appellants. For purposes of this
judgment I
will refer to the parties as they were referred to in the court
below.
[4]
A brief history of the facts that led to the appeal is as follows:
4.1
The first and second plaintiffs who are a firm of attorneys and the
director respectively, sued the defendants in the court
below for
damages arising from allegations that the defendants uttered and
published words which were defamatory of the plaintiffs
to the effect
that the second plaintiff could be involved in illegal and corrupt
activities in conducting his firm’s trust
account.
4.2
The parties exchanged pleadings and after the defendants delivered
the plea, the plaintiffs served them with a request for further
particulars.
4.3
This led to the plaintiffs delivering a notice to compel the
defendants to furnish them with the requested further particulars.
The matter was set down for argument and there was no appearance on
behalf of the defendants. The plaintiffs’ application
was
granted ordering the defendants to furnish them with the requested
further particulars within ten (10) days of the order failing
which,
allowing the plaintiffs to return to court with same papers to apply
for the striking out of the defendants’ defence.
4.4
As a result the defendants filed an application for rescission
against the order. On the same day the plaintiffs brought a
counter-application for the striking out of the defendants’
defence on the ground that the defendants had not furnished them
with
the requested further particulars. The rescission application was
dismissed with costs and the counter-application was granted
with
costs.
4.5
The defendants then launched an appeal against this decision on 30
July 2012 without filing security for costs. Security for
costs was
only filed on 22 October 2012 together with an application for
condonation for the late filing of security and the record
of
proceedings from the court below was filed on 23 October 2012.
4.6
On 10 October 2012 the plaintiffs launched an application to declare
the appeal invalid (under Case No 58797/12). This application
was
heard on 22 April 2013 by my brother Louw J in the opposed motion
roll. Judgment was reserved.
4.7
On 24 October 2012 the appeal hearing was enrolled for 11 June 2013.
4.8
On 17 May 2013 the defendants launched an application to strike the
appeal from the roll of 11 June 2013.
4.9
On 29 May 2013 judgment was handed down and Louw J referred the
matter for hearing to a full court on 11 June 2013 and reserved
the
costs for decision by the appeal court.
4.10
On 6 June 2013 the plaintiffs’ attorneys received a notice of
withdrawal of the appeal from the defendants’ attorneys.
The
defendants also tendered the costs of the appeal on a scale as
between party and party which costs include the costs of one
junior
counsel. This offer was accepted by the plaintiffs.
[5]
The parties could not agree on the costs of the application that was
heard by Louw J on 22 April 2013. I was informed by the
parties that
the application was argued by senior counsel on behalf of the
plaintiffs and that the plaintiffs pray for an order
for costs which
include the costs of senior counsel for that day.
[6]
The parties did not also agree on the costs of the application to
strike the appeal off the roll.
[7]
The plaintiffs’ counsel made the following submissions:
7.1
The application before Louw J was made because the appeal had lapsed
on 26 September 2012 as the appeal was not accompanied
by security
for costs as required by Rule 51(4) of the Magistrate’s Court
Rules.
7.2
The other reason was that the finding of the court below that the
defendants sought to appeal was not appealable taking into
account
that it was not a final order as no judgment was made with regard to
quantum.
7.3
The defendants’ attorneys were informed as early as October
2012that
the record of proceedings in the Magistrate’s Court that was
filed was not in order but, still they proceeded to
set the appeal
down for hearing.
7.4
Plaintiffs’ attorneys alerted the defendants’ attorneys
that the appeal had lapsed in terms of Rule 49(6) of the
Uniform
Rules of Court and Rules 50(1) and 51(9) of the Magistrate’s
Court Rules. They also disputed that the defendants
had complied with
the court rules regarding the noting of the appeal. They notified the
defendants’ attorneys about their
intention to apply to court
for confirmation that the appeal had lapsed.
7.5
He also challenged the third defendant’s opposing affidavit to
the application that was before Louw J on the basis that
the
allegations thereof were not confirmed by the other defendants.
7.6
In the main counsel for the plaintiffs submitted that they are
entitled to the costs of the two applications including the costs
of
senior counsel who argued the application before Louw J. He
emphatically submitted that that application was necessary as the
defendants had persisted on continuing with the appeal while they had
alerted them of the flaws in the appeal which they could
have
rectified before setting the appeal down for hearing. He contended
that had Louw J dealt with the matter and gave judgment
without
referring the matter to the appeal court, the issues raised could
have been disposed off and it would not have been necessary
to deal
with them on the day of the appeal hearing. He argued that costs
could have been saved. As regards the application to strike
the
appeal from the roll, he argued that the defendants’ attorneys
set the appeal down for hearing before the record was
corrected and
before Louw J handed down judgment in the application heard on 22
April 2013. He asked for costs on a scale as between
attorney and
client.
[8]
On the other hand the defendants’ counsel made the following
submissions:
8.1
The two applications referred to above deal with the same issues and
there is no reason why they were brought. He referred to
the
application before Louw J and argued that it should have waited until
the day of the appeal hearing. As regards the application
to strike
the appeal off the roll he submitted that the plaintiffs’
attorneys knew by the end of May 2013 that the appeal
was going to be
withdrawn. Accordingly, the defendants did not find it necessary to
oppose the application as there was nothing
to strike once the appeal
was withdrawn. He also argued that there was no need to instruct
senior counsel in the application that
was before Louw J as the
matter was not complex.
[7]
The plaintiffs’ counsel referred the court to the following
cases: Pilane v Northern Cape Tractors (Pty) Ltd
1971 (3) SA 619
(NC), Lipschitz NO v Saambou-Nasionale Bouvereniging
1979 (1) SA 527
(T), Commissioner South African Revenue Services, Gauteng West v
Levue Investments (Pty) Ltd [2007] SCA 22 RSA and Nawa and Others
v
Marakala and Another
2008
(5)
SA 275
BH while the defendants’ counsel also referred to the
matter of South African Allied Workers Union (In Liquidation) and
Others
v De Klerk NO and Another
1992 (3) SA 1
(A).
[8]
In terms of s 13(2)(a)(i) of the Supreme Court Act 59 of 1959 ("the
Supreme Court Acf) a High Court shall for the hearing
of any appeal
against a judgment or order of an inferior court, be constituted
before not less than two judges. It has been held
that within the
context of s 84 of the Magistrates’ Court Act 32 of 1984, the
expression “Court of Appear means the
division of the Supreme
Court to which the appeal lies, and that a single judge sitting in
chambers may entertain an application
for an extension of time under
the section (Motsamai v Read
1961 (1) SA 173
(O); Heyneke v
Dranklisensieraad van Welkom
1965 (3) SA 737
(O); De Sousa i/ Cappy’s
Stall
1975 (4) SA 959
(T).
[9]
However, there is an established practice that applications for an
extension of time in respect of civil appeals from the Magistrates’
Court be heard by the Court of Appeal and not by a single judge
(Meyer v Dowson & Dobson Ltd
1967 (4) SA 628
(T); Multilateral
Motorvoertuigongelukkefonds v Pretorius
1994 (1) SA 814
(O).
[10]
In Motsamai v Read referred to supra the reason for this rule of
practice has been stated as follows:
the
relief sought, is a matter ancillary to the appeal and on its success
depends the appellant’s right to proceed with the
appeal or
not. An application of this kind could involve a consideration of the
merits of the appeal ...It is much better for all
the parties
concerned to let these matters, which are really part of the
proceedings on appeal, come before the full court of appeal
rather
than before a single judge, who may by his refusal to grant relief,
finally decide the issue between the parties. The full
court can
then, especially where there is argument on the merits, combine the
hearing of the appeal with that of the application
and so save
costs."
[13]
In Lipschitz v Saambou-Nasionale Bouvereniging referred to supra the
following principle was articulated:
'The
scope of the rule of practice whereby applications for condonation of
procedural shortcomings in appeals are heard by a court
comprised of
as many judges as would constitute the court of appeal is limited to
applications where the prospects of success have
to be canvassed.
This consideration, does not, however, necessarily enter into
application under Rule of Court 49(1) and where
it does not, a single
judge can entertain the application, for a court entertaining such an
application sits as a court of first
instance.”
[14]
In Pilane v Northern Cape Tractors (Pty) Ltd referred to supra it was
held that an objection that the notice of appeal from
a decision in a
Magistrates’ Court is invalid as security has not been given
timeously, can only be taken on notice of motion
with supporting
affidavits.
[15]
In Nawa and Others v Marakala and Another also referred to supra the
court held that by virtue of s 13(1)(a) of the Supreme
Court Act, a
single judge of the High Court had jurisdiction to entertain an
application for a declaration that an appeal had lapsed.
The court
further held that where the prospects of success of an appeal, were
not required to be transversed, it was permissible
for a single judge
to dispose of the matter.
[16]
In South African Allied Workers Union (In Liquidation) and Others v
De Klerk NO and Another also referred to supra Smallberger
JA said
the following:
“
The
current practice in applications for the condonation of a failure to
comply with the Rules of the Appellate Division relating
to the
prosecution of an appeal is for such application to be set down at
the same time as the hearing of the appeal. Since the
court would
have before it and would have studied the judgment of the court a
quo, the heads of argument and, indeed, the full
appeal record, the
prospects of success or otherwise would be reasonably apparent."
[17]
I did not find the case of Commissioner South African Revenue
Services, Gauteng West v Levue Investments (Pty) Ltd referred
to
supra relevant to the issues before me in that it dealt in the main
with the refusal of condonation for the late filing of the
record
even where there were prospects of success in the appeal.
[18]
While it has always been the plaintiffs’ contention that for
the fact that their application before Louw J had nothing
to do with
the prospects of success in the appeal but only related to procedural
aspects in prosecuting the appeal, they felt it
necessary to bring it
on motion proceedings before a single judge. The defendants
maintained, and relying on the decision in South
African Allied
Workers Union (In Liquidation) and Others v De Klerk NO and Another
referred to supra, that applications of this
nature should be set
down on the same date with the appeal hearing. I will deal with this
decision later in my judgment.
[11]
It is common cause between the parties that the defendants’
attorneys were alerted several times by the plaintiffs’
attorneys of the flaws in their prosecution of the appeal. They were
also alerted of the plaintiff’s intention to launch
an
application declaring the appeal invalid prior to the plaintiffs
doing so. Nothing happened, e.g, no security for costs in the
appeal
was filed, etc until on 10 October 2012 when the plaintiffs launched
the application to declare the appeal invalid. At that
time the
appeal was also not yet enrolled for hearing. Security for costs
together with an application for condonation were only
filed on 22
October 2012 and the record on 23 October 2012. There were also
concerns that the application for condonation was not
properly filed
as it was only included as an annexure in the record of proceedings
and the notice that security was filed. It is
important to note that
the appeal was launched on 30 July 2012 after the order that was
sought to be appealed against was given
on 12 June 2012. It is also
important to be mindful of the fact that the defendants’
attorneys were also alerted that as
the appeal was lodged without
security for costs on 30 July 2012, it had lapsed on 26 September
2012.
[12]
Taking all these facts into account I am of the view that the
plaintiffs were correct to bring the application to declare the
appeal invalid before a single judge and not wait for the date of the
appeal hearing as at that time nothing was happening. There
was no
proper appeal before Court as no security was filed. The aim was to
dispose of the matter even before the appeal could be
set down. As I
understood the reasons for launching the application, the application
only dealt with procedural aspects of prosecuting
the appeal. This
step was prompted by the failure of the defendants to comply with the
Court rules.
[21]
The decision in South African Allied Workers’ Union (in
liquidation) as referred to above does not bar a party who is
in the
same situation like the plaintiff to bring an application of this
nature before a single judge as held in the other matters
referred to
above. I am of the view that although it is preferable that such
applications should be heard on the same date as the
hearing of the
appeal especially where prospects of success need to be canvassed at
the hearing of the application, there is no
reason why a single judge
should not hear the application where prospects of success in the
application are not going to be decided
upon.
[22]
For those reasons and based on the decisions referred to above I find
that the plaintiffs are entitled to the costs of the
application that
came before Louw J on 22 April 2013. It was argued that the matter
was not complex to warrant the services of
a senior counsel. Looking
at the matter as it was and the issues I am persuaded that the matter
was complex and warranted the services
of senior counsel.
[23]
Nothing happened after 10 October 2012. It was only on 22 and 23
October 2012 that the defendants filed security for costs,
the
application for condonation and the record for the proceedings in the
Magistrate’s Court. Even after these were filed,
the
plaintiffs’ attorneys notified the defendants’ attorneys
that the record was not in order and concerns were also
raised that
there was no compliance with the court rules. Without dealing with
the issues raised, the defendants’ attorneys
proceeded to set
the appeal down for hearing.
[24]The
plaintiffs’ counsel submitted that upon realising that despite
all the concerns raised, the defendants had persisted
to proceed with
the appeal and considering that the judgment on the application
before Louw J was still reserved, the plaintiffs
launched an
application to strike the appeal off the roll. The defendants’
counsel argued that the same issues were raised
in the application
before Louw J as in the application to strike the appeal off the
roll. He also submitted that the plaintiffs
knew towards the end of
May 2013 that the appeal was going to be withdrawn and that it was
therefore not necessary for the defendants
to oppose the application
as there was nothing to strike once the appeal was withdrawn.
[25]
According to the record the application to strike the appeal off the
roll was launched on 17 May 2013. Louw J’s judgment
was handed
down on 29 May 2013 and at that time the plaintiffs were not aware
that the appeal was going to be withdrawn. The application
was not
opposed. I am of the view that there was nothing wrong for the
plaintiffs to bring that application taking into account
that the
appeal was set down before the defendants could rectify the record
and deal with the other issues that were raised by
the plaintiffs. At
the time the application was launched there was no judgment by Louw
J. The plaintiffs wanted to play safe. I
do not agree that the two
applications raised the same issues in that after the plaintiffs had
launched the application to declare
the appeal invalid on 10 October
2012, security for costs and the record of proceedings were filed
although the record of proceedings
in the Magistrate’s Court
was still not proper. In the circumstances I find that it was proper
for the plaintiffs to also
bring an application to strike the appeal
off the roll as they could not anticipate the decision by Louw J in
the other application
and the date of appeal hearing was approaching.
For the same reason I also find that the plaintiffs are entitled to
the costs of
the application to strike the appeal off the roll.
[13]
The plaintiffs also asked for costs for the striking application on a
scale as between attorney and client given the way the
appeal was
prosecuted by the defendants as highlighted above. It is clear from
the record of the proceedings and the documents
filed of record that
the defendants disregarded the court rules when they noted the
appeal. For the reasons I gave above and in
exercising my judicial
discretion I grant costs as requested by the defendants.
[14]
In the result I make an order in the following terms:
14.1
That the first, second and third appellants pay the costs of the
appeal on the scale as between party and party, jointly and
severally, the one paying the other to be absolved. Such costs shall
include the costs of one junior counsel.
14.2
That the first, second and third appellants pay the costs of the
respondents’ application to strike out the appeal on
the scale
as between attorney and client jointly and severally, the one paying
the other to be absolved.
14.3
That the first, second and third appellants pay the costs of the
respondents’ application brought under Case No 58797/2012
jointly and severally, the one paying the other to be absolved, which
shall include the costs of two counsel for argument on 22
April 2013.
MJ
TEFFO
JUDGE
OF THE NORTH GAUTENG HIGH COURT, PRETORIA
I
agree:
J
BALOYI
ACTING
JUDGE OF THENORTH GAUTENG HIGH COURT, PRETORIA