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[2013] ZAGPPHC 435
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Retail Motor Industry Organisation v South African Motor Body Repairers Association NPC and Aothers (41775/2012) [2013] ZAGPPHC 435 (15 November 2013)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 4.1775/2012
DATE:
15 NOVEMBER 2013
In
the matter between:
RETAIL MOTOR
INDUSTRY ORGANISATION
.......................................
.
Applicant
and
THE SOUTH AFRICAN
MOTOR BODY REPAIRERS
ASSOCIATION
NPC
..........................................................................
......
1
st
Respondent
COMPU CORNER
CC
.........................................................................
..
2
nd
Respondent
THE COMPANIES AND
INTELLECTUAL
PROPERTY
COMMISSION
................................................................
.
3
rd
Respondent
EBEN
JANSEN
......................................................................................
..
4
th
Respondent
WILLEM
GOUWS
PIENAAR
...........................................................
...
5
th
Respondent
JOHANNES
MAGHIEL BOTH
.........................................................
...
6
th
Respondent
MOSES
JOHN
WILLIAMS
...............................................................
....
7
th
Respondent
STEPHEN
DE
BEER
..........................................................................
....
8
th
Respondent
JAMES
BARRY STEWART
............................................................ .....
9
th
Respondent
ANDREW
7
JULIAN PRETORIUS.
.................................................
...
10
th
Respondent
GIDEON
JOHANNES SMITH
.......................................................
....
11
th
Respondent
ALEESHEN
DEVINDERAN KISTEN
..................................
............
12
th
Respondent
JUDGMENT
JANSEN AJ
Nature
of Application:
[1]
This application deals with costs only. The applicant obtained
substantive relief in the urgent court on 28 August 2012 and
the
issue of costs was postponed sine die. The issue to be decided is
whether the costs of the two counsel were justified and on
which
scale the costs should be taxed.
[2]
In the instant case the first, second and fourth to twelfth
respondents all noted their op
position to the application on
2
4 July 2012.
[3]
A
dispute arose as to whether Robert H Kanarek Attorneys (the first and
second respondents’ firm of attorneys) acted on behalf
of the
first, second and fourth to twelfth respondents, or only on behalf of
the first and second respondents when notice of intention
to oppose
was given. Only the first and second respondents filed an answering
affidavit. However, the affidavit was filed outside
the time period
prescribed in the notice of motion. The first and second respondents
alluded to the fact that the first respondent,
after service of the
application but before the date of hearing, had already applied to
have its name changed so that it no longer
fell foul of
section 11(2)
of the
Companies Act 71 of 2008
. Furthermore, the first and second
respondents, in their answering affidavit, tendered the applicant’s
taxed party and party
costs, with costs of one counsel in respect of
the costs it would have been entitled to as at that point in time
[i]
.
They further disputed that the applicant was entitled to the punitive
cost order that was sought and the application warranted
the
employment of two counsel.
[4]
Furthermore, it was argued on behalf of the applicant that the
respondents disclosed no bona fide defence in their answering
affidavit and effectively only challenged the applicant’s
attorney of record’s authority to act on behalf of the
applicant’s
board. It was also contended, on behalf of the
applicant, that the respondents failed to disclose a bona fide
defence in the correspondence
preceding litigation. The court was
urged to penalise the improper conduct of the respondents.
[5]
It was argued on behalf of the applicant, that before launching an
urgent application, it served a written demand on the respondents.
[6]
It was further argued on behalf of the applicant that the respondents
were, at all times, actuated by malice demonstrative of
grave
misconduct on the part of the respondents towards the applicant. It
was also emphasised that the fourth to twelfth respondents
withdrew
their opposition twenty one (21) days after
filing
their notice of opposition which notice of opposition on the basis
that it was erroneous, in that Robert H Kanarek Attorneys
were not
authorised to represent them. It was argued that Robert H Kanarek
Attorneys’ withdrawal was deliberate in order
to avoid a costs
order, leaving the applicant with an order against a newly
formed non-profit company only. The withdrawal
also took place shortly before the hearing. Nonetheless the court
made an order against
all twelve respondents.
[7]
The application deals with Section 34 of the Trade Marks Act (194 °f
1993
),
section 11(2)
of the
Companies
Act 71 of 2008
, and the publishing and dissemination of injurious
falsehoods and defamatory matters pertaining to the applicant.
[8]
It was also emphasised that the respondents’ defamatory
statements and unlawful conduct threatened to
impugn the applicant’s reputation, and placed its finances in
jeopardy.
Costs
of two counsel:
[9]
Costs of two counsel are awarded where an important interest or
principle is at stake or legal difficulties warrant the employment
of
two counsel.
[10]
It was contended on behalf of the applicant that the costs of two
counsel were justified, on a consideration of
the factors which the court has to consider.
[11]
Amongst the relevant considerations to be taken into account in
considering whether to award costs of two counsel are the following:
—
[12
The volume of evidence (oral or written) dealt with by counsel or
which he/she or they could reasonably have expected to be
called upon
to deal with;
[13]
The complexity of the facts or the law' relevant to the case;
[14]
The presence or absence of scientific or technical problems, and the
difficultly if the)
7
were present;
[15]
Any
difficulties or obscurities in the
relevant legal principles or in the application thereof to the facts
of the case;
[16]
Whether the court took time to consider its judgment;
[17]
The
importance of the matter in issue, insofar as that importance may
have added to the burden of responsibility undertaken by counsel.
[ii]
[18]
The
test is objective and the issue is whether it was proper and
reasonable to brief senior counsel with a junior in a
matter
and not in light of what
the
court thinks of the ability and experience of the particular
counsel
[iii]
.
[19]
The
enquiry in any s
pecific
case is wh
ether.
in all the circumstances, the expenses incurred in the employment of
more
than
one counsel were “necessary or proper for the attainment of
justice or for defending the rights
of
the parties”, and were not
incurred
through ‘‘over-ca
ution,
negligence or mistake”.
[iv]
[20]
Costs,
particularly at present, play a very important role in litigation and
the presiding judicial officer should, in the court’s
view,
discourage parties to incur unnecessary costs by making an
appropriate order in this respect. A part}' must pay such costs
as
have been unnecessarily incurred through his failure to take proper
steps, or through his taking wholly unnecessary steps: see
Herbstein
and Van Winsen
The
Civil Practice of the High Courts of South Africa
Fifth
Edition Volume 2 at page'961 et seq.;
De
Villiers v Union Government (Minister of Agriculture)
1931 AD 206
at
214.
[v]
[21]
As was stated in the case of
Rand
Toivnships and Smallholdings (Pty) Ltd v Griebenoiv
1956
(2) SA 42
(W) “…
when it is
borne in mind that the claim was by no means for a trivial sum it
cannot be said that the engaging of two counsel by
the plaintiff's
attorney ivas anything but a prudent and proper step. The fact that
the eventual investigation of the facts proved
perhaps more simple
and expeditious than it mi
ght have been is not
relevant.”
[22]
In
the instant case, it cannot be stated that the issues involved did
not warrant two counsel. The issues involved, namely trade
mark
infringement and defamation are not straightforward issues and can
became highly intricate. However, after the notice of withdrawal
of
the third to twelfth respondents and the tender contained in the
answering affidavit, there was no necessity for the involvement
of
two counsel. The length of the affidavits in not important. What is
important is the intricacy or otherwise of the facts and
law.
[23]
Hence,
up until 13 August 2012 when the firm of attorneys, namely Robert H
Kanarek Attorneys withdrew
7
as
attorneys for the fourth to twelfth respondents, the employment of
two counsel was warranted. However, upon receipt of the answering
affidavit of the first and second respondents on 14
th
August
2012 the employment of only one counsel w
a
s
warranted, as argued by counsel for the respondent. Clearly the
respondents capitulated on the merits, which is an important factor
to be taken into account when assessing which party should pay the
costs of the application.
[24]
In
Gamlan Investments (Pty)
Ltd and Another v Trilion Cape (Pty) Ltd and Another
1996 (3) SA 692
(C)
at page 701 the following was stated:
“
Even
where
the decision in respect of costs is 'separate' from the
merits
,
as is the case where a decision on the merits is no longer sought,
this does
not
mean that the decision on costs must of necessity be totally isolated
from the merits. Indeed, in an appeal against a costs
order, the
Court's decision, in the absence of other relevant factors, would in
the normal course be largely based on whether or
not the appellant
would have been
successful
on the merits: see Erasmus v Grunow en 'n Ander
1980 (2) SA 793
(O)
at 797B-H and 798D-H ”
[25]
On the facts set out above, both partie
s
were at fault for the manner in
which the case was conducted - the respondents should have tendered
the relief sought earlier, thus obviating the necessity of
an urgent
application being launched (particularly in view of the mediation
which took place which should have alerted them to
the fact that they
had no defence) and the applicant should have
refrained from filing a lengthy
replying affidavit dealing, in the main, with costs only. Fact
remains, however, that it was necessary to set the matter down for
a
judgment and order in respect of costs.
Order
In
the event, the following order is made: —
1.
The respondents are ordered to pay the cost
s
of the application on a party
and party scale
until the filing of the first and second respondents' answering
affidavit, namely the 21
st
of August 2012, such costs to includ
e the employment of two
counsel.
2.
The applicant to pay all costs incurred
thereafter, including the costs of the hearing of the urgent
application on an opposed basis
and the costs incurred in the hearing
of this application pertaining to costs.
MM JANSEN
AJ
ACTING JUDGE OF
THE HIGH COU
RT
ATTORNEYS FOR THE
APPLICANT
BARNARD
INCORPORATED
Oak
House
118
Oak Avenue
Highveld
Technopark
CENTURION
Tel:
(0861) 088 088
Fax:
(0861) 099 099
e-mail:
info@barnardinc.co.za
REF:
D BREEDT/rb/RB02i5
c/o
PRETORIUS LE ROUX INC
339
Hilda Street
3
rd
Floor
HATFIELD
Pretoria
COUNSEL FOR THE
APPLICANT
ADVOCATE LW DE
ICONING
Mobile: 082 929
8264
ADVOCATE WJ BOTHA
Mobile: 082 7600
282
ATTORNEYS FOR THE
FIRST AND SECOND RESPONDENTS ROBERT H KNAREK ATTORNEYS
33
The Avenue Orchards
Tel:
(oil) 483 3450
Fax:
(Oil) 483 3455
Ref:
RH Kanarek/pm/S365
c/o
THYS CRONJE INC
258
Brooklvn Road
MENLO
PARK
Pretoria
Tel:
(012) 362 4959 Fax: (012) 362 4958
Ref: Thys Cronje
COUNSEL
FOR THE FIRST AND SECOND RESPONDENTS
ADVOCATE HP
NIEUWENHUIZEN
Mobile: 083
304 1181
ATTORNEYS
FOR THE 4™ TO 12
th
RESPONDENTS KIRSHEN
NAIDOO
AND COMPANY INC
Ground
Floor, Block B
Sandown
House, Sandton Close 2
Cnr
5
th
Street and Norwich Close
SANDTON
Tel:
(oil) 784 1279
Fax:
(011) 784 1847
c/o
ANDREA RAE ATTORNEYS
69
Douglas Street
COLBYN
Pretoria
REF: KKN/JHB/MAT
3112
COUNSEL FOR THE
4™ TO 12™ RESPONDENTS
ADVOCATE CLAIRE
DE WITT
Mobile 081 049
4579
[i]
Practice Manual of
the North Gauteng High Court, Chapter 13.10 paragraphs 1-2.
[ii]
Koekemoer v Parity
Insurance Co Ltd &r Another
1964
(4) SA 138
(T)
at
page 144;
Cj
De
Lange v Transvaal Lewende Hawe Ko-Op Bph and Others
1958
(1) SA 17
(T)
[iii]
Rand Townships and
Smallholdings (Pty) Ltd v Griebenow
1956 (2) SA 42
(W) at pp 44-45
[iv]
Koekemoer
v Parity Insurance Co Ltd & Another
supra
at p 44.
[v]
Gamlan
Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd and
Another
1996
(3) SA 692
(C).