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[2013] ZAGPPHC 352
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Mantella Trading 341 CC v Thompson N.O and Another (19066/09) [2013] ZAGPPHC 352 (19 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 19066/09
DATE:
19 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MANTELLA
TRADING 341
CC
...............................................................
PLAINTIFF
And
MARK
BYRON THOMPSON N. O.
........................................
FIRST
DEFENDANT
MICHELLE
CECILLE THOMPSON N. O
. ….......................
SECOND
DEFENDANT
JUDGMENT
Fabricius
J,
Having
allowed an amendment to Plaintiff’s Particulars of Claim
yesterday, and especially to prayer 1 thereto, Mr. Putter
on behalf
of Defendants, conceded this morning, after certain consultations,
that the relevant old road, which is more precisely
defined in my
order, is in fact a public road.
That
brought the litigation to an end. I need to decide the question of
costs. I was asked not to make an order in respect of any
of the
previous appearances.
I
was addressed on all relevant aspects in this context and the fact
that I have a judicial discretion. I have taken into account
the
background as it appears from the pleadings and the pre-trial
conferences, and also the judgment and order made in the urgent
application in 2009. I note that usually the successful party is
entitled to its costs. The lateness of the amendment is another
factor. It is so also that Defendants in fact, withdrew their
defences and did not proceed, for obvious reasons I think, with their
conditional Counter-claims. I cannot however say that the defences or
conditional Counter-claims were frivolous. Having considered
the past
history of this litigation and the late amendment, I deem it fair to
both parties that I do not award all the costs to
Plaintiff.
The
following order is therefore made:
1.
The road indicated on the amended compilation diagram marked “X”
is declared to be a public road as defined in the
Limpopo Roads
Agency Act, Act 7 of 1998, with specific reference to points C to K.
2.
Each party is to pay its own costs, except insofar as Defendants are
ordered to pay the costs pertaining to its conditional
Counter¬claims, as well as the costs of the experts H. van der
Merwe, H. Lessermann and A. Gerber, which would include the costs
of
any reasonable travel expenses.
3.
Plaintiff is entitled to the costs of a Senior Counsel.
JUDGE
H. J. FABRICIUS
JUDGE
OF THE HIGH COURT