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[2012] ZAGPPHC 332
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Jones v Potgieter and Others (14555/2012) [2012] ZAGPPHC 332 (7 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
Case
No.: 14555/2012
DATE:07/12/2012
In
the matter between:
KENNETH
ALFRED
JONES
.......................................................................
Applicant
and
RICHARD
POTGIETER
..............................................................................
1st
Respondent
JOHANNES
PETRUS
LOMBARD.
............................................................
2nd
Respondent
MILKOR
(PTY)
LTD
.......................................................................................
3rd
Respondent
ANDRIES
CHRISTOFFEL
PIEK
.................................................................
4th
Respondent
WELMA
JOUBERT
….................................................................................
5th
Respondent
ANDRIES
CHRISTOFFEL PIEK
N.O
..........................................................
6th
Respondent
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
The applicant is seeking an order on the following terms:
1.1
that the warrant of execution issued by the Registrar under Case
number 77059/2009 on 24 February 2011, against the applicant
for
payment of the sum of R134 427.95, together with interest thereon at
the rate of 15,5% per annum, calculated from 15 June 2011,
be set
aside;
1.2
that the first respondent, alternatively second respondent,
alternatively first and second respondents, jointly, be ordered
to
pay to applicant the sum of R134 427.95;
1.3
In the alternative, that third, fourth, fifth and sixth respondents
pay to applicant the sum of R107 542.36, jointly and severally,
the
one paying the other to be absolved;
1.4
That the first and second respondents, alternatively third, fourth,
fifth and sixth respondents pay the costs of this application.
[2]
The first and second respondents had instituted proceedings against
the applicant and the third to sixth respondents under case
number
77059/2009. On 24 February 2011 Judge Claassen granted an order under
case number 77059/09 which provided, inter alia, that:
“
1.
DAT die eerste applicant 'n 40% aandeeihouer is van eerste
respondent.
2.................................
3.................................
4.
DAT die prys moet bepaal word deur 'n onafhanklike ouditeur deur die
partye aangewys. By gebrek aan ooreenkoms, moet die voorsitter
van
die ouditersberoep/-vereniging, of ‘n person deur hom aangewys,
!n person aanwys.
7.
7.4
Origens word die koste van die aansoek deur die respondent betaal,
gesamentlik en afsonderlik.”
[3]
The first and second respondents were the applicants and the
applicant and the third to sixth respondents were the respondents
in
the application.
[4]
On 15 June 2011 the first respondent caused the costs to be taxed and
a costs allocatur was issued in the amount of R134 427.95.
[5]
The first respondent issued a warrant of execution against the
applicant which was executed on 23/9/2011 for the total amount
of the
costs allocatur.
[6]
The applicant paid the R134 424.95 to the sheriff under protest on 11
October 2011.
[7]
In pursuance to paragraph 4 of Judge Claassen’s order of 24
February 2011, the first respondent and the third to sixth
respondent
concluded an agreement. The applicant refused to sign the agreement
and was therefore not a party thereto.
[8]
Portions of the agreement reads as follows:
And
whereas the first party and second party instituted legal proceedings
in the High Court in Pretoria under case number 77059/09
against the
other parties to this agreement in which case judgment was delivered
on 24 February 2011 and where the Court found
that the first party in
fact is the owner of the shares in the company (which had previously
been disputed by the third to fifth
party);
And
whereas the Court ordered that the first party’s shares be
bought by the remaining shareholders of the company, but which
matter
has now become settled as contemplated in the settlement agreement as
recorded hereunder;
And
whereas the parties are desirous to finalize and settle all disputes
between them all;
And
whereas the third party is prepared to pay an amount to the first
party for such settlement of all disputes and for the first
party to
resign as director of the company;
And
whereas the parties are desirous to record their settlement in
written document;
NOW
THEREFOR THE PARTIES AGREE AS FOLLOWS:
1.
2.
The
first party herewith withdraws all legal actions against the other
parties to this agreement and the parties record that all
disputes
and legal actions or applications between them all have become
settled. For this settlement and for this first party's
resignation
as director of the company, the third party will pay to the first
party the amount of R2 000 000-00 (Two Million Rand).
(It will be an
internal matter and between the third party and the company if
anything will be refunded to the third party for
this amount that is
being paid on everybody’s behalf).”
[9]
It is not in dispute that the third respondent paid the first
respondent the amount of R2 000 000.00 and that the first respondent
resigned as director of the third respondent.
[10]
It is the applicant’s contention that the agreement concluded
between the first respondent on the one hand and the third
to sixth
respondents on the other, is a compromise which extinguished all
liabilities and claims, including the cost order under
case number
77059/09, the first respondent had against the applicant and the
third to sixth respondent. Further, the applicant
contends that the
warrant and writ of execution issued by the first respondent for the
total amount of the costs allocator was
therefore unlawful, in the
alternative that the third to sixth respondents were liable to pay
him 4/5 of the costs allocatur.
[11]
Nothing turns on whether the agreement concluded by the first
respondent and the third to sixth respondents was a settlement
agreement or a compromise. The real issues to be determined are the
following:
11.1
whether the writ of execution was validly issued against the
applicant;
11.2
whether the agreement extinguished the applicant’s liability
for costs; in the alternative
11.4
whether the third to sixth respondents’ liability for costs was
extinguished by the agreement.
[12]
In support of the relief claimed, the applicant initially contended
that he paid the amount in the costs allocatur under duress.
However,
at the hearing of this application, the applicant abandoned his
reliance on duress for the relief sought.
[13]
It is the applicant’s contention that the agreement concluded
by the first, third to sixth respondent was a compromise
agreement
which settled all disputes between the parties, inclusive of the cost
order against the applicant and the third to sixth
respondents, it
was submitted on behalf of the applicant that in view of the fact
that the costs allocatur was issued before the
agreement was
concluded, all disputes between the parties were settled, and the
writ of execution issued against the applicant
was unlawful.
[14]
In the alternative, the applicant contends that should this court
conclude that the costs allocatur did not form part of the
settlement
agreement, and in view of the applicant and the third to sixth
respondents joint and several liability for the costs
in terms of the
order of 24 February 2011, the third to sixth respondents should be
held liable for the amount of R107 542.36,
being their share of the
costs paid by him.
[15]
The following submissions were made on behalf of the first
respondent. It is the first respondent’s contention that the
order of 24 February 2011 had settled all the disputes between the
parties. That the agreement concluded between the first respondent
and the third to sixth respondents was only a vehicle used to
calculate the value of the first respondent’s 40% shareholding
in the third respondent. Furthermore, it is the first respondent’s
contention that since the applicant was not party to the
agreement,
he could not claim any benefit coming out of the agreement of
settlement.
[16]
On behalf of the third to sixth respondents it was submitted that the
aim of the agreement was to settle all disputes between
the parties,
in particular, between the first respondent and the third to sixth
respondents. Further it was submitted that in terms
of clause 2 of
the agreement, all disputes and legal actions between the parties to
the agreement had become settled on signature
of the agreement. It is
the contention of these respondents that it was opportunistic for the
first respondent to have issued a
writ of execution against the
applicant for the entire amount of the cost allocatur. It was
submitted that since the debt to the
first respondent had been
extinguished by the payment of the R2 000 000.00, which amount
included the costs, the first respondent
no longer had a claim
against the third to sixth respondents and the applicant. In the
alternative, it was submitted on behalf
of the third to sixth
respondents that since the agreement extinguished the pro rata
liability of the third to sixth respondents
towards the first
respondent, the applicant was liable only for his portion of the
costs allocatur.
[17]
I am of the view that it cannot be disputed that the applicant was
not a party to the agreement reached by the first respondent
and the
third to sixth respondents. Therefore, the applicant cannot claim any
benefit arising from the agreement.
[18]
The order of 24 February 2011 finally determined the first
respondent’s share in the third respondent. The order left
open
the value of the first respondent’s 40% shareholding in the
third respondent and directed that the value of the shares
should be
determined either by an indent auditor or by a third party nominated
by the auditors association.
[19]
It would appear that when the parties concluded the agreement, their
intention was mainly to give effect to Judge Claassen’s
order
with regard to the value of the first respondent’s 40% share in
the company. This value was determined and agreed upon
to be R2 000
000.00 in final settlement. Nothing in the agreement suggests or can
be interpreted to mean that when the parties
agreed that all
disputes, actions or applications between the parties have been
settled, the parties had in contemplation the order
as to costs. A
cost order can never be interpreted to be a ‘dispute’, an
'action' or an application’. The cost
order was not in dispute
at the time the agreement was concluded. It was a final directive by
the court that the applicant and
the third to sixth respondents are
liable for the first respondent’s taxed costs, jointly and
severally as the first respondent
was successful in the application.
I am satisfied that the terms of the agreement did not extinguish the
applicant and the third
to sixth respondents’ liability for the
cost order.
[20]
A creditor is within his or her rights, where there are co-debtors,
to pursue payment of the debt against any of the co-debtors.
There is
no obligation on the creditor to pursue each co-debtor for his or her
portion of the joint debt. Any of the co-debtors
who ends up paying
has a claim against his or her co-debtors for their portions of the
debt. By paying the third respondent’s
taxed costs, the
applicant can claim as against the third to sixth respondents their
share of the taxed costs.
[21]
I am therefore of the view that the writ of execution issued against
the applicant was valid. It was not necessary for the
first
respondent to have issued a writ against the applicant for his
portion of the taxed costs.
[22]
Accordingly the following order is made:
1.
The third, fourth, fifth and sixth respondents are to pay applicant
the sum of R107 542.36, jointly and severally, the one paying
the
other to be absolved;
2.The
applicant and the third to sixth respondents to pay the first
respondent’s costs, jointly and severally, the one paying
the
other to be absolved.
3.
The third to sixth respondents to pay the applicant’s costs,
jointly and severally, the one paying the other to be absolved.
NP
MNGQIBISA-THUSI
Judge
of the High Court