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[2012] ZAKZPHC 37
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Helen Roper Consulting v Toyota Tshusho Africa (1171/2010) [2012] ZAKZPHC 37 (21 June 2012)
IN THE KWAZULU HIGH
COURT PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
1171/2010
In
the matter between:
HELEN
ROPER CONSULTING DEFENDANT
….......................................................
APPLICANT
and
TOYOTA
TSHUSHO AFRICA
PLAINTIFF
….........................................................
RESPONDENT
JUDGMENT
Heard: 15 June 2012
Delivered: 21 June 2012
D.
PILLAY J
[1]
In this application for costs of an application to compel discovery,
the facts are as follows: On 13 May 2010 the defendant
applicant
delivered a discovery notice in terms of Rule 35(1) of the Uniform
Rules of Court on the plaintiff respondent. On 30
August 2011
Goodrickes Attorneys for the respondent wrote to Deneys Reitz Inc for
the applicant alerting the latter to trial dates
being allocated for
13 and 14 February 2011 and inviting them to arrange a Rule 37
conference. Not having received a response by
5 December 2011
Goodrickes put Deneys Reitz Inc on terms to hold the Rule 37
conference. Much affronted, Norton Rose Attorneys
for the applicant
wrote:
‘
We are astonished at your
suggestion of dilatoriness on the part of our client, given that the
applicant, as
dominis
litis
, has not taken
a further step in over 18 months since we filed the defendant’s
plea. We are also surprised that you waited
until just before the
annual holiday season to reactivate this matter.’
[2]
On 11 December 2011 the applicant duplicated costs by delivering a
further Rule 35(1) notice. On 19 January 2012 Norton Rose
motivated
for the postponement of the trial which Goodrickes resisted. Norton
Rose instructed its Pietermaritzburg agent to launch
an application
to compel discovery. Later that afternoon Goordrickes emailed Norton
Rose an unsigned copy of the respondent’s
discovery affidavit
pointing out that all the documents discovered were already in the
applicant’s possession. Simultaneously,
Goodrickes forwarded
the draft discovery affidavit to the respondent in Johannesburg for
her signature. As for the postponement
of the trial Goodrickes
explained that one day would be sufficient in contrast to Norton
Rose’s opinion that more than the
assigned two days would be
required for trial.
[3]
On 20 January 2012 Norton Rose replied disagreeing that the unsigned
discovery affidavit disclosed all relevant documents and
disputed
that it constituted discovery. The respondent returned the signed
affidavit on 23 January 2012. On 25 January 2012 at
3.31pm Goodrickes
served the signed discovery affidavit. In the meantime, that very
morning at 09.13am, the applicant had served
its application to
compel on the respondent’s Pietermartizburg correspondent.
[4]
On 30 January 2012 Goodrickes wrote to Norton Rose recording that the
postponement of the trial was not as a result of the respondent’s
late discovery or any reason other than respondent’s counsel
being unavailable. It also suggested that the discovery application
be argued with the documentation already forming part of the
proceedings. Goodrickes invited Norton Rose to withdraw the discovery
application enrolled for 1 February 2012, reserving its costs for
determination at the trial.
[5]
On 31 January 2012 Norton Rose replied protesting about the reasons
Goodrickes advanced for the postponement. Norton Rose then
set out
its reasons for the postponement as follows:
‘
The
reasons why we suggested a postponement are, as indicated in our
letter of 20 January and telephonically to you, that a pre-trial
conference has not yet been held, the plaintiff’s discoverY was
late and, as confirmed in today’s telephone discussion,
a
notice in terms of Rule 35(3) and (6) will be required and the
defendant is of the view that the trial will not be completed
in two
days. These are all aspects which the plaintiff, as
dominus
litis
,
has failed to attend to in a timely manner. As we stated on the
telephone, this has made a postponement unavoidable particularly
as
there is no practical way in which the defendant can receive and
fully consider all documentation that will be required in terms
of
the notice in terms of Rule 35(3) and (6) that we will soon deliver.
It is these factors upon which the defendant will in all
likelihood
be forced to apply for a postponement should one not be agreed.’
[6] Regarding the discovery application Norton Rose wrote:
‘
Your
suggestion that the discovery application be withdrawn with costs
reserved is unacceptable to the defendant. The discovery
affidavit
was served after delivery of the defendant’s application. You
stated on the telephone that the plaintiff’s
view is that
discovery was unnecessary and that on this basis she need not pay the
application costs. That is, with respect, fallacious.
Accordingly, as
stated on the telephone, we will instruct our correspondents to
proceed with the application for costs tomorrow.’
[7]
The discovery application scheduled for 1 February 2012 was postponed
to 6 March 2012 and further postponed to the opposed roll
today (14
June 2012), with costs reserved.
[8]
As the matter was now opposed the respondent was obliged to incur the
costs of preparing and delivering a twenty-eight page
answering
affidavit which it did on 10 February 2012. The applicant incurred
the further costs of delivering an eleven page replying
affidavit on
27 February 2012. Both parties incurred further costs delivering
heads of argument and complying with the practice
directive, adding
another nineteen pages to the pleadings.
[9]
The applicant’s submission that it was entitled to the costs of
the application is technically correct. As Mr Pretorius,
counsel for
the applicant correctly pointed out, this court routinely grants cost
orders in applications for discovery. The respondent’s
representatives would have been aware of this when they resisted
paying costs. It is therefore necessary to consider the basis
on
which the respondent refused to pay the costs incurred beyond the
delivery of the application.
[10]
The respondent’s suggestion that the issue of the costs of the
discovery application be held over for determination at
the trial was
eminently reasonable, practical, cost effective and efficient. As the
respondent pointed out, all the relevant information
would have been
before the trial court to be able to decide the issue of costs. It
would not have been necessary to deliver any
further pleadings beyond
the founding affidavit. Besides, in the nature of litigation,
interlocutory applications have a way of
resolving themselves along
the way.
[11]
Furthermore, the respondent delivered the discovery affidavit as a
formality and because it was obliged to do so. The discovery
affidavit contains no surprises for the applicant. By delivering the
unsigned affidavit the respondent endeavoured to spare the
applicant
any prejudice that might arise as a result of discovering late. Mr
Pretorius correctly points out that an unsigned affidavit
is not in
compliance with the Rules and the respondent might well have later
filed a different affidavit. That concern could easily
have been
addressed. Norton Rose could have sought an undertaking from
Goodrickes to the effect that if the affidavit changed any
prejudice
the applicant suffered would be for the respondent’s account.
At the time when the applicant was desperately seeking
an adjournment
of the trial a changed affidavit might have given it the leverage it
required to secure the postponement. Furthermore,
if it transpired
that in delivering an unsigned affidavit the respondent deliberately
sought to mislead the applicant, the applicant
would also not have
been without remedy. At the very least it could hold the respondent’s
representatives accountable for
its dishonourable conduct which would
also have entitled the applicant to a postponement of the trial. Even
though technically
the respondent had not complied with the Rules,
substantively it had. As the suggestion to hold over determination of
the costs
was sensible, the respondent’s refusal to pay the
costs of the application at that time was reasonable.
[12]
Beyond asserting that it was entitled to its costs the applicant
proffered no explanation as to why the suggestion that the
costs of
the discovery application be dealt with at the trial was
unacceptable. Its attitude is inexplicable considering that it
was
itself not ready for trial. On the papers before me it appears that
after delivering its discovery notice in 2010 the applicant
did
little else to prepare for trial. It also did not react promptly
after being notified of the trial dates on 30 August 2011.
Only after
it received the unsigned affidavit did it realise that the discovery
might not be adequate and that it would need to
call for the
production and inspection of further documents in term of sub-rules
35 (3) and (6). The applicant was clearly unprepared
for trial,
unwilling to proceed and desperately sought the postponement which it
eventually got.
[13]
The most probable explanation for the applicant’s insistence on
costs being paid is that the applicant wanted to cow
the respondent
into submission. The respondent, as a private individual, was pitted
against the applicant, a multinational corporate.
Mr Topping pointed
out the ‘David and Goliath’ parallel in the relationship.
Mr Pretorius submitted that I should have
no regard to the identity
of the parties. I agree with him that the identity of litigants do
not dictate whether the rules of court
and the law should apply. The
quintessence of the rule of law is that it applies to all. Hence
since the 15
th
century
Lady Justice is
often depicted as wearing a blindfold to represent justice meted out
objectively, without fear or favour, regardless
of identity, money,
power or weakness.
However, the thrust of the allegory is
objectivity, fearlessness and impartiality. The identity of litigants
is material to a decision.
For instance the law itself distinguishes
between child and adult litigants, and for present purposes, between
employers and employees.
[14]
In this case the identity of the parties is relevant. The applicant
had previously employed the respondent as an assistant
general
manager before she agreed to resign and be engaged as a part-time
facilitator. The respondent’s claim in the main
action is based
on an alleged fixed term contract for her facilitation services which
the applicant pleads was void because it
signed the contract for
services in error after being misled by the respondent. As a former
employee and possibly an independent
contractor the respondent was in
a subordinate position in relation to the applicant and therefore
vulnerable. As an individual
litigant the respondent does not have
the financial muscle that the applicant has to litigate. Her
resistance to postponing the
matter and to pay costs beyond the
delivery of the application to compel must stem from her caution
about her ability to bear the
costs of the litigation. If the
applicant was indigent and its legal representative desperately
needed to be paid then that could
have been an explanation for not
wanting to wait until the trial. As a multinational corporate the
applicant could hardly be out
of pocket if the respondent did not pay
the costs before trial, or at all. Therefore, the identity of the
litigants is relevant.
[15]
A disturbing feature of this case is the lack of collegiality on the
part of the applicant’s legal representatives. Collegiality
is
a relationship between colleagues. Colleagues are people united in a
common purpose in a professional or work situation. Broadly,
it
connotes a commitment to the common purpose and working towards it.
Narrowly, colleague and collegiality refer to fellow members
of the
same profession. Respect for the commitment to the purpose and to
fellow members welds the relationship amongst colleagues.
1
In academic circles collegiality may count as one of the pillars of
performance.
2
Collegiality on the bench means that judges have a common interest as
members of the judiciary to getting the law right,
3
and to dispensing justice efficiently and effectively. This must also
be the common purpose of the legal profession as a whole.
The common
purpose must be to resolve disputes efficiently and effectively.
Interlocutory applications that tend to seek tactical
advantages and
which do not remedy disputes substantively tend not to be effective.
Applications for cost that tend to unsuite
litigants are equally
ineffective. Not only do such applications fail to resolve disputes
finally but they could also deny a litigant
the constitutional right
to access to the courts. I generalize mindful that in a particular
case resolution of a technical point
could be decisive of the entire
dispute. This is not such a case.
[16]
In contrast to the conduct of the applicant’s legal
representatives, the respondent’s representatives had an
opportunity
to retaliate with equal vitriol but chose not to do so.
Despite the applicant’s counsel delivering his heads of
argument
and practice directive one day late without an accompanying
application for condonation, respondent’s counsel Mr Topping,
did not ask the court to strike the matter off the role or even
impose an adverse order for costs as he was technically entitled
to
do in terms of Rule 49 (15). If he had asked for any such order, not
only might the costs have escalated but also the acrimony.
Collegiality is therefore important not only for the efficient
resolution of a particular dispute but also for the cordial
functioning
of the legal profession to attain the common purpose.
[17]
The Uniform Rules of Professional Conduct of the General Council of
the Bar of South Africa, Rule 4.12 exhorts as follows:
‘
Clients, not counsel, are
the litigants. Whatever may be the ill feeling existing between
clients it should not be allowed to influence
counsel in their
conduct and demeanor towards each other or towards suitors in the
case.’
In a
similar vein Rule 9 of the Rules of the KwaZulu-Natal Law Society
Code of Ethics for Legal Practitioners provides:
‘
All legal practitioners
shall . . .
(9) extend to all colleagues,
judges, academics, professionals, litigants and students including
persons from foreign jurisdictions
cordiality and respect at all
times’
[18]
More significantly for the purposes of this case the International
Code of Ethics attached to the Law Society’s Rules
as the 8
th
Schedule provides at Rule 11:
‘
Lawyers shall, when in
the client’s interest, endeavour to reach a solution by
settlement out of court rather than start legal
proceedings. Lawyers
should never stir up litigation.’
[19]
The age old mantra that clients may come and clients may go but
colleagues go on forever seems to have been lost in this case.
The
costs of a 9 page application for discovery would on the unopposed
basis amount to approximately R2 000. The costs of a fifty
page
opposed application will be considerably more, discounting the cost
to collegiality.
[20]
The order I grant is the following:
The respondent pays the applicant’s costs up to and including
the preparation and delivery of the application to compel
and the
costs of removing the matter from the unopposed roll on 01 February
2012.
The applicant pays the respondent’s costs after 01 February
2012.
____________
D. PILLAY J
Counsel
for the Appellant: Mr C Pretorius
Instructed by Norton Rose South
Africa
Counsel
for the Respondent: Mr I L Topping
Instructed by Goodrickes
1
http://en.wikipedia.org/wiki/Collegiality
2
Collegiality
in Higher Education: toward an understanding of the factors involved
in collegiality. http://www.highbeam.com/doc/1P3-93300011
3
The
effects of collegiality on judicial decision making in his article
‘Nature of the Judicial Process’ University
of
Pennsylvania Law Review, May 1, 2003