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2012
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[2012] ZAKZDHC 99
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Gram v Sheriff of Camperdown and Another (7581.2011) [2012] ZAKZDHC 99 (20 November 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No: 7581/2011
In
the matter between:
NORBETH
GRAM
.......................................................................................................
Applicant
and
THE
SHERIFF OF
CAMPERDOWN
..........................................................
First Respondent
JOHNNY
SINGARAM
..............................................................................
Second Respondent
JUDGMENT
Delivered:
20 November 2012
MBATHA
J
[1]
The Applicant consented to the
rule nisi
being discharged in this matter. The Second Respondent is
therefore applying for an order for costs on an attorney and client
scale.
[2]
It has been submitted that the application was brought on an urgent
basis because a sale in execution was to take place the
following
day. Applicant had also brought an urgent application to the
Labour Court, which he believed would be successful.
However,
it was not successful.
[3]
The matter was set down on the opposed roll, at the directions of the
Second Respondent’s attorneys and not at the instance
of the
Applicant. The Applicant has not filed further replying
affidavits and has subsequently consented to the discharge
of the
rule nisi upon loosing its case in the Labour Court.
[4]
The Applicant has no instructions regarding the wasted costs
occasioned by the sale in execution, but concedes that the Applicant
is often ordered to pay such on a party and party scale. It has
been submitted by the Applicant that the costs for the day
be paid by
the Second Respondent who enrolled the matter on the opposed roll
without consultation with the Applicant.
[5]
It is submitted that the applicant was
bona
fide
in its actions as there was
uncertainty regarding the order made by the Labour Court. All
these factors should therefore
persuade the Court in not granting
costs on a punitive scale.
[6]
The Respondent’s submissions are as follows:
(a)
That the
rule nisi
had to be discharged as it prevented the Second Respondent from
proceeding with the sale in execution.
(b)
In the consideration for an order for costs, the Court was requested
to take into account the nature of the proceedings in the
Labour
Court. The Second Respondent was unfairly dismissed by the Applicant
six (6) years ago and an arbitration award was granted
in favour of
the Second Respondent. The Applicant had to pay the Second Respondent
compensation and re-instate him to his employment.
The Applicant
refused to comply with the order by refusing to re-instate him or pay
him compensation. Applicant has unsuccessfully
tried to have the
award set aside, not only once but a number of times. The Applicant
has the resources to pay but has deliberately
ignored the Court
order.
(c)
His application to stay the sale in execution was dilatory and not
bona fide
in good cause. The Applicant had also disregarded the time
frames set out by the Labour Court Judge, until the Second Respondent
indicated that it would anticipate the date of the rule nisi.
(d)
The Applicant also filed the papers out of time and failed to file
heads of argument in this matter. The only person who suffers
prejudice is the Second Respondent indicated who had to re-advertise
and has incurred more costs in this matter.
(e)
The Second Respondent has also incurred costs in respect of this
application.
[7]
Mr Oliver conceded that the applicant was liable for wasted costs
occasioned by the stay of the sale in execution. His submission
is
that the costs for the day should be borne by the Second Responded as
this matter could have remained on the unopposed roll.
He stated that
there was no prejudice to the Second Respondent as his award has
escalated to about R400 000.00, instead of the
original award of R80
00.00.
[8]
No costs order was made by the Labour Court in the dismissal of the
application to rescind the judgment by the Labour Court.
APPLICATION
OF THE LAW
[9]
It is trite law that failure to limit or curtail the proceedings in
any matter prejudices all the parties in the proceedings.
The
following was stated in
Texas Co (SA) LTD v Cape Town Municipality
1926 AD 467-488.
“
Generally
costs are awarded to a successful party in order to indemnify him of
the expense to which he has been put through having
been unjustly
compelled either to initiate or to defend litigation, as the case may
be. Owing to the necessary operation of taxation,
such an award is
seldom a complete indemnity, but that does not affect the principle
on which it is based
”
[10]
It is also important that an award for costs against a unsuccessful
litigation should not be excessive, as this is only a refund
for the
actual costs occasioned by the litigation and not a protection
against a risk of litigation.
[11]
In respect of this case, it has been conceded by the Applicant that
costs of execution should be paid. These should include
all costs
from the institution of the action to judgment costs, expenses of
execution including all incidental cost.
[12]
Though the successful party is awarded costs, the attorney and client
costs award is in the discretion of the Court. Such discretion
is
exercised judicially upon consideration of the relevant facts of the
case. The Court must be satisfied that such an order will
not be
unjust.
[13]
Such an order cannot be decided in isolation from the merits of the
case. I refer to
Du Plessis v Nienaber
1949 (4) SA 293
(T) 295, in this case the history of the litigation
between the parties is not in dispute; the various applications and
orders
made by the various Courts are not in dispute as well as the
delays occasioned by the last applications to this Court and the
Labour
Court.
[14]
The Applicant’s defence is that they were
bona
fide
in making the application in the
Labour Court and that this matter should not have been on the opposed
roll, without the Second
Respondent informing them of their intention
to do so.
[15]
The Second Respondent, however has been prejudice as the order could
not be enforced. When we look at the nature of the order
granted in
favour of the Applicant the prejudice to the Second Respondent is
evident. The Applicant ought to have known that he
had reached the
end of the road and accepted the Court’s ruling in favour of
the Second Respondent.
[16]
The Court accepts that the enrolment of the matter in the opposed
roll by the Applicant was reasonable in the circumstances
and the
only way to enforce his rights.
[17]
The submission that in the end he is getting more than he initially
expected is unreasonable. A litigant who has proved a substantial
right will not be deprived of his costs, merely because he has
recovered damages.
[18]
I find that the Applicant failed to curtail costs. In the leading
case of
Scheepers and Nolte v Pate
1909 TS 353
and 356 Innes CJ held that it was a duty of a litigant to
avoid any course which unduly protracts a lawsuit or unduly increases
its expense.
[19]
A party has to pay wasted costs where he has utilised an incorrect or
inappropriate procedure, in this case a case where there
was no
prospect of success in the Labour Court.
[20]
The case of the Second Respondent must be viewed in the light of the
circumstances of this case. The Applicant conceded to
the discharge
of the application, after failing again in the Labour Court. It would
have been a different case, had his last bid
for success succeeded in
the Labour Court. Furthermore, there was no order for costs that was
made in the Labour Court.
[21]
I therefore make the following order:
(a) The Applicant is ordered to pay costs on an attorney
and client scale in being the cost of the application and wasted
costs
of the day; and
(b) The Applicant is also ordered to pay wasted costs
occasioned by stay of the sale in execution on a party and party
scale.
MBATHA
J
Date
of Hearing : 31 August 2011
Date
of Judgment : 20 November 2012
For
the Applicant: Ms Oliver
Instructed
by : MACRITHCIE ATTORNEYS
177
Stamford Hill Road
DURBAN
For
the 2
nd
Respondent : Mr D Jafta
Instructed
by : DERIK JAFTHA AND PARTNERS
64
Harvey Road
Morningside
DURBAN