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South Africa: North Gauteng High Court, Pretoria
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2011
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[2011] ZAGPPHC 211
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Liberty Group Ltd v Loader and Another (67241/2010) [2011] ZAGPPHC 211 (8 December 2011)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT,
PRETORIA REPUBLIC OF
SOUTH AFRICA
CASE
NUMBER 67241/2010
DATE:08/12/2011
IN
THE MATTER OF
LIBERTY
GROUP
LIMITED
....................................................................................
APPLICANT
versus
MALINDI
LOADER
…..............................................................................
FIRST
RESPONDENT
ADRIAN
LOADER
..............................................................................
SECOND
RESPONDENT
JUDGEMENT
BAM
AJ
1.
The applicant applies for an order compelling the respondents to pay
costs to the applicant in a matter which the respondents
issued
summons against the applicant which action was subsequently withdrawn
by the respondents The applicant further prays for
a costs order
against the respondents for this application. The applications are
opposed.
2.
It is common cause that that the respondents issued summons against
the applicant for the payment of certain sums of money in
accordance
with the provisions of two retirement annuities held with the
applicant, by a certain dr Pierre Rossouw (the "deceased"),
who passed away on 22 August 2008. The respondent, represented by the
trustees of the retirement fund, made a determination in
terms of
section 37C of the Pension Funds Act in respect of the distribution
of the proceeds of the retirement annuities to the
plaintiffs.
3.
After having filed a notice of intention to defend the respondents
applied for summary judgement which in turn was opposed by
the
applicant. It was apparently agreed by the parties that leave to
defend should be granted to the applicant. The respondents
however
maintained that the applicant should pay the costs. The Court dealing
with the application declined to adjudicate the costs
issue and costs
were reserved. The applicant then excepted to the claim on the basis
that it failed to disclose a cause of action
or was vague and
embarrassing. Subsequently, on 10 May 2011 the respondents withdrew
the action against the applicant.
4.
It is the applicant's case that the notice of withdrawal by the
respondents, which was served on the applicant on 11 May 2001,
was
not accompanied by a consent to pay the applicant's costs which the
respondents were obliged to pay. Consequently the applicant
is
entitled, so it is submitted Advocate Wood, counsel for the
applicant, that the respondents should pay the costs of the main
case, and the costs of the Rule 41 (l)(c) application which was
reserved, on an attorney and client scale, as well as the costs
of
this application, on an attorney and client scale.
5.
The respondents decline to pay the costs and prays for an order that
the applicant make payment of their costs, including in
respect of
certain portions of the litigation, costs on a scale as between
attorney and client. The reasons advanced by the respondents
for
their failure to pay the applicant's costs are that the applicant,
before summons was issued by the respondents, failed to
comply with
an application made by the respondents, in two letters addressed to
the applicant by the respondents' attorneys, requesting
that the
applicant should furnish to the respondents information pertaining to
the complaints filed by the children of the deceased.
The applicant
was allegedly in possession of the said information. It is the
respondent's case that the applicant had induced the
litigation based
on the applicant's failure to furnish the respondents the detail of
the alleged complaints.
6.
The applicant avers that the respondents had no claim against the
applicant. It is
further averred that the respondents should have
cited the Pension fund, who is the
liable party for the payment of
the proceeds of the two policies, and not the applicant. It
is
also contended by the applicant that the respondents were aware of
the issue of the
children of the deceased having lodged
complaints. The said letter dated 14 September
2010, addressed to
Weavind and Weavind, respondents' attorneys, by the applicant,
contains the information in question, however,
without detail. The
letter is attached to the respondent's Particulars of Claim as
Annexure E.
7.
The respondent's argument that the applicant's conduct was the
fundamental cause of the litigation is, to my mind, without merit.
The respondents were obliged to properly prepare their case before
issuing summons. If the respondents were dissatisfied with the
information supplied by the applicant, they surely had other remedies
available before issuing summons against the applicant. To
blame the
applicant for something which laid squarely before the door of the
respondents does not pass muster.
8.
Accordingly I could not find any reason to depart from the principle
that like in casu, a plaintiff who withdraws the case should
also pay
the costs.
Therefore I make the
following order:
1.
The application of the applicant succeeds;
2.
The respondents' counter claim is dismissed;
3.
The respondents are ordered to pay the costs of the action;
4.
The respondents are ordered to pay the costs of the Rule 41(l)(c)
application on the attorney and client scale;
5.
The respondents are ordered to pay the costs of this application on
the attorney and client scale.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT