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[2010] ZAFSHC 75
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Bothaville Supermark (Edms) Bpk v Nala Local Municipality (2498/2009) [2010] ZAFSHC 75 (22 April 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2498/2009
In the matter between:
BOTHAVILLE
SUPERMARK (EDMS) BPK
Applicant
and
NALA LOCAL
MUNICIPALITY
Defendant
_____________________________________________________
JUDGMENT:
H.M. MUSI, JP
HEARD ON:
25 MAART 2010
_____________________________________________________
DELIVERED ON:
22 APRIL 2010
_____________________________________________________
[1] This is an
application brought in terms of rule 41(1) for an order for costs
upon withdrawal of proceedings. I shall refer
to the parties as
cited in the main application where Bothaville Supermarket is the
applicant and Nala Local Municipality the respondent.
[2] The applicant had
brought an application seeking from the respondent payment of certain
amounts of money. The application was
opposed and was set down for
hearing on 23 July 2009. On 10 July 2009 the applicant issued and
served a notice of withdrawal of
the application. The relevant
notice reads as follows:
“
By ooreenkoms tussen die partye
word bogemelde aansoek hiermee teruggetrek deur die applikant op die
grondslag dat elke party sy
eie kostes sal betaal.
Hiermee word gevolglik ook kennis
gegee dat hierdie aansoek verwyder word van die Hofrol van 23 Julie
2009.”
The respondent disputed
that there had been an agreement that the matter be withdrawn on the
basis that each party would pay their
own costs and demanded that the
applicant should tender payment of the costs. A deadlock was
reached, whereupon the respondent
launched the instant application.
[3] As is customary in
applications of this nature, no affidavits were filed and the matter
was argued on the papers as they stand.
In opposing the application,
Mr Van Rooyen for the applicant, insisted that there had indeed been
an agreement to withdraw the
proceedings on the terms set out in the
notice of withdrawal and said that such withdrawal was not in terms
of rule 41(1) but rather
based purely on the alleged agreement. Mr
Reinders, for the respondent, contested the existence of any such
agreement and based
his case on the provisions of rule 41(1).
[4] I was concerned about
the situation where the applicant argued the matter on the basis of
an agreement when nothing was before
court to lay a basis for such
contention. I then directed that the applicant should file an
affidavit indicating the basis on
which it alleged there was an
agreement. I indicated that the respondent would be free to respond
thereto. The matter was accordingly
postponed. In due course the
applicant filed its affidavit and the respondent responded with an
affidavit of its own.
[5] A reading of the
affidavits reveals a clear dispute of fact which cannot be resolved
on the papers. The dispute centres on
what was actually agreed upon
in a telephonic conversation between the applicant’s attorney,
Mr Herbst, and Miss Steyn, of
the respondent’s attorneys firm.
They even differ on the date of the conversation. On the
respondent’s version what
was agreed upon was that the matter
will be removed from the roll of the 23
rd
July 2009 and that each party would pay their own costs. If
anything, the affidavits disclose disagreement rather than agreement.
And there was no suggestion made that the matter could be referred
to oral evidence in order to resolve the factual dispute.
At any
rate, that would have been undesirable. Nonetheless, the affidavits
are helpful in some respects. They contain correspondences
exchanged
between the attorneys subsequent to the delivery of the contested
withdrawal notice and which I think are important.
[6] Now rule 41(1) makes
it clear that a withdrawal of proceedings after the matter had been
set down for hearing can only take
place on two bases, either with
the consent of the other party or with leave of court. If neither of
the two had been obtained
a purported notice of withdrawal would be
invalid. See
PROTEA
INSURANCE CO LTD v GAMLACE AND OTHERS
1971 (1) SA 460
(ECD) at 465G. In
casu
,
neither the consent of the respondent nor leave for the court has
been obtained and the notice of withdrawal is therefore invalid.
[7] Mr Van Rooyen argued
that since the notice of withdrawal was invalid there was no basis
for the instant application because
such application could only be
made if there was a valid notice of withdrawal. He submitted that
the application should be dismissed
with costs. In response, Mr
Reinders pointed out that a few minutes after the notice of
withdrawal was served, the applicant’s
attorney was informed by
letter that the terms of such notice were not acceptable and he was
urged to withdraw it. Mr Reinders
submitted that that was the most
reasonable and proper thing to do, but the applicant unreasonably
failed to do this, thus compelling
the respondent to launch the
instant application.
[8] Now Mr van Rooyen
correctly submitted that in the absence of agreement or leave of
court the notice of withdrawal would be invalid.
Yet in the same
breath, he persisted that the applicant was entitled to refuse to
withdraw it on the basis of the alleged agreement
and also argued
that the provisions of rule 41(1) did not apply to this matter as the
withdrawal was based purely on the alleged
agreement.
This is a contradiction
in terms. It is tantamount to saying that the notice is invalid and
valid at the same time. Court proceedings
transpire in terms of the
rules of court and if the rules declare a step to be invalid, it
remains invalid irrespective of the
whims of the parties. At any
rate, the applicant has failed to prove the existence of the
agreement it relies upon.
[9] But this argument is
typical of the unreasonable attitude that the applicant had adopted
in this whole matter. The applicant
was informed as soon as its
notice of withdrawal was served that the respondent disputes the
existence of the agreement that each
party would pay its own costs
and was requested to either tender costs or withdraw the notice,
which would have been the most reasonable
thing to do. Instead of
withdrawing the notice, the applicant attempted to force the alleged
agreement upon the respondent, which
in turn led to the launching of
the instant application.
[10] To conclude, I hold
that in the absence of agreement, the notice of withdrawal was
invalid. That being so, the application
in terms of rule 41(1) was
not competent and stands to fail. However, I hold that it was due to
the applicant’s unreasonable
conduct that such application was
launched. In the premises, I am not prepared to award the applicant
the costs of the application.
[10] The application is
dismissed and there shall be no order as to costs.
______________
H. M. MUSI, JP
On behalf of the
applicants: Adv. P. C. F. van Rooyen SC
Instructed
by:
Hill
McHardy & Herbst Ing
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. J. Reinders
Instructed
by:
Honey
& Vennote
BLOEMFONTEIN
/em