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[2009] ZAGPPHC 279
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PFP Professional Forensic Profiling CC and Another v Pieters (34171/2008) [2009] ZAGPPHC 279 (15 September 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL
PROVINCIAL DIVISION]
Case
Number: 34171/2008
PFP
PROFESSIONAL FORENSIC
PROFILING
CC
FIRST
APPLICANT
HEMSLEY,
DEBRA LEE
SECOND
APPLICANT
AND
PIETERS,
LAURIE KATHERINE
RESPONDENT
JUDGMENT
MABUSE
AJ: (1) This is an application for an order of costs. It is opposed
by the respondent. The First Applicant is PFP Professional
Forensic
Profiling cc, a close corporation duly incorporated in terms of the
close corporation laws of this country. The first
applicant conducts
business at its principal place of business located at St. Peter's
Square, Waterfront Place, Palshof, Johannesburg.
It is represented in
this application by the second applicant. The second applicant is a
major businesswoman who resides at the
same address as the first
applicant.
The
second applicant is a member of the first applicant.
(2)
The respondent is a major businesswoman who resides at […….].
The respondent also is a member of the first applicant.
Both the
second applicant and the respondent, as members of the first
applicant, each holds 50% interest in the first applicant.
The second
applicant brought an application on behalf of the first applicant
against the respondent in a fiduciary capacity as
enjoined by the
provisions of Section 42 of the Close Corporation Act 69 of 1984.
(3)
During April 2008, the second applicant became a member of the first
applicant. The first applicant's business had already commenced
during January 2008. The principal business of the first applicant
consisted in conducting forensic profiling of individuals through
a
computer software known as layered voice analyses, a system that
works in the same way as polygraph. The first applicant had
purchased
this system from a company known as Nemesycho Service Centre Africa
(Pty) Ltd for R 119 130.00, same being the sum loaned
by the said
company to the first applicant. The said amount paid for the said
system as well as the one year open licence for using
the system.
(4)
The system, though licensed to the first applicant was, as at the
time this application was launched, licensed for use to the
personal
computer owned by the respondent. Notwithstanding that the system was
licensed to the personal computer of the respondent,
the first
applicant was and remained at all times, the owner of the system. It
would appear from a letter dated 1 July 2008 from
the respondent's
attorneys to the applicant's attorneys that the respondent claimed
that she was a licensed operator and that,
the first applicant could
not possess the software as it was not a licensed operator. In the
same letter, the respondent claimed
that the software was licensed to
her computer but that ownership vested with the first applicant.
(5)
The first applicant was only licensed to use the system for a period
of a year after which the licence would expire. In deed
on 8 July
2008, the license expired. Although the respondent had claimed in the
said letter that she would not use the system,
it would appear that
she tried to reactivate it, without the knowledge of the
applicants. The applicants only became aware
of the respondent's
clandestine attempts to re-activate the system, when the company from
which the system was bought contacted
the second applicant and
requested her confirmation to reactivate the system.
(6)
On the basis of the said request, the second applicant inferred that
the respondent had been using the system or wanted to contrary
to,
her undertaking. The entire system consists of the LVA 6.50
installation compact disc; the Protection Plug, otherwise known
as
the Dongle; the LVA User Guide and the Telephone PC USB Phone
Connector. Of these items, the first applicant was in possession
of
the Installation Disc and the packaging only while the respondent was
in possession of the rest of the components of the system.
Without
the items in the respondent's possession, the whole system could not
operate.
(7)
Notwithstanding the respondent's undertaking contained in an e-mail
of 9 June 2008 to deliver the items to one Andy Irving,
the employee
of the AdvanceNet, the respondent failed or refused to return the
said items. Accordingly, the respondent's conduct
of refusing or
failing to return the items as undertaken or at all necessitated the
launching of the application to deliver the
relevant items. As a
consequence of the respondent's failure or refusal to return the
aforementioned items, the first applicant
was unable to conduct any
core business and was therefore prejudiced in the proper conduct of
its business.
(8)
The respondent admits that on 30 June 2008 her attorney received a
letter from the second applicant's attorneys, who had demanded
that
the items in her possession should be delivered within 24 hours of
receiving the said letter to AdvanceNet. In the same letter,
the
respondent was warned that if she failed to act as demanded by the
said defendant's attorneys' letter dated 30 June 2008, a
Court would
be approached. In response to the said letter, the respondent adopted
the attitude that ownership in the items she
had in her possession
vested with the first applicant and furthermore that the software
could only be possessed by a licensed operator.
Because the software
had been licensed to her laptop, for that reason only, she was the
licence operator.
(9)
The respondent refused to deliver the relevant items on the strength
of another reason. She claimed that as she had applied
for the
winding up of the first applicant, it was ridiculous for the second
applicant with full knowledge of her application, to
request her to
deliver assets that belonged to the close corporation for the
purposes of allowing the close corporation to use
the software. In
her opposing affidavit, the respondent states that she decided "It
would be in the best interest of oil the
parties concerned if I would
retain control over those items which were in my possession until the
outcome of the Application,
that I would deliver the items to the
liquidator of the close corporation, should the first applicant be
placed in liquidation
by the Honourable Court."
Subsequently
the respondent decided to return the items to the licensor for
safekeeping.
(10)
It is not in dispute that the respondent was in possession of the
relevant items, that the second applicant, acting for the
first
applicant and the first applicant demanded delivery of those items;
that the respondent was in possession of the relevant
items; that she
had initially undertaken to deliver those items; it is furthermore
that on second thoughts she
refused on
reasons that she furnished only in her affidavit, to deliver those
items. It is finally not in dispute that the respondent
returned
those items only after a copy of the application had been served on
her.
(11)
In the first place it is not clear why the respondent adopted the
attitude that she would not return the items after she had
earlier
undertaken to deliver the goods - even if this Court was to accept
her reason as genuine and honest that she always prepared
to deliver
the items to the licensor. It is difficult to understand why, in the
first place the respondent did not, in her initial
undertaking
promise to return the items to the licensor or seemingly why she did
not immediately deliver the items to the licensor
earlier as she did.
It is clear that she only delivered the items after she had been
served with a copy of the application. The
applicant's would not have
launched the application had the respondent not been unreasonable in
her conduct. This Court finds no
merit at all in the reasons advanced
by the respondent in refusing to deliver the items. There is no valid
reason why the respondent
should not be ordered to pay the
applicant's costs on the scale requested by the applicants. The basic
rule with regard to the
award of costs was stated in Kruger Bros &
Wasserman v Ruskin
1918 A. D. 63
at 69, where the Court stated that:
"The
rule of our low is that oil costs unless expressly otherwise enacted
- are in the discretion of the judge.
Its discretion must be judicially exercisedbut it cannot be
challenged, take alone and apart
from the main order, without his
permission."
It
is indeed so that the general rule, with regard to the award of
costs, is that the costs should be awarded to the winning party.
(12)
Finally in keeping with the authority of Ward v Sulzer
1973 (3) SA
701
A.D. 706 G where the Court stated that:
"The
same basic principles apply to costs on the attorney and client
scale. For example, vexatious, unscrupulous, dilatory
or mendacious
conduct (this list is not exhaustive) on the part of unsuccessful
litigant may render it unfair for his harassed
opponent to be out of
pocket in the matter if his own attorney and client costs;"
I find that the respondent's conduct
merits to be visited with a punitive order of costs.
Accordingly,
the respondent is hereby ordered to pay the Applicants' costs of this
application on attorney-and-client scale.
MABUSA,
AJ
APPEARANCES
Applicant's
Attorneys: Rorich
Wolmarans & Luderitz
Counsel
for Applicant: Inc. Adv D
Botha
Respondent's
Attorneys: Du Plessis Lessing Brits Inc.
Counsel
for Respondent: Adv M H Van Twist
Date
of Hearing:
15 September 2009
Date
of Judgment:
15 September 2009