About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 67
|
|
Alexander Forbes Financial Services (Pty) Ltd v Mitchell Cotts Pension Fund and Others In re: Mitchell Cotts Pension Fund and Others v Alexander Forbes Financial Services (Pty) Ltd (08/7872) [2009] ZAGPJHC 67 (13 November 2009)
IN THE
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
08/7872
In the matter between:
ALEXANDER
FORBES FINANCIAL SERVICES
(PTY) LTD
Applicant
and
MITCHELL
COTTS PENSION FUND
(in liquidation, herein duly represented by its
liquidator A L Mostert N.O.) First Respondent
LUCAS
SOUTH AFRICA PENSION FUND
(in liquidation, herein duly represented by its
liquidator AA L Mostert N.O.) Second Respondent
PICBEL-GROEPVOORSORGFONDS
(under curatorship, herein duly represented by
its curators A L Mostert N.O., J D Pema N.O. and
D J Wandrag
N.O.)
Third
Respondent
DATAKOR
PENSION FUND
(under curatorship, herein duly represented by its
curators A L Mostert N.O., D J Wandrag N.O. and
S S Mphahlele N.O.) Fourth Respondent
DATAKOR
RETIREMENT FUND
(under curatorship, herein duly represented by its
curators A L Mostert N.O., D J Wandrag N.O. and
S S Mphahlele N.O.) Fifth Respondent
CORTECH
PENSION FUND
(under curatorship, herein duly represented by its
curators A L Mostert N.O., D J Wandrag N.O. and
S S Mphahlele N.O.) Sixth Respondent
SABLE
INDUSTRIES PENSION FUND
(under curators, herein duly represented by its
Curator A L Mostert N.O.) Seventh Respondent
In re:
MITCHELL
COTTS PENSION FUND
(in liquidation, herein duly represented by its
liquidator A L. Mostert N.O.) First Plaintiff
LUCAS
SOUTH AFRICA PENSION FUND
(in liquidation, herein duly represented by its
liquidator A L Mostert N.O.) Second Plaintiff
PICBEL-GROEPVOORSORGFONDS
(under curatorship, herein duly represented
by its curators A L Mostert N.O., J J Pema N.O.
and D J Wandrag N.O.) Third Plaintiff
DATAKOR
PENSION FUND
(under curatorship, herein duly represented by
its curators A L Mostert N.O., D J Wandrag N.O.
and S S Mphahlele N.O.) Fourth Plaintiff
DATAKOR
RETIREMENT FUND
(under curatorship, herein duly represented by
its curators A L Mostert N.O., D J Wandrag N.O.
and S S Mphahlele N.O.) Fifth Plaintiff
CORTECH
PENSION FUND
(under curatorship, herein duly represented by
its curators A L Mostert, D J Wandrag N.O. and
S S Mphahlele N.O.) Sixth Plaintiff
SABEL
INDUSTRIES PENSION FUND
(under curatorship, herein duly represented by
its curator A L Mostert N.O.) Seventh Plaintiff
and
ALEXANDER
FORBES FINANCIAL SERVICES
(PTY) LTD
Defendant
J U D G M
E N T
ROOS, AJ
:
[1]
In
this matter there are three interlocutory applications before me.
They are an application to compel further particulars for trial,
an
application to compel a response to a Rule 35(3) Notice and an
application in terms of Rule 13(3) for leave to serve third party
notices after the close of pleadings.
[2] I shall deal with the applications in the order in which they
were argued.
The Rule 21(4) application
[3] This
application was launched on 8 October 2009. The applicant sought an
order directing the respondents to comply with its
request for
further particulars served on 17 September 2009 within ten days of
the order being served on the respondents. It also
sought leave to
approach the court on the same papers to seek dismissal of the
respondents’ claims if the respondents failed
to timeously
comply with the order and it sought costs.
[4 ] The
founding affidavit deposed to by C F Adendorff the applicant’s
attorney consists of four paragraphs. In the first
paragraph he
states his capacity and that the facts are within his personal
knowledge. The second, third and fourth paragraph read
as follows:
“
2. On 17
September 2009, the applicant’s request for further particulars
for trial in terms of rule 21(2), was served on
the respondents’
attorneys of record. A copy of the said request for further
particulars for trial is annexed hereto as
‘A1’.
The respondents had until 05 October 2009 to furnish their answer to
the applicant’s request for further particulars for
trial, but
have failed to do so.
4. The trial in
this matter is set down for 29 April 2010 and the applicant requires
further particulars to prepare for the trial
.
”
[5] The request for particulars which is attached to the application
is 55 pages long.
[6] The respondents opposed the application. Attached to the
answering affidavit which was deposed to by the attorney acting
for
the respondents was a letter addressed by such attorney to the
applicant’s attorney on 5 October 2009. The relevant portion
of
the letter reads as follows:
“
3. Your
client’s request for further particulars comprises 55 pages
together with an extensive Notice in terms of Rule 35(3),
requires
consideration of a vast amount of documents and is time consuming.
You will also appreciate that we act on behalf of
all of the
Plaintiffs comprising 7 separate entities, each with its own records
and unique circumstances to consider. We believe
that any
application to compel would be premature.
4. We will
hopefully be in a position to file our clients’ response by the
end of this week or early next week. Should you
carry out your
client’s instructions to launch an application to compel, we
shall bring the aforesaid circumstances to the
attention of the court
on 13 October 2009.”
[7] In a
further letter addressed by the respondents’ attorney to the
applicant’s attorney on 6 October 2009 a copy
of which letter
is also attached to the answering affidavit the attorney states that
the applicant is not entitled to the particulars
sought and then says
the following:
“
As
previously indicated, we are nonetheless in the process of formally
responding thereto, without prejudice to any of our clients’
rights.”
[8] In contrast
to the perfunctory founding affidavit the applicant filed a replying
affidavit 18 pages long. In it the deponent
Adendorff who had also
deposed to the founding affidavit attempted to justify the manner in
which the application was launched
and to set out why the applicant
was entitled to the relief sought.
[9] What is
required to be established in an application in terms of Rule 21(4)
was dealt with in the
Szedlacsek
case.
1
Leach J (as he then was) said the following:
“
It is
trite that rules are there for the court not the court for the rules
and this court must zealously guard against its rules
being abused
particularly by the making of unnecessary procedurally related
applications which are not truly required in order
for justice to be
done or for the speedy resolution of litigation but which appear to
be designed merely to inflate costs to the
advantage of a
practitioner’s pocket.
This must be
borne in mind
in
considering the provisions of Rule 21. Under Rule 21(2) after the
close of pleadings a party may deliver a notice requesting
‘…
only such further particulars as are strictly necessary to enable him
to prepare for trial’ which request
is to be complied with
within ten days. Rule 21(4) then goes on to provide:
‘
(4) If
the party requested to furnish any particulars as aforesaid fails to
deliver them timeously or sufficiently the party requesting
the same
may apply to court for an order for their delivery or for the
dismissal of the action or the striking out of the defence
whereupon
the court may make such order as to it seems meet
.’
It is clear from
the final words of this subrule emphasised in italics above that this
court retains a discretion to grant or refuse
an order for the
delivery of further particulars. An applicant is
accordingly
not entitled to an order compelling a reply as of right should the
opposing party fail to deliver further particulars
timeously or
sufficiently but must set out sufficient information to enable the
court to consider whether or not to exercise its
discretion in his
favour. It is impossible to lay down any test which can be slavishly
applied to determine whether an order compelling
delivery should be
granted as each case must turn upon its own particular facts and
circumstances but it seems to me that in most
cases it would probably
be wholly insufficient for a party seeking relief under Rule 21(4) to
rely solely upon the other party’s
failure to timeously comply
with the ten day time period laid down by Rule 21(2).
Furthermore in
my opinion although there is no specific requirement for an applicant
proceeding under Rule 21(4) to give notice
of his intention to bring
an application under that subrule (that having been the case even
prior to the repeal of Rule 30(5) which
required that notice to a
defaulting party be given of an application for an order compelling
compliance with a notice or request
…) it is of course sound
practice for a party to call upon his opponent to remedy a default or
failure to timeously comply
with a request for particulars for trial
and to put him to terms before leaping into court and incurring
substantial costs in an
application of this nature. Accordingly a
court will be slow to come to a party’s aid by granting an
order directing the
opposing party to comply with a notice or request
where no such earlier demand has been made. In my view an
application to compel
compliance with a procedural step should really
be regarded as a last option to be exercised when other reasonable
and far less
costly alternatives had been unsuccessful and the
defaulting party has shown himself to be unreasonably dilatory.”
2
I respectfully associate myself with Leach J’s views.
[10] As can be
seen from the founding affidavit quoted above the applicant relies
solely upon the respondents’ failure to
timeously comply with
the 10 day time period laid down by Rule 21(2) for the relief it
seeks.
It sets out no facts whatsoever to enable the court to consider
whether or not to exercise its discretion in its favour. In
particular
it does not set out any reasons why the undertakings given
on behalf of the respondents to respond to the request for
particulars
was not adequate or sufficient. In my judgment it is not
entitled to attempt to make out a case in the replying affidavit.
The
application must accordingly be dismissed.
The Rule 35(7) application
[11] This
application appears to have been launched on the same date as the
application in terms of Rule 21(4). The founding affidavit
is also
deposed to by C F Adendorff. It follows the same format as the
founding affidavit in the Rule 21 application and merely
sets out
that a Rule 35(3) notice has been served, that the respondents had
until 5 October 2009 to respond thereto and that they
had not done
so. Again the affidavit sets out no information to enable the court
to consider whether or not to exercise its discretion
in the
applicant’s favour.
[12] Leach J
held in the
Szedlacsek
case that the comments that he made in relation to an application
under Rule 21(4) were equally applicable to an application under
Rule
35(7).
3
Accordingly this application also falls to be dismissed.
[13] There is
another reason however why the application cannot succeed.
The application was served on the respondents’ attorney on 7
October 2009. On 13 October 2009 the respondents served a response
to
the applicant’s Rule 35(3) notice. Although it served a notice
of intention to oppose the application to compel on 12
October 2009
it did not file an answering affidavit. At best for the applicant if
it had approached the court with its application
after the
respondents’ Rule 35(3) response had been received it might
have been able to argue that it was entitled to the
costs of the
application. Instead what it did was to file a replying affidavit of
20 pages (also deposed to by Adendorff) to which
was annexed
annexures running to 62 pages.
[14] It is
difficult to understand what purpose the replying affidavit was
supposed to serve or what it purported to be a reply
to bearing in
mind that no answering affidavit had been filed. What the applicant
purported to do was to set out in the replying
affidavit why it was
entitled to certain documents that it had requested from the
respondents and which had not been made available
in the response
received from the respondents. In effect through the replying
affidavit it sought to launch a new application
requiring the court
to order the respondents to provide a further and better response to
the Rule 35(3) request without either
a notice of motion or a
founding affidavit. In my view it was not entitled to do so and the
procedure it followed was irregular.
The respondents would in my
view have been entitled to give the applicant notice in terms of Rule
30 of the irregular step and
to require it to remove the cause of
complaint within 10 days. Apparently no such notice was given.
The Rule 13 application
[15] In this
application the applicant sought the court’s leave to serve
third party notices on the persons listed in an
annexure to the
application to join them as third parties in the action. The court’s
leave was required in terms of Rule
13(3)(b) because the relevant
notices had not been served prior to the close of pleadings. The
applicant also sought leave in
terms of section 2(4)(b) of the
Apportionment of Damages Act No. 34 of 1956 (the AOD Act) for the
institution of third party proceedings
for a conditional contribution
under subsections 2(6) and (7) of the Act against certain of the
third parties. It also sought an
order that the third party notices
could be served by way of substituted service on two of the third
parties. The annexure attached
to the notice of motion listed 24
parties on whom the third party notices were to be served.
[16] An
applicant seeking an order in terms of Rule 13(3)(b) is required to
furnish a satisfactory explanation for his failure
to give the notice
before close of pleadings and to make out a
prima
facie
case against the person he seeks to sue by alleging facts which if
established at the trial would entitle him to succeed.
4
[17] In my view
it
would not suffice for an applicant to satisfy only one of the
requirements. Unless both the requirements can be satisfied leave
should not be granted.
5
Although the
Chetty
case set the requirements in relation to an application for a
rescission of a judgment the same principles in my view also apply
to
an application in terms of Rule 13.
[18] The
prima
facie
case must be weighed in the light of the totality of the available
facts to enable the court to determine whether the claim which
the
applicant wishes to pursue against the third parties it wishes to
join could ever succeed. In considering the application
it must be
borne in mind that the purpose of the rule is to prevent a
multiplicity of actions and a lenient approach should be
adopted. If
however on the facts that are available the case against the third
parties the applicant wishes to join is totally
unfounded the joinder
should be refused.
6
[19] The applicant’s failure to join the third parties before
the close of pleadings is explained in the following manner:
“
69.
The applicant’s legal representatives debated the issue of
joining the joint wrongdoers at some length. Eventually senior
counsel’s advice to adopt a cautious approach and not to
immediately join anybody was followed. This advice was explained
with reference to a number of issues, the most important being that
greater clarity on the future course of the matter had to be
obtained. It was considered necessary to first establish whether it
would be more beneficial to join the third parties in this
action, or
sue them separately in later actions, if at all necessary. In
particular, the applicant was advised to first go through
the
discovery process, particularly with a view of establishing the terms
of any settlements Mostert had concluded with the joint
wrongdoers.
At that stage it was considered more probable than not that Mostert
would settle on the basis that restitution be effected.
The applicant
was advised that it might be counter-productive to involve such a
large number of joint wrongdoers, resulting in
an unwieldy and
impractical matter, if such joinder could realistically be avoided.
Based on this advice, the applicant resolved
not to join any third
parties at that stage, but to proceed with the preparation of the
action and, if later so advised, to launch
this application for leave
to join third parties.
70. Joining
third parties was thus always foreseen as a possibility, hence the
section 2(2)(b) notices. Prior to close of pleadings,
however, it was
unsure whether it would be feasible to join such a large number of
third parties. It was also unsure whether it
would be necessary to
ever sue them, for it was considered that many of them might restore
what they had received. For instance,
Mostert sued Lifecare Fund and
Lifecare Company for the full amount of the first respondent’s
alleged damages during May
2007. But the direction in which the
Mostert approach sent this action, has made suing them an absolute
certainty. This is so,
for if not, the applicant will end up paying
amounts actually received by some of these third parties and which
Mostert will allow
them to retain, or in the case of entities
vicariously liable, which Mostert will not pursue for the full amount
of their liability.
71. I have
been advised and verily believe that it has now become necessary to
join the mentioned third parties. This is as a consequence,
in the
main, of knowledge acquired since the action was instituted. The
action is affected by ongoing events, in the main settlements
reached
between Mostert and joint wrongdoers, and by convictions of joint
wrongdoers pursuant to plea and sentence agreements concluded
with
the State. Again I offer the example of Pickard. Prior to the
settlement between him and Mostert the expectation that he and
the
others that benefitted from receipt of the assets, would repay
everything they had received, would have been considered reasonable.
The expectation is at least borne out by the R10 million additional
liability he has agreed to. Since there has not been full
restitution, the need to join the Pickard parties in these
proceedings is manifest. The same reasoning applies to the other
proposed
third parties.
”
[20] In essence
the applicant therefore says that it took the decision not to join
the third parties timeously pursuant to advice
it received from
senior counsel acting on its behalf. It contends however that that
advice has changed because of knowledge acquired
since the action was
instituted and because Mostert (the curator acting on behalf of all
the respondents)
has
reached settlement agreements with various parties in terms of which
Mostert has agreed to accept payment from such parties
of less than
the full amount that the applicant contends was due by such parties.
[21] I have
serious reservations about whether an applicant who has made a
conscious and informed decision not to join a third
party can escape
the consequences of his decision merely by saying that it has changed
its mind because of changed circumstances.
In this sense the
explanation provided by the applicant for its failure to serve the
third party notices timeously is not as satisfactory
as it maybe
should have been. However, given that I must adopt a lenient
approach I shall accept that there is at least an explanation
before
me by the applicant for its failure to issue the third party notices
timeously. It remains therefore to consider whether
the applicant has
made out a
prima
facie
case against the third parties that it wishes to join.
[22] The claim of each of the respondents (as plaintiffs) against
the applicant (as defendant) is based on allegations which can
be
summarised as follows:
The applicant was a pension fund administrator that administered
the various pension funds of the respondents.
The applicant
was responsible for applying for and obtaining certificates in
terms of section 14 of the Pension Funds Act 24
of 1956 (the PF
Act) which resulted in the removal of each of the plaintiffs’
fund’s assets.
Once the
certificates in terms of section 14 of the PF Act had been obtained
the plaintiffs were deprived of the assets from
their funds because
thereafter the assets vested in a different fund ie. the Lifecare
Fund by virtue of section 14(2) of the
PF Act.
But for the
applicant’s conduct in applying for and obtaining the section
14 certificates the assets of the various plaintiffs’
funds
would have remained vested in such funds.
[23] The
defence that the applicant has pleaded on the merits is that when the
Registrar of Pension Funds forwarded the section
14 certificates that
the assets of the various plaintiffs’ funds vested in and
became binding upon the Lifecare Fund. The
defendant pleads further
that the plaintiff funds cannot claim damages from the defendant
because the section 14 certificates remain
valid and binding. It
pleaded further in the alternative that should the defendants’
unlawful conduct be held to have resulted
in the unlawful alienation
of the plaintiffs’ funds assets that the plaintiffs’
claims are limited to that which cannot
be recovered from the
unlawful recipients of such assets.
[24] On a
conspectus of the particulars of claim,the defendant’s plea,
the founding affidavit and the third party notices
it is clear that
the plaintiffs’ claim is based on the contention that it was
solely the conduct of the applicant that caused
the loss to the
various plaintiffs. The claims are based on the defendant’s
conduct in applying for and obtaining the section
14 certificates.
Once the section 14 certificates had been issued the funds of the
various plaintiffs vested in the Lifecare Fund
by operation of law in
terms of section 14(2) of the PF Act.
[25] It is
apparent from the defendant’s draft annex to the notice to the
third parties that the defendant contends that:
“The
first to sixth third parties are joint wrongdoers as they are the
recipients of the first plaintiff’s assets.”
It is apparent
from the allegations ma
de
that such assets are alleged to have been transferred by the Lifecare
Fund after the assets vested in it pursuant to the issue
of the
section 14 certificate. What happened to the funds after such funds
vested in the Lifecare Fund does not form part of
the plaintiffs’
claim. If an unlawful transfer occurred from the Lifecare Fund to any
of the alleged recipients of such funds
then the right to recover
such funds is a separate issue and must be based on a different cause
of action. It cannot constitute
a proper basis for a finding that
any of the recipients of funds from the Lifecare Fund are joint
wrongdoers in the delictual action
by the various plaintiffs against
the defendant.
[26]
The
proposed seventh third party is Old Mutual. It is contended that it
is vicariously liable for the conduct of an actuary employed
by it
who it is alleged knew or ought to have known that the transfers of
the first plaintiff’s assets were unlawful and
would cause the
first plaintiff to suffer the damages set out in the particulars of
claim. It is contended that the actuary “participated
in the
transfer of the first plaintiff’s assets as alleged in the
particulars of claim”. The problem with this allegation
is
that it is not alleged in the particulars of claim that anyone other
than the defendant was responsible for the issue of the
section 14
certificate. The fact that the actuary might have conducted a
valuation of the funds or that he was aware or ought to
have been
aware of the purpose of the transfer of such funds to the Lifecare
Fund does not in my view make the actuary a joint
wrongdoer or Old
Mutual vicariously liable for his conduct. There is no allegation in
the draft annex to the third party notice
that the actuary
participated in any way in the application for or the obtaining of
the section 14 certificate.
[27]
The claim against third parties 1 to 5 and 8 are based on similar
contentions as those against third parties 1 to 7 but as recipients
of the second plaintiff’s assets rather than the first
plaintiff’s assets. For the reasons set out above they do not
in my view constitute a proper basis for holding that they are joint
wrongdoers in relation to the claim by the second plaintiff
against
the defendant.
[28] The
claims against the third parties 1 to 5 and 9 to 14 are based on
similar grounds but as recipients of the third plaintiff’s
assets. The contention that they are joint wrongdoers must be
rejected for the same reasons as set out above.
[29]
The
claim against third parties 1 to 5 and 15 to 21 are based on similar
allegations but as recipients of the fourth, fifth and
sixth
plaintiffs’ assets. The contention that they are joint
wrongdoers must be rejected for the same reasons as set out
above.
[30]
The claim against the 1
st
to 5
th
and 20
th
to 24
th
third parties are again based on similar allegations but as
recipients of the seventh plaintiff’s assets. The allegations
must be rejected for the same reasons.
[31
]
In coming to the conclusion above I have had regard to the
distinction to be drawn between a joint wrongdoer and a concurrent
wrongdoer. As stated in the
Nedcor
Bank
case
7
joint wrongdoers are persons who acting in concert or in furtherance
of a common design jointly commit a delict. They are jointly
and
severally liable. Concurrent wrongdoers on the other hand are persons
whose independent or several delictual acts are combined
to produce
the same damage. Providing the requirement of causality can be
satisfied concurrent wrongdoers are liable for the full
amount of a
plaintiff’s loss. The third party notices purport to join each
of the proposed third parties as joint wrongdoers.
On the facts as
they appear from the papers before me none of the proposed third
parties are in fact joint wrongdoers as none
of them jointly
committed the delict which caused the loss to the various plaintiffs
i.e. they did not apply for or obtain the
section 14 certificate.
[32] Mr Van
Eeden SC for the applicant submitted that it was common cause that
the applicant had not itself received any of the
funds transferred
from the various plaintiffs to the Lifecare Fund and that the issue
of the third party certificates would enable
the applicant to recover
the funds from the actual recipients of the funds. Mr Gauntlett SC
for the respondents submitted that
what he referred to as the
applicant’s “dispersal theory” was flawed because
the delict that caused the loss
to each of the plaintiffs was the
obtaining of the section 14 certificate for which the applicant was
solely responsible. What
happened to the funds after such funds
vested in the Lifecare Fund pursuant to the provisions of
section
14(2)
of the
Pension Funds Act is
irrelevant to the cause of action.
It might be that the applicant has a right to recover the funds from
the actual recipients of
such funds (an issue on which I do not
express an opinion). It is clear however in my view that this right
is not based on nor
can it be based on the delict pursuant to which
the respondents are suing the applicant. If there is a right of
recovery it will
have to be based on a different cause of action.
[33
]
Mr Van Eeden SC submitted that the very fact that the respondents
have been able to recover funds from various of the third parties
pursuant to settlement agreements concluded with them is supportive
of the contention that such third parties are joint wrongdoers
because he submitted that the amounts recovered were all deducted
from the damages claimed from the applicant. Whilst it is obvious
that any amount recovered has to be deducted from the damages claimed
as such recovery will clearly reduce the damages it does
not follow
that the recoveries made were from joint wrongdoers or based on the
same cause of action as that of the respondents
against the
applicant.
[34
]
In my view I am also required to weigh up the prejudice likely to be
suffered by the respondents if the application is granted
against the
prejudice likely to be suffered by the applicant if it is not. In my
view the likely prejudice to be suffered by the
respondents is
greater than that likely to be suffered by the applicant. If 24 third
parties are joined to these proceedings it
is clear that the trial
which has been set down for April 2010 will not be able to proceed.
In addition apart from the actual litigation
becoming unwieldy the
length of the trial will be greatly increased at substantial
additional costs for all parties involved.
As against this it must
be borne in mind that all that can be obtained by the defendant
against the third parties is a declarator
as to such third parties’
liability if any. Whatever happens in this trial the defendant will
be required to sue the third
parties to enable it to recover the
amount that it contends it is entitled to recover from each of them.
The defendant has issued
notices in terms of section 2 of the AOD Act
against 20 of the 24 third parties. It will be entitled pursuant to
such notices to
sue the third parties and recover from them whatever
it would have been able to recover pursuant to the third party
notice. The
four third parties on whom the applicant has not served
section 2 notices can be sued with the leave of the court in terms of
section
2(4)(a) of the AOD Act. Consequently in my view the prejudice
that the applicant would suffer if the application is not granted
is
very limited.
[35
]
Although the respondents gave notice in the answering affidavits in
the various applications and in the heads of argument that
were filed
on their behalf that costs would be sought on a punitive scale Mr
Gauntlett SC did not press for such an order in argument.
There are
no grounds to justify a punitive costs order in the Rule 21 and the
Rule 13 applications. The Rule 35 application is
however on a
different footing. It is in my view so misconceived that it amounts
to a vexatious proceeding within the meaning ascribed
thereto in In
Re Alluvial Creek
1929 CPD 532
at 535
[36] In the
circumstances I order that all three applications are dismissed with
costs. The costs in the Rule 35 application are
to be paid on the
attorney and client scale. All such costs are to include the costs of
two counsel.
________________________________
J
F ROOS
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPLICANTS ADV H VAN EEDEN SC
ADV E MOKUTU
INSTRUCTED BY EVERSHEDS
COUNSEL FOR THE RESPONDENTS ADV J J GAUNTLETT SC
ADV L J VAN TONDER
INSTRUCTED BY A L MOSTERT AND CO INC
1
Szedlacsek
v Szedlacsek
,
Van
der Walt v Van der Walt
and
Warner
v Warner
2000 (4) SA 147
(ECD).
2
At
149G-150G.
3
At
151H.
4
See
Wapnick
and Another v Durban City Garage and Others
1984 (2) SA 414
(D) at 424B-C;
Niemand
v S A Eiendomsbestuur SWD (Edms) Bpk en ‘n Ander
1985 (2) SA 710
(C) at 712;
Padongelukkefonds
v Van den Berg en ‘n Ander
1999 (2) SA 876
(O) at 885J-886B;
Mercantile
Bank Ltd v Carlisle and Another
2002 (4) SA 886
(W) at 888H-889A.
5
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) at 765B-F.
6
Mercantile
Bank v Carlisle (supra
)
at 889E-H.
7
Nedcor
Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd
2000 (4) SA 910
(SCA) at para [10] page 922.