Moodley v Moodley (6911/2008) [2009] ZAFSHC 61 (21 May 2009)

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[2009] ZAFSHC 61
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Moodley v Moodley (6911/2008) [2009] ZAFSHC 61 (21 May 2009)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No
.
: 6911/2008
In
matter
between:
KRISHNER(KRISHNA)
MOODLEY
Plaintiff
and
JANE
MAY MOODLEY
Defendant
HEARD
ON
:
23
APRIL 2009
JUDGMENT
BY
:
C.J.
MUSI, J
_______________
______________________________________
DELIVERED
ON
:
21 MAY 2009
[1] This
is
an application, in terms of Rule 41(1)(c) of the Uniform Rules of
Court, for an order for costs. The applicant seeks the following

relief:
“
1. That the
respondent, being the plaintiff in case number 1574/2007 in the above
Honourable Court, be ordered to pay the applicant’s
costs
in the case number
1574/2007
in the above Honourable Court on the scale as between party
–and-party.
2. That the Respondent be ordered to
pay the costs of this application on this scale as between
party-and-party.”
[2] The
respondent instituted a divorce action in this Court against the
applicant under case number 1574/2007. The applicant defended
the
action and filed his plea and a counterclaim. During November 2007,
after the pleadings were closed, the respondent applied
for a trial
date.
[3] In the action the
respondent, as plaintiff in convention, claimed the following relief:
“
A Decree of
Divorce,
forfeiture of the patrimonial benefits arising out of the said
marriage, costs of suit, further and/or alternative relief.”
There
was no prayer for maintenance for herself.
[4] The
respondent subsequently, in terms of Rule 43, applied for
maintenance, for herself,
pendente
lite
.
On 8 November 2007, Mabesele AJ ordered the applicant to pay the
respondent,
pendente lite,
R6 700.00 per month maintenance and to pay a contribution in the sum
of R3 500.00 towards her legal costs.
[5] The
parties endeavoured to settle the action. The settlement negotiations
bore no fruits. The main reason for the deadlock was
the respondent’s
insistence on maintenance, for herself, for a period exceeding 12
months after the divorce. She refused to sign
a proposed settlement
agreement that was drawn by her erstwhile attorneys.
[6] The
respondent’s refusal to sign the proposed settlement agreement was
perceived as unreasonable by the applicant. On 2 June
2008, the
applicant’s attorney wrote a letter to the respondent’s attorneys
wherein it was
inter
alia
stated that: “
Should
your client refuse to sign the settlement agreement, our instructions
are to withdraw the defence and counterclaim immediately.
On such
event, your client will get less than she bargained for, if anything
at all.”
[7] The
respondent’s attorney
then intimated to the applicant’s attorneys that he had
instructions to withdraw the action in this Court and to institute an

action in the Eastern Cape High Court, Bhisho, firstly because the
respondent is currently permanently resident in East London
and
secondly because the particulars of claim were not properly drafted.
[8] On
15 Septem
ber
2008 the applicant’s attorneys instructed their Bloemfontein
correspondents to withdraw his defence and counterclaim, which
was
done. On 18 September 2008 the respondent’s attorneys were informed
about the withdrawal of the defence and counterclaim.
[9] On
25 September 2008 the applicant filed a notice of set down, whereby
the divorce action was purportedly set down for hearing
on the 23
October 2008 on the unopposed roll. Meanwhile, on 25 September 2008
the respondent signed and dispatched her notice of
withdrawal of the
action to the applicant via registered mail. The applicant only
received it on 2 October 2008.
[10] On
23 Octo
ber
2008 the parties appeared before Beckley J and the applicant moved
for an order in terms of the respondent’s particulars claim.
The
respondent objected and indicated that she did not want to proceed
with the action, because she has withdrawn it. Although
the applicant
initially insisted that the matter should proceed on an unopposed
basis he later consented to the respondent’s
withdrawal of action.
The consent was couched as follows
:
“
Kindly take
notice that the defendant hereby accepts and consents to the
plaintiff’s withdrawal of action dated 25
th
September 2008, costs to be paid by plaintiff in terms of Rule 41.”
No
order was made on
23 October 2008, by Beckley J, ostensibly because of the consent.
[11] On
24 October 2008, the applicant’s attorneys enquired from the
respondent’s attorneys whether the respondent would agree
to a fee
or whether she requires them to have their costs taxed.
The
respondent denied liability for the applicant’s costs and suggested
that the matter be set - down so that the issue of costs
could be
argued. It was common cause that the respondent did not, at any
stage, agree to pay the applicant’s costs.
[12] Mr
Perumaul on behalf of the applicant argued that the respondent’s
notice of withdrawal was ineffective for non-compliance
with Rule
41(1) (a) because it was done without the applicant’s consent after
the matter was purportedly set- down, by the applicant.
He further
argued that the respondent is liable to pay the applicant’s costs
because she is in the same position of an unsuccessful
litigant.
[13] Mr
Zietsman, on behalf of the respondent, argued that the applicant
ceased to be a party to the proceedings when he withdrew
his defence
and counterclaim. He further argued that the notice of set down was
improper and invalid and that the respondent was
therefore entitled
to withdraw the action without the applicant’s consent.
[14] Rule 41 reads as
follows:
1(a) A person
instituting any proceeding may at anytime before the matter has been
set down and thereafter by consent of the parties
or leave of the
Court withdraw such proceedings in any of which events he s
hall
deliver a notice of withdrawal and may embody in such notice a
consent to pay costs, and the taxing master shall tax such costs
on
the request of the other party
(b) A consent to
pay costs referred to in paragraph (a), shall have the effect of an
order of court for such costs.
(c) If no such
consent to pay costs is embodied in the notice of withdrawal, the
other party may apply to court on notice for an
order for costs.”
[15] It
is clear from the Rule that the respondent was entitled to withdraw
the action, without the consent of the applicant or
leave of the
court, at any time before the matter was properly set down. Once the
matter is properly set down the consent of the
applicant or leave of
the court was needed. If no consent or leave was given then the
withdrawal will be incompetent and invalid.
See
Protea
Assurance Co Ltd v Gamlase
1971(1) SA 460 (E) at 465 G.
[16] Mr
Zietsman referred me to
Nel
v OVS Staalkonstruksie en Algemene Sweiswerke
1977 (3) SA 993
(0) at 995 G as authority for his argument that the
applicant ceased to be a party to the action when he withdrew his
defence and
counterclaim. That case is not authority for his
proposition. In
Nel
v OVS Staalkonstruksie
the respondent/plaintiff withdrew his action against the
applicant/1
st
defendant. The first defendant then ceased to be a party to the suit
because the party that initiated the suit against him withdrew
it. In
this matter the applicant remained a defendant in the action. He only
withdrew his defence and counterclaim. The respondent
still sought
relief against him. He therefore remained a party to the action.
[17]
Could
the applicant set the action down on the unopposed roll? When the
applicant withdrew his defence and counterclaim the matter
became
unopposed and the respondent as
dominus
litis
had to decide whether she still wanted to proceed with the matter or
not. The applicant did not allow her to make that election;
he set
the matter down as if he was
dominus
litis
.
[18]
I was referred to
Van
Winsen et al the Civil Practice of the Supreme Court of South Africa
4
th
Edition
at
page
566
where
the learned authors state that:
“
When the pleadings in a trial
action have been closed the case is ripe for trial, and in order to
have it heard, it must be set
down on the roll of actions for
hearing.
The uniform rules
provide no procedure for set
-
down. Each division preserved its set -down rules at the time of
promulgation of the uniform rules, and the judge president of
each
provincial division may make further rules regulating set-down of
matters in his division…
In most provincial
divisions there are set-down rules in operation which are
substantially the
same
in form, and embody what is commonly referred to as the “continuous
roll” procedure. In terms of this procedure, after
pleadings are
closed the attorney for the plaintiff sets the case down in writing
on a roll kept by the registrar for that purpose.
If he fails to do
so within a stated time, any other party to the suit may do so.
Whoever sets the case down must forthwith give
notice to the other
parties that he has done so
…”
The
set-down procedures of this Court are set out in
Eastvaal Motors (Edms) Bpk v Niceffek (Edms) Bpk
1993 (4) SA 528
(O) at 532 A-D.
[19
]
The procedure mentioned above is the procedure in relation to
defended trial matters. The respondent already applied for a trial

date in terms of the procedure of this Court. She had to wait for the
registrar to allocate a trial date. I know of no Rule or
practice in
this Court whereby a defendant who has withdrawn his/her defence and
counterclaim may set a divorce action down on
the unopposed roll. It
is not the applicant that made out a case for the relief that the
respondent sought in the action. The respondent,
as the plaintiff,
must set the matter down. It is then incumbent upon her to show that
she is entitled to the relief that she seeks.
She may even decide to
amend her particulars of claim before setting the matter down on the
unopposed roll.
[20
] If
there is an inordinately long delay in the prosecution of an
undefended claim by a plaintiff – which is not the case in this

matter – a defendant has other remedies, like an application for
the dismissal of the action, but setting the matter down on
the
unopposed roll is in my view not one of them. In my view, the
purported notice of set down was irregular and invalid. That
being
the case, the respondent was entitled to withdraw her action without
the applicant’s consent.
[21
] The
strategy of the applicant is clear. He purportedly set the matter
down in order to force the respondent to get his consent
before
withdrawing her action. When she did not ask for his consent he
counter-intuitively hoped that the prayers in her particulars
of
claim will be granted on an unopposed basis. If he could achieve
this, it would automatically mean that the respondent would
forfeit
her entitlement to maintenance and the Rule 43 maintenance order
would also lapse,
ex
lege
.
[22
] The
applicant withdrew his defence and counterclaim without consenting
to pay costs in his notice of withdrawal. Mr Perumaul
argued that
there was no need for the applicant to consent to pay costs, because
Rule 41 is not applicable to him as he did not
initiate any
proceedings. This argument is without merit. A counterclaim is a
separate and distinct action that is initiated by
the defendant. See
Pilcher
& Conways (PTY) Ltd v Van Heerden
1963(3) SA 205(0) at 209 A-B
;
Acs
v Acs
1981(2) SA 795(W) at 797 A – H. See also Rule 24(1) which reads:
“
A defendant who
counterclaims shall, together with his plea, deliver
a
claim in reconvention setting out the material facts thereof in
accordance with Rule 18 and 20 unless the plaintiff agrees, or
if he
refuses, the court allows it to be delivered at a later stage. The
claim in reconvention shall be set out either in a separate
document
or in a portion of the document containing the plea but headed “Claim
in Reconvention”, it shall be unnecessary to
repeat therein the
names or descriptions of the parties to the proceedings in
convention”
It
is
clear that a claim in reconvention is initiated by a defendant. The
applicant therefore initiated the claim in reconvention.
[23
] The
general rule, in relation to costs orders where a litigant withdraws
his or her action, is that the withdrawing party is liable
to pay the
costs of the proceedings. There must be very sound reasons why the
other party should not be entitled to his or her
costs. This is so
because the withdrawing party is in the same position as an
unsuccessful litigant. See
Germishuys
v Douglas Bespoeiingsraad
1973(3) SA 299(NC) at 300 D-E.
[24
] I
am of the view that there are very sound reasons, in this matter, why
the applicant should not be entitled to costs. The applicant
withdrew
his plea and counteclaim without tendering costs. The reason why the
applicant withdrew his defence and counterclaim was
in order for him
to purportedly set the matter down on the unopposed roll in the hope
that a Court would grant him the prayers
sought by the
respondent/plaintiff in the action – which was in any event
irregular and incompetent. It was a bad attempt at
abusing the court
process. In my view, each party should pay his/her own costs of
withdrawing their respective actions.
[25
] There
is another reason why this application should not succeed. Prayer one
of the notice of motion is couched very wide. In effect,
the
applicant prays for an order that the respondent should pay the costs
of defending a counterclaim, which he instituted and
withdrew. That
would be tantamount to ordering a successful litigant to pay an
unsuccessful litigant’s costs, without good reason.
That would be
totally unfair and an injudicious exercise of my discretion.
[26
] Mr
Zietsman pointed out that the applicant would not have opposed this
application if the notice of motion was not couched in
such overbroad
terms and that the applicant should therefore be ordered to pay the
costs. The respondent is in any event successful
in her opposition of
this application and there is no reason why the applicant should not
be ordered to pay the costs of this application.
[27
] Mr
Zietsman requested me to order the applicant to pay the wasted costs
of 23 October 2008. The respondent should have requested
Beckley J to
make an appropriate costs order on 23 October 2008. There is no
proper application or counter application before me
for those costs.
I am not prepared to make such an order under these circumstances.
That matter will have to be set down so that
the issue of the costs
of 23 October 2008 can be argued.
[28
] I
accordingly make the following order:
The application is
dismissed with costs.
___
____________
C.J.
MUSI, J
On
behalf of the applicant:
Mr.
Perumaul
Perumauls
attorneys
Phoenix
Horn and Van Rensburg
Bloemfontein
On
behalf of the respondent:
Adv.
P J J Zietsman
Instructed
by:
Cooper
Conrey Bell & Richards
East
London
Honey
Attorneys
Bloemfontein
/ms