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[2008] ZAFSHC 121
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Spar Group Limited v Kleyn NO and Another (5890/2008) [2008] ZAFSHC 121 (30 October 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 5890/2008
In
matter between:
THE
SPAR GROUP LIMITED
Applicant
and
CHRISTO
NEL KLEYN N.O.
First
Respondent
LILIAN
KLEYN N.O.
Second
Respondent
HEARD
ON:
16
OCTOBER 2008
JUDGMENT
BY:
MOLOI,
AJ
_____________________________________________________
DELIVERED
ON:
30
OCTOBER 2008
[1] The
applicant sought an order in terms of which the Trust (the
Eben-Haeser Trust, herein represented by its trustees for the
time
being, being the respondents) is ordered to pay the applicant’s
costs of the application launched to perfect its security
in terms of
a notarial general covering bond (“the covering bond”)
registered by the Trust in favour of the applicant.
[2] The
application
was
set down for hearing on 18 September 2008. The respondents filed an
answering affidavit on 17 September 2008. In the answering
affidavit
the Trust admitted its indebtedness to the applicant albeit for a
lesser amount still to be calculated and provided the
details of the
payments made to applicant since 2 June 2008 as per agreement between
the applicant’s representatives and
the respondents. The main
purpose of the answering affidavit, however, was to secure a
postponement of the application to 2 October
2008 and contained
reasons for the Trust’s failure to pay the applicant; details
of its asset-base; correspondence between
the respective legal
representatives and more specifically details of the interim
arrangement made with the applicant’s representatives
regarding
payment of the debt.
[3] On
18 September 2008 the application was postponed to 2 October 2008 by
agreement and the respondents were ordered to file their
answering
affidavit by close of business on Tuesday, 23 September 2008 and the
applicant to file its replying affidavit before
close of business on
Friday, 26 September 2008. It was further ordered that, pending the
final conclusion of the matter, the applicant
would be entitled to
place a representative in the business premises of the respondents
during business hours which representative
would be afforded full
access to the business. Most importantly for the purposes of this
judgment, the costs of the proceedings
on that day were ordered to be
costs in the application.
[4] On 2 October 2008 the
application was further postponed to 16 October 2008 and costs were
to stand over.
[5] On
16 October 2008 the original application to perfect the covering bond
was not proceeded with. Only the issue of the granting
of a cost
order was argued before me.
[6] For
the applicant it was contended
that
the applicant was entitled to the costs of the application as at the
time of the launch of the application to perfect the covering
bond.
It was contended that the applicant was entitled to do so on the
grounds of the respondents failure to comply with their
obligations
to the applicant; the respondents having failed to file answering
affidavits as ordered on 18 September 2008 and the
indebtedness to
applicant not being denied in the affidavit filed on 17 September
2008.
[7] For
the respondents it was argued that the applicant is not entitled to
the costs as no order was obtained in terms of the application
for
perfecting the covering bond. It was further argued that an
arrangement was made with the representatives of the appellant
prior
to the launching of the application and that the applicant had no
reason to launch the application. It was also averred
and argued in
terms of that arrangement certain periodic payments were made to
applicant before the application was launched.
These facts were
uncontroverted.
[8] It
is trite that the granting of cost orders is in the discretion of the
court. See
BOLTON
METROPOLITAN DISTRICT COUNCIL AND OTHERS v SECRETARY OF STATE FOR THE
ENVIRONMENT
[1996] 1 ALL ER 184
at 184 where the following was stated. Also see
in
Law
of Costs
,
A.C. Cilliers, Butterworths, 3
rd
Edition, 1 – 6 (issue 17) the following was stated:
“
The courts
are required to make such orders as appear ‘just’ in the
particular circumstances.”
[9] The
order of 18 September 2008 stated that the costs of that day would be
costs in the application. The order of 2 October
2008 stated the
costs would stand over i.e. would be argued when the application is
heard. The application was not pursued as
the respondent had in the
meanwhile discharged his obligations against the applicant as per
arrangement referred to above.
[10] Regard
being had to the
particular
circumstances of this matter, I am of the view that it is fair and
just to order that each party pay its own costs.
_____________
K.J.
MOLOI, AJ
On
behalf of the
applicant: Adv.
H.J. Smith
Instructed by:
Webbers
BLOEMFONTEIN
On
behalf of th
e
respondents: Adv. S.J. Reinders
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/sp