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2024
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[2024] ZAFSHC 323
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Mofokeng and Another v Ridge Body Corporate and Others (4685/2023) [2024] ZAFSHC 323 (17 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 4685/2023
In
the matter between
THABO
MOSES MOFOKENG
1
ST
PLAINTIFF
MABATHO
MOFOKENG
2
ND
PLAINTIFF
and
THE
RIDGE BODY CORPORATE
1
ST
DEFENDANT
THE
TRUSTEEES OF THE RIDGE BODY
CORPORATE
2
ND
DEFENDANT
THE
NATIONAL REAL ESTATE (PTY) LTD
3
RD
DEFENDANT
Neutral
citation: Thabo Moses Mofokeng and Another v The Ridge Body Corporate
and Others
Coram:
Chesiwe J
Heard:
22 August 2024
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 17 October 2024.
Summary:
Application in terms of Rule 41(1)(c) of the
Uniform Rules of Court – Costs order – Question of
Applicants’ entitlement
to costs in terms of Rule 41(1)(c) for
not having consented to the notice of removal by the Respondents.
ORDER
1.
The Respondents are to pay the costs
occasioned by the subsequent notice of removal of the exception dated
24 May 2024.
2.
The Respondents are to pay such costs
jointly and severally, the one paying the other to be absolved.
3.
Costs are to be paid on a party and party
scale A.
JUDGMENT
Chesiwe
J
[1]
The Applicants (the Plaintiffs
in the main action) instituted an application against the Respondents
(the Defendants in the main
action) in terms of which the Applicants
seek the Respondents to pay the costs of an action that the
Respondents removed from the
roll without Applicants’ consent
and neither tendering costs. This is in terms of Rule 41(1)(c) of the
Uniform Rules of Court.
The application is opposed.
[2]
There are several applications
between the parties. For hearing on 22 August 2024 was Rule 41(1)(c)
application. This judgment will
therefore only deal with an
application in terms of the abovementioned Rule.
Background
[3]
The Applicants instituted a
claim for payment of R630 000,00 against the Respondents on 6
September 2024. The Respondent took exception
to the Applicants’
particulars of claim. The Court granted an order on 1 March 2024 and
upheld the exception; granted the
Applicants leave to amend their
particulars of claim within 21 days. The order was granted with costs
in favor of the Applicants.
[4]
The
Respondents lodged a common law application to dismiss the
Applicants’ claim and this was set down for 24 May 2024. On
18
April 2024, the Applicants served and filed a Rule 30(2)(b) on the
Respondents. On 24 April 2024, the Respondents removed the
common law
application by filing a notice of removal – dismissal of
claim
[1]
. The notice did not
tender costs on 16 May 2024, the Applicants filed a notice of
opposition to the dismissal with a notice of
counter-claim.
[5]
For determination by this
Court, is whether the Applicants are entitled to costs in terms of
Rule 41(1)(c) for not having consented
to the notice of removal by
the Respondents.
[6]
Counsel
on behalf of the Applicants, submitted in oral argument that the
Respondents removed the matter from the roll and tendered
no costs
and that the removal was defective in terms of Rule 41(1)(c) and Rule
6 of the Free State Division. Counsel further submitted
that the
Respondents also removed from the roll Rule 30 application and
tendered no costs. That the citation of the Applicants’
and the
Respondents was charged with no explanation or reason from the
Respondents
[2]
and that the
Applicants are entitled to costs in terms of the applicable Rule
41(1)(c) of the Uniform Rules of Court.
[7]
Counsel on behalf of the
Respondents, in oral argument, submitted that the Applicants did not
amend their particulars of claim in
terms of the Court Order granted
on 1 March 2024. Subsequent to the failure of the Applicants not
amending their particulars of
claim, the Respondents proceeded with
the application for the removal of the matter from the roll. That the
matter was removed
in terms of Rule 30. Counsel submitted that the
matter was removed from the roll and not withdrawn, resulting in the
matter still
alive to proceed. That to remove the matter from the
roll is different to withdrawing it from the roll. Counsel submitted
that
the application in terms of Rule 41(1)(c) is flawed and ought to
be dismissed with costs on a party and party scale.
[8]
Both
Counsel made reference to
RVRN
Crushing (Pty) Ltd v GDF Incorporated Consultants (Pty) Ltd.
[3]
[9]
Counsel on behalf of the
Respondents raised an issue that Rule 41(1)(c) refers to withdrawal
of the matter and not a removal. Thus,
Rule 41(1)(c) is not
applicable in this application. Counsel for the Applicants submitted
that, be it a withdrawal or removal,
it is just a matter of
interpretation and has the same meaning when it comes to the issue of
costs.
[10]
Rule 41(1)(a) provides as
follows:
“
(a)
a person instituting any proceedings may at any time 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 event
he shall deliver a notice of withdrawal any may embody
in such notice
a consent to pay costs and taxing master shall tax such costs on the
request of the other party;
(b)…
(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 of costs.”
[11]
Further
that,
settlement
of trial or withdrawal from the roll as per the Free State High Court
directives state as follows:
[4]
“
6.1
A case may be withdrawn from the roll of cases for trial on such
conditions as may be agreed upon between the parties, by addressing
a
notice in writing, signed by all the parties or their attorneys, to
the registrar.
6.2 Subject to the
provisions of subrule (1), a case may be withdrawn from the roll only
with the consent of the court and on such
terms as to the court may
seem just.
6.3 Whenever a case is
settled out of court, or the parties agree to postpone it, the
attorney for the party who placed the case
on the roll shall
forthwith notify the registrar of such fact and shall file, as soon
as possible thereafter, a notice of withdrawal
or postponement.
6.4 Where an order by
agreement is sought in a matter on the roll of cases for trial for
which no judge has yet been assigned, such
matter shall be placed
before the duty judge who shall dispose of it.”
[12]
In
Germishuys v Douglas
Besproeiingsraad
[5]
,
the Court said the following:
“
Where
a litigant withdraws an action or in effect withdraws it, very sound
reasons must exist why a defendant or respondent should
not be
entitled to his costs. The plaintiff or applicant who withdraws his
action or application is in the same position as an
unsuccessful
litigant because, after all, his claim or application is futile and
the defendant, or respondent, is entitled to all
costs associated
with the withdrawing of plaintiff's or applicant's institution of
proceedings.”
[13]
Firstly,
the issue of withdrawal or removal has to be addressed. Oxford
dictionary
[6]
defines removal
as the action of taking a thing off or away. And defines withdrawal
as to draw back or removal of a thing.
[14]
I am of the view that either
word stated above will have same effect as a matter would not be
proceeding thereby give the words
their ordinary meaning and applying
the ordinary rules of grammar. As Counsel on behalf of the
Respondents stated in the written
heads of argument, in terms of Rule
41(1), the operative word is ‘withdrawal’ and the
Respondents merely removed the
exception from the roll and did not in
fact, withdraw it and this is the basic difficulty with which this
application bears.
[15]
In
Chetty
v Hart
[7]
,
the Court reiterated the approach to statutory interpretation as
follows:
“
It
is helpful to reiterate that the method of attributing meaning to the
words used in legislation involves, as a point of departure,
examining the language of the provision at issue, the language and
design of the statute as a whole and its statutory purpose.
So when
the lawmaker uses particular words to achieve its purpose they must
be given effect. In so doing a court will apply ordinary
rules of
grammar and syntax. It is not permissible to ignore or distort the
meaning of the words to achieve its purpose. For in
so doing a court
will be substituting its own words for those of Parliament. But if
the words used are reasonably capable of bearing
more than one
meaning, the consequences of the divergent interpretations must be
examined so that a meaning that is likely to further
rather than
hinder its purpose is adopted. In this regard a meaning that is more
sensible and businesslike is to be preferred over
one that has a
contrary effect.”
[16]
The word withdrawn as stated in Rule 41(1)
is not specifically defined. It
follows that the interpretation for a removal, would have the same
effect.
[17]
It
is noted that the Applicants had called upon the Respondents in terms
of Rule 30(2)(b), to remove the cause of complaint by withdrawing
the
exception to which the Respondent obliged.
[8]
However, to
the
extent that the enrolment of the exception dated 24 May 2024
constitutes and irregular step or not and the removal of the matter
with a perceived consent, quite plainly the Respondents ought to have
filed a notice of withdrawal.
[9]
[18]
Moreover, I am of the considered view that the Applicants had
every right to oppose the exception
and with the
basic principle of Rule 41(1) being applicable in this case.
[19]
As Counsel on behalf of the Respondents
stated in the written heads of argument, in terms of Rule 41(1), the
operative word is withdrawn
and the Respondents merely removed the
exception from the roll and did not in fact withdraw it.
Costs
[20]
In any application that involves costs, the
general rule applies that the successful party be awarded costs,
bearing in mind that
costs are at the discretion of the Court.
[21]
However, in terms of Rule 41(1)(c), when a
litigant institutes action and then withdraws it for whatever reason,
generally that
litigant has to tender costs and this expectation is
embodied in Rule 41.
[22]
In
RVRN
Crushing (Pty) Ltd Supra,
the Court at
paragraph 8 stated as follows:
“
[8]
Where a litigant institutes and then withdraws an
application that they come to recognise has no merit, the expectation
is that,
generally, that litigant will tender the costs the other
parties to the application ran up in opposing it. That expectation is
embodied in Rule 41, which provides for the unilateral withdrawal of
any proceeding prior to set down with an appropriate tender
for
costs. If no costs are tendered, they may be applied for on notice
.”
[23]
The
Respondents filed the notice of removal – dismissal of claim on
25 April 2024 with no tender for costs nor any consent
from the
Applicants.
[10]
The
Respondents followed up the notice of removal with correspondence
dated 20 May 2024
[11]
, where
the following was stated:
“
2.
In order to avoid any confusion, we attach a copy of the notice of
removal – dismissal of claim hereto marked “A”.
3. We point out that this
document was delivered on 25 April 2024, and the matter was, as a
fact, removed from the roll.”
[24]
The Applicants brought it to the attention
of the Respondents in a correspondence dated 21 May 2024, Annexure
“E” on
page 59 that:
“
3.
Furthermore, our main contention is that, your purported notice of
removal does not embody a consent to pay costs.”
[25]
Rule 41(1)(c) is clear in that, if no
consent was obtained from the other party, the litigant filing the
withdrawal did not tender
costs, the aggrieved litigant may apply to
court on notice for an order for costs, which was done by the
Applicants.
[26]
In
terms of Rule 41(1)(a), the general principle is that
the
party withdrawing, is liable to pay
(my emphasis) if the proceeding. In terms of Rule 41(1)(a), a
withdrawal cannot occur unilaterally once a matter has been set down.
[12]
[27]
In my view, the Respondents unilaterally
served a notice of removal of the matter on the Applicants, without
tendering costs as
provided for by Rule 41(1)(c). The Respondents are
therefore, in terms of this Rule liable for the Applicants’
costs. Had
the Respondents tendered the costs, I doubt that the
Applicants would have approached Court in terms of the Rule 41(1)(c).
[28]
According to the Applicants, the
Respondents on a previous occasion, with a Rule 30 application, had
embodied consent to pay costs
however, in this instance no costs were
tendered having argued that the matter was removed and not withdrawn.
In my view however,
the Applicants are entitled to the costs of the
notice of removal.
[29]
The Applicants prayed for costs on an
attorney client scale. However, the Applicants did not make out a
case for a punitive costs
order. Costs being the discretion of the
Court, in my view a fair scale to both parties would be reasonable.
Order
[30]
I accordingly make the following order:
1.
The Respondents are to pay the costs
occasioned by the subsequent notice of removal of the exception dated
24 May 2024.
2.
The Respondents are to pay such costs
jointly and severally, the one paying the other to be absolved.
3.
Costs are to be paid on a party and party
Scale A.
CHESIWE
J
Appearances
For
the Applicant:
Adv.
T Mofokeng
Instructed
by:
Modisenyane
Attorneys Inc.
Bloemfontein
For
the First and Second Respondents:
Adv.
W A Van Aswegen
Instructed
by:
Symington
De Kok Attorneys
Bloemfontein
[1]
Index:
Application for an Order for Costs: Rule 41(1)(c) In re: Application
for Dismissal of Claim (12/08/2024), page 12
[2]
Ibid.,
12
[3]
(22/12513)
[2023] ZAGPJHC 939;
2024 (1) SA 269
(GJ) (24 August 2023)
[4]
Erasmus
Superior Court Practice/Volume 3: Practice Directions/Part G Free
State/G1 Free State Rules/Rules regulating the conduct
of the
proceedings of the Orange Free State Provincial Division of the High
Court of South Africa, published in GN820 of 7 September
2007 and
amended by GN 414 of 14 June 2013. Free State provincial division of
the High Court of South Africa — GN 820 of
2007/6. Settlement
of trial or withdrawal from the Roll
[5]
1973(3)
SA 299 (NK)
[6]
Clarendon
Press; Oxford University Press, Oxford, New York, 1993.
[7]
2015
(6) SA 424
SCA
[8]
Defendants’Heads
of Argument & Practice Note,
page
2
[9]
Veleleni
v Minister of Safety and Security (483/2006) [2011] ZAECGHC 7 (4
March 2011)
[10]
Index:
Application for an Order for Costs: Rule 41(1)(C) In re: Application
for Dismissal of Claim (12/08/2024),
Annexure
“A”, page 51
[11]
Ibid,
56
[12]
(See
Bondew Midrand (Pty) Ltd v Madzhie and Others (63297/2015) [2016]
ZAGPPHC 1097 2017(4) SA 166 (GP) (19 December 2016), para
8)