About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 62
|
|
Dodd N.O and Others v Duff (7789/2019P) [2024] ZAKZPHC 62 (7 August 2024)
FLYNOTES:
CIVIL PROCEDURE – Condonation –
Late
delivery of heads
–
Seeking
to set aside allocatur on taxed bill of costs – Heads of
argument delivered 12 days late – Explanation
for delay not
satisfactory or acceptable – Failure to account for all time
that has elapsed – Failure to bring
application at first
available opportunity – Not in interests of justice to grant
condonation – Condonation refused
with costs – All
defences by trust have failed – Taxing master’s
allocatur set aside.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
7789/2019P
In
the matter between:
WILLIAM
NORMAN DODD N.O.
FIRST APPLICANT
AMELIA TERBLANCHE
N.O.
SECOND APPLICANT
CHANEL
CATHERINE TERBLANCHE
THIRD APPLICANT
ROBERT
CHARLES DODD
FOURTH APPLICANT
and
DAVID
MICHAEL BARRY DUFF
RESPONDENT
Coram:
Mossop J
Heard:
1 August 2024
Delivered:
7 August 2024
ORDER
The
following order is granted:
1.
The respondent’s application for condonation
for the late delivery of his heads of argument is refused with costs
on the attorney
and client scale.
2.
The taxing master’s allocatur under case
number 7789/2019P, dated 5 July 2021, is set aside.
3.
The bill of costs under case number 7789/2019P
prepared by the respondent’s legal representatives is referred
to the taxing
master for taxation as an opposed taxation.
4.
The writ of execution issued by the respondent’s
legal representatives on 9 September 2022 based upon the allocatur
referred
to in paragraph 2 hereof is set aside.
5.
The respondent shall pay the applicants’
costs of the application on an attorney and client scale.
JUDGMENT
MOSSOP
J
:
Introduction
[1]
The
sale of certain immovable property to the Geelhout Property Trust
(the Trust) by the respondent has brought about a slew of
legal
proceedings between the parties.
[1]
In prior litigation, the precise details of which I am unaware, the
Trust was unsuccessful in an application that was heard by
Masipa J
and was, as a consequence, ordered to pay the respondent’s
costs (the order).
[2]
The
respondent accordingly caused a bill of costs to be drawn up (the
bill of costs), to be taxed
[3]
and a writ of execution to be issued (the writ). What was intended to
be attached by the writ was the trust account of the Trust’s
current attorney for it was believed, erroneously, that within that
trust account was money being held on behalf of the Trust.
This
turned out not to be the case, but what ultimately transpired was
that the bank that was served with the writ froze all the
bank
accounts of the Trust’s current attorney, including his
business account and his personal account. That hiatus appears
to
have been resolved and nothing more need be said about it.
[2]
The applicants in this application are all
trustees of the Trust and they seek to set aside the allocatur on the
taxed bill of costs.
I shall also refer to them, collectively, as the
Trust. The amount allowed by the taxing master on taxation came to
R104 389.69.
The Trust also seeks to set aside the writ prepared
by the respondent’s legal representative on the strength of the
taxing
master’s allocatur.
[3]
The application was opposed by the respondent
and eventually found its way onto the opposed motion roll before me.
Condonation
[4]
Before dealing with the substance of the
matter, it is, unfortunately, necessary to deal with an application
for condonation brought
by the respondent. The application relates to
the failure to deliver the respondent’s heads of argument
timeously.
[5]
Because the matter is on the opposed motion
roll, heads of argument are required to be filed by the parties. The
Practice Directives
of this division regulate the delivery of heads
of argument in opposed motions. Practice directive 9.4.1 applies and
it reads as
follows:
‘
The
following practice direction is in force in regard to opposed motions
both in Pietermaritzburg and Durban:
9.4.1 The party
requesting allocation of any matter to the opposed roll shall, in
compliance with directive 9.2 above, deliver
concise heads of
argument (which shall be no longer than five pages ("the short
heads")) and not less than fourteen clear
court days before the
hearing all other parties to the opposed hearing shall do likewise.
The heads should indicate the issues,
the essence of the party's
contention on each point and the authorities sought to be relied
upon. The parties may deliver fuller,
more comprehensive heads of
argument provided these are delivered simultaneously with the short
heads. Except in exceptional circumstances,
and on good cause shown,
the parties will not be permitted to deliver additional heads of
argument…’
[6]
The Trust has complied with this practice
directive. The respondent has not. The respondent’s attorney
has acknowledged that
the heads of argument were not timeously
delivered and has, accordingly, brought an application for
condonation for that failure
and has personally deposed to the
affidavit filed with that application. In that affidavit, the
respondent’s attorney states,
in summary, that:
(a)
The heads of argument were due 14 days before the opposed motion
was
argued;
(b)
The respondent was thus required to deliver his heads of argument
on
18 July 2024;
(c)
The heads of argument were delivered on 22 July 2024, and were
thus
delivered a mere four days late;
(d)
No prejudice has been occasioned by the late delivery of the
respondent’s heads of argument; and
(e)
There was no negligence on his part that caused any of the
aforegoing.
[7]
I am afraid that I cannot agree with any of
these submissions. I consider each of them sequentially.
[8]
It appears that the respondent’s attorney
has not carefully considered the wording of practice directive 9.4.1.
It does not
state that the respondent’s heads of argument are
due 14 days before the opposed motion is to be heard. It states that
the
heads must be delivered ‘not less than fourteen
clear
court days
before the hearing’
(underlining added). There is a vast difference between what the
respondent’s attorney says the
practice directive states and
what it does state.
[9]
The failure to appreciate what practice directive
9.4.1 states causes a difficulty with the respondent’s
attorney’s
next submission. The matter was enrolled for
argument on 1 August 2024. If one calculates 14 clear court days
prior to that date,
it is evident that the respondent’s heads
of argument were not due on 18 July 2024, as contended for by him,
but were due
on 11 July 2024.
[10]
A further difficulty that I have is that contrary
to what the respondent’s attorney states, the respondent’s
heads of
argument were not delivered on 22 July 2024. That may have
been the date upon which they were served on the Trust’s
attorney.
But the Uniform Rules of Court defines ‘deliver’
as meaning to:
‘…
serve
copies on all parties and file the original with the registrar’.
I did not receive the
respondent’s heads of argument on 22 July 2024. I received them
on the afternoon of 29 July 2024, when
they were hand delivered by a
representative of the respondent’s attorneys to my chambers. I
accepted them only because they
were accompanied by a condonation
application. Why should the heads of argument only be delivered to
the court a week after they
were served on the applicant’s
attorneys? No explanation for this is proffered by the respondent’s
attorney. It follows
that the respondent’s heads of argument
were not delivered four days late, but 12 days late.
[11]
What is absolutely astounding is the submission by
the respondent’s attorney that no prejudice has been occasioned
by the
failure to timeously deliver the heads of argument. The
delivery of heads of argument is primarily intended to assist the
court
in preparing itself for the argument that is to be heard. This
fact has simply been ignored by the respondent’s attorney.
He
merely submits that the Trust’s attorney has not been
prejudiced. No reference has been made to any possible prejudice
that
may have been caused to the court. The court’s workload is
unrelenting and does not give it lengthy periods of time
to consider
matters that come before it. Concise heads of argument serve the
purpose of sharpening the court’s focus and
assisting its
preparation in the limited time that it has. For the court to enjoy
the full benefit of heads of argument, they must
be timeously
delivered, in accordance with the time periods laid out in the
practice directive. It is of no assistance to the court
to do as the
respondent’s attorney has done. Prejudice has accordingly been
occasioned to the court.
[12]
In explaining why the heads of argument were not
timeously delivered, the respondent’s attorney states that he
proposed to
his local correspondent in Pietermaritzburg (he is a
Durban based attorney) that the numerous matters between the Trust
and the
respondent alluded to in the introduction to this judgment be
consolidated, or at least set down to be heard on the same day. This
he did on 17 April 2024. That could not, however, be achieved without
heads of argument first being prepared. The respondent’s
attorney continues and explains that over the period from 19 June
2024 to 22 July 2024 (the period between 17 April and 19 June
2024
simply being glossed over) he busied himself with:
‘…
preparing
the Heads of Argument in the Allocatur, Declaratory and Rule 24
applications to enable the filing of all the Heads of
Argument to
seek the consolidation.’
Strangely,
the respondent’s attorney states that he expected the
consolidation of the various matters to:
‘…
overtake
the need to deal with this matter immediately.’
How this could
realistically be expected in the absence of heads of argument is not
explained.
[13]
Due to pressure of work, the respondent’s
attorney states further that he was not able to complete the heads of
argument and
they were only completed on 22 July 2024. As a sop to
this explanation, he states, finally, that he is a sole practitioner
and
was therefore not able to delegate any work to another attorney
in his firm.
[14]
None of which is satisfactory, or acceptable. If
an attorney lacks the capacity to deal with matters in the high court
and is not
familiar with the Uniform Rules of Court or the practice
directives of this division, then he has no place litigating before
this
court. This court has exacting standards and they are jealously
enforced. Those standards will be maintained. Those who cannot meet
those standards should either bring themselves up to that standard
immediately or litigate elsewhere where a premium is not placed
on
excellence.
[15]
As
a general proposition, the correct approach when evaluating a
condonation application is to consider the interests of justice.
This
was confirmed in
V
an
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
,
[4]
where
the Constitutional Court expressed itself as follows on the issue of
condonation:
‘
This
court has held that the standard for considering an application for
condonation is the interests of justice. Whether it
is in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought,
the extent and cause of the delay, the effect
of the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.’
(Footnote omitted.)
[16]
The Constitutional Court went on to say that:
‘
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable.’
[5]
[17]
As
to what should appear in a condonation application, in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
,
[6]
the court observed that:
‘
The
mere listing of significant events which took place during the period
in question without an explanation for the time that lapsed
between
these events does not place a court in a position properly to assess
the explanation for the delay. This amounts to nothing
more than a
recordal of the dates relevant to the processing of a dispute or
application, as the case may be.’
It
follows that the seeking and obtaining of condonation is not a mere
formality, a fact that the respondent’s attorney has,
at least,
acknowledged.
[7]
[18]
Having regard to these principles, and the
contents of the affidavit delivered by the respondent’s
attorney, it appears to
me that it is not in the interests of justice
to grant condonation.
The reasons advanced by the respondent’s
attorney are uninspiring. Indeed, the reasons that appear in his
affidavit are precisely
the type of reasons why condonation is
ordinarily not granted: a failure to account for all the time that
has elapsed, a failure
to bring the application at the first
available opportunity, general vagueness and unexplained lethargy. In
my view, n
o case has been made out for condonation
to be granted. The application for condonation is consequently
refused with costs.
[19]
It brings me no pleasure to find and comment as I
have but the conduct evidenced in this matter is happening ever more
frequently
in this division, where there has been a noticeable
decline in standards. Practice directives are routinely ignored by
legal practitioners
and the rules that permit the orderly
adjudication of matters are viewed as being unimportant. This must
not be permitted to continue.
[20]
By rights, the matter should then have been
adjourned to permit compliance with the practice directive to occur.
But in my view,
there is an obvious and simple resolution to the
dispute between the parties and the Trust will be prejudiced by a
further adjournment.
I therefore decided to hear the matter.
The
merits of the application
[21]
In bringing this application, the Trust invokes
the provisions of Uniform rules 70(3B) and 70(4). Uniform rule 70(3B)
reads as follows:
‘
(a)
Prior
to enrolling a matter for taxation, the party who has been awarded an
order for costs shall, by notice as near as may be in
accordance with
Form 26 of the First Schedule –
(i)
afford the party liable to pay costs at the time therein stated, and
for a period of ten (10)
days thereafter, by prior arrangement,
during normal business hours and on any one or more such days, the
opportunity to inspect
such documents or notes pertaining to any item
on the bill of costs; and
(ii)
require the party to whom notice is given, to deliver to the party
giving the notice within
ten (10) days after the expiry of the period
in subparagraph (i), a written notice of opposition, specifying the
items on the bill
of costs objected to, and a brief summary of the
reason for such objection.
(b)
For the purposes of this subrule, the days from 16
December to 15 January, both inclusive, must not be counted in the
time allowed
for inspecting documents or notes pertaining to any item
on a bill of costs or the giving of a written notice to oppose.’
[22]
Uniform rule 70(4) reads as follows:
‘
(4)
The taxing master shall not proceed with the taxation of any bill of
costs unless he or she is satisfied that the party liable
to pay the
costs has received –
(a)
due notice in terms of subrule (3B);
and
(b)
not less than 10 days' notice of the
date, time and place of such taxation and that he or she is entitled
to be present thereat:
Provided that such notice shall not be
necessary –
(i)
if the party liable to pay the costs has consented in writing to
taxation in his or her
absence;
(ii)
if the party liable to pay the costs failed to give notice of
intention to oppose in terms of
subrule (3B); or
(iii)
for the taxation of writ and post-writ bills:
Provided further that, if
any party fails to appear after having given the notice to oppose in
terms of subrule (3B)
(a)
(ii), the taxation may proceed in
their absence.’
[23]
The applicant contends that it complied with
Uniform rule 70(3B) and that the respondent did not comply with the
provisions of Uniform
rule 70(4).
[24]
Armed with the order, the attorneys who previously
acted for the respondent (the respondent’s erstwhile
attorneys), caused
the respondent’s bill of costs to be
prepared and sent it to the Trust’s erstwhile attorney in
conformity with the
provisions of Uniform rule 70(3B). The bill of
costs was accompanied by a notice of taxation, which advised the
Trust that:
(a)
It had a period of 10 days within which to inspect
the documents referred to in the bill of costs; and
(b)
It then had a further 10 days to submit to the
respondent’s legal representative its objections to any items
in the bill of
costs with which they did not agree.
[25]
The notice of taxation did not contain a date for
the taxation. That is entirely regular. If the taxation was to be
opposed, the
party seeking the taxation acquires a date for the
taxation from the taxing master and serves a notice of set down on
the party
opposing the taxation. If the taxation is not opposed, the
party seeking the taxation advises the taxing master of this and
requests
the bill to be taxed without notice to the other party.
[26]
The respondent’s notice of taxation and bill
of costs were served on the Trust’s erstwhile attorney on 30
April 2021.
Applying the time periods referred to in Uniform rule
70(3B), the Trust’s objections, if any, were due, at the
latest, by
28 May 2021.
[27]
It is not apparent if the Trust took advantage of
the entitlement to inspect the documents. It seems unlikely that it
did so. But
what is certain is that, in compliance with the
provisions of Uniform rule 70(3B), a notice of intention to oppose
the taxation
was prepared by the Trust’s erstwhile attorney, as
was a list of objections to some of the items in the bill of costs.
The
Trust’s notice to oppose the taxation is dated 28 May 2021.
The list of objections is found in a five-page document that
accompanied the notice of opposition. That document reveals that the
amount in respect of which objection was made totalled R48
577.33, a
substantial portion of the amount that was eventually allowed by the
taxing master. These two documents were served by
the Trust’s
erstwhile attorney by email on the respondent’s erstwhile
attorneys on 28 May 2021 at 11h33 in the morning.
They were thus
delivered timeously.
[28]
The effect of this was that the taxation became an
opposed taxation. The taxing master should have been so advised, at
least by
the respondent’s erstwhile attorneys. But that did not
happen. Instead, on 2 June 2021, the respondent’s erstwhile
attorneys wrote to the taxing master and stated, inter alia:
‘
2.
Please note that we have served the bill on 30 April 2021 and have
received no opposition or objections
to the bill which was due by 28
May 2021.
3.
Kindly attend to tax the bill.’
[29]
That,
of course, was incorrect. The Trust had done what was asked of it and
had notified the respondent’s erstwhile attorneys
of its
opposition and its objections. How had the respondent’s
erstwhile attorneys not realised this? The answer is not entirely
clear. The respondent’s erstwhile attorneys have not provided
an affidavit explaining what occurred. But the Trust came into
possession of a letter that the respondent’s erstwhile
attorneys had written to the respondent.
[8]
The letter is dated 19 August 2021. Its content is important, and it
is therefore quoted in full:
‘
1.
I refer to the taxation of the bill herein.
2.
I had demanded payment and was in the process of doing a Writ when I
received the following
e-mail from Franci Leppan’s office who
were the bills consultant instructed by Applicant’s attorneys
to oppose our
bill.
3.
Unfortunately whilst she has proof of having e-mailed the objections
to us, we had for some
reason or other not received same and this
could be for any number of reasons as on several occasions where we
were also without
power.
4.
In any event we will have to withdraw the taxed bill, meet with
Franci Leppan and tax the
bill after having dealt with each other and
every one of their objections as per the opposition attached hereto.
5.
We are accordingly attending to the taxation of the bill.’
[30]
While it remains unclear why the respondent’s
erstwhile attorneys did not receive the Trust’s documents
opposing the
taxation and setting out its objections to the bill of
costs, it is apparent that the respondent’s erstwhile attorneys
did
not dispute that those documents had been timeously sent to it
and that the Trust’s erstwhile attorney had proof of this.
It
was not disputed that these documents had been timeously and properly
delivered.
[31]
The respondent’s erstwhile attorneys may
possibly have been at fault regarding the instruction that they gave
the taxing master
on 2 June 2021. It is difficult to determine that
fact conclusively on the evidence before me. There is, perhaps, a
suspicion of
culpability that adheres to their conduct. But what the
respondent’s erstwhile attorneys proposed to the respondent to
remedy
the matter cannot be faulted. What was proposed was the clear
and obvious solution to the problem. The allocatur had to be set
aside and the taxation conducted as an opposed taxation. Moreover, it
was a process that the respondent’s erstwhile attorneys
should
have driven. Had this happened, I am confident that this matter would
not now be before me.
[32]
But unfortunately, this was not done. Why this was
not done may be found in the respondent’s answering affidavit.
It is not
disputed that the letter of 19 August 2021 was sent by the
respondent’s erstwhile attorneys to the respondent (it was
attached
to the founding affidavit in this application, marked as
annexure ‘FA6’). The respondent states with regard
thereto
that:
‘
Annexure
FA6 disclosed an opinion by [respondent’s attorney’s name
redacted] with reference to the retaxing of the Bill
of Costs and is
not an “agreement” by any stretch of the imagination. I
did not furnish [respondent’s attorney’s
name redacted]
with instructions to suspend the
Allocatur
as
suggested by the Applicants.’
[33]
The respondent, for reasons best known to him,
apparently did not give his attorneys instructions to proceed as they
had suggested.
And thus, the initial error was compounded. Instead of
following the advice given to him by his erstwhile attorneys, it
appears
that the respondent terminated their mandate and the services
of the attorneys currently representing the respondent were engaged.
The new attorneys, acting on the strength of the allocatur, then
issued the writ and the unfortunate chain of events previously
described then occurred.
[34]
Eventually, on 13 November 2023, this application
was brought. The relief sought is the following:
‘
1.
That the Taxing Master’s allocatur dated 5 July 2021 be and is
hereby uplifted and
the bill of costs is referred to the taxing
master for taxation.
2.
The writ of execution issued on 09 September 2022 in relation to the
allocatur be and is
hereby set aside.
3.
The costs of this application are to be paid by the Respondent on an
attorney and client
scale.’
[35]
The respondent opposes the relief sought. He
advances several grounds as justifying his opposition:
(a)
The Trust’s attorney had no authority to act
for them in these proceedings. He submits that the document put up by
the Trust
to establish that authority only authorised the bringing of
action and not application proceedings and, moreover, was only signed
by two of the four trustees of the Trust;
(b)
Too much time has elapsed since the taxation of
the bill of costs. He submits that the Trust ought to have taken
steps earlier to
set aside the taxation, if that was their intention;
(c)
The Trust’s notice of opposition to the
taxation is ‘irrelevant’ as its legal representative did
not attend the
taxation; and
(d)
There was an agreement between the parties that
led to what is referred to as a ‘compromise agreement’
(the compromise
agreement). The compromise agreement was apparently
concluded on 24 February 2023 and precludes the Trust from setting
aside the
allocatur.
[36]
I turn now to consider the defences raised.
[37]
On the first point raised, namely that the Trust’s
present attorney has no authority to represent it, my attention is
attracted
to a resolution of the Trust, dated 8 November 2019,
attached to the founding affidavit, which reads as follows:
‘
1.
The Trustees agree to institute an action and motion Court
proceedings against David Michael Barry
Duff in respect of the
purchase of the Farm Geelhout Boom No. 982.
2.
William Norman Dodd is authorized to instruct attorneys and depose to
affidavits and provide
said attorneys with the necessary instructions
to give effect to the decision taken in paragraph 1 above.’
The resolution clearly
contemplates action and motion proceedings and not just an action.
[38]
There
has, in any event, been no formal challenge brought by the respondent
in terms of Uniform rule 7.
[9]
If the Trust’s attorney’s authority was being challenged
that rule should have been used but was not.
[10]
A resolution of directors is sufficient to establish authority in an
instance where a company is involved in litigation.
[11]
I
can see no reason why that should not apply to a resolution of
trustees of a trust.
[39]
The parties have been litigating against each
other for several years and the point of a lack of authority has
never previously
been taken by the respondent. The litigation now
before me is merely a continuation of the original litigation –
even the
same case number is employed. Finally, the resolution put up
is not just signed by two of the Trust’s trustees, as the
respondent
alleges: it appears that the respondent has not taken
notice of the second page of the resolution. Had he done so, he would
have
realised that all four trustees signed the resolution. In my
view, the resolution is sufficient to establish the authority of the
Trust’s attorney to act for it.
[40]
The second point taken by the respondent relates
to the time that it has taken for this application to be launched. It
was launched
on 13 November 2023 and the bill of costs was taxed on 5
July 2021. Ms Nako, who appears for the Trust, explained that after
the
taxation, the taxed bill of costs was never served on the Trust.
Things simply went quiet. The next thing that happened was the
attachment of the Trust’s attorney’s bank accounts. There
was a delay while the relevant file was located but the delay
has not
been excessive.
[41]
The respondent has not suggested that there is any
legal impediment to the relief claimed by the Trust, merely that too
much time
has elapsed. An explanation has been provided by the Trust
for this, which I consider reasonable. The point cannot be sustained.
[42]
The third point raised by the respondent is
difficult to understand. It appears to be that the list of objections
compiled by the
Trust is irrelevant in the face of the fact that its
legal representative failed to attend the taxation. If I have
understood the
point correctly, it seems to me to be nonsensical. The
notice of taxation is attached to the papers. It does not indicate
when
the taxation will occur, for the reasons previously explained.
Instead, it states that the respondent ‘intends’
submitting
the attached bill of costs to the taxing master. The Trust
would therefore not have known when the taxation would occur. After
delivering its notice of opposition it should then have been advised
by the respondent of the date of the taxation. That did not
occur.
The Trust’s erstwhile attorney would not have had any idea when
the taxation would occur and their failure to attend
cannot be
ascribed to any default on their part. The Trust’s objections
were formulated and delivered and they ought to have
been heard by
the taxing master. This defence is accordingly without merit.
[43]
The final defence raised by the respondent is the
conclusion of the ‘compromise agreement’. In his
answering affidavit,
the respondent stated as follows:
‘
On
or about 24 February 2023 my present legal representative
[respondent’s attorney’s name redacted] reached a
‘COMPROMISE
AGREEMENT’ with [Trust’s current
attorney’s name redacted].’
The Trust denies that
this happened.
[44]
The respondent goes on to explain what was agreed
upon. I regard this as a significant part of the answering affidavit,
and I thus
quote this portion of it fully:
‘
29.
On the same date [Trust’s attorney’s name redacted] and
my Attorney [respondent’s
attorney’s name redacted] spoke
on the telephone to seek a resolution of the matter. Agreement was
reached with reference
to the resolution of the matter verbally
between [Trust’s attorney’s name redacted] and
[respondent’s attorney’s
name redacted] as follows:
29.1 The
prior unpaid cost order in favour of Applicants [the Trust] which had
not been taxed yet, estimated to be R35,000.00
(THIRTY FIVE THOUSAND
RANDS) will be deducted from the amount due in terms of the
Allocatur
and writ pending the taxation of the estimated R35,000.00 costs or
agreement on those costs.
29.2 The capital
claim of R104,389.69 plus interest there on from 5 July 2021 at the
rate of 7% per annum less the R35,000.00
stakeholder amount equated
to a balance of
R86,701.55
(hereinafter ‘the COMPROMISE
DEBT).
29.3 [Trust’s
attorney’s name redacted] will call upon the Applicants to
arrange for the judgement debt as reflected
in the Warrant of
Execution served on [Trust’s attorney’s name redacted]
(the execution of the
Allocatur
), together with the Sheriff
fees for the attachment, to be paid by the Applicants in order to
facilitate the release of the attachment
of the Trust Account of
[Trust’s attorney’s name redacted]’
[45]
There is a disconnect between this evidence and
what the respondent’s attorney stated in a letter sent to the
Trust’s
current attorney on 27 February 2023, three days after
the compromise agreement was allegedly concluded. It is,
unfortunately,
necessary to quote quite liberally from that letter:
‘
We
further confirm that during the said telephonic discussion you
referred to a cost order in the matter in favour of yourself and
that
you approximate that a sum of approximately R35,000 in (sic) due to
your firm in respect of that cost order.
In
order to assist you, in response to your letter of 24 February 2023,
please urgently dispatch to our offices and copy my personal
assistant on
mxx@xxxxxxxxx.co.za
[email
address redacted], a copy of the Order of Court in terms of which
costs are payable to [Trust’s attorney’s name
redacted]
so that we are in a position to take instructions on your request to
set off or retain a sum of approximately R35,000.00
in relation to
that cost order.
Also kindly confirm as a
matter of urgency whether or not you will let us have the itemised
bill of costs in respect of the cost
order today in order to inspect
same and determine whether the costs can be agreed whether same must
be referred to taxation.
Lastly, we confirm that
we undertake to immediately release the attachment of your trust
account against payment of the execution
debt.’
[46]
From this it is evident that no compromise
agreement was concluded. There was no agreement on the value of the
untaxed costs nor
was there an agreement that they could be offset
against the value of the allocatur. That might be agreed upon in the
future after
instructions were taken by the respondent’s
attorney. It is not clear whether the reference to ‘the
itemised bill of
costs’ refers to the bill of costs that had
already been taxed or to the costs order granted in favour of the
Trust, that
had not yet been taxed. If it is a reference to the
latter, it serves merely to reinforce the notion that the R35 000
had
not been agreed to by the respondent. If it is a reference to the
former, it demonstrates that the Trust still objected to the
allocatur.
[47]
I am therefore satisfied that the compromise
agreement was not concluded. All the defences to the relief claimed
by the Trust have
therefore failed.
[48]
A
taxed bill of costs may be set aside by a court
[12]
on the same basis as a default judgment may be rescinded.
[13]
It is thus not necessary to review the decision of the taxing
master.
[14]
After addressing
me on the condonation application, and after I heard argument from Ms
Nako on the merits of the matter, Mr Houston,
who appeared for the
respondent, indicated that the respondent would not make any further
submissions, save for certain submissions
on the issue of costs. Ms
Nako had already asked for costs on a punitive scale and Mr Houston
sought to persuade me that they should
not be awarded on that scale.
[49]
The common-sense approach to resolving the matter
was that initially identified by the respondent’s erstwhile
attorneys in
2021. The taxation was always going to be opposed by the
Trust. The Trust has never compromised its position in that regard
and
the taxation must therefore proceed on an opposed basis. The
respondent resisted the Trust’s application only to bend the
knee at the last possible moment. The relief claimed by the Trust is
virtually identical to that proposed to the respondent by
his
erstwhile attorneys in 2021. That was perfectly sensible advice. The
respondent chose not to follow the advice. He was entitled
to choose
to ignore it but with choices come consequences. The consequence of
him unnecessarily opposing this matter is a punitive
costs order,
which in my view should be ordered in this instance.
Order
[50]
I accordingly grant the following order:
1.
The respondent’s application for condonation
for the late delivery of his heads of argument is refused with costs
on the attorney
and client scale.
2.
The taxing master’s allocatur under case
number 7789/2019P, dated 5 July 2021, is set aside.
3.
The bill of costs under case number 7789/2019P
prepared by the respondent’s legal representatives is referred
to the taxing
master for taxation as an opposed taxation.
4.
The writ of execution issued by the respondent’s
legal representatives on 9 September 2022 based upon the allocatur
referred
to in paragraph 2 hereof is set aside.
5.
The respondent shall pay the applicants’
costs of the application on an attorney and client scale.
MOSSOP J
APPEARANCES
Counsel
for the Trust:
Ms
N. Nako
Instructed
by:
Norman
Seppings Attorney
Locally
represented by:
Botha
Olivier Attorneys
239
Peter Kerchoff Street
Pietermaritzburg
Counsel
for the respondent:
Mr
B C Houston
Instructed
by:
Selzer
Law
Locally
represented by:
Austen
Smith Attorneys
1
Highgate Drive
1
George MacFarlane
Wembley
Pietermaritzburg
[1]
In
addition to this application, there is a main action also brought
under case number 7789/2021P, an interlocutory application
in terms
of Uniform rule 24 under the same case number, and an application
for declaratory relief under case number 15817/2023P.
[2]
The judgment was
delivered on 3 December 2020.
[3]
The taxation occurred on
5 July 2021.
[4]
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
Amicus Curiae)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC) para 20.
[5]
Ibid
para 22.
[6]
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
(2010)
31 ILJ 1413 (LC) para 13.
[7]
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6.
[8]
The Trust apparently
acquired a copy of the letter from the respondent’s erstwhile
attorneys. No objection was raised by
the respondent to its
production.
[9]
Uniform rule 7(1) reads
as follows:
‘
Subject
to the provisions of sub-rules (2) and (3) a power of attorney to
act need not be filed, but the authority of anyone acting
on behalf
of a party may, within 10 days after it has come to the notice of a
party that such person is so acting, or with the
leave of the court
on good cause shown at any time before judgment, be disputed,
whereafter such person may no longer act unless
he satisfies the
court that he is authorised so to act, and to enable him to do so
the court may postpone the hearing of the
action or application.’
[10]
ANC
Umvoti Council Caucus and others v Umvoti Municipality
2010
(3) SA 31
(KZP) para 28
[11]
Poolquip Industries
(Pty) Ltd v Griffin and another
1978
(4) SA 353 (W).
[12]
Sheriff
of Pretoria North East v SA Taxi Development Finance (Pty) Limited
and others
[2023]
ZAGPJHC 346;
Tommy’s
Used Spares CC t/a Tommy’s Auto Parts v Attorneys Anand-Nepaul
and another
[2020]
ZAGPJHC 269.
[13]
The
requirements to rescind a judgment at common law are that
an
applicant must show good cause, by providing a reasonable
explanation for the default, the application must be brought in good
faith and a bona fide defence that has prospects of success must be
disclosed. Even if there has been compliance with these
requirements, a court retains a discretion, to be exercised
judicially, on a consideration of the relevant circumstances:
Turnerland
Manufacturing (Pty) Ltd v Taxing Master, Western Cape High Court and
another
2024
(1) SA 518
(WCC) paras 46-49;
Gründer
v Gründer en andere
1990
(4) SA 680
(C);
Interactive
Trading 115 CC and another v South African Securitisation Programme
and others
2019
(5) SA 174
(LP).