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2023
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[2023] ZAGPJHC 52
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Nedbank Limited v Nojozi (21/23415) [2023] ZAGPJHC 52 (26 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 21/23415
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
26/1/2023
In
the matter between:
NEDBANK
LIMITED
Plaintiff
/ Applicant
and
NOJOZI,
NOGOLIDE FEZIWE
Defendant
/ Respondent
JUDGMENT
MOORCROFT
AJ:
Summary
Action
and subsequent application for default judgment – Plaintiff not
proceeding as defendant had started making payments
in terms of
settlement agreement – Plaintiff entitled to costs at the
agreed scale – Defendant entitled to cost order
in respect of a
day when the matter had to be removed from the roll after the
defendant had timeously filed an answering affidavit
and the matter
could not proceed on the unopposed motion court roll
Order
[1]
In this matter I make the following order:
1.
The plaintiff is ordered to pay the
wasted costs of the enrolment on 19 July 2022 on the scale as between
attorney and client;
2.
Save as aforesaid, the defendant is
ordered to pay the costs of the action and the default judgment
application on the scale as
between attorney and client.
Analysis:
[2]
The reasons for the order are set below.
[3]
The plaintiff launched its action in 2021,
claiming two amounts totalling R4,6 million due in respect of two
loans, one secured
by a bond and the other on an overdraft agreement.
A settlement agreement between the parties was made an order of court
in January
2022 and subsequently, in May 2022 the plaintiff applied
for default judgment because of alleged non-payment in terms of the
settlement
agreement.
[4]
The matter was enrolled for 19 July 2022 in the
opposed motion court. On the day it was removed from the roll in the
circumstances
outlined below.
[5]
In August 2022 the smaller of the two claims
were paid and the default judgement application was intended to
proceed on the remaining
claim. It was enrolled on the opposed roll
for 23 January 2023.
[6]
The defendant started making payments in terms
of the settlement agreement and the dispute was settled on that
basis. The question
of costs could not be settled and therefore
remained outstanding. The matter was then argued on 23 January 2023.
[7]
The plaintiff was justified to launch its
action and the subsequent application for default judgment and an
application for executability
in terms of Rule 46A of the Uniform
Rules. It was argued on behalf of the defendant that the plaintiff
was already debiting costs
on its accounts and that costs should not
be paid twice. This is obviously correct. The cost order granted
above is not and must
not be seen as authorising the debiting of
costs in this litigation in addition to the agreed or taxed costs.
The plaintiff will
be entitled to only the costs taxed by the taxing
master.
[8]
The agreements that underline the litigation
provide for a cost on the scale as between attorney and client and
the plaintiff is
contractually entitled to costs on the attorney and
client scale.
[9]
The costs of the enrolment on 19 July 2022
referred to above stand on a different footing. The defendant gave
notice of his intention
to oppose the default judgment application on
23 June 2022, a few days after service of the application, and an
answering affidavit
was uploaded to CaseLines on 5 July 2022. The
plaintiff persisted with the application on the basis that the
answering affidavit
- filed 14 days before the hearing date and 12
days after notice of intention to oppose had been given - was
incomplete and unsatisfactory.
[10]
On 19 July 2022 the matter was removed from the
roll and the costs were reserved.
[11]
When the defendant filed an answering affidavit
in the Rule 46A application, the unopposed motion court roll was no
longer the suitable
forum and the application ought to have been
removed, and placed on the opposed roll. The plaintiff was of course
also entitled
to file replying affidavits, which it did in August
2022 after the defendant had filed two supplementary answering
affidavits.
[12]
It is appropriate therefore that the wasted
costs of the appearance on 19 July 2022 be paid by the plaintiff. It
is also appropriate
in my view that such costs be paid on the same
scale as the plaintiff is claiming.
Conclusion
[13]
I therefore make the order as set out above.
J
MOORCROFT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
JOHANNESBURG
Electronically
submitted
Delivered:
This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be
27 January 2023
.
COUNSEL
FOR THE PLAINTIFF:
GM
MAMABOLO
INSTRUCTED
BY:
CLIFFE DEKKER HOFMEYR INC
ATTORNEY
FOR THE DEFENDANT: K
SIMANGO
INSTRUCTED
BY: MEMELA
JONES INC
DATE
OF THE HEARING:
23
JANUARY 2023
DATE
OF ORDER: 27
JANUARY 2023
DATE
OF JUDGMENT:
27
JANUARY 2023