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IN THE NORTH GAUTENG HIGH COURT. PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 4.1775/2012

DATE: 15 NOVEMBER 2013

In the matter between:

RETAIL MOTOR INDUSTRY ORGANISATION....................................... .Applicant

and

THE SOUTH AFRICAN MOTOR BODY REPAIRERS

ASSOCIATION NPC.......................................................................... ......1^st Respondent

COMPU CORNER CC......................................................................... ..2^nd Respondent

THE COMPANIES AND INTELLECTUAL

PROPERTY COMMISSION................................................................ .3^rd Respondent

EBEN JANSEN...................................................................................... ..4^th Respondent

WILLEM GOUWS PIENAAR........................................................... ...5^th Respondent

JOHANNES MAGHIEL BOTH......................................................... ...6^th Respondent

MOSES JOHN WILLIAMS............................................................... ....7^th Respondent

STEPHEN DE BEER.......................................................................... ....8^th Respondent

JAMES BARRY STEWART ............................................................ .....9^th Respondent

ANDREW⁷ JULIAN PRETORIUS.................................................. ...10^th Respondent

GIDEON JOHANNES SMITH....................................................... ....11^th Respondent

ALEESHEN DEVINDERAN KISTEN.................................. ............12^th Respondent

JUDGMENT

JANSEN AJ

Nature of Application:

[1] This application deals with costs only. The applicant obtained substantive relief in the urgent court on 28 August 2012 and the issue of costs was postponed sine die. The issue to be decided is whether the costs of the two counsel were justified and on which scale the costs should be taxed.

[2] In the instant case the first, second and fourth to twelfth respondents all noted their opposition to the application on 24 July 2012.

[3] A dispute arose as to whether Robert H Kanarek Attorneys (the first and second respondents’ firm of attorneys) acted on behalf of the first, second and fourth to twelfth respondents, or only on behalf of the first and second respondents when notice of intention to oppose was given. Only the first and second respondents filed an answering affidavit. However, the affidavit was filed outside the time period prescribed in the notice of motion. The first and second respondents alluded to the fact that the first respondent, after service of the application but before the date of hearing, had already applied to have its name changed so that it no longer fell foul of section 11(2) of the Companies Act 71 of 2008. Furthermore, the first and second respondents, in their answering affidavit, tendered the applicant’s taxed party and party costs, with costs of one counsel in respect of the costs it would have been entitled to as at that point in time[i]. They further disputed that the applicant was entitled to the punitive cost order that was sought and the application warranted the employment of two counsel.

[4] Furthermore, it was argued on behalf of the applicant that the respondents disclosed no bona fide defence in their answering affidavit and effectively only challenged the applicant’s attorney of record’s authority to act on behalf of the applicant’s board. It was also contended, on behalf of the applicant, that the respondents failed to disclose a bona fide defence in the correspondence preceding litigation. The court was urged to penalise the improper conduct of the respondents.

[5] It was argued on behalf of the applicant, that before launching an urgent application, it served a written demand on the respondents.

[6] It was further argued on behalf of the applicant that the respondents were, at all times, actuated by malice demonstrative of grave misconduct on the part of the respondents towards the applicant. It was also emphasised that the fourth to twelfth respondents withdrew their opposition twenty one (21) days after filing their notice of opposition which notice of opposition on the basis that it was erroneous, in that Robert H Kanarek Attorneys were not authorised to represent them. It was argued that Robert H Kanarek Attorneys’ withdrawal was deliberate in order to avoid a costs order, leaving the applicant with an order against a newly formed non-profit company only. The withdrawal also took place shortly before the hearing. Nonetheless the court made an order against all twelve respondents.

[7] The application deals with Section 34 of the Trade Marks Act (194 °f 1993), section 11(2) of the Companies Act 71 of 2008, and the publishing and dissemination of injurious falsehoods and defamatory matters pertaining to the applicant.

 

[8] It was also emphasised that the respondents’ defamatory statements and unlawful conduct threatened to impugn the applicant’s reputation, and placed its finances in jeopardy.

 

Costs of two counsel:

 

[9] Costs of two counsel are awarded where an important interest or principle is at stake or legal difficulties warrant the employment of two counsel.

 

[10] It was contended on behalf of the applicant that the costs of two counsel were justified, on a consideration of the factors which the court has to consider.

 

[11] Amongst the relevant considerations to be taken into account in considering whether to award costs of two counsel are the following: —

 

[12 The volume of evidence (oral or written) dealt with by counsel or which he/she or they could reasonably have expected to be called upon to deal with;

 

[13] The complexity of the facts or the law' relevant to the case;

[14] The presence or absence of scientific or technical problems, and the difficultly if the)⁷ were present;

[15] Any difficulties or obscurities in the relevant legal principles or in the application thereof to the facts of the case;

[16] Whether the court took time to consider its judgment;

[17] The importance of the matter in issue, insofar as that importance may have added to the burden of responsibility undertaken by counsel.[ii]

[18] The test is objective and the issue is whether it was proper and reasonable to brief senior counsel with a junior in a matter and not in light of what the court thinks of the ability and experience of the particular counsel[iii].

[19] The enquiry in any specific case is whether. in all the circumstances, the expenses incurred in the employment of more than one counsel were “necessary or proper for the attainment of justice or for defending the rights of the parties”, and were not  incurred through ‘‘over-caution, negligence or mistake”.[iv]

[20] Costs, particularly at present, play a very important role in litigation and the presiding judicial officer should, in the court’s view, discourage parties to incur unnecessary costs by making an appropriate order in this respect. A part}' must pay such costs as have been unnecessarily incurred through his failure to take proper steps, or through his taking wholly unnecessary steps: see Herbstein and Van Winsen The Civil Practice of the High Courts of South Africa Fifth Edition Volume 2 at page'961 et seq.; De Villiers v Union Government (Minister of Agriculture) 1931 AD 206 at 214.[v]

[21] As was stated in the case of Rand Toivnships and Smallholdings (Pty) Ltd v Griebenoiv 1956 (2) SA 42 (W) “…when it is borne in mind that the claim was by no means for a trivial sum it cannot be said that the engaging of two counsel by the plaintiff's attorney ivas anything but a prudent and proper step. The fact that the eventual investigation of the facts proved perhaps more simple and expeditious than it might have been is not relevant.”

[22] In the instant case, it cannot be stated that the issues involved did not warrant two counsel. The issues involved, namely trade mark infringement and defamation are not straightforward issues and can became highly intricate. However, after the notice of withdrawal of the third to twelfth respondents and the tender contained in the answering affidavit, there was no necessity for the involvement of two counsel. The length of the affidavits in not important. What is important is the intricacy or otherwise of the facts and law.

 

[23] Hence, up until 13 August 2012 when the firm of attorneys, namely Robert H Kanarek Attorneys withdrew⁷ as attorneys for the fourth to twelfth respondents, the employment of two counsel was warranted. However, upon receipt of the answering affidavit of the first and second respondents on 14^th August 2012 the employment of only one counsel w^as warranted, as argued by counsel for the respondent. Clearly the respondents capitulated on the merits, which is an important factor to be taken into account when assessing which party should pay the costs of the application.

 

[24] In Gamlan Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd and Another 1996 (3) SA 692 (C) at page 701 the following was stated:

 

“Even where the decision in respect of costs is 'separate' from the merits, as is the case where a decision on the merits is no longer sought, this does not mean that the decision on costs must of necessity be totally isolated from the merits. Indeed, in an appeal against a costs order, the Court's decision, in the absence of other relevant factors, would in the normal course be largely based on whether or not the appellant would have been successful on the merits: see Erasmus v Grunow en 'n Ander 1980 (2) SA 793 (O) at 797B-H and 798D-H ”

 [25] On the facts set out above, both parties were at fault for the manner in which the case was conducted - the respondents should have tendered the relief sought earlier, thus obviating the necessity of an urgent application being launched (particularly in view of the mediation which took place which should have alerted them to the fact that they had no defence) and the applicant should have refrained from filing a lengthy replying affidavit dealing, in the main, with costs only. Fact remains, however, that it was necessary to set the matter down for a judgment and order in respect of costs.

Order

In the event, the following order is made: —

1. The respondents are ordered to pay the costs of the application on a party and party scale until the filing of the first and second respondents' answering affidavit, namely the 21^st of August 2012, such costs to include the employment of two counsel.

2. The applicant to pay all costs incurred thereafter, including the costs of the hearing of the urgent application on an opposed basis and the costs incurred in the hearing of this application pertaining to costs.

MM   JANSEN  AJ

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT

BARNARD INCORPORATED

Oak House

118 Oak Avenue

Highveld Technopark

CENTURION

Tel: (0861) 088 088

Fax: (0861) 099 099

e-mail: info@barnardinc.co.za

REF: D BREEDT/rb/RB02i5

c/o PRETORIUS LE ROUX INC

339 Hilda Street

3^rd Floor

HATFIELD

Pretoria

COUNSEL FOR THE APPLICANT

ADVOCATE LW DE ICONING

Mobile: 082 929 8264

 

ADVOCATE WJ BOTHA

Mobile: 082 7600 282

 

ATTORNEYS FOR THE FIRST AND SECOND RESPONDENTS ROBERT H KNAREK ATTORNEYS

33 The Avenue Orchards

Tel: (oil) 483 3450

Fax: (Oil) 483 3455

Ref: RH Kanarek/pm/S365

c/o THYS CRONJE INC

258 Brooklvn Road

MENLO PARK

Pretoria

Tel: (012) 362 4959 Fax: (012) 362 4958 Ref: Thys Cronje

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS

 

ADVOCATE HP NIEUWENHUIZEN

 Mobile: 083 304 1181

 

ATTORNEYS FOR THE 4™ TO 12^th RESPONDENTS KIRSHEN

NAIDOO AND COMPANY INC

Ground Floor, Block B

Sandown House, Sandton Close 2

Cnr 5^th Street and Norwich Close

SANDTON

Tel: (oil) 784 1279

Fax: (011) 784 1847

c/o ANDREA RAE ATTORNEYS

69 Douglas Street

COLBYN

Pretoria

REF: KKN/JHB/MAT 3112

COUNSEL FOR THE 4™ TO 12™ RESPONDENTS

ADVOCATE CLAIRE DE WITT

Mobile 081 049 4579

 

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