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[2006] ZAGPHC 88
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Government Employees Pension Fund v Kuppen and Another In re: Kuppen and Another v Government Employees Pension Fund (26669/05) [2006] ZAGPHC 88 (5 September 2006)
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Case Number: 26669/05 In the matter between: THE GOVERNMENT EMPLOYEES PENSION FUND APPLICANT and KUPPEN, GP FIRST REPONDENT KUPPEN, L SECOND RESPONDENT In re: KUPPEN, GP FIRST APPLICANT KUPPEN, L SECOND APPLICANT and THE GOVERNMENT EMPLOYEES PENSION FUND RESPONDENT _____________________________________________________________________ JUDGMENT _____________________________________________________________________ MOKGOATLHENG AJ Introduction
[1]
This is an application for the rescission of the judgment granted by Legodi J on the 14th of August 2005, in terms whereof the applicant was ordered to pay the first respondent within 14 days;
(a)
his pension fund benefits as contemplated in the Government Employees Pension Law, 1996, including interest thereon, as from the 28th April 2005, and
(b)
the costs of the application on a party and party scale.
[2]
The applicant is a pension fund established in terms of section 3 of the Government Employees Pension
Law, 1996 to administer and provide pension benefits to its members.
[3]
The first respondent is an educator formerly employed by the KwaZulu-Natal Provincial Department of Arts, Education and Culture, and was until his resignation on the 28th of February 2005 a member of the applicant.
[4]
On his resignation from the applicant the first respondent became entitled to certain pension benefits payable in accordance with section 26 of the Government Employees Pension Law, 1996, (“The Law”).
[5] Section 26 of “The Law” governs the payment of pension benefits and provides that;
(1)
“Notwithstanding anything to the contrary in any law contained, a benefit payable in terms of this Law shall be paid to the member, pensioner or beneficiary entitled to such benefit within a period of 60 days after the date on which the Board receives a duly completed statement before the date on which the benefits becoming payable to the member, pensioner or beneficiary, concerned in terms of this Law, within a period of 60 days after the date on which such benefit is so payable,
(2)
if a benefit is not paid within the period referred to in subsection (1), interest shall be paid by the Fund to the member, pensioner or beneficiary on any part of the amount of the benefit not paid within the period of 60 days referred to in subsection (1) at the rate prescribed”.
[6]
The first respondent complied with the requirements of section 26 of “The Law.” He has duly submitted the completed statement in the prescribed form. On the 26th of June 2005 he elected the mode of his payment as required in terms of Rule 14.4.1A.
[7] The applicant instituted an urgent application on the 1st of August 2005. On the 4th of August 2005 he obtained an order compelling the applicant to effect payment of his pension benefits including the accrued interest thereon. On the 5th of August 2005 the first respondent’s pension benefits were paid into his banking account by the applicant.
THE RULE 42 (1) (a) APPLICATION
[1]
The applicant instituted this application in terms of Rule 42(1)(a) for the rescission of the judgment issued on the 4th of August 2005. This application is premised on the ground that the judgment was erroneously sought by the first respondent or erroneously granted by the learned Judge.
[2]
The reasons proffered by the applicant in support of this application as averred by Esti De Witt, the applicant’s legal advisor are the following;
(a)
the urgent application was served on the applicant on the 1st August 2005,
(b) on the 2nd of August 2005 she scrutinised the Notice of Motion, and thoroughly studied the first respondent’s founding affidavit,
(c)
she intended to give instructions to the applicant’s attorneys before the 9th of August 2005 to oppose the urgent application,
(d) she understood that the first respondent intended approaching this court on the 10th of August 2005 for an order on an urgent basis,
(e)
on the 4th of August 2005 whilst preparing instructions she became aware that default judgment had been granted against the applicant,
(f)
she was stunned, on a closer scrutiny of Notice of Motion she discovered that it was stated that unless the applicant noted its intention to oppose on or before the 3rd of August 2005, the first respondent would approach this court on the 4th of August 2005 on an unopposed basis,
(g) when she first scrutinized the Notice of Motion she did not discern the import of the above described paragraph, and
(h)
the applicant contends that the Notice of Motion is defective, does not comply with Rule 6(4)(a) of the Uniform Rules of Court and does not conform to Form 2.
[3]
In order to determine whether this application has merit it is apposite to consider the factual matrix upon which it is predicated.
THE APPLICANT’S GROUNDS FOR THE RESCISSION OF JUDGMENT
[1]
The applicant contends that the first respondent’s urgent application had no merit, that had the applicant opposed same it would have succeeded with a punitive costs order against the first respondent.
[2] The applicant argues that the first respondent’s application is not the causa that obliged it to pay the first respondent’s pension benefits; consequently the application did not serve any purpose in furthering the first respondent’s case. [3] The applicant states that the process of calculating the pension benefits payable to the first respondent is triggered once the applicant is furnished with the duly completed statement in the prescribed form.
[4]
The applicant contends that, prior to it being aware of the urgent application, the process of calculating and effecting payment of the first respondent’s pension benefits was already initiated.
[5]
The applicant avers that it became aware of the court order after the payment process was already completed, and argues that the first respondent would have received his pension benefit irrespective of the court order, and submits it was not necessary for the first respondent to have instituted this urgent application.
[6] The applicant argues that the first respondent was aware that it disputed his version and submits that the respondent erroneously sought the order, and that the learned Judge erroneously granted the order, had the learned Judge been aware of the above described facts he would not have issued the order.
THE APPLICABLE LEGAL PRINCIPLES
[1]
The application for the rescission of judgment is premised only on Rule 42 (1)(a), this in my view does not preclude the Court from determining the application in terms of the common law if the applicant does not succeed under Rule 42(1)(a).
[2]
In the High Court, a judgment may be rescinded in terms of Rule 31 and Rule 42 of the Uniform Rules of Court or the common law. See De Wet and Others v Western Bank Ltd 1977 (4) SA 770 (T )at D-F. Rule 31(5)(d) is not relevant in the present matter. The provisions of the Rules relevant in the present matter are the following:
[3]
Rule 31 (2) (b) provides as follows;
“the defendant may within 20 days after he or she has knowledge of such judgment apply to court upon notice to the plaintiff
to set aside such judgment, the court may upon good cause shown, set aside the default judgment on such terms as to it seems meet.”
[4]
Rule 42(1) provides that;
“The Court may, in addition to other powers it may have, mero motu or upon the application of any other party affected, rescind or vary –
(a)
an order or judgment erroneously sought or erroneously granted in the absence of any party affected
thereby …”
[5]
In my view, it seems that an order may be said to have been erroneously granted if at the time of its issuing there was a procedural irregularity or error made during the proceedings which is patent in the record. See Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 SCA.
THE ANALYSIS OF EVIDENCE AND ARGUMENT
IN RESPECT OF THE RULE 42 (1) (a) APPLICATION
[1]
I turn now to consider whether the grounds proffered by the applicant in justification of the rescission of the default judgment have merit.
[2] The applicant does not dispute that it had a legal obligation to pay the first respondent’s pension benefits. The payment of the pension benefits and the appropriate interest was effected on the 5th of August 2005. [3] The applicant argues that the court order does not compel the payment of the first respondent’s pension benefits; and submits that it compels the payment of the first respondent’s pension benefits within 14 days of the court order that which is in conflict with section 26 of “The Law”. [4] The applicant argues that the first respondent has wrongly caused this Court to issue an order creating a precedent that could severely prejudice the applicant, and contends that should the order not be rescinded, it will entitle the applicant’s members to simply approach the urgent court for an order to compel payment from the applicant within 14 days. [5] The applicant contends that the first respondent does not dispute that; (a) the court order is incorrect,
(b)
the applicant initiated the payment process and payment of the first respondent’s pension benefits prior to and without being aware of the court order,
(c) the applicant is by law barred from effecting any payment unless the first respondent clearly and in the prescribed manner informs the applicant of its election to receive payment either in terms of Rule 14.4.1A or 14.4.1B.
[6]
The applicant states that the first respondent received all his pension benefits prior to the granting of the court order and argues that it is clear that the urgent application did not in any manner influence or expedite the payment of the pension benefits.
[7] The applicant submits that the prayers in the Notice of Motion have been fulfilled and adhered to in full prior to the Court’s sanctioning thereof, and that there is no reason for an unwarranted judgment against it. [8] The applicant argues that the first respondent’s application had no merit in that had it opposed same it would have been successful because of the following facts;
(a)
the first respondent’s application is not the causa for the consequent payment by the applicant,
(b) the payment of the first respondents pension benefits was initiated prior to the 1st of August 2005 without the applicant having been aware of the urgent application, payment was effected before default judgment was granted,
(c)
if the court was aware that the first respondent’s pension benefits were paid on the 4th of August 2006 the court would not have granted the order,
(d) if the court was aware that the first respondent had not furnished the applicant with the duly completed statement in the prescribed form, and had not made an election in terms of Rule 14.4.1A it would not have granted the order.
[9]
In my view, the narration of the above mentioned reasons on which the applicant’s failure to oppose the urgent application is predicated, and the grounds which the applicant enunciates in support of the rescission of judgment, do not disclose a procedural irregularity or mistake in respect of the issuing of the order.
[10]
It is not possible to conclude that the order was erroneously sought by the first respondent, or erroneously granted by the learned Judge. In the absence of an answering affidavit from the applicant, there was no good reason precluding Legodi J to grant default judgment. It cannot be cogently argued that the order was erroneously sought by the first respondent or erroneously granted by Legodi J. See Colyn (supra) at 8 para 9 G - H
[11] I turn now to consider whether the reasons proffered by the applicant are sufficient to establish good cause for the rescission of the judgment as required by the common law. THE RESCISSION OF JUDGMENT
UNDER THE COMMON LAW
[1]
It seems the provisions of Rule 31(2)(b) are analogous to, and resonate the common law requirements that an applicant in order to succeed must show “sufficient cause” and furnish a reasonable, satisfactory explanation in support of the rescission of a default judgment.
[2]
In terms of the common law a default judgment may be set aside on the grounds of fraud or justus error. See Childerley Estate Stores v Standard bank of South Africa Ltd 1924 OPD 163. In De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1041B et seq Trengrove AJA, (as he then was), had occasion to consider the common law provisions relating to the rescission of judgments. The learned judge remarked as follows;
The Courts of Holland, as I have mentioned, appear to have had a relatively wide discretion in regard to the rescission of default
judgments, and a distinction seems to have been drawn between the rescission of default judgments which had been granted without
going into the merits of the dispute between parties, and the rescission of final and definitive judgments, whether by default or not, after evidence had been adduced on the merits of the dispute. (Cf Athanassiou v Schultz 1956 (4) SA 357 (W) at 306 G, and Verkoteren v Savage 1918 AD 143 at 144). In the former instance the Court enjoyed relatively wide powers of rescission whereas in the latter event the Court was, generally
speaking regarded as been functus officio, and judgments could only be set aside on the limited grounds mentioned in the Childerley case. ….the learned judge at 1042 F continued and stated that “Thus, under common law the Courts of Holland were, generally speaking, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown. This power
was entrusted to the discretion of the Court. Although rigid limits were set as to the circumstan ces which constituted sufficient cause … the Courts nevertheless laid down certain general principles, for themselves, to guide
them in the exercise of their discretion. Broadly speaking, the exercise of the Court’s discretionary power appears to have
been influence by considerations of justice and fairness, having regard to all the facts and circumstances of a particular case.
The onus of showing the existence of sufficient cause for relief was on the applicant in each case, and he had to satisfy the Courts, inter
alia, that there was a reasonably, satisfactory explanation why the judgment was allowed to go by default. It follows from what I have said that the Court’s
discretion under the common law extended beyond, and was not limited to, the grounds provided for in Rules 31 and 42 (1), and those
specifically mentioned in the Childerley case.”
[3]
The applicant is obliged to disclose the reasons for his default because it is relevant to the question whether the applicant’s default was wilful or not. Before a person can be said to be in wilful default the following must be shown;
(a)
knowledge that the action is being brought against him,
(b) a deliberate refraining from entering appearance though free to do so, and (c) a certain mental attitude towards the consequences of the default
[4]
In Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0) Brink J held that the following requirements should be complied with in order to show “good cause”;
“(a)
An applicant must give a reasonable explanation of his default. If it appears that his default
was wilful or that it was due to gross negligence the court should not come to his assistance,
(a)
The application must be bona fide and not made with the intention of merely delaying plaintiff’s claim, and
(b)
The applicant must show that he has a bona fide defence to the plaintiff’s claim. It is sufficient if he makes out a prime facie
defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need
not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.”
[5]
Smallberger J in HDS Construction (Pty) Ltd v Wait 1979 (2) SA 298 (E) at 300H – 301A stated that;
In other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairn’s Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 “The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances”
[6]
A court will not come to the assistance of a defendant whose default was wilful or due to gross negligence.
In Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at page 765 A-E Miller J A had occasion to deal with the expression “sufficient cause” or “good cause”, and stated that:
“these concepts defy precise or comprehensive definition, for many and various factors require to be considered.”
[7]
The learned Judge stated that it is clear that in principle the two essential elements of “sufficient cause” for rescission of a judgment by default are:
“(i)
that the party seeking relief must present a reasonable and acceptable explanation for his
default; and
(ii)
that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.
It is not sufficient if only one of these two requirements is met; for obvious reasons a party showing no prospects of success on
the merits will fail in an application for rescission of a default judgement against him, no matter how reasonable and convincing
the explanation of his default. An orderly judicial process would be negated if, on the other hand, a party who could offer no explanation
of his default other than his disdain of the Rules was nevertheless permitted to have a judgement against him rescinded on the ground
that he had reasonable prospects of success on the merits.”
[8]
In relation to the element of wilfulness, King J. held – Maunjean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994(3) SA 801 (C) that;
“(a)
Wilful connotes deliberateness in the sense of knowledge or the action or consequences and
a conscious and freely taken decision to refrain from giving notice of intention to defend (or file a plea), whatever the motivation
for his conduct might be.”
THE NOTICE OF MOTION IS DEFECTIVE
[1]
In considering whether the applicant has shown “good cause” for its default, or its failure to deliver its answering affidavit or whether the applicant has a reasonable, satisfactory and acceptable explanation, I am enjoined to determine whether the reasons proffered by the applicant justify the rescission
of the default judgment.
[2]
The applicant contends that the first respondent’s Notice of Motion does not comply with the Rules, it argues that it is defective and it is a nullity because it was not drafted in accordance with Rule 6(4)(a).
[3]
In my view, there is no merit in this contention. The Notice of Motion is in a form as near as may be in accordance with Form 2, and complies with the Practise Direction 1 of 1991 issued by Flemming DJP. See Gallagher v Norman Transport Lines (Pty) Ltd 1992 (3) SA 500 at 502 E-H.
THE COURT ORDER IS INCORRECT
[1]
The applicant contends that because the court order reflected the incorrect scale of costs as granted on an attorney and client scale instead of the party and party scale, this aspect argues the applicant is a ground for rescinding the order.
[2]
It has been held that, “In exceptional circumstances a Court may recall its order either mero moto or on an informal application by a party to supplement or clarify its order”. This principle is not applicable in this matter. See Firestone SA (Pty) Ltd v. Genticuro AG 1977 (4) SA 298 A at 306 H - 308 A; and De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1044 E-1045 G.
[3] The order granted by Legodi J is clear and unambiguous. The order was subsequently obviously incorrectly typed by the office of the Registrar, to reflect an incorrect costs order, but this does not render the order issued by the learned Judge incorrect or nugatory. In any event the applicant has not suffered any prejudice as a result of the incorrectly typed order. THE LEGAL ADVISOR’S EXPLANATION [1] The applicant’s legal advisor explains that “she scrutinised the Notice of Motion and thoroughly studied the founding affidavit”. The New Shorter Oxford English Dictionary Volume 2, 4th edition defines the verb “scrutinize” as being, to subject to a methodical examination, to inspect with close attention, or to undertake an inquiry or examination”. [2] If the applicant’s legal advisor scrutinized the Notice of Motion as she alleges, it is inexplicable why she did not discern that the application was set down for the 10th of August 2005. [3] The question is whether the applicant’s legal advisor’s conduct was grossly negligent as a consequence of her failure to correctly read and understand the import of a Notice of Motion.
[4]
In my view, the applicant’s legal advisor’s conduct though not conforming to the conduct expected of a reasonable legal advisor, cannot be construed as grossly negligent in the circumstances as it appears that she committed a bona fide mistake.
[5]
The second issue to consider is whether the applicant has a bona fide defence to the first respondent’s
claim, and if so, whether the averments set out by the applicant, make out a prima facie case which carries some prospects of success which entitles it to the relief it seeks.
DOES THE APPLICANT HAVE A BONA FIDE DEFENCE
INSUFFICIENT INFORMATION BY THE EMPLOYER
[1]
The applicant contends that it did not receive proper and complete information from the first respondent’s employer to enable it to process the payment of his pension benefits, and says the first respondent did not indicate whether he elects that his benefits be paid into;
(a)
his personal bank account in terms of the Rule 14.4.1A or
(b) the bank account of an approved external fund, as provided for in terms of Rule 14.4.1B.
[2]
The applicant contends that prior to such election, or choice it is precluded by section 26 of “The Law” from paying any benefits.
[3]
The applicant received the required information on the 26th of June 2005. It subsequently processed the information and paid the benefits on the 5th of August 2005.
[4]
The provisions of section 26(1) of “The Law” are peremptory. There is a duty on the
applicant to promptly initiate the processing and payment as soon as a member resigns.
[5] It is patent that since the first respondent’s resignation on the 28th of February 2005, the applicant has failed to diligently and expeditiously process and effect payment of his pension benefits as contemplated by section 26 (1) of “The Law”.
[6]
In my view, the applicant initiated the pension benefits payment process on the 1st of August 2005, this is patent from the documents generated by the applicant’s civpen computer system.
[7] The applicant has not proffered any reasonable explanation regarding the steps it took to deal with the first respondent’s application for the payment of his pension benefits from the 26th of June 2005 to the 31st of July 2005. [8] In my view, the applicant cannot be saved by its contention that it had 60 days from the 26th of June 2005 to process the first respondent’s pension benefits payments, that it paid accrued interest to the first respondent from the 1st of March 2005 to the 1st of August 2005. [9] In my view, the first respondent was prejudiced as a result of the applicant’s dilatoriness and negligence in not timeouly processing and effecting payment of his pension benefits as demonstrated by the litany of the first respondent’s creditors foreclosing against him.
[10]
In my view, the first respondent was justified and entitled to launch the urgent application as he was unjustly
compelled to do so by the applicant’s negligent and dilatory conduct.
DOES THE RESCISSION ENJOIN THE COURT WITH SOMETHING WORTHY OF CONSIDERATION
[1]
The question is whether the order sought by the applicant will have a practical effect or result, in the sense that persons will be affected thereby or in that there will be a justiciable issue before Court after the rescission of the judgment.
[2] In the case of Pres Ordinary Court Martial v Freedom of Expression Institute [1999] ZACC 10; 1999 (4) SA 682 at 688F,Langa DP(as he then was) held, “that a court should consider whether any order it may make will have any practical effect either on the parties or on others .”
[3]
The applicant concedes that it was legally obliged in terms of section 26 of “The Law” to pay the first respondent’s pension benefits. In my view, the causa that precipitated the first respondent’s urgent application has been extinguished by the applicant’s payment of the first
respondent’s pension benefits.
[4]
The objective de jure and de facto reality is that the applicant has complied with the order issued by Legodi J. In my view, there is therefore no “causal connection between the circumstances which gave rise to the claim and the rescission of the judgment”. See Swadif (Pty.) Ltd. v. Dyke, N.O. 1978 (1) 928 AD 939 D-F.
[5] The gravamen of the matter is whether there is a “triable issue or something deserving of consideration” predicating the application for the rescission of judgment in the sense that;
(a)
“n geskilpunt wat, indien dit aan die hand van die getuienis wat die applikant in sy aansoek in die vooruitsig stel, bewys word, lewensvatbaar of relevant sou wes; of
(b) ‘n geskilpunt wat op die waarskynklikhede deur die getuienis wat aldus in die voooruitsig gestel word, bewys sou wees”.
See CIBA – Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ‘n Ander 2002 (2) SA 447 SCA at 462 J – 463 B.
[6]
In my view, the order sought by the applicant will not serve any purpose because subsequent thereto there will be nothing worthy of consideration before the court as all the justiciable issues will be res judicata.
[7]
In Saphula v Nedcor Bank Ltd 1999 (2) SA 76 at 79 C - D, Flemming JP held that, “the object of rescinding judgment is to restore a chance to air a real dispute. On a more technical level, a requirement for the granting of rescission remain lacking in such cases. It has always been a hallmark of what lawyers a bona fide (which has to be established before rescission is granted), that a defendant honestly intends to pursue before a Court a set of facts which, if true, will constitute a defence. That requirement is lacking in this case despite the problems which
the applicant has inert commercial instances.” In my view the requirements postulated by the learned Judge are lacking in this case despite the grounds enumerated by the applicant
in support of the rescission of the judgment.
[8]
In my view, the grounds enunciated by the applicant in support of the rescission of the default judgment and the putative defence espoused are “deprecated as abstract, hypothetical and of academic interest only”. See Naptosa V Minister of Education, Western Cape Government 2001 (4) BCLR 388 (C) at 398 H-I.
[9] In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 in para (21) fn 18, Ackerman J held that; “A case is moot and therefore not justiciable if it no longer presents an existing or have controversy which should exist if the Court is to avoid giving advisory opinion on abstract propositions of law.” THE FIRST RESPONDENT’S OPPOSITION TO THE APPLICATION FOR RESCISSION OF JUDGMENT
[1]
I turn now to consider whether the first respondent’s conduct was reasonable in opposing this application, and if so, whether costs should be awarded against him. The other issue to be considered is whether such costs should be borne by the first respondent’s attorney Logan Pillay de bonis propriis on an attorney and client scale due to his conduct in opposing the application, and in attempting to tax a bill of costs on an attorney and client scale well knowing that the correct order granted costs on a party and party scale.
[2]
The question the court has to consider, is whether, the first respondent’s opposition to this application is vexatious, frivolous, unreasonable or misconceived having regard to the peculiar circumstances of this matter.
[3]
The first respondent states that he opposed the application because he was under the reasonable apprehension that consequent to the rescission of judgment he was obliged to refund the pension benefits.
[4]
The applicant argued that the first respondent erroneously sought the default judgment by launching the urgent application without any justification, because the first respondent could not suffer any prejudice as his pension benefits and the interest accruing thereto had been fully paid.
[5] In my view, the applicant’s averments in its founding affidavit impugned the first respondent’s honour and integrity. The applicant portrayed the first respondent as the author of his own misfortune by being negligent in not providing the applicant with the full required information in the prescribed form. [6] The applicant is enjoined in terms of section 195(1)(a), (b) and (f) of the Constitution of the Republic of South Africa Act 108 1996 to respond to the needs of the first respondent by practicing and adhering to a high standard of professional ethics and accountability. See President of the Republic of South Africa and Others v South African Rugby football Union and Others 2000 SA 1 (CC) (1999 (10) BCLR 1059) at para [133].
[7]
The first respondent has a constitutional right to just administrative action, dignity and respect. In my view, the first respondent’s conduct was reasonable in opposing this application.
WAS ATTORNEY LOGAN PILLAY’S CONDUCT UNETHICAL AND UNCONSCIONABLE
[1]
The applicant contends that the conduct of the first respondent’s attorney was mala fide in that;
(a)
despite the fact that no attorney and client cost order was granted, the first respondent’s attorney irregularly attempted to execute attorney and client scale costs when at all relevant times he was aware that the correct order issued was on a party and party scale,
(b)
notwithstanding these facts, and even after the application for rescission had already been launched, the first respondent’s attorney still attempted to tax and execute a bill of costs on an attorney and client scale.
[2]
On the 26th of October 2005 attorney Logan Pillay made a settlement proposal to the applicant on the following basis;
(a)
the first respondent would not oppose the application for rescission if the applicant pays the costs of the application granted on the 4th of August 2005 on the scale as between party and party, and
(b)
the applicant should advise which items in the bill of costs it was disputing.
[3]
In determining whether attorney Logan Pillay’s conduct was mala fide it must be borne in mind that he instructed a correspondent to attend court on his behalf on the 4th of August 2005.
[4]
It is possible that on the 4th of August 2005 when attorney Logan Pillay received the faxed court order he laboured under the bona fide but erroneous impression that the costs order granted, ordered the applicant to pay costs on an attorney
and client scale.
[5]
The applicant’s attorneys on the 4th and 21st of November 2005 respectively engaged attorney Logan Pillay seeking an explanation regarding his conduct in attempting to enforce a bill of costs drawn on an attorney and client scale.
[6]
In my view, the perceived misunderstanding surrounding the costs issue was clarified on the 26th of October 2005. The setting down of the taxation of the bill of costs on the 9th of March 2005 and 7th of April 2005 did not of interfere with or impede the conduct of the proceedings.
[7]
This is not a case where a bill of costs was paid in pursuance of an incorrect costs order. The crux of the matter is that the attorney and client bill drafted by attorney Logan Pillay’s costs consultant was not taxed, the bill of costs for all intents and purposes is a nullity. The applicant has not suffered any prejudice.
[8] In my view, attorney Logan Pillay may have been precipitate and negligent in attempting to enforce an incorrect costs order, but there is no evidence that his conduct was grossly negligent, wilful or intentional in pursuance of a fraudulent motive. [9] I am not persuaded that attorney Logan Pillay’s conduct in attempting to enforce, and in setting down the bill of costs drafted on an attorney and client scale, can be construed as grossly negligent or reprehensible to the extent of entitling this Court to show its disapproval by ordering costs against attorney Logan Pillay on an attorney and client scale having regard to the circumstances of this matter. See Visser v Visser 1974 (3) SA 356 at 357E-F.
[10]
In exercising my discretion in the allocation of costs I am of the view that the applicant was unreasonable
in instituting these proceedings in pursuance of a causa which had been extinguished.
[11] In the premises the applicant is ordered to pay the first respondents costs of opposing this application for rescission of judgment on a party and party scale.
________________________________________
MOKGOATLHENG AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
DATE OF HEARING: 31ST OF MAY 2006 DATE OF JUDGMENT: 5th OF SEPTEMBER 2006 APPEARANCES
FOR THE APPLICANT:
ADV. ROELOF DU PLESSIS SC
INSTRUCTED BY:
GROENEWALD VAN DYK INC.
APPLICANT’S ATTORNEYS 101 OPTI-PLAN HOUSE 232 BRONKHORST STREET BROOKLYN TEL: 012 - 460 5430 REF: C GROENEWALD/G409 FOR THE RESPONDENT: ADV. JPF DE KLERK
C/O
MARAIS & STUART INC.
755 PARK STREET ARCARDIA PRETORIA REF: SMARAIS TEL: 012- 343 0267 |