Bidvest McCarthy Toyota Lynnwood v SSG Cases (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kooverjie J |
| Judgment Date | 12 September 2023 |
| Citation | 2023 JDR 3532 (GP) |
| Hearing Date | 28 August 2023 |
| Docket Number | 025849/22 |
| Court | Gauteng Division, Pretoria |
Kooverjie J:
THE APPLICATION
This matter turns only on the aspect of costs. The costs dispute emanates from the application issued by the applicant to compel the respondent to comply with Rule 35 of the Uniform Rules, namely to file its discovery affidavit. The applicant in this matter is the defendant in the main action.
It is common cause that the respondent eventually complied with Rule 35. The respondent was required to file its discovery affidavit by 18 January 2023 but had only done so on 22 February 2023.
ISSUE FOR DETERMINATION
The issue for determination is whether a case has been made for a costs order on a punitive scale. The costs pertain to the application to compel filed by the applicant. The applicants persist with an order for costs de bonis propriis, alternatively, attorney and client costs, in its favour.
A brief chronology of events is highlighted:
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the notice to discover was served on the respondent on 15 December 2023;
the respondent’s discovery affidavit had to be filed by 18 January 2023;
the respondent filed an unsigned affidavit on 27 January 2023. The applicant was simultaneously informed of the challenges the respondent’s attorney experienced in obtaining a signed affidavit;
on 2 February 2023, the applicant served its application to compel discovery on the respondent;
on 22 February 2023, the signed discovery affidavit was eventually filed;
upon the receipt of the discovery affidavit, the applicant proposed that the respondent pay the wasted costs of the said application. The respondent refused to tender the said costs, resulting in the applicant pursuing the application on the aspect of costs only.
THE APPLICANT’S CASE
The applicant argued that it is entitled to a punitive cost order due to extensive delay on the part of the respondent’s legal representatives in filing the signed affidavit. It was left with no option but to institute this application. The signed affidavit was only filed after this application was instituted.
Notably, the applicant has taken umbrage to the conduct of the respondent’s attorney, Ms Maharaj. It was argued that if she had complied with the “Rules” of court, this application could have been avoided. Her blatant disregard for the Rules was unreasonable and should be seen in a negative light by this court.
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In summary, it was argued that Ms Maharaj:
failed to comply with the Rules and was grossly negligent;
had materially and substantially deviated from the standards associated with a legal representative, personally attacked the applicant and was recklessly incompetent;
was the cause of unnecessary litigation and costs;
held a contemptuous disregard of the applicant’s rights.
THE RESPONDENT’S CASE
The respondent argued that even though there was a delay in filing its signed affidavit, its unsigned affidavit was filed before this application was instituted. Consequently the pursuance of this application caused unnecessary costs for the respondent and constitutes an abuse of this court’s time.
In fact, the respondent argued that it is the applicant who should be penalized with a punitive costs order and particularly for the following reasons:
the applicant was well informed that it was unable to serve its signed discovery affidavit timeously due to a delay on the part of the respondent’s legal department;
the respondent nevertheless served an unsigned affidavit on the applicant. The applicant’s attorneys refused to accept the service thereof;
the respondent’s attorney was only able to serve the signed discovery affidavit on 22 February 2023 after receipt from the respondent’s legal
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department (on 21 February 2023). However, by this time the application to compel had already been instituted and a date was allocated in an unopposed motion court on 14 March 2023;
the contents of the signed affidavit and the unsigned affidavit are identical. Hence it was only a matter of attaining the relevant signature of the deponent;
despite the receipt of the signed discovery affidavit on 22 February 2023 the applicant persisted with this application resulting in the allocation of a date for hearing, namely 14 March 2023. This was clearly unwarranted;
the applicant’s conduct was also dilatory, for instance its plea had not been filed timeously;
at best for the applicant, costs on the unopposed scale, would be appropriate.
ANALYSIS
It is an established principle that I have a judicial discretion when considering the issue of costs. The general rule is that a successful party is entitled to its costs. The purpose of an award of costs is to indemnify a successful party who had incurred expenses in instituting proceedings. [1]
I deem it necessary to emphasize that litigants, who wish to have their substantive issues determined before court, should not frustrate the litigation process with dilatory tactics. If there is such frustration, then the party subjected to such abuse
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is entitled to costs and, depending on the...
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