Francarmen Delicatessen (Pty) Ltd v Gulmini and Another

• Jurisdiction: South Africa
• Judge: Coetzee J
• Judgment Date: 13 July 1981
• Citation: 1982 (2) SA 485 (W)
• Hearing Date: 09 July 1981
• Court: Witwatersrand Local Division

Francarmen Delicatessen (Pty) Ltd v Gulmini and Another
1982 (2) SA 485 (W)

1982 (2) SA p485

Citation	1982 (2) SA 485 (W)
Court	Witwatersrand Local Division
Judge	Coetzee J
Heard	July 9, 1981
Judgment	July 13, 1981

Flynote : Sleutelwoorde E

Costs — De bonis propriis — Company litigating — But the effective litigants being the directors or co-owners — Competent to order one or other of them to pay costs de bonis propriis.

Company — Proceedings by and against — Costs — Company litigating — F But effective litigants being the directors or co-owners — Competent to order one or other of them to pay costs de bonis propriis.

Headnote : Kopnota

Where there is litigation in the name of a company but the persons effectively litigating are the directors or co-owners of the company, it is competent for the Court to order one or other of them to pay costs de bonis propriis. G

Case Information

Application for leave to appeal. The facts appear from the reasons for judgment.

E Zar for the applicant.

C Z Cohen SC (with him P Blieden) for the first respondent.

No appearance for the second respondent.

Cur adv vult.

H Postea (July 13).

Judgment

Coetzee J:

In this matter an application has now been made on behalf of a Mr Guiseppe Gaia for leave to appeal against an order for costs which I made against him personally on 20 November 1980 when

1982 (2) SA p486

Coetzee J

I dismissed the application. In para (d) of the summary of the judgment which I have framed for purposes of the appeal which has been noted against the dismissal of the application I said the following: A

'I acceded to Mr Cohen's request that Gaia pay the costs de bonis propriis as this was in essence a dispute between Gaia and Gulmini. Otherwise, Gulmini, even if successful, pays indirectly half of his costs.'

In addition an appeal was noted against the order for costs but leave to appeal is being sought by Mr Gaia because this order relates to costs B only. When this application was called, I enquired of Mr Zar, who appeared originally for the applicant and now also for Mr Gaia, whether the appeal in the main case was proceeding. If that were so, the order for costs de bonis propriis would fall away if the Appeal Court should hold that I was wrong in dismissing the application in the first instance, but I pointed out that, if it were proceeding, I would C certainly allow leave to appeal on this question to enable the appellants to argue their case fully. I was, however, informed by counsel that the appeal is not proceeding, apparently for the reason that Gaia's shares in the applicant were subsequently bought by Gulmini, who is now in control of this company and who, obviously, will not D proceed with the appeal which was noted at a time when Gaia purported to control the company. The present application concerns therefore purely the costs which I ordered to be paid by Gaia de bonis propriis and nothing else. There will not be an appeal on the merits of the order dismissing the original application. In addition to an attack on the merits, Mr Zar has argued this application along the lines of the notice E of appeal, which, inter alia, contains the following grounds:

'(1)

Mr Gaia was not a party to the above application and it is not competent in law for any order for costs to be made against him personally.

(2)

F No order for costs de bonis propriis was specially asked for by the first respondent in the affidavits filed with the application and the first intimation that an order for costs de bonis propriis would be sought against Mr Gaia was in the address of the first respondent's counsel to the Court.

(3)

G Mr Gaia was not acting or litigating in the above application in a representative capacity. His sole function in the application was as a deponent to an affidavit, that is as a witness to the proceedings.

(4)

Mr Gaia was not represented in the application proceedings and an order for costs was granted in his absence and without him personally being afforded an opportunity of being heard.'

H Before dealing with the answer to this line of argument I should briefly restate that this was in essence a case between two partners who had clothed their business in the form of a company. Gaia, through another private company which belonged to him, owned half the shares and Gulmini the other half. The two of them were the directors. When their disputes, which had developed over a period of time, came to a head, Gaia maintained that his daughter had in fact been appointed a director of the company some months earlier and on the basis of that...