Rogow and others v Sun Chemical South Africa (Pty) Limited

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Rabkin-Naicker J
• Judgment Date: 19 January 2023
• Citation: 2023 JDR 2619 (LC)
• Hearing Date: 07 September 2022
• Docket Number: C375 & 539/2017

Rabkin-Naicker J:

[1]

The respondent company has brought two applications to dismiss before me. I deal with that under case C375/2017 at the outset. This involved a ‘semi-urgent application’ which the applicants have not prosecuted for a period of over five years.

[2]

Their application sought to interdict an event which on their own version, would have already taken place, before the application could have been heard. In addition, the applicants proceeded to disregard a Directive by the Judge President to file an affidavit setting out, inter alia, whether the conduct of the applicants’ legal representatives amounted to unethical conduct, and whether fees paid to them stood to be recovered. A letter was filed in place of an affidavit. The content of this letter cannot be considered as an answer to the said Directive.

2023 JDR 2619 p3

Rabkin-Naicker J

[3]

The respondent relies on the prejudice occasioned by the fact that this application has never been withdrawn by the applicants in that the company has had to reflect it in a special entry in its audited financial statements, as pending litigation. This it submits is a matter of concern to its management and international investors. Before bringing the application to dismiss, the respondent requested the applicants to remove the semi-urgent application from the roll and tender costs. This was never done. It was submitted on behalf of the applicants that it is perplexing as to why the respondent has brought this application. I disagree. The respondent is entitled to have finality in this matter, and to seek an appropriate costs order.

[4]

The costs order I shall make in respect of C375/2017 reflects that I am satisfied that there has been negligence to a serious degree by applicants’ attorneys which warrants an order of costs de bonis propriis being made, as a mark of the court’s displeasure. In exercising my discretion in this respect, I am of the view that this order should not be, in addition, on an attorney and own clients scale, as sought by the respondent company. It is trite that the scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible conduct.

[5]

In so far as the dismissal of the action under case number C539/2017 is concerned, the respondent company submits that the action is still pending because the applicants have consistently evaded, delayed and obstructed at every step of the litigation, and have refused to do the necessary in order to have the matter set down. There is also a condonation application before me in respect of the late filing of confirmatory affidavits by the individual applicants which condonation application was opposed. Such opposition was not vigorously pursued in argument before me and I grant condonation for the late filing of same.

[6]

An exception to the statement of claim in the action was heard by this Court and a judgment handed down in which the entire statement of claim was struck out. The...