Securebt (Pty) Ltd v Norris and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Strydom J |
| Judgment Date | 15 September 2023 |
| Citation | 2023 JDR 3505 (GJ) |
| Hearing Date | 02 August 2023 |
| Docket Number | 21699/2021 |
| Court | Gauteng Local Division, Johannesburg |
Strydom J:
Introduction
This is an opposed application for variation of a court order as contemplated in Rule 42(1)(b) of the Uniform Rules of Court, alternatively in terms of the common law in which the applicant, SecureBT (Pty) Ltd (Applicant), seeks to vary a court order dated 04 May 2021, granted by the Honourable Judge Lamont, regarding costs.
The applicant brought an ex parte Anton Pillar application (the main application) in two parts: Part A for interim relief, and Part B for final interdictory relief. The interim relief was granted on 4 May 2021 in terms of a court order made by Lamont J. In paragraph 16 of the court order, the following was ordered:
“The costs of Part A are reserved to be determined at the hearing of Part B of the notice of motion.”
On 30 August 2021, Part B of the main application was considered by Tsautse AJ on an unopposed basis. A draft order handed to court was made an order of court (Part B order). In the opening sentence of this Part B order, it was stated as follows:
“Having considered the documents filed of record and hearing counsel for the Applicant, an order is made in the following terms:”
Then in paragraph 16 of the Part B order it provided for the award of cost as follows:
“The first respondent is ordered to pay the costs of this application.”
The relief sought in the notice of motion in this variation application to vary the Part B order is as follows:
That the cost of Part A of the main application under the abovementioned case number, reserved by the court order dated 04 May 2021, granted by the Honourable Judge Lamont, are hereby unreserved.
2023 JDR 3505 p3
Strydom J
That the First and Second Respondents are ordered to pay the costs of Part A of the main application under the abovementioned case number jointly and severely the one paying the other to be absolved.
That, to the extent necessary, the Applicant is granted leave to present its bill of costs pertaining to Part A of the application under the above case number afresh via notice of taxation to the Respondents, to be taxed by the taxing Master of the Honourable Court.
That any Respondent opposing the relief sought herein shall pay the costs of this application on an attorney-and-client scale; provided that, should both Respondents oppose this application, both Respondents shall be liable for the costs of this application on an attorney-and-client scale, jointly and severally, the one paying the other be absolved
Further and/or alternative relief as deemed just.”
The application before this court is thus for a variation of the Part B court order in two respects. First, to specifically award the previously reserved costs, and second, to expand the previous cost order to include the second respondent to be jointly and severally, the one paying, the other to be absolved, liable for the costs of Part A of the application. Accessory to these variations further relief is sought.
As stated hereinabove, Part B of the application was set down for hearing on an unopposed basis and the judge granted the order in terms of the draft order handed to court. After this court order was granted, the applicant proceeded to draft a bill of costs.
After the bill of costs was drawn up by the applicant’s costs consultant and delivered to the respondent, the taxation became opposed.
On 31 May 2022, the matter served before the Taxing Master who taxed the bill of costs. The Taxing Master disallowed costs pertaining to Part A of the application as these costs were not, according to the Taxing Master, included in the cost order when the court made its order pertaining to Part B of the application.
2023 JDR 3505 p4
Strydom J
The applicant’s attorney attempted to resolve this issue pertaining to the reserved costs with the first respondent’s attorney but to no avail. The first respondent’s attorney was of the view that the issue of costs had been finally disposed of by the court hearing Part B of the main application. Further, that the taxation was final unless reviewed.
Legal principles on reserved costs
If a court reserves costs to be argued and adjudicated upon at a later stage, it cannot be taxed until the court has made a ruling on who is ultimately liable for the reserved costs. [1]
In AA Mutual Insurance Association Ltd v Gcanga [2] it was held that a reserved costs order does not become attached to the main judgment and that it “remained separate from and independent of that judgment and did not necessarily follow the result of the action between the parties.”
When this legal position is considered in the context of the facts of this matter it becomes apparent that the Part B court order only awarded the costs of the “application” which would be a reference to the application for final relief and not the reserved costs. This being the case, in my view, the applicant became entitled to ask this court to determine who should be responsible for the reserved costs.
The applicant obtained final relief on the same terms of as the interim relief on an unopposed basis. In such circumstances, an applicant would in normal cause be entitled to the costs which was reserved. It was argued on behalf of respondents that in this case the applicant handed the court a draft order which failed to deal with the reserved cost and, consequently, the opportunity to ask for the reserved costs, has come and gone. The court order as far as costs are concerned cannot now belatedly be varied. From this line of attack, it becomes
2023 JDR 3505 p5
Strydom J
clear that the submission is not that the applicant would not have been entitled to the reserved costs but, rather, that it cannot now make such a claim.
Counsel for both parties referred this court to the matter of Cipla Medpro (Pty) Ltd v Lundbeck A/S and Another In re: H Lundbeck A/S and Another v Cipla Medpro (Pty) Ltd [3]. The respondents relied on this case for authority that the reserved costs cannot be claimed at this stage. In this matter, Southwood J dismissed an application to vary court orders to include the qualifying fees of experts. When costs were argued counsel omitted to argue for relief to obtain the costs of the qualifying fees of experts. In Cipla, the court made a final order as to cost in the matter and a variation of the cost order was sought pursuant to Rule 42(1)(b). The court held as follows:
“In the present cases the parties argued the question of costs and the courts made cost orders. There is no suggestion that these cost orders did not correctly express the intention of the court or that the court did not consider what was argued or omitted to order what was requested. It is clear from the facts that the...
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