Vennell v Vennell
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Opperman J |
| Judgment Date | 29 August 2023 |
| Citation | 2023 JDR 3348 (FB) |
| Docket Number | 157/2017 |
| Court | Free State Division, Bloemfontein |
Opperman J:
In Fleming v Johnson & Richardson 1903 TS 319 325 Innes, CJ said:
It is a sound rule that where a plaintiff is compelled to come to Court and recovers a substantial sum which he would not have recovered had he not come to Court, then he should be awarded his costs.
As the case number indicates; the history of this case goes back as far as 2017. Extensive litigation took place and numerous orders were issued. Unfortunately, the dust has not settled yet.
The parties agreed, in the settlement that was made an order of court, that the costs of the divorce action would be “costs in the cause”. It is commonplace that the last remaining issue for adjudication was the defendant’s claim for accrual, which the parties seemingly laid to rest by agreeing on the appointment of a receiver to quantify the amount to be paid to defendant.
The issue of the costs incurred in the quantification of the accrual by the chartered accountant(s) eventuating from the referral, has now arisen from the ashes.
The settlement order dated 2 August 2019 that send the issue of accrual to a receiver/chartered accountant reads as follows:
A chartered accountant to be nominated by the chairperson, for the time being, of the South African Institute of Chartered Accountants is appointed as a receiver in the divorce action between the parties with the powers and obligations as set out in Annexure “A” [1] hereto.
The Respondent is ordered to pay the costs of the application.
All the preceding orders, and there were many, dealt with the costs of each aspect inchmeal; issue for issue and order for order. It is water under the bridge and this court does not have authority to deal with it. It is not relevant to the specific aspect in hand. It also, now, serves
2023 JDR 3348 p3
Opperman J
within the realm of the Taxing Master’s jurisdiction.
The hearing/settlement in which the matter ended up being referred to a chartered accountant was agreed to be for the account of the plaintiff.
In their heads of argument counsel for Mr Vennell/plaintiff claims that:
It is respectfully submitted that the proper order is that each party should pay their own costs of the divorce action, which, to be precise, shall be the costs of the Divorce Claim, the Rule 43 application and the Accrual Claim and that the defendant should be ordered to pay the costs of the present proceedings, such cost to include the costs that stood over in respect of the proceedings on 6 June 2023.
In their heads of argument counsel for Mrs Vennell/defendant argued that:
It is humbly submitted that...
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