Willemhendriksvlei (Pty) Ltd and another v Jacobus
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Langa J |
| Judgment Date | 19 January 2023 |
| Citation | 2023 JDR 0251 (MN) |
| Docket Number | 1563/2022 |
| Hearing Date | 15 November 2022 |
Langa J:
2023 JDR 0251 p2
Langa J
On 14 November 2022 two applications served before this court. One was for the sequestration of the respondent in the current matter in which costs are sought (Case number 1563/2022). The second was the winding up of a company of which the respondent in this matter is a director (Case number 1564/2022).
On the day of the hearing of the two matters the parties reached a settlement agreement and draft orders were presented to court in this regard. In respect of the winding up application (1564/2022) it is recorded in the draft order, which has since been made order of court, that the capital of the claim amount has been paid and the respondent company, Baroudeur Brokers is ordered to pay the applicants' agreed or taxed costs on party and party scale, such costs to include employment of two Counsel one being a senior Counsel.
In respect of the sequestration application (Case 1563/2022) the parties also presented a draft order pursuant their settlement agreement. In the draft it is recorded that the that "the capital of the claim amount has been paid" and "Costs to be argued."
Therefore, in both cases the merits have been settled in that payment of the capital amount including interest, which formed the foundation of the Applicants' claims against both the Respondents, was made to the Applicants. Unlike in the winding up application, there was no agreement between the parties regarding costs in respect of the sequestration application. The Applicants therefore seek a costs order against the Respondent, such costs to include those consequent upon the employment of two counsel. This judgment deals with the said costs.
2023 JDR 0251 p3
Langa J
The applicants rely upon the same facts and events in respect of both claims. In both claims the applicants allege that the respondent in the sequestration, Mr Pieters, used the company, the first respondent in the winding up application, to defraud the applicants by misappropriating part of the sale proceeds procured from a sale of farms of which the first applicant was the registered owner. The allegations were that the respondents, Mr Pieters and the company, acted in concert and were as such joint concurrent wrongdoers and therefore the applicants had a claim against both respondents.
The following brief history of the matter is necessary in the context of costs. Urgent ex parte applications for sequestration and the winding-up were launched on 13 April 2022 by the applicants against Mr Pieters and the company, respectively. Both were based on the alleged fraud or misappropriation of funds. On 19 April 2022 the court hearing did not proceed but the court directed that the papers must be served on the respondents. After the papers were served, the applications were re-enrolled for hearing on 03 May...
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