BMW South Africa (Pty) Ltd and Others v Mahlatsi and Others, In re: Mahlatsi and Others v BMW South Africa (Pty) Ltd and Others (96026/2016) [2017] ZAGPPHC 891 (8 December 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 96026/2016

8/12/2017

Not reportable

Not of interest to other judges

Revised.

In the matter between:

BMW SOUTH AFRICA (PTY) LTD FIRST EXCIPIENT

AR KELBRICK SECOND EXCIPIENT

FINANCIAL SERVICE BOARD THIRD EXCIPIENT

and

DAVID MAHLATSI & OTHERS RESPONDENT

In re

DAVID MAHLATSI & OTHERS PLAINTIFF

BMW SOUTH AFRICA (PTY) LTD FIRST DEFENDANT

AR KELBRICK SECOND DEFENDANT

ALEXANDER FORBES FINANCIAL SERVICES THIRD DEFENDANT

FINANCIAL SERVICE BOARD FOURTH DEFENDANT

Heard: 5 December 2017

Delivered 8 December 2017

JUDGMENT

VAN DER SCHYFF AJ

[1] This matter was enrolled to argue an exception. Before the roll was called the parties requested that their matter stand down for a few minutes since they were engaged in settlement negotiations. When their matter was called the parties indicated that they have agreed as to the essence of the application but that the court must rule on the costs.

[2] After all the parties addressed me on costs, the matter was stood down for the parties to prepare a draft order that would correctly

reflect the agreement that they have reached pertaining to the essence of the application.

[3] When the hearing resumed two draft orders were handed up. The only difference between the draft orders was the cost orders it provided for. The one order was drafted on the premise that Plaintiff is ordered to pay the costs of First, Second and Fourth Defendant

occasioned by the exceptions. The second draft order was drafted on the premise that an order be granted that costs are costs in the cause.

[4] It is trite that the basic rule in civil litigation in South Africa is that costs are in the discretion of the judicial officer, but that subject thereto costs follow the result (Mlambo J (as he then was) "The reform of the costs regime in South Africa : Part 2" Advocate August 2012). In Ferreira v Levin; Vryenhoek v Powell 1996 (1) SA 984 (CC) paragraph 155 Ackerman J explained that the rule that a successful party should have his costs, is subject to a large number of exceptions. Amongst these are the conduct of the parties and/or their legal representatives, whether a party achieved technical success only, the nature of the litigants and the nature of the proceedings.

[5] The draft order presented to me by the parties indicate that the parties agreed amongst themselves that the exceptions raised by the First, Second and Fourth Defendants are upheld. They were the successful parties in this exception. The question that needs to be answered is whether the context within which this exception was brought justifies an order that costs do not follow suit.

[6] Plaintiff contends that the exception was irregular in that it was brought while Plaintiff was in the midst of a process aimed at effecting the amendment of the particulars of claim.

[7] In order to evaluate the Plaintiffs argument in this regard, a brief overview of the timeline of the proceedings must be provided.

· Summons is dated 8 December 2016.

· A notice of intention to amend, dated 3 March 2017 was delivered to the attorneys of record for the First, Second and Third Respondents on 8 March 2017. No such notice was delivered to the Fourth Respondent.

· Third Defendant's notice of objection to the amendment was delivered to Plaintiff on 23 March 2017.

· Fourth defendant delivered a notice in terms of Rule 23(1) and Rule 30(2)(b) to remove a cause of complaint dated 31March 2017. From the content of the court file it is not clear whether, and on what date, this notice was delivered to the Plaintiff, but from a later notice it seems as if this was delivered on 4 April 2017.

· First and Second Defendants' notice of exception to the Plaintiffs particulars of claim was delivered to Plaintiff on 12 April 2017.

· A notice of motion for an application for leave to amend its particulars of claim dated 27 March 2017 was served on First and Second Defendant's attorneys of record on 28 April 2017

· First and Second Defendants' notice in terms of rule 30(2)(b) to set aside the applicant's notice of motion dated 27 March 2017 as an irregular step, was delivered to Plaintiff on 4 May 2017.

· On 5 May 2017 the Court ordered that Plaintiff's application for leave to amend the particulars of claim be removed from the roll with Plaintiff as the applicant being ordered to pay the costs of the application.

· Fourth Defendant's exception to Plaintiffs particulars of claim was delivered to Plaintiff on 15 May 2017.

· First and Second Defendant's exception to Plaintiff s particulars of claim was delivered to Plaintiff on 22 May 2017.

· The exception was set down for hearing by the Fourth Defendant on 31 August 2017.

[8] It is common cause that since the application for leave to amend its particulars of claim was removed from the roll, Plaintiff had done nothing to further the progress of this action. To argue at this point, and in this context that the exception fell away in light of the pending amendment proceedings and that the respective excipients had to 'await the judgment on the amendment' when there was no application to amend enrolled, does not hold water.

[9] In view of the specific time periods prescribed in Rule 23, it can easily be assumed (and argued) that an applicant who do not adhere to the time periods strictly has caused his application to obtain leave to amend the particulars of pleadings to lapse. If the applicant feels the need to amend the pleadings a new application can be brought. It cannot be expected of Defendants to sit and wait in the shadows indefinitely just because a Plaintiff might feel inclined to proceed with an application for leave to amend its particulars of claim that was removed from the roll by the Court at a previous stage - specifically if the Plaintiff­ Applicant has since the date that the application was removed, done nothing to further the progress of the matter.

[10] It must be considered in addition that Fourth Defendant delivered its notice in terms of Rule 23(1) and Rule 30(2)(b) before any notice pertaining to the amendment of pleadings was delivered to it. It must also be considered that the Plaintiff never objected to the delivery of any of the notices of exception or endeavoured to have it set aside as irregular steps.

ORDER:

In light of the aforesaid it is ordered that:

1. In accordance with the draft order presented by the parties by agreement:

1.1 The exception raised by the First, Second and Fourth defendants are upheld;

1.2 The Plaintiff is given leave to amend the particulars of claim within ten days of this court order;

1.3 In the event that the Plaintiff fails to amend in terms of prayer 1.2 above, then the First, Second and Fourth Defendants are given leave to, on the same papers, duly supplemented if necessary and on notice to the Plaintiff, approach the Court for an order for the dismissal of the Plaintiffs claim with costs.

2. The Plaintiff is ordered to pay the costs of First, Second and Fourth Defendants occasioned by the exceptions, including the costs of the hearing of the exceptions on 5 December 2017.

____________________

E VAN DER SCHYFF

Acting Judge of the High Court