Coetzee and Others v FL Smidth South Africa (Pty) Ltd and Others (52443/18) [2020] ZAGPPHC 369 (28 July 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED.

CASE NO: 52443/18

In the matter between:

DOROTHEA MARIA COETZEE

First Applicant

JEAN BARBARA MURFIN

Second Applicant

MARTIN ASSOCIATES

Third Applicant

and

F L SMIDTH SOUTH AFRICA (PTY) LTD

First Respondent

F L SMIDTH (PTY) LTD

Second Respondent

ADV J L MŸBURGH

Third Respondent

MR SIAFA CHAUKE

Fourth Respondent

HOGAN LOVELLS

Fifth Respondent

JUDGMENT ON COSTS

TEFFO, J:

Introduction

[1] Three applications came before me in the opposed motion. The first application was an application for condonation of the late filing of the application for variation or rescission of an order that was granted in this Court on 7 August 2018 (“the condonation application”). The second application was an application for the joinder of the third to the fifth respondents as parties in the application for variation or rescission (“the joinder application”). The third application was an application in terms of Rule 42(2) read with Rule 34(12) of the Uniform Rules of Court for variation or rescission of an order that was granted on 7 August 2018 (“the rescission or variation application”).

[2] The condonation application was not opposed. It was accordingly granted. The joinder and the rescission or variation applications were opposed.

The parties

[3] The first applicant, Mrs Dorothea Maria Coetzee has withdrawn her applications. The applications are pursued by the second and the third applicants. The second applicant is Mrs Barbara Jean Murfin. She is an adult female person who is a labour consultant and the sole proprietor of the third respondent. The third respondent is Martin Associates. It is a labour consultancy business. The second applicant appeared in person. The applicants were the respondents in the application that served before the urgent court on 7 August 2018 (“the main application”). In casu they seek to rescind or vary the order that was granted against them in favour of the first and second respondents in the main application.

[4] The first respondent is F L Smidth South Africa (Pty) Ltd and the second respondent is F L Smidth (Pty) Ltd. The first and second respondents are private companies with the same registered address at Corner Constantia Boulevard and Albert Schweitzer Street, Constantia Kloof, Roodepoort. They will conveniently be referred to as the first and second respondents. The first and second respondents were the applicants in the main application. The third respondent is Adv J L Mÿburgh. The fourth respondent is Mr Siafa Chauke and the fifth respondent is Hogan Lovells South Africa Inc. The third respondent is an advocate of this Court. He represented the first and the second respondents in the main application. The fourth respondent is an attorney of this Court and a director and partner at the fifth respondent. The fifth respondent, Hogan Lovells (South Africa) Inc is a firm of attorneys who were the attorneys of record of the first and the second respondents in the main application. These respondents will be referred to separately as Adv Mÿburgh, Mr Chauke and Hogan Lovells. Where appropriate they will be referred to jointly as the third to fifth respondents.

Background

[5] On 26 July 2018 the first and second respondents launched an urgent application where they sought an order interdicting and restraining the applicants from publishing any defamatory statements against any of them concerning and/or relating to their membership of the Metal and Engineering Industries Bargaining Council and/or the membership certificates that were issued by the Metal and Engineering Industries Bargaining Council to them. They also sought costs against the applicants jointly and severally, the one paying the other to be absolved, on a scale as between attorney and client.

[6] The application was set down to be heard on 7 August 2018. On that day the matter was settled and the following draft order was made an order of court:

“By consent between the parties, the following order is made:

1. the First, Second and Third Respondents are interdicted and restrained from publishing and/or making any defamatory statements against any of the applicants concerning and/or relating to the applicants’ membership of the fourth respondent and/or the membership

certificates that were issued by the fourth respondents to the applicants;

2. the first, second and third respondents are to write an apology for making and publishing defamatory statements concerning the applicants

within 5 (five) days of this order;

3. the first, second and third respondents jointly and severally the one to pay the other to be absolved, pay the applicants’ costs on a party and party scale.”

[7] On 15 August 2018 the applicants sent a letter of apology as per the above consent order to Hogan Lovells (South Africa).

[8] Subsequent thereto the first and second respondents’ attorneys of record (Hogan Lovells

South Africa) drew a bill of costs in the main application and served a notice of taxation of the bill of costs to the applicants. The applicants filed a notice of intention to oppose the taxation of the bill. The basis thereof was that the second applicant who was at court when the matter was settled on 7 August 2018 consented to the order on the basis that the applicants were to pay the costs on a party and party scale, and as advised by Adv Mÿburgh such costs were estimated to be between R40 000,00 and R50 000,00. The second applicant was not happy that the bill of costs was in excess of R50 000,00 which was far beyond the agreed estimation as it was now in the amount of R132 000,00.

[9] The bill of costs could not be taxed on the day it was scheduled for taxation. The second

applicant states that the taxing master advised her to file a rescission application in terms of Rule 42(2) read with Rule 34(12)

of the Uniform Rules because there was a dispute of fact regarding the party and party costs.

The applications

[10] I must state that all three applications were voluminous and they ran into more than 900 pages

including the heads of argument. The crux of the applicants’ complaint in the application for the rescission or variation of the consent order is that the costs agreed upon were estimated to be between R40 000,00 and R50 000,00. In the letter from Hogan Lovells addressed to the applicants dated 24 March 2019 at para 3.2, the attorneys of the first and second respondents indicated that the first and second respondents do not want the matter to be protracted. They have offered to accept the alleged agreed estimated

amount of between R40 000,00 to R50 000,00 for the party and party costs.

[11] Now because of the dispute of fact regarding the amount for the party and party costs, the applicants seek to join the third to the fifth respondents as parties to the proceedings. As I have indicated these respondents were not parties to the proceedings between the applicants and the first and second respondents. They were the legal team of the first and second

respondents.

[12] I have considered the matter and conclude that the joinder application is irrelevant to these proceedings for the reasons that will follow. I therefore strike out the joinder application from these proceedings.

[13] I have considered the matter closely and have realised that the legal team of the first and second respondents were communicating with a lay person, the second applicant, who does not understand the legal implications meant by the legal costs. This has given rise to a genuine dispute of fact. Seeing that the matter would be protracted, the first and second respondents have agreed not to pursue the matter on the disputed facts. They have agreed to accept the previously alleged suggested estimation of the costs as understood by the applicants. The dispute regarding the costs arises once the costs are being taxed. The order that I now pronounce is that the party and party costs payable in full and final settlement of this matter is R50 000,00.

[14] In the result I make the following order:

1. The application for condonation of the late filing of the application for variation or rescission of the consent order dated 7 August 2018 is granted.

2. The joinder application is struck out.

3. Paragraph 3 of the order of 7 August 2018 under case number 82443/2018 is varied and substituted with the following order:

“The second and third respondents are to pay the applicants’ costs on a party and party scale in the amount of R50 000,00 jointly

and severally, the one paying the other to be absolved in full and final settlement of this matter.”

4. No order for costs.

electronically signed

M J TEFFO

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Appearances

For the second and

third applicants

Mrs Murfins in person

Instructed by

For the first and

second respondents

J Vorster

Instructed by

Hogan Lovells

c/o Friedland Hart Solomon &

Nicolson

Date of judgment

28 July 2020