Mantella Trading 341 CC v Thompson N.O and Another (19066/09) [2013] ZAGPPHC 352 (19 November 2013)
- Citation
- [2013] ZAGPPHC 352
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- H J Fabricius
- Case number
- 19066/09
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- H J Fabricius
- Case number
- 19066/09
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, following the amendment to the particulars of claim and the defendants' concession, the road indicated on the amended diagram is a public road as defined in the Limpopo Roads Agency Act. The litigation was concluded on this basis. Regarding costs, the court exercised its discretion, considering the late amendment, the withdrawal of defences and counter-claims, and the overall history of the matter. It was deemed fair that each party bear its own costs, except that the defendants must pay the costs related to their conditional counter-claims and the costs of the experts, including reasonable travel expenses. The plaintiff is entitled to the costs of a senior counsel.
Court disposition
Declaratory order granted; costs apportioned as per judgment.
Orders
- The road indicated on the amended compilation diagram marked 'X' is declared to be a public road as defined in the Limpopo Roads Agency Act, Act 7 of 1998, with specific reference to points C to K.
- Each party is to pay its own costs, except that defendants are ordered to pay the costs pertaining to their conditional counter-claims and the costs of the experts H. van der Merwe, H. Lessermann and A. Gerber, including reasonable travel expenses.
- Plaintiff is entitled to the costs of a Senior Counsel.
02
Material facts
Parties
Mantella Trading 341 CC
PlaintiffMark Byron Thompson N.O.
Defendant Counsel: Mr. PutterMichelle Cecille Thompson N.O.
Defendant Counsel: Mr. Putter03
Procedural history
Posture
Civil Trial / Final Judgment After Amendment to Particulars of Claim
04
Questions and positions
Legal issues
- 01
Whether the road indicated on the amended diagram is a public road as defined in the Limpopo Roads Agency Act.
- 02
Which party should bear the costs of the litigation, including costs of experts and counsel.
Party arguments
- Applicant
- The plaintiff argued that the road in question, as defined in the amended compilation diagram, meets the statutory definition of a public road under the Limpopo Roads Agency Act. The plaintiff sought a declaratory order to this effect and claimed entitlement to costs, including those of a senior counsel and experts.
- Respondent
- The defendants, after consultation and following the amendment to the particulars of claim, conceded that the road is a public road. They withdrew their defences and conditional counter-claims, but argued that the late amendment and the litigation history justified each party bearing its own costs, except for costs related to the conditional counter-claims and experts.
05
Court’s reasoning
Legal principles
- 01
Limpopo Roads Agency Act, Act 7 of 1998
A public road is defined by the Limpopo Roads Agency Act, Act 7 of 1998, and the court must apply this statutory definition to the facts as amended.
- 02
Common law; see also previous urgent application judgment in 2009
The general rule is that the successful party is entitled to its costs, but the court retains a discretion to depart from this rule in light of the litigation history and conduct of the parties.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, following the amendment to the particulars of claim and the defendants' concession, the road indicated on the amended diagram is a public road as defined in the Limpopo Roads Agency Act. The litigation was concluded on this basis. Regarding costs, the court exercised its discretion, considering the late amendment, the withdrawal of defences and counter-claims, and the overall history of the matter. It was deemed fair that each party bear its own costs, except that the defendants must pay the costs related to their conditional counter-claims and the costs of the experts, including reasonable travel expenses. The plaintiff is entitled to the costs of a senior counsel.
Obiter and limits
- The court noted that the defences and conditional counter-claims were not frivolous, and the late amendment was a relevant factor in the costs order.
- The usual rule that the successful party receives its costs may be departed from where fairness to both parties so requires.
Court disposition
Declaratory order granted; costs apportioned as per judgment.
- The road indicated on the amended compilation diagram marked 'X' is declared to be a public road as defined in the Limpopo Roads Agency Act, Act 7 of 1998, with specific reference to points C to K.
- Each party is to pay its own costs, except that defendants are ordered to pay the costs pertaining to their conditional counter-claims and the costs of the experts H. van der Merwe, H. Lessermann and A. Gerber, including reasonable travel expenses.
- Plaintiff is entitled to the costs of a Senior Counsel.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
Case Number: 19066/09
DATE: 19 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter between:
MANTELLA TRADING 341 CC...............................................................PLAINTIFF
And
MARK BYRON THOMPSON N. O.........................................FIRST
DEFENDANT
MICHELLE CECILLE THOMPSON N. O. ….......................SECOND
DEFENDANT
JUDGMENT
Fabricius J,
Having allowed an amendment to Plaintiff’s Particulars of Claim yesterday, and especially to prayer 1 thereto, Mr. Putter on behalf of Defendants, conceded this morning, after certain consultations, that the relevant old road, which is more precisely defined in my order, is in fact a public road.
That brought the litigation to an end. I need to decide the question of costs. I was asked not to make an order in respect of any of the previous appearances.
I was addressed on all relevant aspects in this context and the fact that I have a judicial discretion. I have taken into account the background as it appears from the pleadings and the pre-trial conferences, and also the judgment and order made in the urgent
application in 2009. I note that usually the successful party is entitled to its costs. The lateness of the amendment is another
factor. It is so also that Defendants in fact, withdrew their defences and did not proceed, for obvious reasons I think, with their
conditional Counter-claims. I cannot however say that the defences or conditional Counter-claims were frivolous. Having considered the past history of this litigation and the late amendment, I deem it fair to both parties that I do not award all the costs to Plaintiff.
The following order is therefore made:
1. The road indicated on the amended compilation diagram marked “X” is declared to be a public road as defined in the Limpopo Roads Agency Act, Act 7 of 1998, with specific reference to points C to K.
2. Each party is to pay its own costs, except insofar as Defendants are ordered to pay the costs pertaining to its conditional Counter¬claims, as well as the costs of the experts H. van der Merwe, H. Lessermann and A. Gerber, which would include the costs of any reasonable travel expenses.
3. Plaintiff is entitled to the costs of a Senior Counsel.
JUDGE H. J. FABRICIUS
JUDGE
OF THE HIGH COURT
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