Westensee v Linde & Westensee CC and Others (857A/2009) [2012] ZAECGHC 98 (26 November 2012)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

CASE NO: 857A/2009

DATE HEARD: 08/11/2012

DATE DELIVERED: 26/11/2012

In the matter between

ELIZABETH WESTENSEE ..........................................................................APPLICANT

and

LINDE & WESTENSEE CC ..............................................................1ST

RESPONDENT

MJ LINDE & E WESTENSEE CC ....................................................2ND

RESPONDENT

MERELYN JOY LINDE ....................................................................3RD

RESPONDENT

KEVIN JOHN BENEDICT POOVAN ................................................4TH

RESPONDENT

JUDGMENT

ROBERSON J:-

[1] This judgment concerns an issue of costs. On 8 November 2012 two applications were on the opposed motion court roll: one, by the applicant in terms of Rule 30 to set aside an irregular proceeding, and the other, by the respondents for, inter alia, an extension of a time period prescribed by the Uniform Rules. I was not prepared to hear either application because Practice Rule 15A had not been complied with and the respondents’ application papers had not been indexed and paginated. I postponed

the matter to 22 November 2012 and reserved my decision on the wasted costs.

[2] The applicant was awarded the costs of an earlier application which she had brought against the respondents. On the day her bill was to be taxed, objection was made on her behalf to the appearance, at the taxation, of a candidate attorney, who appeared together with the respondents’ attorney. The Taxing Master upheld the objection and ruled that the candidate attorney was not permitted to be present at or to participate in the taxation.

[3] The taxation was then postponed at the instance of the respondents. Thereafter, utilising Rule 48, they instituted a review of the Taxing Master’s decision.

[4] The Taxing Master supplied his stated case on 3 May 2012, and the applicant and the respondents made submissions within 15 days, in accordance with Rule 48 (5) (a). The applicant filed submissions on 7 May and 24 May 2012 and the respondents filed submissions on 24 May 2012. The respondents then filed further submissions on 13 July 2012. These further submissions, which the applicant terms a “reply”, are the subject matter of the Rule 30 application, the applicant contending that – (i) Rule 48 does not provide for such a “reply”, and (ii) that it was filed out of time.

[5] The respondents have opposed the application. In the answering affidavit, deposed to by Attorney Hart, it was admitted that the delivery of the “reply” did not comply with Rule 48. However the Court was requested to order that the “reply” was not an irregular step as envisaged by Rule 30, alternatively to condone the late delivery of the “reply”.

[6] On 16 August 2012 the application was postponed by agreement to 4 October 2012, the court order stipulating time limits for the delivery of answering and replying affidavits. A Practice Rule 15A notice was filed for that date. On 2 October 2012 the matter was removed from the roll on 4 October 2012 and reinstated for 8 November 2012.

[7] On 11 October 2012 the respondents launched an application, to be heard at the hearing of the Rule 30 application, for an order:

condoning their failure to comply with the Rules of Court;

granting them leave to file further submissions; and

extending the time period prescribed by Rule 48 (5) (a).

This application was opposed by the applicant.

[8] As already mentioned, I was not prepared to hear the applications on 8 November 2012.

[9] Practice Rule 15A provides:

“15A

OPPOSED MOTIONS

By no later than noon two court days before the day of hearing the applicant, excipient or plaintiff shall notify the registrar in writing whether the matter will be argued, and if not what alternative relief (for example postponement, referral to evidence,

etc.) will be sought.

Failure on the part of the applicant, excipient or plaintiff to comply with the provisions of the previous subparagraph will result in the matter being struck from the roll with an appropriate order as to costs.”

In my view, the fact that a Rule 15A notice had been filed for 4 October 2012, was insufficient compliance with the Rule. The purpose of the Rule is for the convenience of the Judge presiding in motion court. It happens that matters which are on the opposed roll, even where a Rule 15A notice has been filed, are postponed for a variety of reasons. The fact that a Rule 15A notice has been previously filed, is no guarantee that the matter will proceed on the day to which the matter is postponed. It may be further postponed or some other agreement may be reached between the parties. If the presiding Judge is not properly informed of what is intended to happen on the day of hearing, time may be wasted in reading the papers, which are often extensive. Each date to which an opposed matter is postponed, is a “day of hearing” in respect of which the Rule applies.

[10] Uniform Rule 62 (4) provides:

“An applicant or plaintiff shall not later than five days prior to the hearing of the matter collate, and number consecutively, and suitably secure, all pages of the documents delivered and shall prepare and deliver a complete index thereof.”

See also Practice Rule 3 (a).

[11] It was submitted on behalf of the applicant that an appropriate costs order with regard to the wasted costs, would be costs in the cause, given that it was not known that a Rule 15A notice should be filed for each hearing date, even if a notice had been filed for an earlier date.

[12] On the other hand it was submitted on behalf of the respondents that the applicant is dominis litis, that the matter had developed since 4 October 2012 in that the respondents’ heads of argument had subsequently been filed,

and that reliance could not be placed on the earlier Rule 15A notice. It was further submitted that the respondents’ application

should have been part of the main index and that it was the applicant’s responsibility to index and paginate those papers.

[13] I do not agree with this latter submission. The respondents’ application, although linked to the main application, was a separate application seeking its own specific relief. In my view it was the obligation of the respondents to index and paginate those papers.

[14] The applicant and the respondents therefore each bore some responsibility for ensuring that the applications could proceed and in these circumstances I believe an appropriate costs order would be that each party should pay their own costs.

[15] It is therefore ordered that with regard to the wasted costs occasioned by the postponement of the applications on 8 November 2012, each party should pay their own costs.

______

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Adv S Cole, instructed by Wheeldon Rushmere & Cole, Grahamstown

For the Respondents: Adv R Brooks, instructed by Netteltons Attorneys, Grahamstown