The
applicant mounted a court application against all respondents seeking
certain declarations and consequential relief.
At
the time of the launch of the application, the fifth respondent was
under the management of a curator, the first respondent. The
curatorship took effect on 2 June 2011. The applicant was well aware
of this position and that the curatorship was for a limited period.
The application was opposed by all the respondents. The first and the
fifth respondents retained the services of Messrs Wintertons Legal
Practitioners. On 11 November 2011, the first and the fifth
respondents sought to have the application determined on a
certificate of urgency before the expiry of the curatorship. This was
opposed by the applicant and the curatorship expired before the
matter was heard. The curatorship was lifted on 2 March 2012.
On
5 June 2012, the applicant advised the respondents that the matter
had been set down for hearing on 21 June 2012. On the day of hearing,
the applicant, at 0845hours, served the first and the fifth
respondent's legal practitioners with a notice of withdrawal. The
notice was not accompanied by a tender of wasted costs.
The
issue for determination is whether the applicant should be ordered to
pay the first and the fifth respondents costs of the application,
and, if so, the scale of such costs.
Counsel
for the applicant
submitted
that the first respondent was cited in his official capacity. The
post was removed, therefore, he ceases to be before the court. There
in no-one to insist on costs. He referred the court to Gariya
Safairs (Pvt) Ltd v Van Wyk 1996
(2) ZLR 246 (HC).
A party claims for costs because he or she is put out of pocket. Into
whose pockets will the costs go if they are awarded.
As
regard the fifth respondent, counsel for the applicant submitted that
the application was not seeking any relief against it. It was not
called upon to defend. It was joined as a matter of convenience. It
did not put its position before the court. It did not incur any
costs.
He
further submitted that courts of law exist for purposes of settling
concrete controversies. He referred to Golden
Huys and Neethling v Beathin
1918 AD 426. In casu,
once the curatorship was uplifted there was no longer a concrete
controversy for the court to settle. The applicant then withdrew the
proceedings. The applicant cannot be penalized for a matter which was
overtaken by events. He prayed that the first respondent, in his
personal capacity be ordered to pay costs on a higher scale.
Counsel
for the first and fifth respondents contended that the relief that
the applicant sought could still have been granted after the
curatorship had ceased. What the applicant sought were declarations.
The court could still make a decision whether the curator had
discharged his obligations in terms of the Banking Act. The applicant
also sought consequential relief regarding re-imbursement of fees
drawn by the first respondent. This could still have been determined
post-curatorship.
He
further submitted that the applicant applied for a set down date
three months after the curatorship had ceased. The applicant only
filed the Notice of Withdrawal on the day of hearing at 8:45hours. He
further contended that serious allegations of impropriety were made
against the first respondent and he had to respond. As a result he
was put out of pocket. He
also contended that the first respondent requested for an urgent set
down of the matter before the expiry of the curatorship. The
applicant opposed the request.
In
examining the fundamental rules relating to awards of costs. The
learned authors HEBSTEIN and Van WINSEN in The
Civil
Practice of the High Court and the Supreme Court of Appeal of South
Africa,
5ed, Vol 2…, stated the following:
“The
award of costs is a matter wholly within the discretion of the court,
but this is a judicial discretion and must be exercised on grounds
upon which a reasonable person could have come to the conclusion
arrived at. In learn the magistrate (or judge) a discretion,…,. The
law contemplated that he should take into consideration the
circumstances of each case, carefully weighing the various issues in
the case, the conduct of the parties and any other circumstances
which may have a bearing upon the question of costs and then make
such order as to costs as would be fair and just between the
parties…,.
Even
the general rule, viz
that costs follow the event, is subject to the overriding principle
that the court has a judicial discretion in awarding costs.”
What
comes out clearly from the above text is that the award of that cost
is the discretion of the court and that the court is guided by
certain fundamental principles in exercising this discretion.
In
dealing with the issue of costs on withdrawal of proceedings
specifically, AC CILLIERS in the Law
of Costs,
2nd
ed…, had this to say:
“Where
a litigant withdraws an action or in effect withdraws it, very
strong reasons
must exist why a defendant or respondent should not be entitled to
his costs. A plaintiff or applicant who withdraws his action or
application is in the same position as an unsuccessful litigant
because, after all, his claim or application is futile and the
defendant or respondent is entitled to all costs caused by the
institution of proceedings by the withdrawing party. In such a case,
it is not necessary to go into the merits:
there is a crucial difference between the position of an applicant
settling his case on the merits and then asking the court's ruling
on costs and the position of an applicant withdrawing his claim and
thereafter attempting to avoid an order of costs against him.”…,.
The
above position was adopted in Germishuys
v Douglas Bespoeiinsraad
1973 (3) SA 299 (NC). See also Abramacos
v Abramacos
1953 (4) SA 472 (SR).
As
was correctly pointed out by counsel for the first and fifth
respondents,
the legal position emerging from the above is that;
(i)
A plaintiff/applicant withdrawing an action/application ipso
jure
invites upon himself the obligation to pay costs for the opposing
side.
(ii)
The withdrawing party is in no better position than a losing party,
his litigation being futile.
(iii)
The withdrawing party cannot call to his aid the merits of the matter
in trying to avoid costs.
(iv)
Costs have to be paid up to the date of withdrawal of the matter.
(v)
The sole question to be asked is whether or not the matter has been
withdrawn. If the answer is in the affirmative, then liability for
payment of costs will attach.
(vi)
A withdrawing party seeking to avoid a payment of costs has to
advance “very sound reasons thereof.”
It
is common cause that the applicant withdrew its application fifteen
minutes before the hearing. In terms of the above propositions of the
law, the applicant invited upon himself the obligation to pay costs
of the application up to the time of withdrawal - unless he can show
“very sound reasons” for avoiding the costs.
The
issue to be determined is whether the applicant has advanced very
strong reasons for avoiding liability of costs.
In
summary, the applicants reasons for avoiding costs are that the
curatorship ceased and there is no longer a respondent answering to
the name
of the first respondent. The first respondent not having been sued in
his personal capacity did not meet the costs of litigation and that
there was no longer a concrete controversy for the court to settle.
The
question to ask is whether the reasons advanced by the applicant
amount to 'very sound reasons' for avoiding liability for costs.
My
view is that the reasons advanced by the applicant are far from
meeting the criteria of 'very sound reasons.'
Lapse
of curatorship
When
the applicant instituted the proceedings in issue, it was aware that
the curatorship has a lifespan. Being fully cognisant of the fact,
the applicant opposed the first and the second respondent's attempt
to have the matter decided on an urgent basis, and, during the
subsistence of the curatorship. He therefore took the risks of the
matter having to outlive the curatorship and cannot turnaround and
seek to rely on the lapse of the curatorship.
In
any event, no evidence has been placed before the court to show that
the withdrawal is attributable to the lapse of the curatorship. If
that was the case, the applicant would have withdrawn the matter
immediately upon the lapse of the curatorship. He did not do so but
waited for a period of almost four months after the lapse of the
curatorship to file the notice of withdrawal. The applicant has not
established a link between the lapse of the curatorship and the
withdrawal - four months down the line and a few minutes before the
hearing.
Concrete
dispute between the parties
The
lapse of the curatorship did not render the matter incapable of being
resolved. The court could still make pronouncements on the legality
or otherwise of the first respondent's conduct. The court could
still determine the issue relating to the Board of the fifth
respondent. It could also still determine the issue of the
consequential relief being sought by the applicant regarding
re-imbursement of the fees drawn by the first respondent.
No
respondent answering by the name of the first respondent
The
curatorship in this matter lapsed on 2 March 2012. The applicant
proceeded to set the matter down when he knew very well that it had
lapsed. On 5 June 2012, three months after the lapse of curatorship,
the applicant clearly exhibited an intention to proceed with the
matter by serving the notice of set down on the first respondent's
legal practitioners.
The
question that begs an answer is; if there was no longer a respondent
answering to the first respondent, why did the applicant serve notice
of set down, for the first respondent to appear in court, on his
legal practitioners?
There
is no doubt that, as a result of the service of the notice of set
down, the first respondent incurred costs post the curatorship. His
lawyers prepared for the hearing only to be served with a notice of
withdrawal fifteen minutes before the hearing. The applicant could
have elected to abandon the case against the first respondent if the
lapse of the curatorship rendered his case against
the first respondent futile. He did not do so, but, instead, chose to
withdraw the case on the eleventh hour.
The
first respondent was not sued in his personal capacity
I
agree with the submission made by counsel for the first and fifth
respondents that the source of money that was used to meet the costs
of the proceedings by the first respondent is not material to the
determination of the issue at hand. The question is very simple; did
the first respondent incur costs in defending this matter during and
after the subsistence of the curatorship? If the answer is the
positive that is
the end of the matter. The question of into whose pockets will the
money go is not for this court to determine.
As
regards the fifth respondent, no meaningful submissions were made
against it. It is still in existence. It incurred costs in defending
this matter. I agree with counsel for the first and fifth respondents
that the fact that the other respondents have abandoned their claim
for costs does not dis-entitle the first and the fifth respondents to
claim their costs. From the above analysis, it is clear that the
first and the fifth respondents have managed to establish their
entitlement to costs.
The
next issue to determine is at what scale.
This
is one of the cases where I will not hesitate to exercise my
discretion and awarding costs
on a punitive scale. It is clear, from the facts, that the applicant
was not genuine in the pursuance of a stand in the litigation
process. See Mahembe
v Mahombo
2003 (1) ZLR 14 (H)…,. The application by the applicant was
vexatious and meant to disturb the smooth operations of the curator.
It was not meant to vindicate any rights. If it was, the applicant
would not have opposed the quest by the first respondent to have the
case set down urgently. The applicant would also have taken steps to
withdraw or abandon the matter immediately upon the lapse of
curatorship. Having failed to do so, and, instead, setting the matter
down, it should not have opposed the claim for costs by the first and
fifth respondents.
The
first and the fifth respondents have made out a case for costs on a
higher scale. In the result I will make the following order:
The
applicant is to pay the first and the fifth respondents costs on the
attorney and client scale.
