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(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 14010/05

DATE: 17/05/2007

REPORTABLE

In the matter between:

JACOBUS HENDRIKUS JANSE VAN RENSBURG N.O. 1^st Plaintiff

PHILLIP FOURIE N.O. 2^nd Plaintiff

JACOB LUCIEN LUBISI N.O. 3^rd Plaintiff

LILY MAMPINA MALATSI-TEFFO N.O. 4^th Plaintiff

ENVER MOHAMMED MOTALA N.O. 5^th Plaintiff

RABOJANE MOSES KGOSANA N.O. 6^th Plaintiff

(in their capacities as joint liquidators of

MP FINANCE GROUP CC (IN LIQUIDATION)

and

DANIEL MARIUS VAN DER MERWE Defendant

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JUDGMENT IN RELATION TO THE QUESTION OF COSTS

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MURPHY J

1. On 2 May 2007 I handed down a written judgment in these matters, incorporating an order that the plaintiffs pay the defendants’ costs, including the costs of two counsel where applicable.

2. The circumstances in which the three matters came to be heard as one are spelt out in the judgment. At the time I prepared the written judgment I was labouring under the misunderstanding that the parties were ad idem that if costs were awarded in favour of the defendants, such would include the costs of employing two counsel in the action instituted against van der Merwe (“the defendant”) under case number 14010/05. I was clearly mistaken and on the day of judgment counsel for the parties addressed me on this issue. I then made the order that I did and reserved my reasons for making the order that the costs award include the costs of employing two counsel.

3. The question, as always, is whether it was reasonable for the defendant to brief two counsel. Such is a matter of judicial discretion to be exercised with regard to the amount involved, the nature of the issue in dispute, the length of the hearing and argument, the importance of any questions of principle or of law and the number of legal authorities quoted. Normally where two counsel have been employed, the court will require cogent reasons why the fees of one of them should be disallowed - Grobelaar v Havenga 1964(3) SA 522 (N).

4. Mr Strydom, who appeared for the defendant, submitted that the case at hand had a public interest component in that it related to the remedies available to the liquidators (the plaintiffs) in winding up the affairs of a fraudulent investment scheme of some notoriety. The case before me was something of a test case and the decision will have implications for thousands of investors. This, he submitted, justified a thorough investigation of all the authorities in relation to the various special pleas filed. The fact that it became unnecessary to hear the argument so prepared, by virtue of it being pre-empted by the hearing of the Myburgh matter (case number 14420/05), did not detract from the importance of the case and the degree of preparation required to put the case of the defendant. The heads of argument submitted to me after the written judgment was finalised, are thorough, extensive and a complete rendition of the principles and authorities. No less than 30 authorities are referred to.

5. Counsel for the respondents, Mr Naude, submitted that from the point of view of quantum the matter could not be seen to be one of significance. The plaintiffs seek R32 775 from the defendant. He also took issue with the claim that this matter was on the same footing as the test case set down for 8 May 2007 in which the right of the plaintiffs to bring an action under section 29 of the Insolvency Act would be argued before a full bench. He further made the point that Myburgh had been ably represented by his attorney, Mr GP van der Merwe, as indeed he had been, when the matter was argued before me, thus indicating that two counsel were not required.

6. While the matters raised by Mr Naude are relevant considerations, they do not in my opinion justify disallowing the fees of two counsel. There can be little doubt that the so-called test case would address mostly the same issues (if not all) in the three cases that came before me. I agree with Mr Strydom that the issues are complex, involve a matter of public interest with an impact beyond the parties, and hence that the defendant’s decision to brief two counsel was a wise and reasonable precaution. The fact that Mr GP van der Merwe ably represented Myburgh cannot discount the entitlement of the defendant to act strategically in further strengthening his armour. Likewise, although the quantum here is indeed a relatively small amount, this factor is outweighed by the context of this peculiar litigation and the questions of principle and public policy involved.

7. For those reasons, I was persuaded that an order allowing the costs of two counsel was justified.

JR MURPHY

JUDGE OF THE HIGH COURT

Date Heard: 2 May 2007

For the Plaintiffs: Adv G Naude, Pretoria

Instructed by: Thys Cronje Inc., Pretoria

For the Respondent: Adv T Strydom and Adv H van Tonder, Pretoria

Instructed by: GP van der Merwe, Pretoria-North

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