IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 14010/05
DATE: 17/05/2007
 REPORTABLE
								         
In the matter between:

JACOBUS HENDRIKUS JANSE VAN RENSBURG N.O.		    1st Plaintiff
PHILLIP FOURIE N.O.							    2nd Plaintiff
JACOB LUCIEN LUBISI N.O.						    3rd Plaintiff	
LILY MAMPINA MALATSI-TEFFO N.O.					    4th Plaintiff
ENVER MOHAMMED MOTALA N.O.					    5th Plaintiff 
RABOJANE MOSES KGOSANA N.O.					    6th Plaintiff 
(in their capacities as joint liquidators of
MP FINANCE GROUP CC (IN LIQUIDATION)

and

DANIEL MARIUS VAN DER MERWE					    Defendant
________________________________________________________________
JUDGMENT IN RELATION TO THE QUESTION OF COSTS
________________________________________________________________

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