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THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER 56175/14

DATE: 18 SEPTEMBER 2014

In the matter between:

KAREEBERG HOME OWNERS ASSOCIATION.................................................................APPLICANT

and

DONKERPOORT ONTWIKKELAARS CC........................................................................RESPONDENT

(Registration Number: 1997/060371/23)

JUDGMENT

MODIBA AJ:

1.

This is an opposed application for an order in terms of which the respondent is to pay the costs of a liquidation application. The respondent opposes the application.

2.

The question to be decided is the scale of costs.

3.

Counsel for the applicant requested that the liquidation application should be removed from the roll by agreement between the parties. He submitted that the applicant is entitled to the costs of the liquidation on an attorney and client scale. The respondent tendered costs on a party and party scale.

4.

Counsel for the applicant further submitted that the court ought to award costs to the applicant on an attorney and client scale because the respondents wantonly delayed honouring three cost orders previously awarded against the respondent, and failed to respond to the correspondence that the applicant addressed to the respondent in September 2013, and in June 2014, demanding payment. This prompted the applicant to institute liquidation proceedings against the respondent in July 2014, in terms of section 69 of the Close Corporation Act. Attached to the liquidation application were the relevant cost orders, taxed bills and letters referred to above.

5.

Counsel for the applicant further submitted that the respondent adopted a supine attitude towards the liquidation proceedings. It did not file a notice of intention to oppose. The applicant proceeded to set the application down for hearing on the unopposed motion court roll. The respondent, only paid the taxed bills on the eve of hearing. Until then, the applicant was under the impression that the liquidation application will proceed on an unopposed basis because it had not received prior warning from the respondent that it will request that the matter be removed from the roll.

6.

The respondent submitted that the applicant is not entitled to costs on an attorney and client scale because on 8 September 2014, it addressed a letter to the applicant’s attorneys requesting details of the amount owed as well as the details of the bank account into which the payment ought to be made. The applicant only responded to this letter on the eve of the hearing of the liquidation application, and within a few hours thereafter made the required payment. Had that the applicant responded to the letter of 8 September 2014 within a reasonable time, the applicant would have made the payment earlier.

7.

In my view, the respondent acted unreasonably in its conduct of this matter.¹ It was informed of the amount and manner of payment as early as September 2013 but took almost a year before making the payment. Even the filing of a liquidation application by the applicant in July 2014 was not sufficient to put pressure on the respondent to pay. It waited until the eve of the hearing of the liquidation application before the making the payment. In the aforegoing, the respondent cannot use lack of payment information to justify its delay in honouring the applicant’s cost orders. Had it honoured the cost orders within a reasonable time after the relevant bills were taxed, it would not have been necessary for the applicant to institute liquidation proceedings.

8.

In the premises, it is appropriate to grant the following order:

ORDER

a) The application is removed from the roll.

b) The respondent is to pay the costs of the liquidation application on an attorney and client scale.

L. T. Modiba

Acting Judge of the High Court

Gauteng Division, Pretoria

Counsel for the Applicant: Adv. C Richard

Instructed by: VFV Attorneys

Counsel for the 2^nd Respondent: Adv. M Pienaar

Instructed by: Day Inc

Date of hearing: 16 September 2014

Date of judgment: 18 September 2014

¹Madzunye v RAF 2007 (1) SA 165 (SCA) at 1701-6.

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