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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED

Case NO: 48438/2016·

 

In the matter between:

 

J K VORLAUFER & SONS (PTY) LTD                                                        First Applicant

WALTER KARJOSELF VORLAUFER                                                        Second Applicant

BAR.BARA ANNE VORLAUFER                                                                 Third Applicant

KAREN VORLAUFER                                                                                   Fourth Applicant

 

and

 
MIKE HODGE                                                                                                  Respondent

 
JUDGMENT

KUBUSHI J.

The judgment was handed down electronically by uploading on Caselines and by email to the respective parties.

 

[1]          The respondent issued summons against the applicants in July 2016, claiming payment of certain sums of money relating to a Jaguar motor vehicle, which it was alleged the applicants tailed to repair. The app cants excepted to the particulars of claim , raising several grounds of exception, which grounds related both to the complaint that the particulars of claim failed to disclose a cause of action and that they were vague and embarrassing.

[2]         

The exception was argued before me and on 04 December 2018. In all. twenty grounds of exception were argued.. I handed down judgment on 30 April 2019, in term s of which only one ground of exception was upheld and the rest were dismissed. The respondent was granted leave to amend his particulars of claim relating to the one ground of exception upheld. It was further ordered that the applicants pay the costs of the exception.

[3]        The applicants are aggrieved by this part of my order, that is, being mulcted with costs. They are now before me applying for leave to appeal this part of my order on the ground that my departure from the normal rule that costs follow the event is not warranted. On behalf of the applicants, it is contended that since ·the respondent was g ranted leave to amend its particulars of claim, it is the applicants who clearly achieved - substantial success in the exception and ought to have been awarded the costs.

[4]        The respondent is apposing the application for leave to appeal and seeks the dismissal thereof as well as an order in terms of Which the applicants are ordered, jointly and severally, to pay the respondent's costs relating to the application for leave to appeal.

[5]        The parties are in agreement that the application can be determined solely on the papers and that it is, not necessary for oral argument to be presented., I , as a result decided the matter on the arguments presented by the parties in their respective heads of argument uploaded on Caselines.

[6]        In terms of s 17 (1) (a) of the Superior Courts Act, leave to appeal may only be granted where the Judge concerned is of the opinion that (i) the. appeal would have a reasonable prospect of success; or (ii) there is some or other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

[7]          Having considered the arguments by the parties’ counsel and the authorities have been referred to, therein, l find myself not persuaded that another court might

 come to a different ·conclusion; or that the re are compelling reasons why the matter should be heard on appeal.

[8]         

It is trite that a trial· Judge has a wide discretion in awarding costs.[1] The discretion should be exercised judicially upon consideration of all facts , and as between the parties, it is in essence a matter of fairness to both sides.[2]

[9]          In appeals against costs the question is whether there was an improper

 exercise of judicial discretion, that is, whether the award Is vitiated by ,irregularity or

 misdirection or is disquietingly inappropriate. The court will not interfere merely because it might have taken a different view.

[10]       It is also trite that costs follow the event or, put differently, that the successful party is entitled to costs.[3] In my judgment I did not depart from the rule that costs follow the successful party. As I shall indicate hereunder, the argument that the applicants were the successful party, bears no merit. I granted the co.st in favour of the party who is considered to have been substantially successful. that is, the respondent.

[11]      In granting the order for costs I exercised my discretion in favour of the respondent in that I found the respondent to be substantially ,successful and as such entitled to costs of suit The applicants had raised about twenty grounds of exception with which I extensively dealt with in my judgment and upheld only one. It is in that sense that I came to the conclusion that the respondent has been substantially successful.

[12]      As regards the appeal against costs only. It has been held that unless an applicant for leave to appeal against a cost order only can satisfy the trial court that an Appeal Court may reasonably find that exceptional circumstances, exist, leave to appeal should be refused.[4]

[13]      There were no exceptional circumstances proffered by the applicants either at the trial or in their application for leave to appeal. I could find none to exist There is, therefore, no prospect that the applicants may be successful on appeal against the cost order only.

[14]      As is the general rule costs should follow the successful party. The respondent is thus entitled to be awarded costs of this application.

[15]      Consequently, I make the following order -

1.          The application for leave to appeal is dismissed.

2.         The Applicants are ordered, jointly and severally to pay the costs of the application.

 

 

 

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

 

 

 

APPEARANCES:

Counsel for Applicants                            : Adv E.J. Ferreira

Instructed by                                             : Barletts Incorporated

c/o Savage Jooste & Adams

 

Counsel for Respondent                         : Adv J.G Bergenthium, SC

Instructed by                                           : Cutiers & Reyners Attorneys

 

Date heard                                               : 24 July 2020

Date of judgment                                   : 04 August 2020

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