IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG

CASE NO: 3623/2006
DATE: 2010-02-01
REPORTABLE

REPORTABLE AS TO COSTS ONLY
(SUGGESTED FORMAT)
FULL TEXT OF JUDGMENT ANNEXED (p 6-11)

In the matter between

THE WANDERERS CLUB.........................................................................PLAINTIFF

And

CHRIS BOYES-MOFFAT............................................................FIRST DEFENDANT

THE CITY OF JOHANNESBURG …....................................SECOND DEFENDANT

Costs – opposed application for separation of issues in terms of Rule 33 (4) – costs of two counsel – not justified although complexity of issues to be determined at trial may require appointment of two counsel – dictum in Davis v Caledon Municipality 1960 (4) SA 885 (C) at 887H disapproved and not followed. 

J U D G M E N T

VAN OOSTEN J: 

This is an interlocutory application in which the plaintiff seeks an order for the separation of issues in terms of Uniform Rule of Court 33(4). The application is opposed by the second defendant. The first defendant abides the decision of this court. 
[The court dealt with the merits of the application and then proceeded as follows]
In my view it will be both convenient and expedient if the merits as a whole and the quantum of damages be determined in separate trials in accordance with the order sought by the plaintiff as set out in the notice of motion. 

I turn now to consider the costs of this application. The plaintiff as the successful party will generally be entitled to costs (see, for example, Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 484). I see no reason in the present matter to depart from the general rule. A separation of issues along the lines sought in this application has long been proposed by the plaintiff, obviously in an attempt to curtail the proceedings, but was opposed by the second defendant right from the outset. Counsel for the plaintiff asked for the costs of two counsel. Reliance was placed on the judgment of Van Wyk J in Davis v Caledon Municipality and Another 1960 (4) SA 885 (C) 887H, where the learned Judge, having dismissed an exception with costs, directed that such costs were to include the costs of two counsel on the sole basis that “if the main action justifies two counsel then two counsel must be allowed in all interlocutory applications” (underlining added). The award of costs of two counsel in similar circumstances has consistently been followed in a number of cases. In Ex parte Palmer NO: In re Hahn 1993 (3) SA 359 (C) 370B-D, Berman J, having referred to Davis as well as the apparent approval thereof by Friedman J (as he then was) in Gorfinkel v Gross Hendler & Frank 1987 (3) SA 766 (C) 776H, remarked that it had become the practice, certainly in the Cape, to allow costs of two counsel in interlocutory or subsidiary applications “where two counsel are properly employed in the main matter by the party to whom costs have been awarded”. In Trust Bank van Afrika Bpk v Bitzer 1978 (4) SA 115 (O) Viljoen AJ, placing reliance on Davis and the obiter dictum of Broome JP in Ebrahim’s Estate v Inanda Rural Licencing Board 1953 (4) SA 490 (N) 493H, allowed the costs of two counsel in an opposed application to strike out, which in itself the learned Judge found, did not justify the costs of two counsel but on the basis that it would be unfair not to allow those costs where the main application deserved two counsel. In this Division, Zulman J (as he then was), in Davies v Chairman Committee of the Johannesburg Stock Exchange 1991 (4) SA 24 (W) 57 F-H, in determining the costs reserved at an earlier hearing of the application before another Judge, where two counsel had appeared, with reliance on Davis, allowed the costs of two counsel. 

I have given careful consideration to the cases I have referred to. In none of those cases was costs of two counsel either challenged or argued. Insofar as Van Wyk J’s remarks may be interpreted as to lay down a general rule that costs of two counsel must always be allowed in all interlocutory applications relating to a main application that deserves two counsel, I am in respectful disagreement with the reasoning he adopted and therefore do not regard myself as bound by it. The general principle regarding the award of costs is well-settled: it is entirely a matter for the discretion of the court which is to be exercised judicially upon a consideration of the facts of each case and in essence it is a matter of fairness to both sides (cf Gelb v Hawkins 1960 (3) SA 687 (A) 694A; Graham v Odendaal 1972 (2) SA 611 (A) 616A; Cilliers Law of Costs 2.03-2.05). A general rule of thumb as stated by Van Wyk J, in my view, detracts from the wide discretion which exists with regard to costs. Or, as it has been succinctly stated by Lloyd LJ in Bolton Metropolitan District Council v Secretary of State for the Environment [1996] 1 All ER 184 186 (Cilliers op cit 1.04) “As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court”. 

In De Naamloze Vennootschap Alintex v Von Gerlach 1858 (1) SA 13 (T) Bresler J, with reference to South African Railways and Harbours v Mills 1924 CPD 110 and the authorities there reviewed, enumerated as relevant considerations to the granting of the costs of two counsel, the length of the hearing of the argument, the importance of questions of principle or of law involved and the number of authorities quoted. 

Applying these guidelines to the present matter, the complexity of the issues to be determined at the trial of this matter justifying the employment of two counsel is of course one consideration, but on the other hand is outweighed by an absence of any of the other factors I have already referred to: the present application reveals nothing out of the ordinary and the issues, in my view, are not of any legal or factual complexity. Nor was it argued, or can it be said, that the employment of two counsel in this application was a wise and reasonable precaution (see Newman v Prinsloo and Another 1974 (4) SA 408 (W) 411A; Zweni v Minister of Law and Order (1) 1991 (4) SA 166 (W) 170A). That being so, I can find no justification for allowing the costs of two counsel. 

In the result I grant an order for the separation of issues in terms of prayers 1 and 2 of the notice of motion and in addition thereto, order the second defendant to pay the costs of this application.

FHD VAN OOSTEN
JUDGE OF THE HIGH COURT

COUNSEL FOR THE PLAINTIFF		ADV J B BERRIDGE SC
ADV C STEINBERG

PLAINIFF’S ATTORNEYS			EVERINGHAM RODGER NEL

COUNSEL FOR THE 
SECOND DEFENDANT				ADV R STOCKWELL SC

SECOND DEFENDANT’S ATTORNEYS........WEBBER WENTZEL

DATE OF HEARING				1 FEBRUARY 2010

DATE OF JUDGMENT				1 FEBRUARY 2010

DATE REVISED					9 SEPTEMBER 2011 

iAfrica Transcriptions (Pty) Ltd
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: 3623/2006
DATE: 2010-02-01

In the matter between

THE WANDERERS CLUB 					PLAINTIFF

and

CHRIS BOYES MOFFAT 						FIRST DEFENDANT

CITY OF JOHANNESBURG 					SECOND DEFENDANT

J U D G M E N T

VAN OOSTEN J: 

This is an interlocutory application in which the plaintiff seeks an order for the separation of issues in terms of Uniform Rule of Court 33(4). The application is opposed by the second defendant. The first defendant abides the decision of this court. 
The plaintiff seeks a separation of issues which if allowed, will result in a two phased process, firstly, a trial on the merits and, secondly, a hearing on the quantification of damages. The second defendant, however, raised the reservation that a separation of the determination of the quantum of damages, as a whole, would necessitate again leading evidence on the factual issue relating to the question as to when its duty to extinguish the fire commenced having regard to the fact that the second defendant's fire brigade arrived on the scene after the fire had already started and thus after certain damage had already been caused.
The objection in essence raises the possibility of a duplication of evidence which, in my view, is more apparent than real. This aspect plainly cannot involve the leading of a large body of evidence and would therefore even in the event of it having to be led again, not substantially affect the length of the proceedings. The time of arrival of the second defendant’s fire brigade at the scene of the fire is an aspect that should be readily capable of agreement between the parties. The possibility of this minor issue still being alive after conclusion of the trial on the merits therefore seems to me to be so remote that it can best be disregarded. I am accordingly satisfied that it will be both convenient and cost effective to separate the issues of merits and quantum of damages. 
That leaves for determination one further refinement contended for by the second defendant. It concerns the by now well-known “insurance defence” raised by the first defendant, which I have previously pronounced upon. What the second defendant now contends for is a two phased trial on the merits of the matter, firstly, to determine the insurance defence and, secondly, thereafter the remainder of the defences that have been raised. I am unable to find merit in the contention. As counsel for the plaintiff correctly pointed out, causation has specifically been pleaded by the plaintiff in support of the alleged joint and several liability of the defendants. A determination of the insurance defence in favour of the first defendant will therefore not automatically release the second defendant from liability. Although the insurance defence raises a crisp issue, I am not satisfied that it warrants a separate trial. 
In my view it will be both convenient and expedient if the merits as a whole and the quantum of damages are determined in separate trials in accordance with the order sought by the plaintiff as set out in the notice of motion. 
I turn now to consider the costs of this application. The plaintiff as the successful party will generally be entitled to costs (see, for example, Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 484). I see no reason in the present matter to depart from the general rule. A separation of issues along the lines sought in this application has long been proposed by the plaintiff, obviously in an attempt to curtail the proceedings, but was opposed by the second defendant right from the outset. Counsel for the plaintiff asked for the costs of two counsel. Reliance was placed on the judgment of Van Wyk J in Davis v Caledon Municipality and Another 1960 (4) SA 885 (C) 887H, where the learned Judge, having dismissed an exception with costs, directed that such costs were to include the costs of two counsel on the sole basis that “if the main action justifies two counsel then two counsel must be allowed in all interlocutory applications” (underlining added). The award of costs of two counsel in similar circumstances has consistently been followed in a number of cases. In Ex parte Palmer NO: In re Hahn 1993 (3) SA 359 (C) 370B-D, Berman J, having referred to Davis as well as the apparent approval thereof by Friedman J (as he then was) in Gorfinkel v Gross Hendler & Frank 1987 (3) SA 766 (C) 776H, remarked that it had become the practice, certainly in the Cape, to allow costs of two counsel in interlocutory or subsidiary applications “where two counsel are properly employed in the main matter by the party to whom costs have been awarded”. In Trust Bank van Afrika Bpk v Bitzer 1978 (4) SA 115 (O) Viljoen AJ, placing reliance on Davis and the obiter dictum of Broome JP in Ebrahim’s Estate v Inanda Rural Licencing Board 1953 (4) SA 490 (N) 493H, allowed the costs of two counsel in an opposed application to strike out, which in itself the learned Judge found, did not justify the costs of two counsel but on the basis that it would be unfair not to allow those costs where the main application deserved two counsel. In this Division, Zulman J (as he then was), in Davies v Chairman Committee of the Johannesburg Stock Exchange 1991 (4) SA 24 (W) 57 F-H, in determining the costs reserved at an earlier hearing of the application before another Judge, where two counsel had appeared, with reliance on Davis, allowed the costs of two counsel. 
I have given careful consideration to the cases I have referred to. In none of those cases was costs of two counsel either challenged or argued. Insofar as Van Wyk J’s remarks may be interpreted as to lay down a general rule that costs of two counsel must always be allowed in all interlocutory applications relating to a main application that deserves two counsel, I am in respectful disagreement with the reasoning he adopted and therefore do not regard myself as bound by it. The general principle regarding the award of costs is well-settled: it is entirely a matter for the discretion of the court which is to be exercised judicially upon a consideration of the facts of each case and in essence it is a matter of fairness to both sides (cf Gelb v Hawkins 1960 (3) SA 687 (A) 694A; Graham v Odendaal 1972 (2) SA 611 (A) 616A; Cilliers Law of Costs 2.03-2.05). A general rule of thumb as stated by Van Wyk J, in my view, detracts from the wide discretion which exists with regard to costs. Or, as it has been succinctly stated by Lloyd LJ in Bolton Metropolitan District Council v Secretary of State for the Environment [1996] 1 All ER 184 186 (Cilliers op cit 1.04) “As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court”. 
In De Naamloze Vennootschap Alintex v Von Gerlach 1858 (1) SA 13 (T) Bresler J, with reference to South African Railways and Harbours v Mills 1924 CPD 110 and the authorities there reviewed, enumerated as relevant considerations to the granting of the costs of two counsel, the length of the hearing of the argument, the importance of questions of principle or of law involved and the number of authorities quoted. 
Applying these guidelines to the present matter, the complexity of the issues to be determined at the trial of this matter justifying the employment of two counsel is of course one consideration, but on the other hand is outweighed by an absence of any of the other factors I have already referred to: the present application reveals nothing out of the ordinary and the issues, in my view, are not of any legal or factual complexity. Nor was it argued, or can it be said, that the employment of two counsel in this application was a wise and reasonable precaution (see Newman v Prinsloo and Another 1974 (4) SA 408 (W) 411A; Zweni v Minister of Law and Order (1) 1991 (4) SA 166 (W) 170A). That being so, I can find no justification for allowing the costs of two counsel. 
In the result I grant an order for the separation of issues in terms of prayers 1 and 2 of the notice of motion and in addition thereto, order the second defendant to pay the costs of this application.

FHD VAN OOSTEN
JUDGE OF THE HIGH COURT

COUNSEL FOR THE PLAINTIFF 		ADV J B BERRIDGE SC
with him
ADV C STEINBERG

PLAINIFF’S ATTORNEYS 			EVERINGHAM RODGER NEL

COUNSEL FOR THE 
SECOND DEFENDANT 				ADV R STOCKWELL SC

SECOND DEFENDANT’S ATTORNEYS 	WEBBER WENTZEL

DATE OF HEARING 				1 FEBRUARY 2010

DATE OF JUDGMENT 				1 FEBRUARY 2010