REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA 
GAUTENG SOUTH LOCAL DIVISION, JOHANNESBURG
CASE NO: 35355/2013
DATE: 10 JUNE 2014
In the matter  between:
GERT HENDRIK VAN ZYL....................................................................................................1st Applicant
ABASERVE CC........................................................................................................................2nd Applicant
and
MEAT MATRIX SOFTWARE (PTY) LTD...........................................................................1st Respondent
DEON SNYMAN....................................................................................................................2nd Respondent
JUDGMENT
SWARTZ AJ:
[1] The first and second applicants instituted application against the  first and second respondents seeking, inter alia, interdictory relief  against copyright infringement. The respondents gave notice of  their intention to oppose the application on 17 October 2013 and  filed their answering evidence on 25 November 2013. On 12 March  2014, the respondents proceeded to set the application down for  hearing. On 8 May 2014 the applicants gave notice of their  intention to withdraw the application in terms of Rule 41, tendering  the respondents' costs of the application. I was called upon to  decide only in respect of the scale of the costs to be paid by the  applicant. The respondents contend that the applicants must pay  its costs on the attorney and client scale.
[2] The first applicant is the owner of the copyright subsisting in the  Abaserve computer program, which is a data capturing and  management system used by abattoirs. The program is a computer  program as defined in section 1(1) of the Copyright Act, Act 98 of  1978 (The Act). The second applicant, with the consent of the first  applicant commercially exploits the program and the compilation  for the benefit of both the first and second applicants. The  applicants maintain that the respondents marketed and sold a  product entitled Meat Matrix, in competition with the applicants.  The Meat Matrix program and the Meat Matrix compilation,  respectively, according to the applicants constitute a reproduction  or adaptation of a substantial part of the Abaserve program and  compilation. It is alleged that this reproduction and or adaptation  was made by the respondents without the authority of the first  applicant, which conduct amount to copyright infringement. On the  advice of senior counsel the main application was instituted,  seeking inter alia, interdictory relief against the respondents. The  main application was based on the copyright subsisting in the  Abaserve computer program. The application was instituted on 9  September 2013 and the respondents answering evidence was filed  on 25 November 2013. Prior to the filing of the answering evidence the parties were involved in disputes, inter alia, pertaining to discovery in terms of Rule 35.
[3] The applicants' attorney, Ms E De Kock filed an affidavit in support  an application for leave to withdraw the main application, which  was initially opposed, in which she states that at the time of the  filing of the respondents answering evidence it was close to the  festive season and senior counsel employed at that time was  unavailable to attend to the matter until well into the new year. In  early 2014 the services of a new senior counsel was obtained in  order to consider the answering evidence filed by the respondent.  Senior counsel advised it was not feasible to pursue the main  application for a variety of reasons and he advised the withdrawal  of the main application and the institution of an action based on  the copyright infringement. A summons and particulars of claim  have been drafted and issued by the applicants to be served on the  respondents as defendants in that action. The applicants served a  notice of withdrawal of the application on the respondents and  tendered their taxed costs.
[4] The parties agreed eventually to the withdrawal of the application  and it was submitted on behalf of the applicants that it was not  necessary for a punitive costs order. The applicants have acted on  legal advice obtained from senior counsel, firstly in instituting the  application and secondly, in withdrawing the application. It was  contended that the applicants had not acted recklessly or in abuse  of the courts process. The applicants did not contest that the  respondents are entitled to be awarded the costs of the main  application.
[5] The basis in which the respondents seek a costs order on a punitive  scale is because of the unexplained and undue delay in the launch  of the application. The respondent submits that there was a near decade-long delay by the applicants to launch the main application, despite threats to do so early in 2006. The respondents avers that  its computer application of which the applicants complain is an  independent work that is in no manner a reproduction or an  adaptation of any work of the applicants. There were no attempts  whatsoever made to resolve the decade-long dispute. On the  contrary, it was submitted that the respondents had to contend  with numerous and frequent allegations by the first applicant of  alleged copying and even fraudulent and criminal activities. After  filing of the answering affidavit, the applicants lapsed into complete  inactivity and did absolutely nothing to move the application  forward to finality. The first reaction of the applicants came with  the service of the notice of withdrawal of the application after the  application had already been allocated for hearing on 15 May 2014.  It was submitted on behalf of the respondents the main reason why  the applicants did not persist with the application was specifically  because the application was fatally defective and that it had no  prospects whatsoever of success. The notice of withdrawal of the  application was made at a very late stage when the respondents  had already been put through unnecessary expense and ordinary  party and party costs would not completely recompense the  respondents.
[6] It was further submitted on behalf of the respondents that the  applicants failed to found a case on infringement of copyright and  the misuse of confidential information.
[7]   As the parties had agreed to the withdrawal of the application, I  agree with the submissions made by counsel on behalf of the  respondent that the applicants waited until a very late stage to  withdraw the application, irrespective of the reasons advanced for  the decision to withdraw the application. The application could  have been withdrawn much sooner and not at the eleventh hour  when the matter had already been allocated to me. An award of an  attorney and client costs is not lightly granted by a court and the  court leans against awarding attorney and client costs. Such costs  are only granted on rare occasions and normally only where special  grounds are present. Although the applicants were misguided by  senior counsel whose services were engaged and who settled the  papers, it still does not explain the inexcusable lengthy delay in the  withdrawal of the application. The respondents are entitled to costs  on the attorney and client scale.
[8] The respondents have not filed a notice of counter application.  There is no separate heading in this regard in the answering  affidavit filed on behalf of the respondents. The only reference to  an interdict being sought is in the answering affidavit where it is  stated that, "in the premises, I respectfully say that I am entitled to  an interdict restraining the First Applicant from making threats and  dissimulating untruths about and concerning the respondents and  their software. I will seek such relief at the hearing of this  application." A notice of counterclaim is not necessarily required. It  is preferable. Such a counterclaim should be embodied in a  separate part of the document. The authors in Herbstein & Van  Winsen, The Civil Practice of the High Court of South Africa {5th  Edition) at 667 stated the following: "Where the counterclaim  arises out of the same facts that constitute the defence to the claim  in convention it is usual practice for the Defendant to refer in the  counterclaim to the facts set out in the plea and to incorporate  them by reference into the counterclaim. Apart from this, a  Defendant who intends filing a counterclaim should not embody  the subject-matter of the counterclaim in the plea. The fact that the  rule allows the counterclaim to be set out in a caution of the  document containing the plea does not mean that the averment in  the plea should be allowed to become mixed up with those in the  counterclaim." I agree with the submissions of the applicants'  counsel that there is no counter application in respect of which an  interdict can be granted
Order:
The applicants are ordered to pay the respondents' costs of the application, such costs to be taxed on the attorney and own  client scale and to include the costs occasioned by the  employment of senior counsel.
SWARTZ AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, 
JOHANNESBURG
Counsel for the Applicant: Adv R. Michau
 Instructed by: De Kock Attorneys  
Counsel for the Respondent: Adv B. Bester SC  
Instructed by: Rossouw And Prinsloo Inc  
Date of Hearing: 15 May 2014  
Date of Judgment: 10 June 2014