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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA

CASE NO: 63720/12

DATE: 2014-02-27

NOT REPORTABLE

In the matter between

ANTEL, AM & 1 OTHER....................................................................................................................Applicant

and

VIRTUAL CONSULTING ENGINEERS (PTY) LIMITED

& 2 OTHERS......................................................................................................................................Respondent

JUDGMENT

ISMAIL. J: It is not usual for a motion court to make a deliberate judgment but I am going to do this ex abundanti cautela, by virtue of what transpired in this matter.

This is an interlocutory application brought by the applicants, Virtual Consulting Engineers (Pty) Limited against the first respondent and second respondents in this matter.

I have been through the papers in this matter and the long arid the short of this matter is the applicants in this matter who are the respondents in the main action were compelled to bring this application whereby they sought an order that the applicants' replying affidavits and annexures thereto filed of record on 27 May 2013 in the above main application are struck out in their entirety, and secondly, further and alternative relief.

The gravamen of this dispute seems to be that the applicants, in their replying affidavits have served, if my memory serves me correctly, 10 more than five times the number of folios in their replying affidavit to that which they originally filed in their founding affidavit, and to this end Advocate Bester SC, who appears on behalf of the current applicant, provided the court with Heads of Arguments, and I am indebted to him because the Heads of Arguments have been to the point and crisp.

The crux of the matter is that any party that brings an application should make out its case in its founding papers. It seems as if the applicant has used the opportunity in its replying papers to bring about new matters, and, in fact, state in the replying affidavits what he ought to have said in his founding affidavits. The case law has been set out in 20 the Heads of Arguments by Mr Bester and it would be futile for me to in fact question his judgment. I wifi ratify his judgment in the (indistinct).

What has transpired subsequent to the launching of this application is something that I believe ought to be placed on record so that the record would therefore speak for itself, and that is, I am informed by Mr Bester that an attorney appeared this morning on behalf of the respondent, that is to say the applicant in the main application. I am told by Mr Bester that the person who appeared is Mr Bredenkamp, the attorney of record of the applicant in the main application.

What was handed up was a notice of withdrawal in this matter and the notice of withdrawal merely stated that they are withdrawing, and Mr Bester sought some type of explanation because it was not ciear whether the attorney was withdrawing or who was withdrawing. The written notice of withdrawal, or rather the typed notice of withdrawal thereafter has a manuscript thereafter written and there appears to be a 10 signature. I would assume it is the signature of the attorney who appears in this matter and it reads as follows:

"Take notice that the applicants hereby give notice of their withdrawal from this matter.”

The words, "After withdrawal from this matter", the following words were deleted, namely, “From this matter", and in manuscript was written, "Of the main application under case 636201/12". The original notice of withdrawal seemed to have indicated that the attorneys were merely withdrawing, however, what appears by virtue of the deletion and the manuscript, it now appears that the attorneys are not 20 withdrawing, however they are withdrawing the main application. That is crystal clear.

However, where a party withdraws an application, what usually follows is that they tender the costs. There is no tender for costs. What is more surprising is that the attorney came to court this morning and the attorney, for whatever reasons, i am not going to engage into that, did not have the courtesy to come and see me or my registrar and inform us that they are appearing in this matter. Such conduct, to say the least, is totally untenable, and in my view is nothing short of being prima facie contemptuous.

I am not making an order in here in terms of contemptuous but I want to stress on record that such behaviour by an officer of the court is totally unacceptable. An attorney is respectivly (indistinct) or his appearance to leave court so that matters handled in the court (indistinct) for clarification be obtained. Mr Bester, rightly in my view, seeks the court that costs be awarded to his clients in respect of the interlocutory application.

I see no good reason why this court should not order costs to the respondents in the main application, that is to say the applicants in this application, because they, in fact, were compelled to bring this application, and this appiication was drafted, notice was given to the opposite party that they will be seeking this order and in the application the applicant in the main application was forewarned that they will seek a punitive costs order, because what they were doing in their replying affidavit was nothing short of an abuse of the court process.

I must say that I share my sentiments with the view expressed by the current applicant in this application, and it is not at all surprising that the respondent, albeit whilst it comes at the 11^1h hour, and at the doors of the pearly gates, they have now decided to withdraw the action. That does not surprise me in the least, so that is the only sensible approach that they have adopted is by withdrawing the main application, however, they did not tender the costs and Mr Bester orderly seeks costs, not on the normal scale, but on the punitive scale.

It is not every day that the court is likely to impose costs on a punitive scale, but ] am in agreement that this calls for this type of order, and I say this for the following reasons:

1. Any party that litigates ought to know that it should comply with the Rules of the Court and that it should comply with legal precedent.

2. There is ample legal precedent here that a party does not make 10 out its case in its replying affidavits.

3. If a party were entitled to do that, the opposite party will then say, "We are prejudiced and we need to respond to their allegations in their replying affidavits. If we do not do that, we would be prejudiced". Then the court would have to allow them to serve a fourth set of affidavits and this process would continue ad nauseum.

It is for that reason that the drafters of the Rules have deemed expedient that you make out your case in your founding papers, and if the applicant in their address, or the applicant in the main action 20 believes that that is so, then they only have had to go and study civil procedure 101.

This is a fault of attorneys who are practising, who are officers of this court, and they should adhere and respect the Rules of this court. Where they, in fact, abuse the court process, they should realise that the (indistinct) is not with the candle. At the end of the day, they would be marked with an appropriate costs order.

In this instance the current applicant before me deemed it so necessary that they had to brief a silk to come and appear in this matter. The reason for that is simple, because this was nothing other than drowning your opposition with paper. It was not litigation. It was burying the litigant with paper in the hope that the current applicant would get frustrated and they would fall into this, and then all that that would necessitate, there would be concentric circtes that would be formed and the trial court would then be seized with literally thousands 10 and thousands of folios of papers to read in order to ventilate a simple issue.

Accordingly, I am of the view, and I exercise my discretion insofar as awarding costs is concerned, and the fact that the attorney was here and he disappeared is indicative of the fact. It also seems to indicate the gravity with which this matter is being litigated, because I would imagine any serious officer of this court who comes to court and withdraws an action would sit in court and wait for the court's judgment.

Simply to come here and to give a piece of paper and then to sit there and start deleting things on the notice and writing it by manuscript 20 as if this is some great work by Picasso, which is the first instance Mr Bester, with all due respect to Mr Bester, he did the right thing to enquire what are they withdrawing?

Are they withdrawing as attorneys or are they withdrawing the action? Because the initial notice seem to have suggested they were withdrawing as attorneys, however, the manuscript seems to suggest they are withdrawing the main action. That in itself is, to my mind a clear indication of a muddled manner in which litigation is conducted.

In the circumstances the court orders the cost on an attorney and client scale as far as the interlocutory application is concerned.

Counsel for the interlocutory Applicant: B Bester SC

Instructed by: Spoor & Fisher (Mr H Blignaut)

Counsel for the Interlocutory Respondent: R Robinson

Instructed by: Bredenkamp Attorneys c/o De Kock Attorneys (Mr K Bredenkamp)

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