IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 1177/99
In
the matter between
NONHLANHLA
DLAMINI APPLICANT
And
MLANGENI
& COMPANY 1st RESPONDENT
DUNCAN
THRING 2nd RESPONDENT
Coram S.B.
MAPHALALA - J
For
the Applicant MR. T. SIMELANE
For
1st Respondent MISS. ZWANE
For
2nd Respondent NO APPEARANCE
RULING
ON COSTS
(03/02/00)
Maphalala
J:
The
history of the matter is that on the 14th May 1999, a rule nisi was
issued by this court for an order calling upon the respondent to show
cause why they should not be directed and/or ordered to return to the
applicant a motor vehicle a Toyota Hiace kombi registration no. SD
636 BG, they should pay costs of the application on an attorney and
client scale and that the rule nisi operate as an interim relief with
immediate effect. The sequence of events leading to the launching of
this application is that under High Court Case No. 2921/98 the 1st
respondent acted for one Mariel Strydom against one Bheki Dlamini.
1st respondent duly obtained judgement against the said Bheki Dlamini
pursuant to which a writ of execution was issued.
Attorneys
for the applicant gathered that in the process of executing the writ,
Mr. Thring (2nd respondent) the Deputy Sheriff had seized and
attached a motor vehicle, to wit, a Toyota Hiace with registration
number SD 636 BG. 2nd respondent's attention was drawn to this fact.
It appeared that the said motor vehicle belonged to the applicant as
evidenced by the contents of the blue book attached to the
applicant's papers.
2
These
facts were communicated to the 1st respondent by letter from
applicant attorneys dated the 10th May 1999, which intimated that in
the event 2nd respondent does not release the said motor vehicle
forthwith applicant shall proceed to move an application to set aside
the attachment with an appropriate order for costs.
The
1st respondent filed an opposing affidavit in accordance with the
rules of court.
It
appears that the rule issued on the 14th May 1999, lapsed and it was
neither confirmed nor discharged.
This
matter came in the contested roll of the 20th August 1999, for the
determination of costs. Mr. Simelane for the applicant contended that
it was not necessary for applicant to be put to expenses to move this
application. Further that it was not necessary for applicant to file
a replying affidavit. The nature of the circumstances leading to the
launching of this urgent application justifies the grant of costs on
attorney/client scale. The 1st respondent is to blame in this matter.
To support his point Mr. Simelane directed my attention to the
following authorities:
• Joubert
LAWSA (Vol III) at page 457
• Herbstein
at el The Civil Practice of the Supreme Court of South Africa (4thED)
page 719.
• Simons
vs Gilbert
Harmear
1962 (2) S.A. 487 at 497.
The
attitude adopted by Mr. Simelane is that the 1st respondent did not
act reasonable in the circumstances.
In
turn, Miss Zwane for the 1st respondent argued at great length in
opposition taking the court through the circumstances leading to the
present dispute. The version advanced by the 1st respondent is that
they cannot be held liable for costs in this matter as they were
acting as legal agents for the plaintiff in the main action. They
instituted action against Bheki Dlamini in Case No. 292/98 and the
cause of action was for the recovery of damages as a result of a
motor car accident.
This
motor vehicle was the one, which had been attached. It was a kombi
and it is the same kombi that was involved in the accident. When the
accident occurred the owner of the kombi was one Bheki Dlamini. There
were settlement negotiations which took place between the 1st
respondent and the said Bheki Dlamini. At no point did the name of
Nonhlanhla Dlamini feature as this accident occurred on the 19th
September 1998. Miss Zwane conceded that annexure 2 was sent to their
offices dated the 10th May 1999, which attached the blue book. The
effect of the latter is that the motor vehicle was registered in the
name of Nonhlanhla Dlamini. On the 28th May 1999. Prior to that the
motor vehicle was registered in the name of Nicholas Dlamini.
There
was a rule that was issued in this matter and it lapsed. After the
lapse of the rule there was no reason to show cause on the part of
their client.
These
then are the facts in this dispute. I have perused through the papers
and considered the arguments advanced. I agree entirely with Miss
Zwane that there is no
3
way
1st respondent can be visited by costs at attorney and own client
scale in view of the circumstances of the case. 1st respondent was at
all material times acting as legal agents for the plaintiff in the
main action. It has not been proved that they acted unreasonably in
carrying out of their mandate.
In
sum, I refuse the application for cost at attorney and own client
scale or any other costs for that matter.
S.B.
MAPHALALA
JUDGE
