Pienaar and Another v Sassman and Another (25559/2022) [2023] ZAGPPHC 1152 (11 September 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 1152 | Noteup | LawCite sino index ## Pienaar and Another v Sassman and Another (25559/2022) [2023] ZAGPPHC 1152 (11 September 2023) Pienaar and Another v Sassman and Another (25559/2022) [2023] ZAGPPHC 1152 (11 September 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_1152.html sino date 11 September 2023 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case Number:  25559/2022 (1) REPORTABLE:  YES / NO. (2) OF INTEREST TO OTHER JUDGES:  YES / NO. (3) REVISED. DATE: 11/9/2023 SIGNATURE In the matter between: HARRISON HURSINEY PIENAAR First Applicant HEIDI JULIA PIENAAR Second Applicant and NATHAN EDWIN SASSMAN First Respondent DESIREE ELIZABETH SASSMAN Second Respondent JUDGMENT ON COSTS ORDER POTTERILL J [1]        I have received an affidavit opposing the proposed costs order.  I have read same and taken note of its content. [2]        The factual and chronological history of the matter recording the conduct of the parties themselves, has no bearing on the costs order because the costs order is based on the conduct of the counsel, not the parties. [3]        Counsel admits that he made a grave mistake by insisting to pursue the costs order against the applicants’ attorney on a de bonis propriis scale.  This was not the only “mistake”.  Attacking the integrity of the attorney and using unbecoming language in the answering affidavit and the heads of argument was highlighted in the judgment.  Surprisingly counsel still persists with this in paragraph 50 of the affidavit. [4]        Although counsel is not a party to the proceedings, costs can be granted against him if there was adherence to the audi alteram partem rule.  In this matter there was.  The judgment explained what counsel had to answer to and he was afforded an opportunity to do so.  An award of costs against counsel is thus procedurally sound. [1] [5]        The substantive reason for granting costs on a de bonis propriis scale against counsel is also sound.  Such costs are granted when there is wilfulness or gross disregard for professional responsibilities or negligence of a serious degree.  The basic notion is thus material departure from the responsibility of office and the actual parties to the litigation cannot be expected to bear the costs.    However, in this matter an affidavit was filed by Mr Nathan Sassman (not his full names) wherein he asserts that “he gave the instructions to pursue the costs de bonis propriis against the Pienaars’ legal team …” [6]        What is alarming is that counsel seemingly still does not comprehend how unprofessional and defamatory his heads of argument were drafted.  However, since I have it under oath from this client that it was counsel’s instructions to persist with the de bonis propriis costs order against the attorney of the applicants, I will reconsider my order and it will read as follows: “ All costs occasioned by the opposition to the de bonis propriis costs order against the applicant’s attorney are to be paid on attorney and client scale by the respondents.” S. POTTERILL JUDGE OF THE HIGH COURT CASE NO: 25559/2022 FOR THE APPLICANTS: ADV. M. JACOBS INSTRUCTED BY: Klagsbruin Edelstein Bosman Du Plessis Inc. FOR THE RESPONDENTS: ADV. M. KUFA INSTRUCTED BY: Machaba Attorneys DATE OF JUDGMENT: 11 September 2023 [1] CB and Another v HB [202] ZASCA 178 par [20] sino noindex make_database footer start