Court name
High Court of eSwatini

Velaphi v Dorbyl VehicleTrading and Finance (Pty) Ltd () [2000] SZHC 93 (31 October 2000);

Law report citations
Media neutral citation
[2000] SZHC 93
Coram
Sapire, CJ









1


SWAZILAND
HIGH COURT


DLAMINI,
Gilbert Velaphi


Applicant


Vs


Dorbyl
Vehicle Trading and Finance Company (Pty) Ltd


Respondent


Civ.
Case No. 2309/2000


Coram Sapire,
CJ


For
Applicant MR. S. SIMELANE


For
Defendant MR. P. FLYNN


JUDGMENT


(16/03/2001)


The
applicant approached the court for urgent relief ,seeking and order
to this effect that


1. the
matter be heard as a matter of urgency;


2. the
execution of a writ dated 27 March, 2000 and effected on the 24th
July 2000 be set aside and declared null and void and of no force and
effect;


3. a
bus registration number SD 473 YM be returned to the applicant


4. the
respondent's attorneys be required to account to the applicant in
respect of the attachment of the said bus;


5. Directing
respondent to pay the costs of this application on an Attorney and
his own client scale.


There
was a further prayer that the above relief which was to have been in
a form of a rule operate with immediate effect.


2


The
papers were served and the respondent was brought to court on the 1st
August, 2000. The respondent filed an answering affidavit in which
all material allegations made by the applicant in his founding
affidavit were dealt with and refuted. The matter was eventually to
be argued on the 4th August but before that date the applicant
discovered his errors and served a notice of withdrawal of the
application. This notice was filed on the 4th August.


The
respondent was justifiably incensed at the institution of these
proceedings. It is quite clear that there was no factual basis for it
and that it can rightly be said that if not both frivolous and
vexatious, the application was vexatious. To me it seems to be both.


I
was addressed at length on the question of the scale upon which the
costs are to be taxed. The respondent counsel contended for an order
against the respondent that the costs be taxed on a scale appropriate
to attorney and own client. It should be noted that in making an
application, the applicant itself seems to have considered that such
an order in its favour was appropriate if it succeeded.


This
is a case which calls for special treatment. It is quite clear that
the applicant without knowing or understanding the facts and history
of the matter, made an application which had no prospects of success.
The applicant may have done so on the advice of an attorney. If so
the applicant may well look to the attorney to compensate him for
additional costs to which he has been put.


I
am satisfied that this is a proper case for the attorney and client
costs and accordingly I order that consequent upon the withdrawal of
the application the applicant is to pay all the respondent's costs
including counsel fees which may be taxed on the scale appropriate to
attorney and own client. Such costs are to include all the costs
incurred on the 11th August.


SAPIRE,
CJ


gueries