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[2015] ZASCA 3
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Deutsches Altersheim Zu Pretoria v Dohmen and Others (34/2014) [2015] ZASCA 3 (5 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 34/2014
Reportable
In
the matter between:
DEUTSCHES
ALTERSHEIM ZU
PRETORIA
...........................................................
APPELLANT
and
ROLAND
HEINRICH
DOHMEN
..................................................................
FIRST
RESPONDENT
DANIëL
HEINRICH
DOHMEN
................................................................
SECOND
RESPONDENT
MARGRETHA
ANNA
BOTHA
....................................................................
THIRD
RESPONDENT
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
........................................................................................
FOURTH
RESPONDENT
Neutral
citation:
Deutsches Altersheim Zu
Pretoria v Roland Heinrich Dohmen
(34/14)
[2015] ZASCA 3
(5 March 2015)
Bench:
Ponnan, Mhlantla, Leach and Zondi JJA
and Mayat AJA
Heard:
19 February 2015
Delivered:
5 March 2015
Summary
:
Costs – death of respondent rendering appeal academic –
liability for costs.
ORDER
On
appeal from
: North Gauteng High Court,
Pretoria (Maumela J (Jordaan J concurring) sitting as court of
appeal):
Save
for ordering the appellant to pay two thirds of the respondents’
costs, the matter is struck off the roll.
JUDGMENT
Ponnan
JA (Mhlantla, Leach and Zondi JJA and Mayat AJA concurring):
[1]
On 5 March 2007 the appellant, the Deutsches Altersheim Zu Pretoria,
a home for the aged, concluded a written agreement with
Mr Roland
Heinrich Dohmen, in terms whereof it undertook to provide him with
‘board and lodging’ and ‘care in
its frail care
section’ against a monthly payment of R3 420. The preamble
to the agreement recorded:
‘
The
parties to this agreement concur that in principle the care for the
elderly is the responsibility of their next-of-kin and/or
relatives,
who for that reason act as Guarantor for the due fulfilment of the
financial obligations towards the HOME, who offers
its services to
the LESSEE and on behalf of the LESSEE’s relatives, as
hereinafter set out in detail’
.
Accordingly,
Mr Dohmen’s son, Daniël Heinrich Dohmen, and daughter,
Magretha Anna Botha, signed the agreement as ‘guarantors’.
[2]
On 21 September 2009 the management committee of the appellant wrote
to Mr Dohmen:
‘
Considering the events
of these last months, various correspondence and discussions, we have
no other option than to give you Notice,
effective 31 October 2009,
in terms of the provisions of paragraph 9 of the lease agreement.
This
decision was not taken easily and we had discussed it in detail with
our legal advisor’
.
The
written notice notwithstanding, Mr Dohmen refused to vacate his room
and as a consequence on 5 March 2010 and in terms of s
4 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998, the appellant commenced proceedings
in the Pretoria
Magistrates’ Court for his eviction. In his answering affidavit
Mr Dohmen stated:
‘
3.2
Ex facie
the document attached to the Applicant’s founding affidavit it
was entered into between various parties including the Applicant,
myself as well as Mrs M A Botha and Mr D H Dohmen (the latter being
my daughter and son respectively).
3.3
As such all parties to the alleged written agreement have an interest
in the relief sought by the Applicant’.
In
the event, Mr Dohmen’s son and daughter came to be joined to
the proceedings as the second and third respondents (the
respondents). On 18 March 2011 the magistrates’ court issued an
eviction order to take effect on or before 30 April 2011.
Mr Dohmen
was also ordered to pay costs on the attorney and own client scale.
Aggrieved, Mr Dohmen appealed to the North Gauteng
High Court,
Pretoria. His appeal succeeded with costs. The further appeal by the
appellant is with the leave of this court.
[3]
The appeal was set down for hearing before this court on 19 February
2015. On 27 January 2015 a supplementary practice note
was filed on
behalf of the respondents with the registrar of this court. That
practice note purported to take issue with certain
omissions from the
appeal record filed by the appellant and recorded in passing that Mr
Dohmen had died on 12 January 2015. In
the light of that disclosure
and by notice emanating from the registrar of this court on 2
February 2015
the Appellant was required as a matter of
urgency to intimate whether it still persists with the appeal. If so,
so the notice continued:
‘
the
parties will be required at the hearing of the matter to address full
argument on whether the judgment sought on appeal will
have any
practical effect or result as contemplated by s16(2)(a) of the
Superior Courts Act 10 of 2013 (formerly s 21A of the Supreme
Court
Act).’
[4]
In response to the registrar’s notice, the appellant’s
attorney wrote on 2 February 2015:
‘
2.
We kindly request that the appeal – set-down for 19/02/2015 –
should proceed.
.
. .
4.
The judgment, handed down by two Judges in the North Gauteng High
Court (against which this appeal has been noted) lent an
interpretation
to the written agreement concluded between the
parties, as well as the circumstances governing the relationship
between the parties.
This interpretation, unfortunately, has an
adverse effect on all the existing and future agreements concluded
with residents of
the Appellant which is, with respect, to the
detriment of the Appellant. As matters stand, the Appellant is bound
by this North
Gauteng High Court decision. The Appellant is further
of the humble view that it shall also be in the public interest that
the
appeal be heard, keeping the following in mind:
4.1.1.
The judgment of the High Court has far reaching consequences, not
only for the Appellant, but also for other owners of similar
establishments;
4.1.2.
The judgment also deals with the provisions of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act
and the
Older Persons Act;
4.1.3.
Both the cannons of legislation and its proper interpretation is of
considerable importance for the broader public and legal
community;
4.1.4.
The judgment of the High Court therefor has consequences, not only
for the Appellant, but also for other owners, extending
beyond this
case.’
But
that was to fundamentally misconceive the position, for, as Innes CJ
observed as long ago as
Geldenhuys and Neethling v Beuthin
1918
AD 426
at 441:
‘
Courts
of Law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce upon abstract
questions, or
to advise upon differing contentions, however important.’
[1]
That
principle has been emphasised in a long line of cases of this court.
(See
Legal-Aid
South
Africa v Magidiwana and others
[2014] 4
All SA 570
(SCA) and the cases there cited.)
[5]
Indeed,
as Wallis JA pointed out in
Qoboshiyane NO and
others v Avusa Publishing Eastern Cape (Pty) Ltd and others
2013
(3) SA 315
(SCA) para 5:
‘
The
Court has a discretion in that regard and there are a number of cases
where, notwithstanding the mootness of the issue as between
the
parties to the litigation, it has dealt with the merits of an appeal.
With those cases must be contrasted a number where the
Court has
refused to deal with the merits. The broad distinction between the
two classes is that in the former a discrete legal
issue of public
importance arose that would affect matters in the future and on which
the adjudication of this Court was required,
whilst in the latter no
such issue arose.’
[2]
This
matter plainly falls into the latter of the two categories alluded to
by Wallis JA
.
To once again borrow from
Innes CJ, practitioners do not seem to make themselves acquainted
with important decisions of this court
(
Stevenson
v MacIver
1922 AD 413
at 414).
[6]
The respondents’ attorney, on the other hand, took the view
‘that the relief sought by the appellant has become
moot’.
His letter written on 4 February 2015 in response to the registrar’s
notice added:
‘
2.
On behalf of the respondents in the appeal we confirm that none of
them intend to pursue the matter.
3.
In our view (and this will be respectfully conveyed to the Honourable
Supreme Court of Appeal in heads of argument to be filed
in due
course, if necessary) the appeal, if persisted with by the appellant,
should be struck from the roll with costs.’
After
an exchange of correspondence between the parties it ultimately came
to be accepted by the appellant that the appeal had indeed
become
academic. What thereafter occupied the attention of the parties were
debates about costs. In due course the appellant filed
supplementary
heads of argument with this court. It read:
‘
7.
It is common cause between the Old Age Home and the attorney acting
for the Second and Third Respondents that the appeal has
become moot.
8.
Section 16(2)(a)(i) of the Superior Court’s Act, provides that
an appeal may be dismissed on the ground that the decision
in the
appeal will have no practical effect or result. As a result thereof
the Old Age Home, as indicated to the Registrar of the
above
Honourable Court and the attorney for Second and Third Respondents,
that the Old Age Home does not intend to argue the appeal,
but will
remove the matter from the roll. The Second and Third Respondents
however persist that unless their costs are tendered,
the matter must
proceed.
.
. .
13.
The Old Age Home would of course preferred to proceed with the
appeal, but keep in mind the salutary principle why the above
Honourable Court should not be detained with issues relating to costs
only, decided to remove the matter from the roll. It is through
no
fault of the Old Age Home that the appeal has become academic, and
having regard to the discretion a Court has regarding the
award of
costs, the correct approach should be that no costs should have been
awarded.
14.
It is therefore respectfully submitted, that should Second and Third
Respondents persist that the matter should proceed on 19
February
2015 only for the issue of cost, that the following order should be
made:
“
1.
The appeal is removed from the roll;
2.
Each party pays its own costs up and until 6 February 2015;
3.
Second and Third Respondents are ordered to pay the Appellants costs
from 7 February 2015 on the scale as between attorney and
client.”’
[7]
The respondents also availed themselves of the opportunity to file
supplementary heads of argument, which read:
‘
1.
These supplementary heads are filed in direct response to the
appellant’s failure and/or refusal to withdraw the appeal
and
the appellant’s supplementary heads of argument of 13 February
2014.
2.
The second and third respondents have been appointed as executors of
the estate of the first respondent and all parties are duly
represented.
3.
It is common cause between the parties that the appeal is moot.
4.
Contrary to the appellant’s allegation the respondents are not
of the view that the matter should proceed on 19 February
2015. It is
the respondents’ view, as stated in the correspondence with the
appellant, that the appellant, being
dominus
litis
, should withdraw the matter with
a tender of costs. The appellant has refused and/or failed to
withdraw the matter.’
[8]
And so, fresh battle lines having been drawn between parties, it came
to pass that this court had to be convened on 19 February
2015. Given
the conceptual confusion that permeated some of the submissions from
the bar in this court, it may be as well to identify
precisely what
still remains for determination in the matter.
Clause
9 of the agreement provided:
‘
This
agreement may be terminated by either party giving the other party
one calendar month notice, in writing, terminating this
agreement.
The agreement will terminate automatically on the day of the LESSEE’S
death without prejudice in either case to
any accrued liability of
the LESSEE or the GUARANTOR to the home’
.
The
practical effect of clause 9 was therefore that the agreement would
terminate automatically upon the death of Mr Dohmen. That
being so,
there can certainly no longer be any dispute or
lis
between the parties on the issue
initially raised by them for determination in the appeal. In those
circumstances there can hardly
be an appeal on the merits that this
court has any power to deal with (
Legal-Aid
South Africa v Magidiwana
(above)).
Legal-Aid
South
Africa v Magidiwana
held (para 20-22)
that once the parties settled, the litigation between them terminated
and there were thereafter no disputes between
them upon which this
court could exercise its appellate jurisdiction. That principle, no
doubt, applies with equal force to a situation
such as the present
where the death of a party brings to an end the underlying
lis
.
In those circumstances this court can hardly enter into the merits of
the appeal (
Nxaba v Nxaba
1926
AD 392
at 394). It must therefore follow that the appeal falls to be
struck off the roll (
Kett v Afro
Ventures (Pty) Ltd
[1997] 1 All SA 1
(A)).
[9]
It still remains nonetheless to consider the ancillary issue - the
question of costs - that continued to occupy the parties
in debate
and the attention of this court in argument from the bar.
There can be no dispute that much of the costs
of the appeal would
necessarily have been incurred by the parties prior to the death of
Mr Dohmen.
For it is clear, I think, that
an attorney in the position of either party’s attorney would
have been entitled to charge his
clients for his services in respect
of the contemplated appeal. And by then, one suspects, counsel would
have been briefed and
would necessarily have had to be prepared to
argue the merits of the appeal.
[10]
Ordinarily where an appeal is withdrawn the appellant is liable for
the costs incurred up until the time of the withdrawal
(
Eisenstadt
v Barone
1931
AD 486).
The appellant ultimately having accepted that the appeal had
been rendered moot by the death of Mr Dohmen, the respondents,
relying
on the ‘usual order’ (
Kett
v Afro Ventures
at
3), claimed costs. The appellant, in contradistinction, contended
that this was the kind of matter where it would be appropriate
for no
order as to costs to issue. It is indeed so that there are cases
where this court has made no order as to costs.
[3]
But those were cases where both parties, to a greater or lesser
extent, co-operated or acquiesced in pursuing an incorrect procedure.
On the other hand where a point was successfully raised by the court
itself on appeal, the usual order has been that the appellant
pays
the costs, particularly where the appellant did not concede the
non-appealability of the orders appealed against and the respondent
was compelled to come to court to have the decision set aside.
[4]
[11]
However, as Centlivres CJ observed in
Tropical (Commercial and
Industrial) Ltd v Plywood Products Ltd
1956 (1) SA 339
(A) at
346A:
‘
None
of the cases purport to lay down a hard and fast rule in a matter
such as this nor can they be said to deprive the Court of
its
inherent discretion to make such an order as to costs as may be just
in the circumstances of any particular case.’
[5]
In
exercising that discretion the following factors are relevant: First,
the appellant was
dominus litis
- it initiated and prosecuted the appeal.
The respondents were
thus not brought before this court as willing parties.
And,
even when it ought to have been clear to the appellant that the
relief originally sought, namely an eviction order, had been
rendered
moot, it initially, in response to the notice from the registrar of
this court, persisted in its contention that the appeal
be
adjudicated on its merits. What is worse – and this is the
second factor – is that it sought punitive costs against
the
respondents from this court when there was plainly no warrant for
such an order. Thus, whatever the merits of the respondents’
other contentions, they were wholly justified in instructing counsel
to appear before this court to resist the grant of that order.
On the
other hand (this is the third factor) – we are not dealing here
with an abortive appeal on the merits on account of
any fault on the
part of the appellant or because the matter was prematurely or
wrongly brought to this court. The appellant had
sought and obtained
the leave of this court for the further prosecution of the appeal.
Without in any way delving into the merits
of the matter, it must
nonetheless be accepted that leave to appeal was granted because it
was thought that the appeal had reasonable
prospects of succeeding.
Thus, one must suppose that but for the untimely death of Mr Dohmen,
the appellant would have had every
intention of prosecuting the
appeal to its conclusion. One is not dealing here with an appellant
who chooses of its own volition
to abandon an appeal because it, on
reconsideration, has misgivings about the merits of the appeal. Nor,
is one dealing with an
appellant whose attention is drawn by either
this court or its opponent to the fact that the appeal has been
wrongly brought to
this court. The appellant in this instance was
forced to reconsider its position because of the death of an opponent
- an event
beyond its control. Fourth, in filing a supplementary
practice note with this court after the death of Mr Dohmen, it was
patent
that the respondents were minded to persist with the appeal.
To that extent they were equally remiss in not appreciating and
bringing
to the attention of the appellant and this court that it
would be futile for any further steps to be taken in the prosecution
of
the appeal as the matter had become academic. Accordingly, the
point had to be raised by this court.
Even
then
there was no real pause for reflection on the part of the
appellant. Undaunted, it filed additional heads of argument, in which
it sought punitive costs from the respondents. Nor, even after
further time for reflection, was there any modification of that
stance in argument before us.
[12]
Finally, that the parties chose, when the writing was clearly on the
wall, to forego pragmatism for obdurateness is to be decried.
The
intransigence on the part of both, no doubt, must have further
inflated the considerable costs already incurred, leaving one
to
wonder whether the game was indeed worth the candle. In that regard
the following dictum by Harcourt J in
Mashaoane v Mashaoane
1962
(2) SA 684
(D) at 687G is apposite:
‘
However,
. . . when a case has to all intents and purposes been settled, apart
from the question of costs, it is undesirable to
permit the question
of such costs to become an occasion for incurring a great many
further costs and, incidentally, to occupy the
time of the Court
which could perhaps have been better spent in the disposal of other
litigation. I naturally accept that the interests
of the litigating
public are superior to those of the Court in this but the true
interests of the public and the Court probably
coincide in this
regard and may best be indicated by repeating the latin phrase:
interest rei publicae ut sit finis
litium
.’
[13]
Thus to the extent that the respondents are also to blame, it seems
to me only but fair that they should bear a portion of
their own
costs, which I assess to be one third. In the result, save for
ordering the appellant to pay two thirds of the respondents’
costs, the matter is struck off the roll.
_________________
V
M PONNAN
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: M C Erasmus SC
Instructed
by:
A
B Löwe Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
For
Respondents: J Coetzer
Instructed
by:
Serfontein
Viljoen & Swart, Pretoria
Claude
Reid, Bloemfontein
[1]
In
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
2000 (2) SA 1
(CC) 2000 (1) para 21 fn 18 the Constitutional Court
echoed what the learned Chief Justice had stated over eight decades
earlier
when it said: ‘A case is moot and therefore not
justiciable if it no longer presents an existing or live controversy
which
should exist if the court is to avoid giving advisory opinions
on abstract propositions of law.’
[2]
See also
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999
(1) SA 432
(SCA) at 444I-445B;
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002
(4) SA 273
SCA para 4;
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005
(4) SA 506
(SCA) paras 5-7;
Executive
Officer of the Financial Services Board v Dynamic Wealth Ltd and
others
[2012] 1 All SA 135
;
2012 (1) SA 453
(SCA) paras 43-46.
[3]
Union
Government (Minister of the Interior) and Registrar of Asiatics v
Naidoo
1916
AD 50
at 52;
Nxaba
v Nxaba
1926
AD 392
at 394;
Tropical
(Commercial and Industrial) Ltd v Plywood Products Ltd
1956
(1) SA 339
(A) at 345A-346C;
Clear
Enterprises
(
Pty
)
Ltd
v Commissioner
,
SARS
and others
[2011] ZASCA 164; [2011] JOL 27974 (SCA).
[4]
Stevenson
v MacIver
1922
AD 413
at 414;
Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd
1948
(3) SA 353
(A) at 355;
Desai
v Engar and Engar
1966
(4) SA 647
(A) at 655;
Charugo
Development Co (Pty) Ltd v Maree NO
1973
(3) SA 759
(A) at 764G-H;
SA
Motor Industry Employers’ Assoc v SA Bank of Athens
1980
(3) SA (A) 91 at 98F-H;
Levco
Investments (Pty) Ltd v Standard Bank of SA Ltd
1983
(4) SA 921
at 929A;
Wellington
Court Shareblock v Johannesburg City Council; Agar Properties (Pty)
Ltd v Johannesburg City Council
1995
(3) SA 827
(A) at 835;
Coin
Security Group
(
Pty
)
Ltd
v SA National Union for Security Officers and others
[2000] ZASCA 137
;
2001
(2) SA 872)
(SCA) para 12;
Port
Elizabeth Municipality v Smit
2002
(4) SA 241
(SCA) paras 6,7 and 12;
Rand
Water Board v Rotek Industries
(
Pty
)
Ltd
2003
(4) SA 58
(SCA) paras 1 and 27;
Radio
Pretoria v Chairman
,
Independent
Communications Authority of SA
2005
(1) SA 47
;
[2004]
4 All SA 16
(SCA) para 46;
South
African Police Service Medical Scheme v Lamana
2011
(4) SA 456
(SCA) para 14;
Kenmont
School and another v DM and others
[2013]
ZASCA 79
;
[2013]
JOL 31055
(SCA) para 14;
Ethekwini
Municipality v SAMWU
[2013]
ZASCA 135
para 20;
Qoboshiyane
NO and others v Avusa Publishing Eastern Cape
(
Pty
)
Ltd
and others
2013
(3) SA 315
(SCA) paras 14-15.
[5]
See for example
Tecmed
Africa (Pty) Ltd v Minister of Health and another
[2012]
4 All SA 149
(SCA) para 22 where the respondent raised the point for
the first time at an advanced stage of the appeal, until then
neither
was an unwilling participant, each party was ordered to bear
its own costs until the date when the point was raised and the
appellant
was ordered to pay the costs of appeal beyond that date.