Summary of Judgment

1. Introduction

The proceedings were an application in the High Court to determine a costs issue arising from an earlier order granted in the same matter. The earlier order, granted on 10 August 2016, had set aside the applicant’s submission of guilt (an admission of guilt) made in the magistrates’ court under section 57A of the Criminal Procedure Act 51 of 1977, directed the expungement of the related criminal-record entry, and ordered the refund of the fine paid.

The parties were Masoud Nezamparat as the applicant, and as respondents the Magistrate, Edenvale N.O. (first respondent), the Director of Public Prosecutions (second respondent), and Fanu(el) Tshwenyego Chilwane (third respondent), an advocate. The magistrate and the prosecuting authority were the functionaries involved in the impugned criminal-process outcome, while the third respondent was alleged to have been responsible for conduct that precipitated the applicant’s criminal-record prejudice.

The procedural history relevant to the judgment was that, although the substantive relief was granted in 2016, the court did not finally determine the issue of costs against the third respondent at that time. The judgment records that the order as drawn contained contradictory provisions suggesting both (i) that the third respondent was to pay attorney-and-client costs, and (ii) that the costs order was reserved for later argument. The court (Victor J) clarified that the attorney-and-client costs order reflected in the draft was not made on 10 August 2016, and that costs were intended to be argued later after the third respondent had an opportunity to make submissions.

The general subject-matter of the dispute concerned the consequences of a criminal process in the magistrates’ court resulting in a record reflecting an admission of guilt, and the later High Court litigation to correct that outcome, with the present judgment focusing specifically on whether the third respondent should be mulcted in punitive costs on an attorney-and-client scale.

2. Material Facts

The undisputed core sequence of events, as relied upon by the court, began with an incident at a shopping centre where an allegation was made that the applicant had stolen a T-shirt from Stuttafords. The applicant was a doctor and, on the version accepted as establishing his case for the substantive relief, he had been dealing with an ill child who was vomiting at the time the allegation arose. The matter proceeded to the magistrates’ court.

The court accepted as material that the applicant later suffered prejudice when, upon seeking to renew his work visa as an anaesthetist, a criminal charge and an apparent plea or admission of guilt came to light. This prejudice formed the impetus for approaching the High Court for relief to set aside the recorded admission of guilt and expunge the criminal-record entry. The court recorded that in 2016 it had been satisfied that the applicant “made out a clear case that he did not plead guilty,” and that he was not guilty of the alleged theft, leading to the setting aside and expungement relief.

A further set of material facts related to the costs dispute. The court recorded allegations that in the magistrates’ court there had been an exchange between the prosecutor and the third respondent, that the applicant paid money to the third respondent (approximately between R2 000 and R3 000) without receiving a receipt, and that the applicant’s home language was Urdu with no Urdu interpreter present at the time of the exchange. The court treated it as significant, in the context of determining costs, that the applicant did not sign papers pleading guilty or agreeing to an admission of guilt.

The court distinguished the state of the evidence relevant to the costs question by noting that, despite the passage of approximately six years, there was still no version on oath from the third respondent dealing with the applicant’s allegations. The absence of such a version was treated as material to the evaluative decision on whether a punitive costs order was warranted.

Facts explaining the delay were also relied on to a limited extent. The court accepted the explanation in a supplementary affidavit by the applicant’s correspondent attorney (Ms Swart) that the court file had been in disarray when she sought it in May 2019, that she collated it, and that previous attorneys withdrew because continuation was not financially viable. The matter had previously been before Keghtley J but was removed because the papers were not in order. These facts were relevant to why the reserved costs issue was only being argued years later, but the court ultimately confined its order to the reserved costs question.

3. Legal Issues

The central legal questions were, first, whether the 2016 order in fact included a valid and enforceable attorney-and-client costs order against the third respondent, given that the order as drawn contained contradictory clauses and the judge stated that the punitive costs order reflected in the draft was not made.

The second central question was whether, in light of the history of the matter and the allegations regarding the third respondent’s conduct (including the alleged misleading of the applicant and the criminal court process), the third respondent should be ordered to pay the applicant’s costs on the attorney-and-client scale, which is a punitive costs scale.

These issues primarily concerned the application of legal standards governing costs to the facts and an evaluative judgment regarding the appropriateness of a punitive costs order. They also required a determination of what the court had in fact decided in 2016 (a question of interpreting and correcting the court record/order), but the present judgment emphasised that no transcript was available and proceeded on the judge’s recollection of what was and was not ordered.

4. Court’s Reasoning

The court began by addressing the contradiction in the 2016 order as drawn, noting that it contained both a purported attorney-and-client costs order against the third respondent and a reservation of costs for later argument. Victor J stated that the punitive costs order was not made on that date and that the intention in 2016 was to afford the third respondent an opportunity to make submissions on why such an order should not be granted. The court regarded the presence of both clauses as an error in the drawn order and proceeded on the basis that costs remained to be determined.

In considering whether to proceed, the court dealt with the practical difficulties concerning the record, including the absence of a transcript and uncertainty about its availability due to changes in transcribers. The court nevertheless accepted counsel’s recollection that the costs question had been reserved for later argument. The court also accepted the explanation offered by Ms Swart regarding the collation of the file and the delay in finalising the reserved costs issue, including that the applicant’s previous attorneys withdrew for financial reasons and that the file required reorganisation before the matter could be properly presented.

On the question of participation and notice, the court was satisfied that the third respondent had been properly notified of the hearing. Although he did not appear, the court relied on the steps taken to locate and communicate with him (including WhatsApp and email) and inferred from his filed notice of objection that he was aware of the pending matter, that it was on the roll, and that it concerned costs. The court treated these facts as sufficient to proceed to determine the reserved costs issue.

In addressing which parties should bear costs, the court reasoned that the magistrate and the prosecuting authority had not opposed the substantive relief in 2016, and that no costs order should be made against them. The costs dispute was framed as one that had always been intended to be argued only in relation to the third respondent’s liability.

The punitive scale was considered against the background of the allegations that the third respondent had falsely entered a plea of guilty (or caused the improper recording of a guilty plea/admission), and that he misled the applicant regarding the true state of affairs in discussions with the prosecutor. The court described the allegation as one of fraudulent conduct and regarded it as significant and “reprehensible” that the third respondent had not attended court to address the allegations and clear his name, and that there was still no sworn version from him. On that basis, the court held that the conduct warranted a punitive costs order on an attorney-and-client scale.

Finally, the court exercised a discretion regarding whether to make any additional costs order specifically for the 2022 hearing. It reasoned that the costs of arguing the attorney-and-client scale against the third respondent would have been incurred even if the argument had occurred in 2016 as intended. The court therefore decided not to make an additional costs order for the day’s hearing beyond determining the reserved costs liability.

5. Outcome and Relief

The court ordered that the third respondent must pay the applicant’s costs on the attorney-and-client scale in relation to the reserved costs issue arising from the 2016 proceedings.

The court further ordered that the apparent “prayer 4” reflected in the 2016 order (purporting to impose attorney-and-client costs against the third respondent as if already granted) was not made by the court in 2016 and must be deleted from that order.

No costs order was made against the first and second respondents, and the court indicated it would not make an additional costs order for the 2022 hearing beyond determining the reserved costs issue.

Cases Cited

No reported cases were cited in the judgment.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 57A.

Criminal Procedure Act 51 of 1977, section 57(vi).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the 2016 order, as drawn, incorrectly reflected a punitive costs order against the third respondent because the court had in fact reserved the issue of costs for later argument, and the punitive costs order was not granted on 10 August 2016. The court therefore directed that the erroneous portion of the 2016 order be deleted.

The court further held that, on the facts placed before it and in the absence of a sworn version from the third respondent addressing serious allegations relating to the improper recording of an admission of guilt and alleged misleading conduct, a punitive costs order was justified. The third respondent was accordingly ordered to pay the applicant’s costs on the attorney-and-client scale.

LEGAL PRINCIPLES

A court retains the capacity, when confronted with an order that does not accurately reflect what was decided, to clarify what was in fact ordered and to direct that an erroneously reflected portion of an order be removed, particularly where the drawn order contains internal contradictions and the judge records that a particular term was not granted.

Costs are a matter of judicial discretion exercised on the facts of the case. Where the conduct attributed to a litigant or legal representative is regarded as sufficiently blameworthy, and where the circumstances justify judicial censure, a court may award costs on the attorney-and-client scale as a punitive measure.

Where certain respondents do not oppose the substantive relief and are not responsible for the conduct giving rise to the contested costs issue, it may be appropriate to confine an adverse costs order to the party whose alleged conduct necessitated the litigation, rather than extending costs liability to non-opposing functionaries.

In determining a reserved costs issue, the court may consider whether the costs of a later hearing would, in substance, have been incurred in any event had the reserved argument been heard at the earlier intended time, and may tailor the costs order accordingly.