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[2023] ZAGPPHC 63
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Modiba v Toussaint and Another (45637/2021) [2023] ZAGPPHC 63 (1 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 45637/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
1/02/2023
In
the matter between:
MPENTU
MODIBA
Applicant
and
LYNDA
TOUSSAINT
First
Respondent
UNJANI
CLINICS
NPC
Second
Respondent
JUDGMENT
DELIVERED ON 1 FEBRUARY 2023
CP
WESLEY AJ
1.
In this
application, which was dated 9 September 2021, the applicant sought
an order compelling the respondents to make available
to the
applicant certain documents concerning certain business dealings that
had transpired between them. Curiously, the founding
papers do not
disclose a legal right to the documents on the applicant's part. Had
the application proceeded
on the merits,
it would in
all probability have been dismissed.
2.
The
respondent's opposed the application on 6 October 2021. On 22 October
2022, and notwithstanding that the founding papers do
not disclose a
legal right to the documents on the applicant's part, the respondents
furnished the applicant with the documents.
3.
Over the
ensuing nine months the parties quibbled about who was liable to pay
the costs of the application. The dispute concerning
liability for
the costs of the application remained unresolved. This prompted the
respondents to deliver an answering affidavit
on 8 July 2022. On 10
August 2022 the applicant delivered a replying affidavit.
4.
At the outset
of the hearing the applicant objected to the late filing of the
respondent's answering affidavit. In the exercise
of my discretion, I
grant condonation
for
the
late
filing
of
the
answering
affidavit.
The
reason
for
the answering
affidavit being filed late was satisfactorily explained and the
applicant suffers no real prejudice if the affidavit
is accepted into
evidence.
5.
The sole issue
for determination is accordingly who should be liable to pay the
costs of the application.
Both parties
argued
with
force that the other party was so liable.
6.
It is trite
law that the award of costs falls within the court's discretion. This
discretion
must be
exercised
judicially
upon a
consideration
of all the
facts, and is in essence a matter of fairness to both sides.
7.
In my view,
the overriding consideration concerning costs in this application is
that the
applicant had no right to the relief that she sought, but she
nevertheless sought such relief; and the respondents had
no duty to
comply with the applicant's demand, but they nevertheless did comply.
Ultimately, in my view fairness dictates that
each party should pay
their own costs.
8.
In the result
I make the following
order
:
8.1
Each party
shall pay their own costs in the application.
CP
WESLEY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearances
Counsel
for applicant: Adv P A Mabilo
Attorney
for applicant: Marokane Attorneys
Counsel
for respondents: Adv T Carstens
Attorney
for respondents: Venter & Associates Inc
Date
heard: 25 January 2023
Date
of Judgment:
1
February 2023