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[2013] ZASCA 184
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Afriforum v Minister of Trade and Industry and Others (469/2013) [2013] ZASCA 184 (29 November 2013)
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 469/2013 Not Reportable
In
the matter between:
AFRIFORUM
.........................................................................................................
APPELLANT
and
THE
MINISTER OF TRADE AND
IDUSTRY
.........................................
FIRST
RSEPONDENT
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
..........................................................
SECOND
RESPONDENT
THE
SOUGHT AFRICAN LOCAL GOVERNMENT
ASSOCIATION
.........................................................................................
THIRD RESPONDENT
Neutral
citation:
Afriforum
v The Minister of Trade and Industry
(469/13)
[2013] ZASCA 184
(29 November 2013).
Coram
:
Malan, Wallis JJA et Meyer AJA
Heard
:
28 November 2013
Delivered
:
29November 2013
Summary: Application in terms of rule
11(1)(b) of Supreme Court of Appeal rules to dispose of appeal
without hearing on merits -
dismissal of appeal.
ORDER
On appeal from:
North Gauteng High
Court, Pretoria (Victor J sitting as court of first instance):
In the result the appeal is dismissed with
costs from after the service of the notice of abandonment.
JUDGMENT
Malan
JA (Wallis JA and Meyer AJA concurring):
[1]
This an application in terms of rule
11(1)(b) of the rules of this court for the
disposal
of an appeal against the judgment and order of Victor J in the North
Gauteng High Court without a hearing on the
merits thereof. The applicant,
Afriforum,
is the appellant in the appeal and seeks the following relief:
‘1 That the order of the Court below be
set aside and substituted with the following order:
‘1.1 Government Gazette 221 of 14 March
2011 published in Government Gazette No 34116 is reviewed and set
aside.
1.2
Government
Gazette 898 of 31 October 2011 published in Government Gazette No
34724 is reviewed and set aside.
1.3The First Respondent and Second Respondents
are ordered to pay the applicant’s costs, inclusive of the
costs of two counsel.
2
The
First and Second Respondents are in terms of the Notice of
Abandonment ordered to pay the costs of the application for leave
to
appeal in the Court a quo and the prosecution of the appeal up to the
date of service of the Notice of Abandonment, such costs
to include
the costs of two counsel.
3
The First and Second Respondents are
ordered to pay the costs of this application.’
[2]
The
appeal by the applicant is against parts of the order of the court
below dated 12 March 2013. That order reads:
‘1 Government Notice 898 of 31 October
2011 published in Government Gazette 34724 is reviewed and set aside.
2
The setting aside will take effect
within 30 days of this order.
3
The first
respondent is directed to publish a notice as contemplated in item
23(b)(1) of schedule 2 of the
Consumer Protection Act 68 of 2008
by
no later than 31 July 2013 listing each and every municipality in
respect of which
sections 8
-
10
and
53
-
61
of the said Act should
be deferred.
4
Each party is to pay its own costs.’
[3]
On
17 September 2013 the First and Second Respondents served a notice of
abandonment of paragraphs 2 and 3 of the order of the court
below on
the applicant’s attorneys. The third respondent did not take
part in the proceedings in the court below. The first
and second
respondents, in addition, tendered to pay the appellant’s costs
of the application for leave to appeal as well
as the costs of
prosecuting the appeal up to the date of service of the notice of
abandonment, on a party to party scale, which
costs included the
costs of two counsel where applicable. Orders 2 and 3 were largely in
favour of the first and second respondents.
The applicant was
successful on the second notice referred to (order 1).
[4]
On
27 September 2013 the attorneys for the first and second respondents
addressed a letter to the applicant’s attorneys that
they would
not ‘invoke or implement any deferment in terms of the notice
of 14 March 2011’. As a result the applicant
decided not to
proceed with the appeal but to appeal ‘only in respect of the
order of costs of the court a quo and further
seek an order to give
effect to the notice of abandonment read with the letter of the
respondents’ attorneys dated 27 September
insofar as the last
mentioned relates to the notice published ... on 14 March 2011’.
[5]
The
applicant submitted in its founding papers that the Government Notice
of 14 March 2011 stands because the Government Notice
of 31 October
2011, which purported to set it aside, was itself set aside by the
order of the court below. Whatever the merits
of this contention, the
fact remains that the respondents undertook in their letter of 27
September 2013 not to invoke or implement
any deferment in terms of
the notice of 14 March 2011. The application is therefore entirely
academic and will have no practical
effect or result (s 21A(1) of the
Supreme Court Act 59 of 1959).
[6]
Moreover,
the application really concerns the order that each party had to pay
its own costs. Victor J motivated her judgment on
costs fully. She
considered that although the first notice had been revoked the
applicant persisted in seeking its setting aside.
In addition, she
criticised the applicant for not pleading with sufficient detail
facts relating to its standing. Had it been done,
the first
respondent would not have had to go the extent that was done to
address this issue. The applicant caused unnecessary
costs to be
incurred. Another feature that motivated her costs order was the fact
that some 800 pages containing information relevant
to the case were
placed before her without the parties indicating what was relevant
and what had to be read. The first respondent,
while engaged in bona
fide negotiations, published the second notice and thereby caused the
negotiations to break down. She concluded
that both parties have
succeeded and failed on the various issues, and made the order that
each pay its own costs. Plainly she
exercised her discretion and
there are no grounds for us to interfere. The fact that some of the
orders have been abandoned does
not affect this conclusion.
[7]
In
the result the appeal is dismissed with costs from after the service
of the notice of abandonment.
F R MALAN
JUDGE OF APPEAL
Appearances:
FOR APPELLANT: W D
Spies
Hurter Spies Inc, Pretoria
Rossouws Attorneys, Bloemfontein
FO
R
FIRST AND SECOND RESPONDENTS:
S M Dawood
State Attorney, Pretoria
State Attorney, Bloemfontein