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[2020] ZAECPEHC 8
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Moosa v Ramsugit and Others (2136/2017) [2020] ZAECPEHC 8 (3 March 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
NOT
REPORTABLE
Case
No: 2136/2017
Date heard: 26 February
2020
Date
delivered: 3 March 2020
In
the matter
between:
MOGAMAT
RIFAAD MOOSA
Applicant
AND
HIMAT
RAMSUGIT
First Respondent
CLAUDETTE
DOROTHY LOUISA VAN DER MESCHT (N.O.) Second
Respondent
WANDA
ALFONSO
(N.O) Third
Respondent
JUDGMENT
Goosen
J:
[1]
The applicant seeks leave to appeal against the costs order made by
this
court in dismissing the applicant’s application. The
application is premised upon the fact that this court, in its main
judgment,
found that the respondent had acted outside the law in
depriving the applicant of the possession of property; that such
unlawful
dispossession violates the rule of law, and that the
mandament van spolie provides for the protection of the rule of law.
[2]
It was, therefore, argued that this court ought to have deprived the
successful
respondent of his costs because of his conduct. The
appropriate order, it was submitted, given the adverse factual
findings made
against the respondent would have been to award costs
to the unsuccessful applicant alternatively make no order as to
costs.
[3]
Mr Dyke SC, for the applicant, submitted that the law recognises that
both the ethical and moral considerations are relevant to the
exercise of a court’s discretion regarding costs. That being
so, it was submitted, there is a reasonable prospect that another
court would come to a different conclusion regarding the award
of
costs. He further argued that in any event, there are compelling
reasons to allow the matter to be ventilated on appeal so that
guidance might be obtained as to the exercise of a court’s
discretion regarding costs in matters such as the present.
[4]
Mr Friedman, on behalf of the respondent, argued that there is no
merit
in the application since it is apparent from the judgment that
the court indeed exercised its discretion. There being no
suggestion that the court’s approach to the question of costs
amounted to the failure to exercise a discretion there is no
prospect
that an appeal court would interfere. On this basis the application
ought to be dismissed. Mr Friedman argued that in
any event, the
argument regarding the conduct of the respondent obscures the fact
that the application was, as a mandament van
spolie, stillborn from
the outset. In the light of the respondent’s tender, the
litigation ought never to have commenced.
At the hearing relief was
sought upon an alternative basis, for this very reason. In these
circumstances the order is not likely
to be assailed on appeal. He
further argued that the court had decided the matter upon a
particular basis while noting that two
other defences raised by the
respondent had merit. A court of appeal would, if leave were to be
granted, consider the costs order
also in the light of those
defences. In such circumstances, there is no prospect of success on
appeal.
[5]
Mr Dyke
argued that the principle is well-established that a successful
litigant who is guilty of certain kinds of misconduct may
be deprived
of his costs. He referred to
Ritter
v Godfrey
[1]
where Atkin LJ said:
“
In the case of a
wholly successful defendant, in my opinion, the judge must give the
defendant his costs when there is evidence
that the defendant (1)
brought about the litigation or (2) has done something connected with
the institution or the conduct of
the suit calculated to occasion
unnecessary litigation and expense or (3) has done some wrongful act
in the course of the transaction
of which the plaintiff complains.”
[6]
In
Merber
v Merber
[2]
the Appellate Division referred to the passage with approval. The
court noted, however, that in
Ritter
v Godfrey
the court was dealing with a case where the successful defendant had
been deprived of his costs. The court held that:
“
What I have quoted
does not therefore mean that in the instances mentioned, the
successful party must necessarily be deprived of
his costs but that
it is only in these instances, which are commented upon at p. 61 of
the report, that the Court is entitled to
deprive him of his costs.”
[7]
The reference to page 61 of the
Ritter
report is
instructive. There Atkin LJ explains each of the instances with
necessary qualification, as follows:
“
By (1.) is meant –
has so conducted himself as to lead the plaintiff reasonably to
believe that he had a good cause of action against the defendant,
and
so induce him to bring the action
. The authority for this
proposition is
Bostock v. Ramsey
. It is wide, for in terms it
is not limited to unreasonable or improper conduct, or conduct other
than that which constitutes the
alleged cause of action. Inasmuch as
the bringing of many actions of contract and most actions of tort is
due to the effect upon
the plaintiff’s mind of defendant’s
conduct, and the effect is at any rate to induce a belief that the
plaintiff has
a good cause of action, it would appear to follow that
provided the belief was reasonable the judge in all such cases has
grounds
for depriving a successful defendant of costs. I presume
converso there would be grounds for dealing with a successful
plaintiff’s
costs when his conduct had induced the defendant
reasonably to believe that he has a good defence.
I am inclined to think
therefore that the propositions in
Bostock v. Ramsey
should be
read subject to the first, if not also the second, of the limitations
suggested above – i.e.
subject to the conduct being
unreasonable or improper, and being conduct other than that which
constituted the alleged cause of
action
. For the purposes of this
case, however, I shall assume that they are to be read without the
qualification suggested.
(2.) and (3.) may possibly overlap. (2.),
I think would include improper conduct in or connected with the
litigation calculated
to defeat or delay justice
. Such conduct
would also be included in
(3.)
, which, I think, further
extends to cases where the facts complained of, though they do not
give the plaintiff a cause of action, disclose a wrong to the
public
:
King v. Gillard
,
by which I understand some criminal or
quasi
-criminal misconduct
, e.g.,
a fraud
or crime or preparation for a fraud or crime, or possibly some act of
serious oppression
. Such conduct must, however, be in the course
of the transaction complained of.” (emphasis supplied)
[8]
Mr Dyke
argued that ethical and moral considerations which are relevant to
the conduct of the successful party may be taken into
account in the
exercise of a court’s discretion to award costs.
[3]
He submitted that in this instance the respondent had taken the law
into his own hands by depriving the applicant of his lawful
possession of the property. Since the courts deprecate such resort to
self-help the respondent ought to be deprived of his costs.
[9]
There can, in my view, be no doubt that a resort to self-help by a
party
is indeed a factor which may be weighed in the exercise of a
discretion regarding the award of costs. There are instances where
this factor has pertinently been considered.
[10]
In
Engling
and Another v Bosielo and Others
[4]
,
a matter involving a mandament van spolie in respect of a business,
Comrie J, despite refusal of the spoliatory relief, disallowed
the
respondents’ costs on the basis that the respondents had taken
the law into their own hands.
[11]
In
Abbott
v Von Theleman
[5]
,
which concerned an application to interdict respondent from damaging
property (by cutting a fence and lock on a gate), Van Reenen
J
granted an interdict but deprived the applicant of his costs. The
learned judge said the following:
“
As regards the
application for an interdict, I in the exercise of my discretion, do
not make an order of costs. The reason why I
deviate from the usual
rule that normally the successful party is entitled to his costs (see
Cilliers The Law of Costs 2nd ed para
2.08 and the cases cited in
footnotes 1 and 2) is that the applicant, in the face of the
respondent's objections and despite
the existence of at least two
decided cases of this Division on the subject (see Stuttaford v
Kruger
1967 (2) SA 166
(C); Penny and Another v Brentwood Gardens
Body Corporate
1983 (1) SA 487
(C)) saw fit to take the law into his
own hands by having locked the said gate. Although the applicant's
conduct is clearly less
so than that of the respondent, I consider
the applicant's aforementioned conduct sufficiently reprehensible to
deprive him of
an order of costs in his favour (see John Sisk &
Son (SA) (Pty) Ltd v Urban Foundation
1987 (3) SA 190
(N) at 196D).”
[12]
The question in the present application however, is not whether the
respondent ought to
have been deprived of his costs on the ground of
him having resorted to self-help. It is whether a court of appeal is
likely to
interfere with the costs order.
[13]
As stated
in
Merber
(
supra
)
[6]
,
“
It seems therefore
that, when a successful party has been deprived of his costs in the
trial court, an appeal court will enquire
whether there were any
grounds for this departure from the general rule and if there are no
such grounds, then ordinarily it will
interfere.
But when, as in
the present case, the general rule has been followed, then the
appellant must first show that there were grounds
for departing from
the rule and, if there are such grounds, that the trial Judge, in
refusing to depart from the rule, has either
failed to take such
grounds into consideration or has acted arbitrarily in not giving
effect to them by depriving the successful
party of his costs.
In
either of these events the appeal court would be free to exercise its
own discretion.” (emphasis added)
[14]
The mere fact that the appeal court would have given more weight to
the grounds does not
mean that the judge has acted arbitrarily, i.e.
not with judicial discretion.
[15]
In this instance, the award of costs to the respondent in accordance
with the ordinary
rule occurred on the basis of consideration of all
relevant factors. As the main judgment indicates this court was alive
to the
nature and effect of the respondent’s conduct. It
equally indicates that the respondent had sought to avoid litigation.
In
this regard restoration of an equivalent form of storage to that
which was lost was offered. When the application was launched the
relief sought was opposed on three grounds. The judgment deals with
one such ground finding in effect that the application was
ill-founded. It indicates that the other grounds are not without
merit but says no more in that regard.
[16]
All of these relevant factors were considered in determining the
costs order. The question
of an adverse order was considered but
discounted because of the conduct of the respondent prior to the
litigation commencing.
[17]
An appeal court will not interfere with a trial court’s
exercise of a discretion
merely on the basis that it might have
exercised the discretion differently. There is, in my view, no
reasonable possibility that
a court of appeal will find that this
court did not exercise the discretion vested in properly or at all.
There is accordingly
no reasonable prospect of success on appeal.
[18]
I am equally not persuaded that there are compelling reasons to grant
leave to appeal in
this matter. There is no significant matter of law
or principle at issue. It is clear that a court may, on the grounds
set out
earlier, deprive a successful litigant of his or her costs.
It may also, in the context of the mandament van spolie, indicate its
disapproval of the conduct of the unlawful dispossessor where the
relief is not granted, by depriving that party of his or her
costs.
Whether that occurs is a matter for the court exercising its
discretion judicially.
[19]
In all of the circumstances the application for leave to appeal
cannot succeed.
[20]
I make the following order:
The
application for leave to appeal is dismissed with costs.
________________________
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Obo
the Applicant: Adv
B.C Dyke SC
Instructed
by Leon
Keyter Attorneys
27
Uitenhage Road, Sydenham, Port Elizabeth
Obo
the Respondent: Mr G.
Friedman
Friedman Scheckter
75 Second Venue, Newton
Park, Port Elizabeth
Tel: (041) 395 8412
[1]
1920 2 KB 47
(CA) at 60
[2]
1948 (1) SA 446
(A) at 453
[3]
See Mohomed v Nagdee
1952 (1) SA 410
(A) 420; [1952] 1 AU SA 121 (A)
[4]
1994 (2) SA 388
(BG) at 398D-E
[5]
1997 (2) SA 848 (C)
[6]
Ibid at 453