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[2024] ZAFSHC 46
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National Director of Public Prosecutions v Mlamuleli (A22/2022) [2024] ZAFSHC 46; 2024 (1) SACR 435 (FB) (14 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
No: A22/2022
In
the appeal between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
And
SARAH
MMATAWANA MLAMULELI
Respondent
CORAM:
VAN ZYL, J
et
CHESIWE, J
JUDGMENT
BY:
VAN ZYL, J
HEARD
ON:
24 JULY 2023
DELIVERED
ON:
14
FEBRUARY 2024
[1]
This is a full court appeal against the judgment of a single judge of
this Division.
When the appeal was heard, it served before myself,
Chesiwe, J and Thamae, AJ. However, Thamae, AJ sadly and untimely
passed away
leaving a vacancy amongst the members of the court of
appeal as previously constituted.
[2]
Sections 14(4)
,
14
(5) and
14
(6) of the
Superior Courts Act, 10 of
2013
, determines as follows:
“
14.
Manner
of arriving at decisions by Divisions
…
(4)
(a)
Save
as otherwise provided for in this Act or any other law, the decision
of the majority of the judges of a full court of
a Division is the
decision of the court.
(b)
Where
the majority of the judges of any such court are not in agreement,
the hearing must be adjourned and commenced
de
novo
before a court consisting
of three other judges.
(5)
If, at any stage during the hearing of any matter by a full court,
any judge of such court is absent or unable to perform his
or her
functions, or if a vacancy among the members of the court arises,
that hearing must
-
(a)
if
the remaining judges constitute a majority of the judges before whom
it was commenced, proceed before such remaining judges
; or
(b)
if
the remaining judges do not constitute such a majority, or if only
one judge remains, be commenced
de
novo
, unless all the parties to the
proceedings agree unconditionally in writing to accept the decision
of the majority of the remaining
judges or of the one remaining judge
as the decision of the court.
(6)
The provisions of subsection (4) apply, with the changes required by
the context, whenever in the circumstances set out in subsection
(5)
a hearing proceeds before two or more judges.” (My emphasis)
[3]
In
Ithuba Holdings Pty) Ltd v Lottostar (Pty) Ltd
2021
JDR 2008 (MN) the court held as follows in similar circumstances:
[1]
This is a full Court appeal following the Supreme Court of Appeal
("SCA") granting the Appellant
("lthuba") leave
to appeal to this court. The appeal was heard on 11 June 2021 by the
court constituted by Mashile J,
Sigogo and Roelofse AJJ. On 31 July
2021, sadly Sigogo AJ passed away due to COVID-19 complications
leaving a vacancy amongst the
members of the Court.
[2]
Section 14(5) of the Superior Courts Act 10 of 2013 ("
Superior
Courts Act"
;) makes a provision for instances where a vacancy
amongst the members of a court arises prior to the finalisation of a
judgment.
It provides:
‘…’
[3] Roelofse
AJ and I remained and constituted the majority of judges before whom
the appeal could have commenced.
Notwithstanding the provisions of
section 14(5)
of the
Superior Courts Act, the
views of the parties
were sought. The First ("Lottostar") did not wish to make
any submissions. lthuba, the Second Respondent
("the Board")
and the Fourth Respondent ("the Commission") informed the
court that they had no objection if
Roelofse AJ and I delivered the
judgment. The third respondent ("Betting World") proffered
no views. The Court resolved
to proceed to consider the matter and to
deliver this judgment.”
[4]
In the present matter the parties were advised in writing that
judgment will be delivered by the
remaining two judges who constitute
a majority of the judges before whom the appeal commenced.
Background:
[5]
The primary issue to be determined in this appeal is whether, as
contended by the
appellant, a High Court which granted a restraint
order under section 26(1) of the Prevention of Organized Crime Act,
121 of 1998
(“POCA”), has the power to rescind such an
order in circumstances other than those prescribed in section 26(10)
of
POCA; more particularly, on common law grounds.
[6]
Should the above question be found to be affirmative, the further
question is whether
the court
a quo
was correct in finding
that the respondent satisfied the requirement of “good cause”
for purposes of rescission under
the common law.
[7]
On 30 September 2020 the appellant obtained an
ex parte
provisional restraint order in terms of section 26(1) of POCA
against the respondent. On the return date of the provisional order,
26 November 2020, the provisional order was confirmed in the absence
of the respondent; hence, by default.
[8]
The circumstances under which the final restraint order was granted
against the respondent
were undisputed in the court
a quo
,
namely:
1.
On the return date of the provisional restraint order, the
respondent`s erstwhile attorneys were in attendance
in court waiting
for the matter to be called in order to apply for a postponement and
an extension of the
rule nisi
in order for the respondent to
file an answering affidavit.
2.
Unbeknown to the respondent`s said attorneys, the other parties to
the provisional restraint order were
with Daffue, J in chambers at
the time, since the matter served before him. Daffue, J, on the other
hand, had no knowledge of the
presence of the respondent`s attorneys
in court at the time.
3.
The other respondents who were present in the chambers of Daffue, J
and who, like the respondent, had
not filed their answering
affidavits by the return date, applied for a postponement in order to
file same. Their applications for
a postponement was not opposed by
the appellant and Daffue, J granted their request for a postponement
and extended the
rule nisi
accordingly.
4.
Due to the “absence” of the
respondent, Daffue, J granted a final restraint order against the
respondent.
[9]
The respondent subsequently applied for rescission of the final
constraint order,
which application was based on the common law.
[10]
The application was opposed by the appellant who contended that the
respondent did not set out
a reasonable explanation for her default
and that she had no
bona fide
defence to the restraint
application.
[11]
The legal point which currently serves on appeal, was not raised by
the appellant during the
hearing of the rescission application, but
Mr Mazibuko correctly conceded already in his heads of argument that
it does not preclude
the appellant from raising the said point of law
for the first time on appeal.
[12]
The court
a quo
found that the respondent had satisfied the
common law requirements for rescission of a judgment and consequently
ordered the final
restraint order to be rescinded and set aside,
together with ancillary relief. The court
a quo
also ordered
the present appellant to pay the costs of the application.
[13]
The court
a quo
granted leave to appeal to the full court,
with the costs of the application for leave to appeal to be costs in
the appeal.
The
Notice of Appeal:
[14]
The appeal is directed against the whole of the order and judgment of
the court
a quo,
including the order as to costs.
[15]
The grounds of appeal as set out in the Notice of Appeal entail, in
summary, the following:
1.
The court
a quo
misdirected itself in finding that the final
restraint order was to be set aside on the basis that the appellant
established that
she was not in wilful default and that she had set
out a triable issue worthy of adjudication.
2.
In having based its finding on the common law requirements for the
rescission of a judgment, the court
a quo
erred since the
requirements for rescission of restraint orders are provided for in
section 26(10) of POCA. The said finding is
inconsistent with the
binding authority of the Supreme Court of Appeal in the judgment of
National Director of Public Prosecutions v Phillips and Others
[2005] 1 All SA 635
(SCA), in terms whereof the rescission of
a restraint order is only permissible in terms of section 26(10) of
POCA or under the
limited common law bases of fraud, common mistake
and the doctrine of
instrumentum noviter repertum
(the coming
to light of as yet unknown documents).
3.
Regardless of the success of the rescission application, the court
a
quo
erred by holding the appellant iable for the payment of the
respondent`s costs in the rescission application, since the
respondent
was the party who sought an indulgence.
[16]
According to the appellant the appeal is to be upheld, the order of
the court
a quo
is to be substituted with one in terms whereof
the application for rescission is dismissed with costs, including the
costs of three
counsel. The respondent is further to be ordered to
pay the costs of the appeal, such costs to include the costs of the
application
for leave to appeal, including the costs of three
counsel.
The
merits of the appeal:
[17]
I will first deal with the issue of section 26(10) of POCA, since
should this ground of appeal
succeed, the question whether the
respondent established good cause for common law purposes, will
become irrelevant.
[18]
Adv. NA Cassim SC, Adv. S Freese and Adv. TM Ngubeni appeared on
behalf of the appellant in the
appeal. Adv. MS Mazibuko appeared on
behalf of the respondent.
Section
26(10) of POCA:
[19]
Section 26(10) of POCA determines as follows:
(10)
A High Court which made a restraint order-
(a)
may
on application by a person affected by that order vary or rescind the
restraint order or an order authorising
the seizure of the property
concerned or other ancillary order if it is satisfied-
(i) that
the operation of the order concerned will deprive the applicant of
the means to provide for his or her
reasonable living expenses and
cause undue hardship for the applicant; and
(ii) that
the hardship that the applicant will suffer as a result of the order
outweighs the risk that the property
concerned may be destroyed,
lost, damaged, concealed or transferred; and
(b)
shall
rescind the restraint order when the proceedings against the
defendant concerned are concluded.
[20]
Mr Cassim submitted that the Supreme Court of Appeal held in
National
Director of Public Prosecutions v Phillips and Others
[2005]
1 All SA 635
(SCA);
2005 (5) SA 265
(SCA) [the
Phillips
-judgment]
that an applicant seeking rescission of a restraint order obtained
under section 26(1), like in the present matter, is
permitted to do
so only on the grounds as set out in terms of section 26(10) of POCA.
For this submission he relied on paragraph
[25] of the
Phillips
-judgment:
“
[25]
To sum up, a High Court which grants a restraint order in terms of s
26(1) of the Act has no inherent jurisdiction to rescind
the order.
Subject to one exception
, its power to do so is circumscribed
by the Act and is limited to the grounds set forth in s 25(2) and s
26(10).
The exception is the existence of one or other of the
recognised common-law grounds for rescission which must have existed
when
the restraint order was granted
.” (My emphasis)
[21]
Mr Cassim further submitted, with reference to paragraph [21] of the
Phillips
-judgment, that what would constitute a basis
in common law for rescinding a restraint order would be situations
where the judgment
is founded upon fraud, common mistake and the
doctrine of
instrumentum noviter repertum.
I cannot agree with
Mr Cassim`s interpretation of paragraph [21], which reads as follows:
[21]
It is a well-established principle that a Court
may
always set aside its own final judgment in certain limited
circumstances. These
include
situations where the judgment is founded upon fraud, common mistake
and the doctrine of
instrumentum
noviter repertum
(the
coming to light of as yet unknown documents). See generally Van
Winsen, Cilliers & Loots
Herbstein
& Van Winsen
The
Civil Practice of The Supreme Court of South Africa
4th
ed at 690 - 8. The principle, however, has no application to the
circumstances relied upon by counsel. As observed by
Trengove AJA
in
Swadif
(Pty) Ltd v Dyke NO
1978
(1) SA 928
(A)
at 939D - E:
'I do not consider it
necessary to enter upon a discussion of the grounds upon which the
rescission of a judgment may be sought
at common law because,
whatever the grounds may be,
it is abundantly clear that at
common law any cause of action, which is relied on as a ground for
setting aside a final judgment,
must have existed at the date of the
final judgment
.'” (My emphasis)
[22]
In terms of the aforesaid paragraph [21] of the judgment, rescinding
a judgment on common law
basis is not restricted to the three
mentioned grounds, but
include
the said three grounds. The
extract from
Herbstein and Van Winsen:
Civil Practice of
the High Courts and the Supreme Court of Appeal
, AC Cilliers
et al,
5
th
Edition (whilst the SCA above still
referred to the 4
th
Edition), which the court referred to
above,
inter alia,
reads as follows:
“
VII
Setting aside of judgments and orders in terms of the common law
As
stated, a final judgment, being
res judicata
, is not
easily set aside, but the court will do so on various grounds, such
as fraud, discovery of new documents, error or procedural
irregularity.
At common law, any cause of action that is
relied on as a ground for setting aside a final judgment must have
existed at the date
of the judgment.
There must be some
causal connection between the circumstances that give rise to the
claim for rescission and the judgment.
In
terms of the common law, the court has power to rescind a judgment
obtained on default of appearance provided that sufficient
cause for
rescission has been shown.
The term
'sufficient cause' defies precise or comprehensive definition, but it
is clear that in principle and in the long-standing
practice of our
courts two essential elements are: (1) that the party seeking relief
must present a reasonable and acceptable explanation
for default, and
(2) that on the merits that party has a
bona
fide
defence which,
prima
facie
, carries some prospect or
probability of success. Good cause need not, however, be
established when the application for rescission
is brought in terms
of rule 42(1)
(a)
.
The
phrases 'good cause' and 'sufficient cause' are synonymous and
interchangeable. …”
[23]
What the SCA consequently determined, in my view, is that the High
Court has no inherent jurisdiction
to rescind an order issued in
terms of section 26(1) of POCA, but it can do so if one or other of
the recognized common law grounds
for rescission
existed at the
time when the restraint order was
granted,
absent which it may
only be done in terms of and on the grounds of section 26(10).
Had
it not been for section 26(10), the High Court would not have been
entitled and would not have had the jurisdiction to
rescind or vary a
section 26(1) order based on grounds that came into existence
after
the order had been granted. Section 26(10) has therefore actually
endorsed that over and above the common law grounds to apply
for a
rescission of a section 26(1) order, which grounds had to exist at
the time the order was granted, the court (now) also has
the
jurisdiction to vary or rescind its own order based on the grounds
set out in section 26(10) and which grounds came into existence
after
the granting of the order.
[24]
Section 26(10) of POCA consequently regulates rescission under
certain circumstances which occurred
or came into existence after the
granting of an order in terms of section 26(1), whilst the common law
grounds regulate or provide
for rescission of such an order under
circumstances which prevailed or existed before or at the date of the
granting of the order.
[25]
In my view the court
a quo
therefore did not err by setting
aside the final order on common law grounds based on circumstances
that prevailed at the date when
the final order was made.
[26]
In view of my findings above and in the particular facts and
circumstances of this appeal, I
deem it unnecessary to address the
issue of the inherent jurisdiction of the court in terms of section
173 of the Constitution
and what impact, if any, section 26(10) of
POCA has thereon.
[27]
The remaining issue is whether the court
a quo
erred in
finding that the respondent made out a proper case for purposes of
sufficient cause shown.
[28]
It is trite and the court
a quo
also referred to the principle
that whether the applicant has shown sufficient cause for the
rescission of a default judgment, the
applicant has to present a
reasonable and acceptable explanation for the default and the
applicant has to show the existence of
a
bona fide
defence
which
prima facie
has some prospect or probability of success.
See
Harris v Absa Bank t/a Volkskas
2006 (4) SA 527
(T)
at para [4].
[29]
The circumstances under which the final restraint order was issued
against the respondent in
her absence has already been set out in
paragraph [8] above. From that it is evident, like the court
a quo
found, that had the respondent`s attorneys attended the
proceedings in chambers and not waited in court, the respondent`s
application
for a postponement would in all probability have been
granted considering the stance taken by the appellant at that stage
and the
other postponements which Daffue, J granted.
[30]
With regard to the requirement of a
bona fide
defence, the
court
a quo
dealt in detail with the defence raised by the
respondent. I do not intend repeating same herein. The crux of the
respondent`s defence
is that she did not receive any benefit from the
alleged offences. The court
a quo
found as follows:
“
Clearly
the issue whether the Applicant received a benefit for the purposes
of POAC raises a triable issue that may decide the fate
of the
restraining order and in my view the Applicant has shown that she has
a
bona fide
defence worthy of adjudication.”
[31]
The court
a
quo
exercised
its discretion to grant the rescission application. It is trite that
a court of appeal should be loath to interfere with
the discretion
which was exercised by a court
a
quo
and
should only do so if the court
a
quo
failed
to exercise its discretion properly and judicially. See
EH Hassim Hardware (Pty) Ltd v Fab
Tanks CC
(1129/2016)
[2017] ZASCA 145 (13 October 2017) at para [29].
[32]
In my view there is no basis upon which we can interfere with the
discretion exercised by the court
a quo
in deciding to grant
the rescission of the final restraint order.
[33]
The appeal can consequently not succeed on its merits.
The
appeal against the costs:
[34]
As already indicated earlier in the judgment, the appeal against the
order of costs made by the
court
a
quo
is based thereon that regardless
of the success of the rescission application, the court
a
quo
erred by holding the appellant
liable for the payment of the respondent`s costs in the rescission
application, since the respondent
was the party who sought an
indulgence.
[35]
Mr Cassim acknowledged that the power of a court of appeal to
interfere with a costs order is
limited to instances of vitiation by
misdirection or irregularity or absence of grounds on which a court,
acting reasonably, could
have made such an order. See
Attorney
General Eastern Cape v Blom
1988
(4) SA 645
(A) at 670 D - F. An order as to costs is a judicial
discretion which a court
a quo
exercises with which a court of
appeal cannot interfere unless it is satisfied that the discretion
was not exercised judicially
or was exercised on a wrong principle.
See
Trencon Construction (Pty) Ltd
v Industrial Development Corporation of South Africa Ltd and Another
2015 (5) SA 245
(CC) at paras [83] – [89]. In the matter of
Dobsa
Services CC v Dlamini Advisory Services (Pty) Ltd and Another;
Dlamini Advisory Services (Pty) Ltd and Another v Dobsa Services
CC
[2016] JOL 36725
(SCA) [the
Dobsa
-judgment]
the aforesaid principles were stated as follows at para [14]:
[14] Accordingly,
these being appeals in relation to awards of costs, it is necessary
to briefly set out the principles
relating to the nature and proper
exercise of the discretion vested in a judicial officer when making
an order as to costs and
the circumstances in which an appellate
court can interfere with the exercise of that discretion. The
discretion of the nature
under consideration in these appeals has
been described as "a discretion in the strict or narrow sense".
Accordingly,
the appellate court's power to interfere on appeal is
limited to instances where it is found that the court of first
instance did
not exercise the discretion judicially, or acted upon a
wrong principle, or exercised its discretion capriciously, or did not
bring
its unbiased judgment to bear on the question or did not act
for substantial reasons. And as the Constitutional Court put it,
albeit
in a different context:
’
. . .
the lower Court had not exercised its discretion judicially, or that
it had been influenced by wrong principles
or a misdirection on the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a
Court properly directing itself to
all the relevant facts and principles.’
That
the appellate court would probably have come to a different
conclusion had it sat as a court of first instance is of no moment.
The appellate court would still not be entitled to interfere solely
on that ground.”
[36]
Mr Cassim submitted that the court
a quo
failed to take into
consideration the fact that an applicant seeking rescission of an
order is in essence seeking an indulgence
and therefor ought to bear
the costs of such an application. The said principle is indeed
applicable. See
Minnaar v Van Rooyen N.O.
2016
(1) SA 117
(SCA) at para [20].
[37]
As further pointed out by Mr Cassim, it is also an accepted principle
that the successful applicant
in such an application is usually also
ordered to pay the costs of the opposition to the application, on
condition that the opposition
is reasonable. In the
Dobsa
-judgment
at paragraph [11] thereof the SCA referred with approval to certain
judgments from which the said principle is evident:
“
[11]
…
The first two of these
decisions are to the effect that in an application for rescission of
default judgment the applicant seeks
an indulgence and must therefore
bear the costs reasonably incurred in opposing the application. And
the latter of the three decisions
is to the effect that a party
opposing a rescission application ought not to be required to do so
at their peril even if rescission
is ultimately granted.”
[38]
The aforesaid principles were applied in the judgment of
Minister of Police v Nongwejane
[2016] JOL 34786
(ECM)at para [17]:
“
[17] An
application for rescission of a default judgment is regarded as an
indulgence and, as a general rule, the applicant
would be ordered to
pay the costs of such an application if the respondent's opposition
thereto was reasonable. I am of the view
that in the circumstances of
this matter, set out fully in the founding affidavit in a manner
which allowed the respondent very
little room for objective and
justifiable opposition and which exposed a lamentable poverty in the
application for default judgment,
opposition to the application for
rescission of the default judgment was unreasonable. In such
circumstances, the respondent ought
to have borne the costs of the
application for rescission.”
[39]
It is evident from the judgment of the court
a quo
that the
said order of costs against the appellant was made on the basis of
the general rule of costs, namely that costs follow
the event. It
appears that the court
a quo
failed to appreciate and apply
the aforesaid rules and principles regarding rescission applications;
hence, when an applicant seeks
an indulgence. In the
circumstances I am of the view that the court
a quo
either
failed to exercise its discretion and/or did not exercise its
discretion judicially and/or exercised its discretion based
on a
wrong principle.
[40]
In the circumstances we are entitled to interfere with the costs
order of the court a quo.
[41]
When a
court considers that liability for costs can be more effectively
determined at a later stage, it will reserve the question
for later
decision. In normal circumstances the costs of an application for
interim relief would be reserved for determination
on the return
date. See
Law Society of South Africa and Others
v Road Accident Fund and Another
(12209/08)
[2008] ZAWCHC 47
;
2009 (1) SA 206
(C) (15 August 2008) at para [21].
[42]
The aforesaid principle was applied in the judgment of
McDonald
t/a Sport Helicopter v Huey Extreme Club
2008 (4) SA 20
(C) at 27:
“
For
the reasons stated I am satisfied that this is indeed a case where
this court ought to set aside the costs order made a
quo and to
substitute therefor an order that the costs should stand over for
determination at the trial. The reason for making
the order I propose
in regard to the costs standing over is because a court has not yet
adjudicated upon the issues which were
raised by the applicants in
their application and that a court will indeed have to adjudicate
upon those very issues when it comes
to consider what is described as
'claim C' in the respondent's particulars of claim. It seems to me,
therefore, that fairness requires
that at this stage the order should
allow the costs to stand over for a more appropriate occasion and
that would be at the trial
when the facts and the argument will be
before the court.”
[43]
In
Sea
Lake Investments (Pty) Ltd t/a Sea Lake Industries v Msunduzi
Municipality and Another
[2006] 1 All SA 656
(N) at 661 the court also reserved the costs
in circumstances where it was of the view that “
there
is a vital issue relevant to the determination of the issue of costs
at this stage, which will only be determined in the action
”.
[44]
In the present matter it has been found that the respondent made out
a case in respect of a
bona fide
defence for purposes of
showing “sufficient cause”. However, it will only be at
the extended return date when the application
for a final restraint
order will be considered, that the court will have the full versions
of both the appellant and respondent
before it for adjudication,
which will include the hearing of arguments on behalf of both
parties. In my view the court will then
be in much better position to
determine whether the applicant indeed had a bona defence as alleged
for purposes of the rescission
application and whether the opposition
of the rescission application by the appellant was reasonable. The
court will then be in
a proper position to apply the applicable rules
in respect of costs of rescission applications in order to make an
appropriate
order as to the costs of the application.
[45]
In the circumstances we consider it appropriate that the costs order
of the court
a quo be
substituted with one in terms whereof
the costs be reserved for later determination.
Costs
of the appeal:
[46]
Where
a litigant has small or only partial success in litigation, it
depends on the circumstances what costs order the court will
make. In
a number of cases in which the plaintiffs had only limited success
the court did not allow them to recover all their costs.
An appellant
who has achieved partial success on appeal may be awarded a portion
of the costs of the appeal. See
Rondalia
Assurance Corporation of SA Ltd v Dassie
1975 (3) SA 689
(A). See also
AR
& H v Orford
1963 (1) SA 672
(A)
at 680. See further
EMS
Belting Co of SA (Pty) Ltd v Lloyd
1983 (1) SA 641
(E)
at 646–647.
[47]
In the present matter the appellant has been partially successful on
appeal, being against the costs order
of the court
a quo.
In
our view the appellant is consequently entitled to be awarded a
portion of the costs of the appeal. However, the respondent has
also
been partially successful in that she successfully averted the appeal
on the merits thereof and she is consequently also entitled
to be
awarded a portion of the costs of the appeal.
[48]
In our view the percentage time and effort which the parties put into
the preparation and the arguing of
the appeal in respect of the
merits thereof, by far outweighs that of the costs issue. In
exercising our discretion, we deem a
80% / 20% apportionment of the
costs of the appeal in favour of the respondent, to be fair and
reasonable.
[49]
The respondent engaged the services of three counsel for purposes of
the appeal. In the Notice of Appeal,
the respondent requested that
the respondent be awarded the costs of the appeal, which costs are to
include the costs of three
counsel. No specific request was made in
this regard in the respondent`s heads of argument nor during the
presentation of oral
argument. Be that as it may, in my view there
is, in any event, no basis upon which the employment of more than one
counsel can
be justified, even less so three counsel.
Order:
[50]
The following order is made:
1.
The appeal against the order of the court
a quo
in terms
whereof the respondent`s rescission application was granted, is
dismissed.
2.
The appeal against the costs order made by the court
a quo
is
upheld, the said costs order is set aside and substituted with the
following order:
“
The
costs of the rescission application are reserved for later
adjudication.”
3.
The appellant is to pay 80% of the respondent`s costs of the appeal.
4.
The respondent is to pay 20% of the applicant`s costs of the appeal.
5.
The aforesaid costs of the appeal are to include the costs of the
application for leave to appeal.
C.
VAN ZYL, J
I
CONCUR:
S.
CHESIWE, J
On
behalf of the appellant:
Adv
NA Cassim SC
Assisted
by:
Adv
S Freese & Adv TM Ngubeni
Instructed
by:
Office
of the State Attorney
Bloemfontein
Ref:
619/202000863/P16M
On
behalf of the respondent:
Adv.
MS Mazibuko
Instructed
by:
Matlho
Attorneys
Bloemfontein
Ref:
MD Matlho/MLA14/0001