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2024
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[2024] ZAFSHC 60
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Kabi v Kabi (Born Mofana) (4727/2023) [2024] ZAFSHC 60 (26 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
Application
no.: 4727/2023
In
the matter between:
TUMELO
OCTAVIA KABI
Applicant
and
UTLOANANG
EUNIGAR KABI
Respondent
(Born
Mofana)
CORAM:
VAN ZYL, J
HEARD
ON:
18;19 JANUARY 2024
DELIVERED
ON:
26
FEBRUARY 2024
[1]
This is an application for contempt of court which served before me
on the unopposed
motion court roll of 18 January 2024 and again on 19
January 2024.
[2]
Mr Plaatjies, who appeared on behalf of the applicant, addressed me
on service of
the application and was about to address me on the
merits of the application when I indicated to him that I was inclined
to remove
the application from the roll since I consider the
application to be fatally flawed. Mr Plaatjies did not indicate to me
that the
matter is in any event being opposed, nor did he indicate
that there was a legal representative present in court who was
appearing
on behalf of the respondent.
[3]
Towards the end of our inter-action, I saw that Mr Carpede was on his
feet and when
I called upon him, he indicated that he is appearing on
behalf of the respondent. He submitted that he respectfully agrees
with
the order I intend to make by removing the application from the
roll. He did not indicate that the respondent intends opposing
the application, let alone that a notice op opposition has already
been filed (which was not to my knowledge at the time). He submitted
that my proposed removal from the roll of the application should be
done on the basis that the applicant be ordered to pay the
costs of
the application.
[4]
Mr Plaatjies again addressed me and submitted that such an order of
costs would not
be fair, since the respondent has been ignoring the
court order which forms the basis of the contempt application and has
done
nothing since the contempt application has been served upon her
attorneys. Mr Plaatjies then referred to a letter which had been
received by his attorneys from the respondent`s attorneys in which it
was indicated, according to Mr Plaatjies, that they were
“
withdrawing
” and offered to pay the costs of the
day. Mr Carpede then interjected and stated that there was a
follow-up letter dated,
18 January 2024, in which it was indicated
that the previous letter was retracted and that Mr Plaatjies should
hand that letter
to me as well. In order not to delay the rest of the
unopposed motion roll, I indicated that the matter was to stand down
until
the end of the roll. I did not take any of the two letters from
Mr Plaatjies.
[5]
When the matter was recalled at the end of the roll, Mr Plaatjies
indicated that he
has in the meantime done some research on the
issues I raised pertaining to the merits of the application and he
requested an opportunity
to draft heads of argument and to address
the court fully on the merits. I indicated that the application will
then have to be
postponed to the opposed roll of the following week,
but Mr Plaatjies submitted that such a postponement will
substantially increase
the costs. Mr Carpede then indicated if the
only issue is about costs, his instructions are that should I remove
the application
from the roll, the respondent is willing to agree to
an order that each party pays his/her own costs. However, Mr
Plaatjies was
not satisfied with such an order and again requested an
opportunity to address me on the merits.
[6]
Due to the presence of other counsel who were awaiting my hearing of
urgent applications,
I made a ruling that this matter be rolled over
until the following day, 19 January 2024, at 10h00, when I will
entertain further
arguments. I indicated that should they so choose,
they may file short heads of argument.
[7]
Mr Plaatjies prepared written heads of argument on the merits of the
application for
purposes of the hearing on 19 January 2024. However,
due to some further research which I performed during the night, I
indicated
to Mr Plaatjies that he need not address me on the merits
of the application anymore, since I no longer intend removing it from
the roll due to a lack of merits. Mr Plaatjies then submitted that a
proper case has been made out and requested an order in terms
of the
Notice of Motion. He further sought costs of the previous
postponement of 21 December 2023, but after I pointed out to him
that
costs were not reserved on the said date and that no order as to
costs was made, he abandoned the last-mentioned request.
[8]
With regard to the costs of 19 January 2024 Mr Plaatjies requested
that the respondent
be ordered to pay same since it was the
respondent`s conduct which necessitated the application in the first
instance.
[9]
I subsequently enquired from Mr Carpede what his submission was
regarding the merits
of the application, whereupon it, for the first
time, became apparent that he is actually opposing the merits of the
application
and not only the issue of costs. He submitted that the
application should not be granted. When I requested his submissions
on costs,
he stated that “
the respondent has already shown
her intention to defend the application
”. When I enquired
how that had been done, he indicated that a Notice of Intention to
Oppose had been served upon the respondent`s
attorneys via email the
previous morning already, 18 January 2024, at 8h11; hence, prior to
the hearing of the matter the previous
day. This was for the first
time since the start of the matter the previous day that any of the
legal representatives mentioned
something about any formal opposition
to the application. The said Notice was handed to me and it was
evident that it has since
also been formally filed at Court on 19
January 2024.
[10]
The two letters mentioned earlier herein, were then also handed to
me. The letter dated 17 January
2024, on face value thereof, had been
emailed to the applicant`s attorneys. The said letter,
inter alia,
stated as follows:
“
1.
We refer to the Court Order dated 21
st
of December 2023.
2.
Kindly grant us indulgence and have the matter postponed to a further
date in order for our firm to properly
come on record and
subsequently oppose the application.
3.
Your indulgence will be highly appreciated.
4.
We will tender costs of the said postponement.”
The
second letter, dated 18 January 2024, had apparently been emailed to
the applicant`s attorneys on 18 January 2024 at 08h11,
together with
the Notice of Intention to Oppose and a Notice of Appointment of
Attorneys of Record. It had seemingly also been
handed to Mr
Plaatjies by Mr Carpede and his attorney the morning of the 18
th
January 2024 in the corridors of the Court before Court started. The
said letter,
inter alia,
stated the following:
“
1.
We refer to our letter dated 17
th
January 2024.
2.
We confirm that we act on behalf of the respondent in the contempt
application.
3.
It is our instruction to retract our letter dated January 2024.
(sic)
4.
Please be informed that notice of intention to oppose and notice of
appointment as attorneys of record
will be filed in this regard.”
[11]
Mr Carpede requested that the application be postponed to the opposed
motion roll of 29 February
2024 (which date also suited Mr
Plaatjies), with the costs of both 18 January 2024 and 19 January
2024 to stand over for later
adjudication. I indicated that there is
no valid reason why costs should stand over, since another Court will
be in no better position
than myself to determine an appropriate
order as to costs. Mr Carpede then submitted that each party should
pay his/her own costs,
since both parties knew the previous day
already that the matter is being opposed and therefore unnecessarily
caused the hearing
on 19 January 2024.
[12]
In reply it was evident that although Mr Plaatjies did not have the
Notice of Intention to Oppose,
he had both letters in his possession
from which letters it was very clear that the respondent wished to
oppose the application.
[13]
The crux of the matter is that both Mr Plaatjies and Mr Carpede had
knowledge on the 18
th
of January 2024 that the application
was to be opposed by the respondent. Despite this knowledge, not one
of them advised me accordingly.
Had they done so, I would not have
rolled the matter over to 19 January 2024. I would merely have
postponed the application to
the opposed motion roll, with an
appropriate order as to costs.
[14]
It was the aforesaid failure of both legal representatives that
resulted in the unnecessary and
wasted costs of 19 January 2024. In
my view each party should therefore pay his/her own costs. The
parties are not to be mulcted
in unnecessary costs and therefore the
costs are only to be paid on an unopposed basis.
[15]
The fact that the application could not be finalised on 18 January
2024 (irrespective of the
rolling over thereof to 19 January 2024),
was due to the respondent`s failure to have timeously filed her
Notice of Intention to
Oppose, considering that the application had
been served upon the respondent`s attorneys on 28 November 2023
already. There is
consequently no reason why the respondent should
not be ordered to pay those wasted costs. The to and fro arguments
and submissions
by counsel on the said date was purely as a result of
their failure to have advised me about the respondent`s opposition of
the
application and consequently the costs are also only to be paid
on an undefended basis.
[16]
Unfortunately, I was unable to finalise this judgment in time for the
application to be postponed
to the opposed motion roll of 29 February
2024, as requested. In the circumstances I deem it practical to
rather remove the application
from the roll, set time lines for the
filing of papers and then the application can be re-enrolled for a
suitable once it is ripe
for hearing. With regard to the filing of
papers, I will also make provision for the filing of an application
for condonation by
the respondent, which is necessary due to the late
filing of her Notice of Intention to Oppose.
[17]
I consequently make the following order:
1. The
application is removed from the roll.
2.
The respondent is to file her answering affidavit, as well as her
condonation application for the late
filing of her Notice of
Intention to Oppose, within 15 days from the date of this order.
3.
The applicant is to file his replying affidavit, if any, and his
answering affidavit to the respondent`s
condonation application, if
any, within 10 days from the date of filing of the respondent`s
answering affidavit and condonation
application.
4. The
respondent is to file her replying affidavit in the condonation
application, if any, within 10 days from
the date of filing of the
applicant`s answering affidavit to the respondent`s condonation
application.
5.
The respondent is to pay the costs of 18 January 2024 on an unopposed
basis.
6.
Each party is to pay his/her own costs of 19 January 2024 on an
unopposed basis.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
N. Plaatjies
Instructed
by
:
Matee
Attorneys
BLOEMFONTEIN
mateeattorneys@hotmail.co.za
On
behalf of the respondent:
Mr.
M. Carpede
Instructed
by:
Tshangana
Attorneys
BLOEMFONTEIN
luthando@tshanganaattorneys.co.za