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[2012] ZASCA 163
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Adlem and Another v Arlow (782/11) [2012] ZASCA 163 (19 November 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 782/11
Not reportable
In the matter between:
EUGENE
ADLEM
.......................................................................
FIRST
APPELLANT
JOSEPH
ADLEM
..................................................................
SECOND
APPELLANT
and
NESTOR
ALGEMUS ARLOW
...........................................................
RESPONDENT
Neutral citation:
Adlem v Arlow
(782/11)
[2012] ZASCA 163
(19 November
2012).
Coram:
Cloete, Cachalia, Shongwe and Theron JJA
and Erasmus AJA
Heard:
6 November 2012
Delivered:
19 November 2012
Summary: Costs: opposition to application for
condonation.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North West High Court, Mafikeng
(Leeuw JP sitting as court
of first instance):
In each application for condonation:
1 The appellants are ordered to pay the costs on an
unopposed basis.
2 The respondent is ordered to pay the appellants’
costs occasioned by his opposition.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (CACHALIA, SHONGWE AND THERON JJA AND
ERASMUS AJA CONCURRING):
[1] This judgment deals with the costs of the two
applications for condonation delivered by the appellants and which
were opposed
by the respondent. Condonation in each case was granted
after brief argument and the costs were reserved.
[2] The first application was necessitated by the fact
that the appellants’ attorneys delivered their clients’
notice
of appeal one day late. This was occasioned by the fact that
the appellants’ attorneys had requested the respondent’s
then attorneys to furnish the address of their Bloemfontein
correspondents so that the notice of appeal could be served on them,
and the respondent’s attorneys ultimately agreed that the
notice should be sent to them by telefax. The criticism by the
respondent’s present attorney of record that this is what
should have been done in the first place is as applicable to her
predecessors as it is to the appellants’ attorneys.
[3] The second application was necessitated by the fact
that the appellants’ attorneys simply miscalculated the date by
which
heads of argument had to be delivered, and they were delivered
seven days late. This is obviously not the extreme type of case such
as
Beweging vir Christelik-Volkseie Onderwys v Minister of
Education
[2012] SASCA 45 referred to by the respondent in his
answering affidavit.
[4] In each case an acceptable explanation was given;
and the prospects of success were good ─ in fact, the
appellants have
succeeded in the appeal. The respondent claimed
prejudice in each case on the basis that the appellants were
deliberately delaying
the finalization of the matter. In the second
application the respondent annexed an affidavit from one Birch to
support the allegation
that the appellants are causing serious damage
to the property owned by him by overgrazing their cattle. But the
hearing of the
appeal was not delayed in either case. In addition, in
the first application the respondent annexed to his answering
affidavit
153 pages comprising heads of argument in the court below,
copies of statutes, copies of reported cases and copies of extracts
from textbooks. All of this was quite unnecessary.
[5] In my view the opposition in each case was so
unreasonable that the respondent should be visited with an adverse
costs order.
[6] The following order is made in each application for
condonation:
1 The appellants are ordered to pay the costs on an
unopposed basis.
2 The respondent is ordered to pay the appellants’
costs occasioned by his opposition.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For Appellant: P J van der Walt
Instructed by:
F & F van der Walt Attorneys, Rustenburg
Bezuidenhouts Inc, Bloemfontein
For Respondent: S Güldenpfennig
Instructed by:
Spector Attorneys, Johannesburg
Hill McHardy & Herbst Inc, Bloemfontein