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2023
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[2023] ZAFSHC 513
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Mantsopa Local Municipality v West Rand Consulting (Pty) Ltd (686/2023) [2023] ZAFSHC 513 (1 February 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 686/2023
In the matter between:
MANTSOPA
LOCAL MUNICIPALITY
Applicant
and
WEST
RAND CONSULTING (PTY) LTD
Respondent
In re:
In the matter between:
WEST
RAND CONSULTING (PTY) LTD
Applicant
and
MANTSOPA
LOCAL MUNICIPALITY
First Respondent
EMS
SOLUTIONS (PTY) LIMITED
Second respondent
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
01
FEBRUARY 2023.
[1]
This is an application for leave to appeal against the order I made
on 26 July 2023 in terms of which each
party had to pay its own costs
in the urgent application that was withdrawn and the respondent had
to pay the applicant's costs
in the uniform rule 41(1)(c)
proceedings.
[2]
The appeal is based in essence, on the following four grounds of
appeal:
“
2.1
the Learned Justice concluded that the
letter of 17 October 2022 is the determinative factor for the
application as the threat contained
therein left the applicant (the
municipality) with no choice but to approach the court on an urgent
basis for the rescission of
the said court order.
2.2
The Learned Justice agreed with the applicant (the municipality) that
it had no choice but to approach the
court on an urgent basis for the
rescission of the court order.
2.3
The Learned Justice further held that each party should pay its own
costs for the urgent application.
2.4
The learned Justice also held that the respondent should pay the
applicant's (the municipality's) costs of
the Rule 41(1)(c)
proceedings."
[3]
The application was opposed on the basis that the applicant did not
satisfy the requirements for leave
to appeal where the only issue
against which leave is sought is a cost order. There was nothing new,
it was contended, nor did
any exceptional circumstances present
themselves that would render the leave to appeal against the
discretionary costs order, on
its own, to be in the interests of
justice. No exceptional circumstances presented themselves in this
matter.
[4]
In its notice of appeal, the applicant contended that the presiding
officer failed to consider that
the contents of the letter of 17
October 2022 were erroneous and that the factual position was that
the applicant (the municipality)
would not be in contempt by virtue
of the interim interdict no longer being extant.
[1]
The court a quo misdirected itself in disregarding the principle that
the successful party should, as a general rule, have its
costs and
failed to consider that the respondent (West Rand) was for all
intents and purposes the successful party.
[2]
[5]
It was stated in the judgment
[3]
that the applicant regarded the relief sought in the application as
meritless as there was no order to rescind. The
ipssissime
verba
used by the applicant in this regard were:
“
But
to what purpose and point?
[4]
…This-
I say- conclusively shows that this application serves absolutely no
purpose. It seeks to amend an interim order that
no longer applies.
Indeed, it constitutes an abuse of the Court process. Coupled of
course with the fact that there is simply no
urgency to the
application, it is difficult to conceive of why the Municipality
decided to act as it here did. There is no order
to be rescinded.
[5]
[6]
In its heads of argument, the applicant conceded
that its letter of 17 October 2023 was factually and legally
wrong as
the 25 February 2022 order was no longer extant.
[6]
This letter was addressed to the respondent by the applicant’s
Head of Legal, marked urgent. The question that arises is
to what
purpose and point was this urgent letter forwarded to the defendant
at a time when there was no order to be rescinded?
Surely the
applicant should have traversed this aspect in the answering
affidavit. However, the applicant chose not to deal with
the founding
affidavit
ad
seriatim
as
he had been advised that it would be wholly unnecessary to do so.
[7]
The
nagging question remains: Had it not been for the impugned letter,
would an urgent application have been launched as it was?
The
Legal Position
[7]
Both parties referred me to the decision of
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell- NO and
Others
[8]
where
the following was stated:
“
The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject to
the first. The second
principle is subject to a large number of exceptions where the
successful party is deprived of his or her
costs. Without attempting
either comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs
can depend on circumstances such
as, for example, the conduct of parties, the conduct of their legal
representatives, whether a
party achieves technical success only, the
nature of the litigants and the nature of the proceedings.”
[8]
It would appear that the principle that the
successful party should have his or her costs is subject to the
first
principle that the award of costs is in the discretion of the
presiding judicial officer. Furthermore, the successful party
can be
deprived of his or her costs depending on the circumstances such as
the conduct of the parties, the conduct of their legal
representatives, whether a party achieves technical success only and
the nature of the proceedings.
[9]
The order of 1 December 2022 was granted by
agreement when the urgent application was withdrawn by the
application.
It would appear that the applicant regarded itself as
the successful party who should have been awarded costs as it
contended that
the court misdirected itself in depriving the
respondent, as the successful party, of the costs.
[9]
This matter was not adjudicated upon and the fact that the
application was withdrawn by agreement does not justify a costs order
against the other party.
[10]
The applicant contended, furthermore, that the court failed to
conduct an exhaustive analysis and did not consider all
the facts
before it. The applicant referred in this regard to the documents
that were related to the settlement of the 25 February
2022 order
which, had the respondent provided to his legal team, the November
2022 application would not have been lodged.
[10]
This reasoning is faulty. It is clear from the above that the cause
for the November 2022 application was the letter dated 17 October
2022.
[11]
Sections 17
(1)(a)(i) and (ii) provide that leave to appeal may
only be given where the judge or judges concerned are of the opinion
that the
appeal would have a reasonable prospect of success; or there
is some other compelling reason why the appeal should be heard,
including
conflicting judgments on the matter under consideration.
The reasons advanced by the applicant are neither compelling nor
persuasive.
The applicant has failed to show that the court exercised
its discretion capriciously, based on a wrong principle or was biased
in its judgment. In the circumstances, the application stands to be
dismissed.
[12]
The following order ensues:
Order:
The
application is dismissed with costs.
_________________
MHLAMBI,
J
On
behalf of the Applicant: Adv. A Sander
Instructed
by:
Peyper
Attorneys
101
Olympus Drive
Helicon
Heights
Bloemfontein
On
behalf of the Respondent: Adv. N Snellenburg SC
Instructed
by:
Rampai Attorneys
82
Kellner Street
2
nd
Floor, Westdene
Bloemfontein
[1]
Para
5.4.
[2]
Para
5.5.
[3]
Para
6.
[4]
Para
4.9 of the AA.
[5]
Para
4.10.
[6]
Para
64.
[7]
Para
2 of the AA.
[8]
[1996] ZACC 27
;
1996
(2) SA 621
(CC) at para 3.
[9]
Para70
of the heads of argument.
[10]
Para
68 of the heads of argument.