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2023
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[2023] ZAKZPHC 143
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Minister of Police v Ngubane (AR284/22) [2023] ZAKZPHC 143 (17 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
/
NOT REPORTABLE
Appeal
Case No: AR284/22
In
the matter between:-
THE
MINISTER OF POLICE
APPELLANT
and
MANQOBA
NHLALENI NGUBANE
RESPONDENT
ORDER
1.
The appeal is upheld.
2.
The order directing the State Attorney, Ms N Nogwebela to pay the
wasted costs
occasioned by the postponement of the trial proceedings
on 5 and 6 April 2022 is set aside.
3.
Each party in this appeal is to pay their own costs.
JUDGMENT
Delivered
on: 17 November 2023
R
SINGH, AJ
INTRODUCTION
[1]
This appeal lies against a costs order that was granted
de bonis
propriis
against the State Attorney, Ms Nogwebela by the
Magistrate in the court a quo. The respondent has filed a notice to
abide the decision
of this court and does not oppose the appeal.
THE
FACTS
[2]
The respondent had instituted an action against the appellant in the
court a quo for
damages arising out of an alleged unlawful arrest and
detention. The trial was set down for 24 and 25 May 2021. During the
course
of the proceedings, the appellant’s Counsel in the court
a quo indicated that the appellant intended to launch an application
for the recusal of the trial magistrate, Mr B.S. Gumede (“
the
recusal application”
). On 25 May 2021, the Learned
Magistrate granted an order directing the appellant leave to “bring
any application they wish”
by 31 July 2021.
[3]
The recusal application was issued on 29 July 2021 and served on the
respondent on
30 July 2021. This is evident from the date stamp of
the Registrar of the Regional Court which appears on each page of the
notice
of motion.
[4]
Prior to the finalisation of the recusal application, the respondent
served a notice
of set down on the appellant for 5 April 2022 and 6
April 2022 for “pre-trial” and for trial, respectively.
On 01 April
2022, Ms Nogwebela wrote to the respondent’s
attorneys and the Registrar of the Regional Court objecting to the
matter being
set down on the basis that the recusal application has
not been finalised.
[5]
On 05 April 2022, the appellant was represented by Counsel and a
candidate attorney
from the office of the State Attorney, Mr
Bhagwandass. Ms Nogwebela was not present at court. The matter was
stood down until the
next day being 6 April 2022.
[6]
The following day, the court a quo took the view that the recusal
application had
not been issued timeously in compliance with the
order of 25 May 2021. Arising therefrom, Counsel representing the
appellant sought
condonation to the extent that the court a quo held
the view that the recusal application had not been issued timeously.
This was
opposed by the respondent’s legal representative whose
objection was that there was no substantive application for
condonation
before the court. It is clear from the record that the
respondent’s legal representative had no basis to oppose the
condonation
application and his conduct in this regard is unbecoming
of an officer of this Court. The Learned Magistrate indicated that
the
appellant would not be entitled to apply for condonation and
granted an order,
inter alia,
that Ms Nogwebela and the
candidate attorney furnish written reasons for why the costs of the
05 and 06 April 2022 ought not to
be paid by them
de bonis
propriis
.
[7]
Ms Nogwebela and Mr Bhagwandass delivered their written
representations. Notwithstanding
the representations aforesaid, the
Court a quo granted the costs order
de bonis propriis
against
Ms Nogwebela on 19 May 2022.
THE
ISSUES
[8]
The crisp issue to be decided is whether the order for costs
de
bonis propriis
granted by the court a quo was warranted.
THE
COURT A QUO’S REASONS FOR THE ORDER
[9]
Briefly the court a quo’s reasons for making the order under
consideration were,
inter alia,
as follows:-
9.1
the appellant had failed to follow the rules of court and had not
explained why the recusal
application was served to the Magistrate’s
Commission;
9.2
the presiding Magistrate inferred that the recusal application was
brought at the behest
of Ms Nogwebela;
9.3
on 6 April 2022, the appellant’s Counsel brought an application
for condonation of
the recusal application which the court a quo
contended was abandoned and that the appellant’s legal
representatives were
reckless in so doing;
9.4
the appellant ought to pay the wasted costs of the 5
th
and
6
th
April 2022 as had the condonation application been
made, the respondent would not have incurred the wasted costs of 5
and 6 April
2022 and that this amounted to reckless behaviour on the
part of Ms Nogwebela.
THE
APPLICABLE LEGAL PRINCIPLES
[10]
It is trite that an order for costs
de
bonis propriis
should only be made in exceptional circumstances and where the
conduct of a party’s legal representative has been egregious
and materially and substantially deviates from the standard expected
of legal practitioners in the conduct of the proceedings.
[1]
[2]
APPLICATION
OF THE LAW TO THE FACTS
[11]
The record clearly shows that the recusal application was launched by
31 July 2021. There was
therefore timeous compliance with the order
of court of 25 May 2021. The Learned Magistrate in the court a quo
accordingly misdirected
himself in finding that the recusal
application was “sent to the Magistrate’s Commission”
and not filed with
the court in compliance with the order of court
granted on 25 May 2021.
[12]
There is no evidence of reckless, irresponsible and negligent conduct
which can be imputed to
Ms Nogwebela on fact. Accordingly, there were
no exceptional circumstances to warrant the court a quo making a
punitive order for
costs against Ms Nogwebela personally.
CONCLUSION
[13]
In the circumstances I propose the following order:
1.
The appeal is upheld.
2.
The order directing the State Attorney, Ms N Nogwebela to pay the
wasted costs
occasioned by the postponement of the trial proceedings
on 5 and 6 April 2022 is set aside.
3.
Each party in this appeal is to pay their own costs.
R
SINGH, AJ
I
agree, so it is ordered.
BEDDERSON,
J
Date
of hearing :
17 November
2023
Date
of judgment :
17 November 2023
APPEARANCES
For
Appellant :
Mr
A.K Kissoon Singh SC
Instructed
by :
The
Office of the State Attorney
6
th
Floor, Metropolitan Building
391
Anton Lembede Street
DURBAN
Tel:
031 – 365 2591
Ref:
123/3991/18/N/P33
Email:
NNogwebela@justice.gov.za
For
Respondent:
No appearance
[1]
Grobbelaar vs Grobblaar
1959 (4) SA 719
(A) at 725
[2]
Kgoro Consortium (Pty) Ltd & Ano vs Cedar Park Properties 39
(Pty) Ltd & Ors [2022] ZASCA (65) (9 May 2022) at para 18