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2024
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[2024] ZAECQBHC 32
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Zumani and Another v City Manager NMBM and Others (3618/2022) [2024] ZAECQBHC 32 (11 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – GQEBERHA)
CASE
NO.: 3618/2022
Matter
heard on: 28 March 2024
Judgment
delivered on: 11 April 2024
In
the matter between: -
TUKELA
ZUMANI
First
Applicant
FLORENCE
HERMAANS
Second Applicant
and
CITY
MANAGER OF THE NELSON MANDELA BAY
First Respondent
MUNICIPALITY
INDEPENDENT
ELECTORAL COMMISSION
Second Respondent
NELSON
MANDELA BAY MUNICIPALITY
Third Respondent
DEFENDERS
OF THE PEOPLE
Fourth Respondent
AND
CASE
NO.: 2160/2022
In
the matter between:-
DEFENDERS
OF THE PEOPLE
Applicant
and
TUKELA
ZUMANI
First Respondent
FLORENCE
HERMAANS
Second Respondent
JUDGMENT
ROSSI
AJ:
[1.]
Two
applications served before me at the hearing date. One day before the
set-down date on the opposed motion roll, the respective
applications
were withdrawn without a tender for costs. The court was called upon
to make a determination in regard to the wasted
costs occasioned by
the withdrawn applications. For that reason, it is necessary only on
a perfunctory basis to detail the history
of these applications.
Introduction
and background
[2.]
The
first application, under case number 3168/2022, which was initiated
on an urgent basis was ultimately for relief in terms of
Part B for a
declaratory order that the decision of the First Respondent to
declare vacant seats on the Third Respondent Municipality’s
council (the First and Third Respondents shall collectively be
referred to as the “
Municipal
Respondents”
)
be reviewed and set aside. Part A was to interdict the Second
Respondent (the “
IEC”
)
from taking any steps to remove the Applicants (the “
Members”
)
as councillors pending the outcome of the review in Part B.
[1]
[3.]
The
two seats held by the Fourth Respondent (the “
Political
Party”
),
which was the subject matter of the present litigation, were two
proportional representative seats in the Municipality’s
council.
[2]
[4.]
The
second application, under case number 2160/2022, was for confirmation
of the removal of the Members from the Political Party.
The Members
opposed the application and brought a counter-application to review
the decision of the Political Party to terminate
their membership.
[5.]
A
partial order in respect of Part A of the application under case
number 3168/2022 was granted, by agreement between the parties,
on
13
th
December 2022.
[3]
[6.]
Thereafter,
on 2
nd
February
2023, the remaining relief in terms of Part A was granted pending the
finalisation of Part B, which was postponed to 16
th
March 2023. Again, this order was taken by agreement, which aspect
becomes relevant and will be returned to at a later stage in
this
judgment.
[7.]
What
then followed were several postponements at the request of the
Members.
[4]
On each occasion
costs were reserved, save for the order of 8
th
February 2024 where the Members were ordered to pay such costs on a
punitive scale.
[8.]
On
2
nd
March 2023, the Political Party withdrew its application under case
number 2160/2022.
[5]
As from
that date, it was only the Members’ counter-application which
remained extant, and which then became effectively
consolidated for
hearing with the application under case number 3168/2022.
[6]
[9.]
The
hearing date of the 28
th
March 2024 marked the applications’ eighth appearance on the
opposed motion court roll. I have already mentioned that on
27
th
March 2024, one day prior to its set down date, the Members withdrew
their applications by way of notice under Rule 41(1). There
was no
tender for costs.
[10.]
The
Municipal Respondents and the Political Party do not object to the
withdrawal but seek to be indemnified for their wasted costs
occasioned by the abandoned applications.
The
general principles of a withdrawal and its impact of costs
[11.]
An
apposite starting point is Rule 41(1)
[7]
which reads:
“
(a)
A
person instituting any proceedings may at any time before the matter
has been set down and thereafter by consent of the parties
or leave
of the court withdraw such proceedings, in any of which events he
shall deliver a notice of withdrawal and may embody
in such notice a
consent to pay costs; and the taxing master shall tax such costs at
the request of the other party.
(b) …
(c) If
no such consent to pay costs is embodied in the notice of withdrawal,
the other party may apply to
court on notice for an order for costs.”
[12.]
The
right of a party to withdraw its application
after
set-down is not an absolute one.
[8]
Absent an agreement between the parties, the court retains a
discretion whether or not to allow the withdrawal of a case.
[9]
This is apparent from the wording of Rule 41(1), which requires of a
litigant to seek the leave of the court absent the consent
of the
parties.
[13.]
Where
a notice of withdrawal does not embody a consent to pay costs, the
other party may apply to court for a costs order.
[10]
[14.]
The
general principle
[11]
is that
the party withdrawing is liable, as an unsuccessful litigant to pay
the costs of the proceedings.
[12]
In
Germishuys
v Douglas Besproeiingsraad
[13]
the
headnote of which correctly reflects what was stated by Van Rhyn J
namely:
“
Where
a litigant withdraws an action or in effect withdraws it, very sound
reasons
(baie gegronde redes)
must
exist why a defendant or respondent should not be entitled to his
costs. The plaintiff or applicant who withdraws his action
or
application is in the same position as an unsuccessful litigant
because, after all, his claim or application is futile and the
defendant, or respondent, is entitled to all costs associated with
the withdrawing plaintiff’s or applicant’s institution
of
proceedings.”
[15.]
It
is only in exceptional circumstances that a party that has been put
to the expense of opposing withdrawn proceedings will not
be entitled
to all the costs caused thereby.
[14]
Put differently, unless the court is persuaded, in the exercise of
its judicial discretion upon a consideration of all the facts,
that
it would be unfair to mulct the unsuccessful party in costs.
[15]
[16.]
With
the aforesaid principles in mind, I turn to the submissions made by
counsel.
Discussion
[17.]
I
have already mentioned that these applications served before the
court on eight occasions. On each occasion, the presiding Judge
seized of the matter would have had to expend substantial time and
judicial resources in preparing for the hearing and considering
the
voluminous paperwork.
[16]
Preparation time would also have been expended on each occasion by
the relevant legal representatives.
[18.]
By
parity of reasoning, it also means that several other applications
lost their opportunity to be heard by virtue of this consolidated
matter occupying a place on the motion court roll.
[19.]
This
is clearly an undesirable practice which is contrary to the public
interest and the efficient administration of justice.
[17]
[20.]
Counsel
for the Municipal Respondents and the Political Party urged the court
to mulct the Members with all the wasted costs occasioned
by the
previous postponement dates inclusive of an attorney and client cost
order for the attendances on 8
th
February 2024
[18]
and present
attendance.
[19]
[21.]
Counsel
for the Members attempted to by-pass the responsibility of paying the
costs on the basis that the Members were unrepresented
for a period
of time, which occasioned the delays and postponements. Leaving aside
that I do not consider this to constitute exceptional
circumstances,
the contention is also factually incorrect. The Members were only
unrepresented at one hearing.
[20]
The remaining appearances they were legally represented.
[22.]
Accordingly,
I do not find that a lack of representation played any relevant role.
[23.]
It
was further argued on behalf of the Members that as the Political
Party was the
fons
et origine
of the whole dispute, it should be liable for the costs of the
applications. In this regard reference was made to conflicting
representations arising from the Political Party regarding the
Members’ status. Although there may have been conflicting
representations, in the face of the withdrawal by the Political Party
in early March 2023,
[21]
what
remained was only the Members’ counter-application, which they
saw fit to pursue for over one year. It is those costs
which form
part of the subject matter of this argument.
[24.]
Criticism
was also levied against the Municipal Respondents in becoming
embroiled in the litigation
[22]
and running up its own costs in circumstances where it should have
adopted the same approach as the IEC, which elected not to enter
the
fray. This contention stands to be rejected. The Municipal
Respondents opposed the application because substantive relief was
sought against it in Part B inclusive of a cost order.
[23]
The Municipal Respondents cannot be criticised for taking steps to
protect its interests. No relief was sought against the IEC
and its
decision not to oppose the application is thus distinguishable.
[25.]
The
alternative argument to the Political Party being liable for the
costs, was that each party should be responsible for their
own costs
in accordance with the well-known
Biowatch
principle,
[24]
which
principle
was articulated thus:
“
If
there should be a genuine, non-frivolous challenge to the
constitutionality of a law or of State conduct, it is appropriate
that the State should bear the costs if the challenge is good, but if
it is not, then the losing non-State litigant should be shielded
from
the costs consequences of failure. In this way the responsibility for
ensuring that the law and State conduct are constitutional
is placed
at the correct door.”
[26.]
Leaving
aside that the
Biowatch
principle does entitle one to risk-free constitutional
litigation,
[25]
reference in
argument to section 158 of the Constitution
[26]
and the invocation of Constitutional principles, is not mentioned in
any of the Members’ affidavits.
[27]
This entirely new argument, which is not supported by primary
facts,
[28]
especially in the
circumstances of a review, stands to be rejected.
[29]
Plainly, what the members sought to enforce was their position as
council members and not any Constitutional right.
[27.]
It
was further argued on behalf of the Members that as they enjoyed
partial success,
[30]
they
should not be mulct with costs as their applications were not futile.
Similarly, this contention stands to be rejected. It
loses sight of
the fact that as Part A was granted by agreement between the parties,
no court was ever called upon to make a determination
on the merits.
The decision to abide Part A may well have been made so as to
progress to the main dispute which was the review
in Part B. This
factor is neutral and does not change their status as the
unsuccessful litigant, which follows by virtue of their
withdrawal.
[28.]
Accordingly,
and for the aforesaid reasons, I find that no exceptional and/or
special reasons are present to justify a departure
from the general
rule that the party withdrawing the application should be liable for
the costs.
[29.]
Lastly,
I turn to whether, in addition to the ordinary cost order, the
Members should be liable for the costs on an attorney and
client
scale for the attendances of 8
th
February 2024 and 28
th
March 2024.
[30.]
The
award of costs is a matter in respect of which courts exercise a true
discretion.
[31]
A true
discretion exists where the court has a number of equally permissible
options available to it.
[32]
The imposition of costs on an attorney and client scale is a punitive
measure.
[33]
In
Public
Protector v South African Reserve Bank
,
the
Constitutional Court cited with approval the explanation adopted by
the Labour Appeal Court in
Limpopo
Legal
Solutions v Vhembe District Municipality:
[34]
“
[t]he
scale of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible
conduct. Such an award is exceptional and is intended
to be
very punitive and indicative of extreme opprobrium.”
[31.]
Put
differently,
where
the conduct concerned is “
extraordinary”
and worthy of a court’s rebuke.
[35]
[32.]
Applying
these principles to the matter at hand, I am not persuaded that the
conduct of the Members, albeit far from exemplar, warrants
a punitive
cost order for the attendances of 8
th
February 2024 and 28
th
March 2024.
In
the result the following order will issue:
1.
The
First and Second Applicants in case number 3168/2022 and the First
and Second Respondents in case number 2160/2022 are ordered
to pay
the costs occasioned by the said applications inclusive of the
opposed hearing on 28
th
March 2024 and the following reserved costs:
1.1.
13
th
December 2022;
1.2.
2
nd
February 2022;
1.3.
16
th
March 2023;
1.4.
4
th
May 2023;
1.5.
26
th
October 2023; and
1.6.
8
th
February 2024.
T
ROSSI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
In
case no. 3688/2022
For
the First and Third Applicants
Mr Nobatana SC
and
Instructed by:
First
and Second Respondents
Ntlabezo Attorneys
in
case no. 2160/2022
59B Fourth Avenue
Newton Park Gqeberha
In
case no. 3688/2022
For
the First and Third Applicants
Mr Moorhouse
Instructed
by:
Kuban Chetty Inc.
163 Cape Road
Mill Park
Gqeberha
In
case no. 3688/2022
For
the Fourth Respondent:
Mr Barnett
and
Applicant in case no.
Advocate PP Plaatjies Inc.
2160/2022
First Floor Harmony Building
Market Square, North End
Gqeberha
[1]
As well as finalisation of application under case no. 2160/2022.
[2]
The political party’s nominated representatives.
[3]
Save for the IEC, which did not oppose the application.
[4]
On 16 March 2023, the application was postponed to 4 May 2023. On 4
May 2023, the application was postponed to 26 October 2023.
On 26
October 2023, the application was postponed to 1 February 2024. On 1
February 2024 the application was postponed to 8 February
2024.
Finally, on 8 February 2024, the application was postponed to 28
March 2024.
[5]
Although the notice was silent on the aspect of costs, these costs
were tendered in the Political Party’s affidavit which
was
deposed to on 20 June 2023.
[6]
Evident from the order of court of 4 May 2023.
[7]
This rule applies to action and application proceedings.
[8]
Protea
Assurance Co Ltd v Gamlase
[1971]
1 All SA 394
(E)
at 400.
[9]
This discretion is aptly explained in
Karroo
Meat Exchange Ltd v Mtwazi
[1967] 3 All SA 374
(C) at 377.
[10]
Rule 41(1)(c).
[11]
ABSA
Bank Ltd and others v Robb
[2013]
3 All SA 322
(GSJ)
at par 8.
[12]
Germishuys
v Douglas Bespoeiingsraad
1973 (3) SA 299 (NC).
[13]
Supra
at 300D-E. This
ratio
retains judicial favour and has been quoted by the seat of this
division in
Wildlife
and Environment Society of SA v MEC for Economic Affairs,
Environment and Tourism, EC Provincial Government and Others
[2005]
3 All SA 389
(E)
at 394.
[14]
Germishuys
v Douglas Besproeiingsraad
supra
at
300D.
ABSA
Bank Ltd and others v Robb
supra
at par 8.
[15]
Wildlife
and Environment Society of SA v MEC for Economic Affairs,
Environment and Tourism, EC Provincial Government and Others
supra
at
395.
[16]
The total of both applications comprises in excess of 550 pages.
[17]
ABSA
Bank Ltd and others v Robb
supra
at par 24.
[18]
An affidavit was filed by the Municipal Respondent’s legal
representative detailing the reason for the postponement, which
affidavit went unanswered by the Members. In this affidavit it was
explained that the court file was uplifted by the Members’
legal representatives and returned shortly before the hearing in
circumstances where the Presiding Judge did not have an adequate
opportunity to prepare, which resulted in a postponement of the
matter.
[19]
On 28 March 2024, which was premised on the withdrawal of the
applications one day before the hearing date.
[20]
26 October 2023.
[21]
The Political Party has already tendered costs for the application
in case number 2160/2022.
[22]
Being case number 3168/2022.
[23]
In the application under case number 3168/2022.
[24]
Biowatch
Trust v Registrar, Genetic Resources and Others
2009
(6) SA 232
(CC)
at par 23.
[25]
Lawyers
for Human Rights v Minister in the Presidency and Others
2017
(1) SA 645
(CC)
at par 17.
[26]
Which sections concerns the membership of municipal councils.
[27]
In
Director
of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635H to 636B the Appellate Division (as it
then was) had the following to say of applications, “
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge
will look to
determine what the complaint is. As was pointed out by Krause J in
Pountas’ Trustee v Lahanas
1924 WLD 67
at 68 and as has been
said in many other cases: “…an applicant must stand or
fall by his petition and the facts
alleged therein and that,
although sometimes it is permissible to supplement the allegations
contained in the petition, still
the main foundation of the
application is the allegation of facts stated therein, because those
are the facts which the respondent
is called upon either to affirm
or deny.”
[28]
Regarding primary facts, see
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999
(2) SA 279
(W) at 323G.
[29]
Nwafor
v Minister of Home Affairs and Others
[2021]
ZASCA 58
at par 39.
[30]
Part A having been granted.
[31]
Public
Protector v South African Reserve Bank
2019
(6) SA 253 (CC) at par 144.
[32]
Ibid.
[33]
Ibid
at par 220.
[34]
2017 (9) BCLR 1216
(CC) at par 17.
[35]
SS
v VV-S
2018
(6) BCLR 671
(CC)
at par 41.