Summary of Judgment

Introduction

The proceedings took the form of an opposed motion application in the Free State Division of the High Court. The applicant, Mr Mokubeloa Tsoai, approached the court for declaratory relief aimed at impugning the authority of the Acting Municipal Manager of the Nala Municipality, on the basis that her secondment was allegedly invalid.

The respondents were the MEC for Cooperative Governance and Traditional Affairs (Free State) (first respondent), the Mayor of the Nala Municipality (second respondent), the elected councillors of the Nala Municipality (third respondent), and the Acting Municipal Manager (fourth respondent). The first respondent was represented by the State Attorney, while the second to fourth respondents were represented by private attorneys, with counsel appearing for all respondents at the hearing.

The application was launched on 28 February 2022 and set down for hearing on 2 June 2022. At the hearing, the applicant appeared in person and withdrew the application when confronted with what the court described as the inadequacies of the papers. The judgment ultimately concerned the appropriate costs order following that withdrawal, and was delivered on 7 June 2022.

The underlying subject matter concerned a challenge to a secondment letter issued by the MEC in relation to the fourth respondent’s acting appointment, and the applicant’s contention that this rendered the acting municipal manager’s decisions unlawful. However, because the application was withdrawn, the court’s decision focused on the consequences of withdrawal for costs, including whether the respondents were the successful parties and whether the applicant should bear the costs.

Material Facts

The applicant was a resident of Kgotsong, Bothaville, within the Free State Province, and sought an order declaring invalid a secondment letter dated 17 February 2020 issued by the first respondent in respect of the fourth respondent. The relief sought was framed as a declaration that the secondment letter was invalid, that the acting municipal manager had no authority, and that her decisions were null and void, together with costs (including a request that respondents pay costs personally if the matter was opposed).

The application was opposed. In their answering papers, the respondents raised preliminary objections, including an objection based on non-joinder (specifically, the alleged non-joinder of the Municipal Council of the Nala Municipality and the Speaker of the Council), and an objection based on non-compliance with Uniform Rule 53. The respondents’ position was that the MEC’s decision to second the fourth respondent constituted administrative action, and that the challenge ought to have been pursued by way of review proceedings rather than in the form adopted by the applicant.

At the hearing, the applicant elected to withdraw the application and did not tender costs. The applicant submitted that, being unemployed, he could not comply with a costs order. Counsel for the respondents submitted that costs should follow the result, and in particular that the applicant ought to have withdrawn earlier after receipt of the answering affidavits, thereby avoiding unnecessary costs.

The court treated as material that withdrawal only occurred at the commencement of the hearing, by which time the court and the respondents had prepared to argue the matter on an opposed basis, and that the application was, on the court’s assessment, affected by numerous deficiencies.

Legal Issues

The central question for determination was what costs order should follow where an applicant withdraws an opposed application at the hearing without tendering costs.

This was primarily a matter of judicial discretion informed by established principles governing costs, and required an evaluative assessment of the litigation’s posture at the point of withdrawal. Although the merits of the underlying dispute were no longer to be adjudicated because the relief was withdrawn, the court identified that it remained necessary to consider the apparent merits to determine who should be regarded as the successful party for costs purposes.

To the extent that the respondents’ points in limine were relevant, they were not determined as dispositive issues on the merits; rather, they formed part of the context for the court’s view that the application was fatally defective. The dispute before the court at the end of the hearing was thus not the legality of the secondment itself, but the appropriate application of costs principles after a late withdrawal.

Court’s Reasoning

The court applied the established general principle that costs ordinarily follow the result, meaning that the unsuccessful party should pay the successful party’s costs on the party-and-party scale. The court cited authority for the proposition that costs are within the discretion of the court, and that the discretion must be exercised judicially, with reference to factors such as the facts of the case, the issues raised, the conduct of the parties, and considerations of fairness.

The court further reasoned that, even where the substantive relief is not determined because the matter is withdrawn, a costs decision cannot be made in complete isolation from the underlying merits. Where an applicant withdraws without tendering costs, the court must still assess who should be regarded as the successful litigant. In that context, the ordinary position is that an applicant who withdraws should pay the costs, because withdrawal is effectively a concession that the relief will not be pursued.

Applying these principles, the court placed weight on the timing of the withdrawal. The applicant withdrew only once the hearing commenced, at which stage the respondents and the court had already incurred costs and expended effort in preparation for an opposed hearing. The court accepted the respondents’ submission that an earlier withdrawal (for example, after receipt of the answering affidavits) could have avoided unnecessary costs.

The court also made an evaluative assessment of the application’s quality and prospects, concluding that it was “riddled with numerous deficiencies” and lacked merit “from inception”. While the judgment did not engage in a full adjudication of the points in limine or the substantive administrative-law challenge (given the withdrawal), the court’s characterisation of the application as fundamentally defective supported the conclusion that the respondents were the successful parties for costs purposes.

The applicant’s personal circumstances and submission that he was unemployed were raised, but the court ultimately made a conventional costs order against him, indicating that the discretionary balancing favoured indemnifying the respondents for costs incurred in opposing what the court regarded as an unmeritorious and late-withdrawn application.

Outcome and Relief

The court made an order that the applicant is to pay the costs of the application.

No substantive declaratory relief was granted, as the applicant withdrew the application at the hearing. The costs order was made on the ordinary basis, and there was no special costs order such as costs de bonis propriis against any respondent.

Cases Cited

Maloney’s Eye Properties BK v Bloemfontein Board Nominees BPK 1995 (3) SA 249.

Legislation Cited

No specific legislation was identified by name in the judgment. The applicant and court referred generally to “the Act” without naming it.

Rules of Court Cited

Uniform Rules of Court, Rule 53.

Held

The court held that where an applicant withdraws an opposed application without tendering costs, the court must determine costs in the exercise of its discretion, and it may have regard to the apparent merits in order to identify the successful party. On the facts, the withdrawal at the commencement of the hearing, combined with the court’s view that the application was defective and lacking merit from inception, justified treating the respondents as the successful parties. The applicant was therefore ordered to pay the costs of the application.

LEGAL PRINCIPLES

A costs order is a matter within the discretion of the court, to be exercised judicially with reference to the facts, the issues, the parties’ conduct, and what is fair and just between them.

The general rule is that costs follow the result, and the unsuccessful party is ordinarily ordered to pay the costs of the successful party on the party-and-party scale.

Where proceedings are withdrawn without a tender for costs, the court may consider the underlying merits to determine who should be regarded as the successful party for purposes of costs. In the ordinary course, an applicant who withdraws will be ordered to pay the costs, particularly where withdrawal occurs late and causes the opposing party to incur avoidable preparation and hearing costs.