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[2022] ZAFSHC 262
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Nkomo v Centlec (SOC) Limited (2551/2022) [2022] ZAFSHC 262 (11 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
2551/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
HLONELWA
NKOMO
Applicant
and
CENTLEC
(SOC)
LIMITED
Respondent
JUDGMENT
BY:
C
REINDERS, ADJP
RESERVED
ON:
9
SEPTEMBER 2022
DELIVERED
ON:
11
OCTOBER 2022
This
judgment was handed electronically by circulation to the parties’
representatives by email, and released to SAFLII.
The date and
time for hand-down is deemed to be 15:45 on 11 October 2022.
APPLICATION
FOR LEAVE TO APPEAL
[1]
On 2 June 2022 the applicant, Ms Hlonelwa Nkomo, issued an urgent
application under
case number 2551/2022 praying for an order that a
Settlement Agreement (signed on 18 October 2022 – the
“Settlement
Agreement”) between herself and the
respondent, Centlec (SOC) Limited, be set aside and/or declared null
and void. For ease
of clarity I will refer to the parties as “Ms
Nkomo” and “Centlec”.
[2]
The application was set down on extremely truncated time periods for
10 June 2022.
Ms Nkomo appeared in person and Centlec was represented
by Adv LT Sibeko SC. Having heard arguments by the parties, I
declined
to take the matter on my court role as Ms Nkomo had not made
out a case for condonation in terms of Uniform Rule of Court 6(12).
I
must state at this stage already that the papers were not only neatly
drafted, but it was evident that the draftsperson of the
papers
clearly had the required knowledge of legal proceedings.
[3]
As Ms Nkomo appeared in person I deemed it apposite to explained the
legal requirements
for urgency to her, indicating a lack… any
of the required averments (with reference to the facts of the matter)
in her
founding (and even replying) affidavit. In fact, it was
pointed out to her (as was evident from her affidavits) that on her
own
version, she had known since February 2022 that she was
dissatisfied with the Settlement Agreement, yet did not approach this
court
until five months later. The Settlement Agreement was concluded
pursuant to Ms Nkomo’s initial appointment (and subsequent
suspension) as the Chief Financial Officer of Centlec.
[4]
Mr Sibeko SC, apart from opposing the application on urgency, argued
that the application
was vexatious and an abuse of court process as
it was in fact the subject matter of an application (in respect of
the very same
Settlement Agreement and on the same facts) brought by
Centlec against Ms Nkomo under case number 724/2022 which was pending
before
my sister Daniso J. The urgent application was issued on the
exact day that Daniso J had reserved judgment. Having heard the
submissions
of Mr Sibeko SC, and once again requesting Ms Nkomo to
indicate her response to the issues raised by Mr Sibeko SC, I made
the order
that the application be struck from the roll with costs due
to a lack of urgency.
[5]
According to the official stamp of the Registrar, Ms Nkomo on 20 July
2022 filed an
application for leave to appeal my order as follows:
“
TAKE
NOTICE THAT
the
Applicant intends to appeal against
part
of
(own
emphasis) the judgment handed down on 10 June 2022 in the above
Honourable Court on a date to be arranged with the Registrar.
The
grounds of appear (
sic)
are set out hereunder.
The
learned judge erred in
1.
Striking the
matter from the roll with costs against the Applicant with no counsel
and was representing themselves in favour of
the Respondent with
legal counsel which included two senior advocates and a junior
advocate.”
(own
emphasis)
[6]
The parties filed their heads of argument on 2 and 7 September 2022
respectively (with
leave to the applicant to reply to Centlec’s
heads of argument on 9 September 2022) for adjudication of the
application in
chambers in terms of the Free State Rule 16.5 as a
cost saving measure to the parties. I am indebted to both parties for
their
comprehensive and able heads of argument. It needs mentioning
that Ms Nkomo was provided with Centlec’s heads of argument
as
is evident from tracing electronic communication (emails) indicating
that Centlec’s simultaneously with filing its heads
of argument
at court, furnished a copy thereof to Ms Nkomo electronically.
For sake of completeness, an electronic copy of
Centlec’s heads
of argument will be resend to Ms Nkomo.
[7]
Ms Nkomo was required to apply for leave to appeal within 15 court
days of the granting
of the order, in terms of Rule 49(1)(b) of the
Superior Court Rules. On a calculation the said days expired on 4
July 2022. The
application was filed 11 court days late. Accordingly,
Ms Nkomo’s right to seek the required leave had lapsed, and a
properly
motivated application for condonation for the late filing
should have accompanied the application before me. Same was not done.
This should be the end of the application for leave to appeal with an
order that it be dismissed with costs. However, I deem it
necessary
to condone this non-compliance with the Rules and deal with the
merits of the application for leave to appeal as Ms Nkomo,
amongst
others, submitted in para [11] of her heads that she “
approached
the court exercising her constitutional right to access the court as
stated under section 34 of the Bill of Rights”
. Moreover,
as will be illustrated below Ms Nkomo deals with the truth rather
economically, not only in her application for
leave to appeal, but
also in her heads of argument.
[8]
Centlec, for sake of completeness, made submission on the application
for leave to
appeal against the whole of the order. However, Ms Nkomo
in her heads of arguments in paragraph [6] states unequivocally that
“…
This appeal is sole
(sic)
on cost
granted against the applicant
.” (own emphasis). I will
accordingly deal with leave to appeal against the cost order only.
[9]
It
is trite that the legislative framework for considering an
application for leave to appeal is set out in section 17 of the
Superior
Courts Act 10 of 2013 (“the Act”) which
provides:
“
17(1)
Leave to appeal
may
only
be given where
the judge or judges concerned
are
of the opinion
that-
(a)
(i) the appeal
would have a reasonable prospect of success
; or
(ii)
there is some other compelling reason why the appeal should be
heard
, including conflicting judgments on the matter under
consideration;
…”
(own
emphasis).
9.1
In considering an application for leave to appeal the test to be
applied by a court was
set out in
The
Mont
Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others
2014 JDR 2325 (LCC)
. Bertelsmann J held as follow in para [6]:
"It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new
Act.
The
former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion
,
see
Van
Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H. The use of the word "would"
in
the new statute indicates a measure of certainty that another court
will differ from the court whose judgment is sought to be
appealed
against
."
(own emphasis)
9.2
In respect of the granting of a cost order, it is trite that the
default principle is that
costs ordinarily follows the event. In
Attorney-General, Eastern Cape v Blom and Others 1988(4) SA 645
(A)
at 670D-F it was held:
“
In
awarding costs the Court of first instance, exercises a judicial
discretion and a Court of appeal will not readily interfere
with the
exercise of that discretion. The power to interfere on appeal is
limited to cases of vitiation by misdirection or irregularity,
or the
absence of grounds on which a Court, acting reasonably, could have
made the order in question. The Court of appeal cannot
interfere
merely on the ground that it would itself have made a different
order.”
9.3
The
Constitutional Court placed its stamp of approval on the
aforementioned principal in holding that “
few
appellate courts countenance appeals on costs alone and that the
practical impact of section 16(2)(a) of the Superior Courts
Act is
that appeals on costs alone are allowed very rarely indeed
”.
See:
Mkhatshwa
and Others v Mkhatshwa and Others
2021 (5)
SA 447
(CC)
9.4
In
considering whether an application for leave to appeal should be
granted, the interest of justice should always be taken into
account.
See:
Philani-Ma-Afrika and others v Mailula and others
2010
(2) SA 573
(SCA) at para [20]
9.5
In order not to discourage litigants from vindicating their
constitutional
rights
,
the Constitutional Court in
Biowatch
Trust v Registrar, Genetic Resources and Others
2009
(6) SA 232
(CC)
enunciated the principle of permitting an unsuccessful litigant to be
exempted from paying costs as unsuccessful litigant (the
“Biowatch-principle”). It was held that the issues in the
matter must however genuinely and substantively be of a
constitutional nature (at para [25]).
[10]
Ms Nkomo challenges the costs order on the grounds that she
represented herself whilst the Respondent
“engaged the services
of two senior counsel and one junior counsel”, and furthermore
places reliance on the Biowatch-principle.
[11]
In Centlec’s heads of argument it was, correctly so, stressed
by Centlec that the court
record would bear out that the Respondent
was represented by one senior counsel only, not a total of three
counsel. Centlec submits
that these incorrect facts (as even placed
on record in Ms Nkomo’s application for leave to appeal) is an
attempt to deliberately
mislead this court. Relying on section
16(2)(a)(ii) of the Superior Courts Act 10 of 2013 (“the Act”),
it was submitted
that save for the aforementioned alleged deliberate
attempt of deception, the application for leave to appeal does not
disclose
any exceptional circumstances to justify the reconsideration
of the award of costs by another court as envisaged in 16(2)(a) of
the Act. I am in agreement with these submissions.
[12]
Centlec submitted that the relief claimed by Ms Nkomo was not
premised on the enforcement of
constitutional rights as Ms Nkomo
sought to challenge the Settlement Agreement based on an alleged lack
of authority. Indeed, reliance
on the Biowatch-principle is
misplaced. Ms Nkomo exercised her right to approach this court by
bringing an urgent application.
In doing so Centlec was forced to
oppose the application on truncated time periods.
[13]
In her heads
of argument Ms Nkomo made the following averments:
“
13.
Judge Reidners (
sic)
did
not review the merits and/or grounds of the above mentioned
application...
14.
Judge Reidners (
sic)
did not give a full judgment with
reasoning behind the lack of urgency, the Judge just provided a court
order. Therefore, the
(sic)
was no transcript to be obtained.”
The
content of para [13] hereinabove indicate the factual position and I
need not say more in this regard.
[14]
Centlec submitted that it would not be in the interest of justice “to
permit or encourage
an applicant in the position of Nkomo to continue
their current path of misguided litigation, which was nothing more
than an abusive
imposition on the Court’s resources and the
rights of the respondent”. Moreover
,
it was stressed by Centlec that,
despite
the fact that Ms Nkomo was not legally represented, Centlec is a
public entity funded by public funds to perform functions
for the
public benefit. In any event, Centlec would not be able to
recover the costs of opposing an application that did
not only lack
grounds for urgency, but was also vexatious and an abuse of the Court
process given the fact that this court had
reserved judgment under
case number 724/2022 on the same issues raised by Ms Nkomo in the
dismissed urgent application.
[15]
On 29 August 2022 Daniso J upheld the validity of the Settlement
Agreement as prayed for by Centlec
in case number 724/2022. Centlec
in its heads of argument indicate that this confirms the vexatious
nature of the urgent application.
[16]
I have duly considered the facts of this matter, the applicable case
law governing applications
for leave to appeal against cost orders,
heads of argument filed by the applicant and the respondent and all
papers filed. Having
done so I am not of the view that there are any
prospects of success that another court would come to a different
conclusion in
respect of the order of costs that I have granted, nor
that there are compelling reasons for me to grant leave to the
applicant.
[17]
In my view there is no reason why Ms Nkomo should not be ordered to
pay the costs that Centlec
had incurred in the drafting of its heads
of argument in this application for leave to appeal. Centlec, as a
public entity, was
forced to oppose the relief claimed and the public
should not, given the facts of the urgent application and this
application for
leave to appeal, have to indirectly pay the costs of
an applicant who abuses the process of court.
[8]
Accordingly I make the following order:
The
application for leave to appeal against the cost order granted on 10
June 2022 is dismissed with costs.
C.
REINDERS, ADJP
Heads
of Argument filed
on
behalf of the applicant: Ms
H Nkomo (Applicant)
Heads
of Argument filed
on
behalf of the respondent:
Adv. N Moloto
Instructed
by: Tshangana
& Associates Inc.
Bloemfontein