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[2022] ZAFSHC 300
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L.M.H v W.A.H (20/2021) [2022] ZAFSHC 300 (7 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Reportable: YES/NO
Of interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case No.: 20/2021
In the matter between:
L[....] M[....]
H[....]
APPELLANT
and
W[....] A[....]
H[....]
RESPONDENT
Coram:
Molitsoane, J Daniso, J
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
1 August 2022. The application was disposed of
without hearing oral argument but on the Heads of Argument later
filed on record
on behalf of the parties.
DELIVERED
ON
:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to
SAFLII
on 07 November 2022. The date and time for hand-down is deemed to be
07 November 2022 at 14: 00.
JUDGMENT
[1]
This matter concerns the point of law raised
with the parties during the hearing as to whether the appellant’s
attorneys should
be ordered to pay the costs of the postponement of
18 July 2022
de bonis propriis
,
and if so, on what scale. We set the timelines for the submission of
the Heads of Argument in order to dispose of this application
on
papers.
[2]
The matter came before us as an appeal accompanied by an application
for condonation
for the late filing of the appellant’s Heads of
Argument. At the hearing of this application we raised with the
parties the
issue of the record which was not only incomplete but was
also not paginated and indexed. The Counsel for the respondent also
contended
that the appeal was not ripe for hearing as no security had
been paid in terms of section 51(4) of the Magistrate Court Act 32 of
1944 and the non-filing of the special power of attorney. On the
basis of the incomplete record only, the hearing could not proceed.
We chose not to deal with the issue of security and the special power
of attorney. Because the appeal could not proceed, the only
issue
remaining was the costs occasioned by the removal from the roll.
Counsel for the appellant tendered the wasted costs on behalf
of the
appellant, but we held a prima facie view, based on the record before
us, that it was essentially as a result of the legal
representatives
of the appellant that the appeal could not proceed and as a result we
gave the said legal representatives leave
to file Heads of Argument
setting out reasons why they should not be mulcted with the wasted
costs of that day.
[3]
The purpose of an award of costs is to indemnify the successful party
for expenses
incurred in litigation. This general rule is subject to
the rule that the award of costs lies in the discretion of the court.
Some
costs are strictly outcome specific while others depend on the
character of the case being prosecuted or the specific issues, like
in the case before us, to be determined.
[1]
[4]
The principles with regard to
costs were set out as follows in
Ferreira
v Levin NO and Others: Vryenhoek and Others v Powell NO and
Others:
[2]
:
“
The Supreme Court
has, over the years, developed a flexible approach to costs which
proceeds from two basic principles, the first
being that 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. 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. I mention these examples to indicate that the
principles which have been developed
in relation to the award of
costs are by their nature sufficiently flexible and adaptable to meet
new needs which may arise in
regard to constitutional litigation.”
[5]
That the respondent must be indemnified of his costs is not in
dispute. The respondent
submits that whether such costs are paid by
the appellant or the attorneys, same must be granted on the scale as
between attorney
and client ‘
as the respondent has been the
victim in the conduct of the appellant and /or her attorney of
record.’
[6]
Tlaletsi, DJP in
Plastic
Converters Association v National Union of Metalworkers
[3]
said the following with regard to attorney and client costs:
“
The
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.”
In
Madyibi
v Minister of Safety and Security
[4]
the court held as follows:
“
..the
principle that I have been able to extract from other decisions of
our courts that I have had recourse to… is that
our courts
have awarded costs on the punitive scale in order to penalise
dishonest, improper, fraudulent, reprehensible or blameworthy
conduct
or where the party sought to be mulcted with punitive costs was
actuated by malice or is otherwise guilty of grave misconduct
so as
to raise the ire of the court in which event a punitive costs order
would be imperatively called for.”
[7]
The correspondent attorney and her candidate, acting for the
appellant, deposed to affidavits
and set out in detail what they did
in preparation of this appeal. What can be distilled from the
affidavits filed of record is
that the condonation application was
enrolled for hearing on 17 February 2022. It appears that on the same
day the court was of
the view that the condonation application as
well as the appeal should be heard together. The matter was
apparently removed from
the roll. The candidate attorney confirmed
that she uplifted the court file and indexed it.
[8]
Her undisputed evidence is that on 11 April 2022 she attended court
to return both
the original bundle and a set of copies totalling
eight bundles, being four bundles for each Judge. It is unclear as to
what later
transpired that led to some documents missing during the
hearing of the appeal. We are unable to impute any blame on the
attorneys
of the appellant. Seeing that the respondent is seeking an
indulgence she must bear the costs. The respondent has not made out a
case for punitive costs. We accordingly find that no case has been
made for costs
de bonis propriis
also.
[9]
ORDER
It is ordered that the
appellant is liable for the wasted costs of 18 July 2022.
P.E. MOLITSOANE, J
I concur
N.S. DANISO, J
APPEARANCES
On behalf of the
Appellant: Adv.
Nortje
Instructed by
:
Webbers Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. Van der Sandt
Instructed by
:
Kramer Weimann Attorneys
BLOEMFONTEIN
[1]
Public Protector v South African Reserve Bank
[2019] ZACC 19
para
[34].
[2]
1996(2) SA 621 (CC) para [3] (footnotes not included).
[3]
(2016) 37 ILJ 2815(LAC) para [40] delivered on 6 July 2016.
[4]
2008 JDR 0505 (Tk) at para [31].