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2021
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[2021] ZAECBHC 11
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Logoslive (Pty) Ltd (Registration No. 2017/383828/07) v Member of the Executive Authority for Transport, Eastern Cape (182/2021) [2021] ZAECBHC 11 (10 August 2021)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. 182/2021
In
the matter between:
LOGOSLIVE
(PTY) LTD
(Registration
No. 2017/383828/07)
Applicant
and
MEMBER OF THE
EXECUTIVE AUTHORITY
FOR TRANSPORT,
EASTERN CAPE
Respondent
JUDGMENT IN
RESPECT OF COSTS
HARTLE
J
[1]
This matter came before me on the opposed roll to determine the issue
of
costs only.
[2]
The history of the matter and the circumstances under which two prior
reserved
costs orders were granted are fully set out in Mr. Metuâs
heads of argument and do not bear repeating here.
[3]
The application was settled on terms exactly as the applicant prayed
for
in the notice of motion.
[4]
It is not clear why the respondent believed that she was not obliged
to
tender costs when the matter ultimately served before court on 25
March 2021 and the consent order aforesaid was made an order of
court.
[5]
No answering affidavit was ever put up, neither a notice in terms of
rule
6 (5)(d)(iii) filed to suggest that there was a basis for the
respondent to resist the issue of costs.
[6]
During the course of case management, after the matter was enrolled
for
determination before me in respect of this aspect, I was indeed
obliged to issue a directive in the absence of any answering papers,
practice note or heads of argument having been filed by the
respondent as is required in terms of the Uniform Rules of Court or
Joint
Rules of Practice calling upon her to file these by close of
court on Monday, 2 August 2021 together with an appropriate
application
for condonation.
[7]
In the directive I urged the respondent to indicate if she was still
intent
upon opposing the costs order sought against her alternatively
encouraging her to reach agreement with the applicant regarding an
appropriate consent order so that this courtâs time would not be
wasted.
[8]
Heads of argument were filed on 3 August 2021, but no application for
condonation
came forth.
[9]
When I pointed out to Mr. Nabela, who appeared on the respondentâs
behalf
in court when the matter was called, that I considered it
particularly rude and inconvenient to all concerned that my directive
had
been ignored, he could offer no apology or excuse claiming that
he had no instructions on which to premise a factual basis to prepare
a condonation application.
[10]
I was stupefied by this explanation and indeed by the gall of the
respondent to raise in
the heads of argument for the first time a
submission that all the costs should be borne by the applicant on the
basis that urgency
was lacking when the application was launched.
[11]
Mr. Nabela sought to persuade me (on the applicantâs papers) that
it had prematurely âjumpedâ
to court, but the applicantâs
founding affidavit instead demonstrates a longstanding struggle to
sort out an important issue on
the payment in respect of a scholar
transport contract that indeed should not have required a resort to
court but became particularly
pressing and urgent to vindicate in
court for the reasons indicated in the founding affidavit. I am
satisfied that a case of
urgency was properly made out for the matter
to have been entertained on such a basis.
[12]
It is ironic to suggest that an extra-curial resolve of the matter
might come when months
later the respondent could not even be
bothered to respect the authority of this court, let alone the
expectation of the applicant
to be compensated in terms of a valid
contract or the rights of the learners to a secure, reliable scholar
transport service.
[13]
The bad faith of the respondent is further shown in the fact that
whereas she initially proposed
in settlement negotiations that each
party pay own costs, she came to court to argue a submission that the
applicant should pay her
costs.
[14]
In the result I have no hesitation in acceding to the applicantâs
request that costs be
awarded on a punitive scale to mark the
displeasure of this court both in respect of the respondentâs
conduct in finalizing the
matter responsibly and in the conduct of
her officials leading to the necessity to approach this court for
relief in the first place.
[15]
I issue the following order:
1.
The respondent is liable to pay the costs of the application,
including the reserved costs of 12 and 25 March
2021, on the scale of
attorney and client.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
5 August 2021
DATE
OF JUDGMENT: 10
August 2021*
*Judgement delivered
electronically to the parties by email on this date.
APPEARANCES
:
For
the applicant: Mr. Metu instructed by Sotenjwa Attorneys
care of Potelwa Attorneys, King Williamâs Town (ref. NS/001/48).
For
the respondent: Mr. Nabela instructed by the State Attorney, East
London (ref. Ms Tyani).