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[2019] ZAGPPHC 125
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Feni v Pan South African Language Board and Another (49965/16) [2019] ZAGPPHC 125 (25 April 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 49965/16
25/4/2019
In the matter between:
ZIXOLISILE
FENI
Applicant
and
THE PAN SOUTH AFRICAN
LANGUAGE BOARD
1
st
Respondent
MPHO REGINALD
MONARENG
2
nd
Respondent
JUDGEMENT
VAN DER SCHYFF, AJ
Introduction
[1]
This
is an application for leave to appeal against the order and judgment
handed down on 16 November 2018.
[2]
The
applicant contends that the court erred in dismissing the matter and
holding that because of the dismissal of case number 25170/2016
and
51782/2016, the application has become moot. The argument is that
this matter had ‘a life of its own’ and should
not have
been dismissed on the basis that the two applications that were
launched earlier by the same applicant was dismissed.
[3]
Cognisance
should be taken of the fact that prayer 9 of the amended notice of
motion dated 6 July 2016 specifically categorises
the relief sought
as interim relief in that the prayer reads: “That orders 2, 3,
4, 5 and 6 above shall operate as interim
orders pending the final
determination of the matter under case number 51782/2016”.
[4]
This court
dismissed the application under case number 51782/2016 and a result
the application brought under case number 49965/16
became moot.
[5]
The
applicant additionally contends that the court erred in not taking
into consideration that it is stated in the joint (unstamped)
practice note that the applicant “does not persist with any
interim relief as the matters are consolidated, i.e. case number
51782/16 and 49965/16.’ As stated in the judgment the applicant
is seeking leave to appeal against, the respondents’
contention
that the application brought under case number 49965/16 became moot,
was not refuted by the applicant’s counsel
during argument. In
addition it is common cause that the matters under case number
51782/16 and 49965/16 were not consolidated.
[6]
Cognisance
should also be taken that it is stated in the said joint practice
note that as far as case number 49965/16 is concerned,
it is only
necessary to read the amended notice of motion since the allegations
in the founding affidavit are identical to the
allegations made under
case number 51782/16. The prayers sought in terms of the amended
notice of motion under case number 49965/16
are, with the exception
of prayer 9 referred to above, incorporated in the prayers under case
number 51782/16. Except for the interim
relief sought under case
number 49965/16 the amended notice of motion is basically replicated,
and extended, in the notice of motion
under case number 51782/16.
[7]
The
applicant took issue with the punitive cost order granted by this
court when the motion was dismissed. After reconsidering this
issue I
am still of the view that the reason for granting a punitive cost
order as set out in the written judgment is valid.
[8]
In light of
the above I am not of the view that the applicant met the
requirements set out in
section 17(1)
of the
Superior Courts Act, No
10 of 2013
.
[9]
The final
aspect that needs to be considered is the issue of wasted costs. It
is common cause that the applicant enrolled the application
for leave
to appeal to be heard on 1 March 2019 at 8:30. This time was agreed
on since the court had to commence with a criminal
trial at 9:30. The
matter was removed from the roll and costs reserved just before 9:00
when it became apparent that applicant’s
counsel was under the
impression that the application was to be heard at 9:30, after the
respondents’ counsel inquired telephonically
when neither
counsel, nor the applicant’s attorney, or a representative of
the firm were present in court.
[10]
After
hearing the application for leave to appeal, I requested the
applicant’s legal representatives to provide met with written
argument as to why they should not be held liable for the wasted
costs occasioned by the removal of the application
de
bonis propriis.
In the written heads of argument it is contended that “an
honest error of judgment on the part of the applicant’s legal
team occurred in the form of lack of Communication and a serious
misunderstanding regarding the exact time of the hearing”
occurred as the “issue of the time of the hearing was never
revisited but the date of the Hearing was.” It is further
contended that “With all things considered, it can never be
said that an error of judgment of this nature should be construed
as
serious negligence or recklessness on the part of the attorney of
record particularly when one considered his role in the entire
matter
and further as a notice of set down with specific time was emailed to
counsel”.
[11]
The
application for leave to appeal was removed because of the late
arrival of the applicant’s counsel. None of the applicant’s
legal team was present in court at that time. There is no doubt that
justice requires that the respondents must be indemnified
from
carrying any wasted costs or expenditure caused by the fact that the
application for leave to appeal had to be removed from
the roll due
to the late arrival of the applicant’s counsel. The question is
whether it would be just to require that those
costs be carried by
the applicant. I am of the view that it would not be fair and just to
order that these costs be paid by the
applicant since it is clearly a
lack of communication between his legal representatives that gave
rise to this conundrum.
ORDER
As a result, the
following order is made
1.
The
application for leave to appeal is dismissed with costs.
2.
The wasted
costs associated with the removal of the application for leave to
appeal from the roll on 1 March 2019, on an attorney
and own client
scale, are to be paid jointly and severally by Makhafola &
Verster Inc and Mr S Makhafola
de
bonis propriis
,
the one to pay the other to be absolved.
E VAN DER
SCHYFF
Acting Judge of
the Gauteng Division, Pretoria
Heard on
:
22 March 2019
For the Applicant
:
Adv Z Kela
Instructed
by
:
MAKHAFOLA & VERSTER INC
For the
Respondents
:
Adv G Fourie SC
Instructed
by
:
BOWMAN GILFILLAN INC
Delivered
on:
25 April 2019