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[2019] ZAFSHC 252
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Central University of Technology and Another v Realty 1 CC Bloemfontein and Others (A92/2019) [2019] ZAFSHC 252 (5 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal no: A92/2019
In
the matter between
CENTRAL
UNIVERSITY OF
TECHNOLOGY 1
st
Appellant
UNIVERSITY
OF THE FREE
STATE
2
nd
Appellant
and
REALTY
1 CC
BLOEMFONTEIN 1
st
Respondent
CHRISTO DIPPENAAR
INC.
2
nd
Respondent
JOHANNA WILHELMINA
DIPPENAAR
3
rd
Respondent
HEARD ON:
4
NOVEMBER 2019
CORAM:
NAIDOO J
et
MURRAY AJ
JUDGMENT BY:
MURRAY AJ
DELIVERED ON:
5 DECEMBER
2019
[1]
This is an appeal against the decision of a Magistrate in the
Bloemfontein District Court to dismiss the Appellants’
application in terms of Rule 27
[1]
for costs on an Attorney and Client scale, which costs were to
include increased Advocates’ costs.
[2]
The Respondents herein were the First, Second and Third Applicants in
an urgent application (“the Main Application”)
in which
they obtained a
rule nisi
on an
ex parte
basis against
one Mr Pillay (“Pillay”) and the Appellants. The
Appellants were the Second and Third Respondents
and Pillay the First
Respondent in that application. The cause of action
was the alleged breach of a rental agreement
between the Respondents
and Pillay to which the Appellants were not a party.
[3]
The Appellants filed the Rule 27 application after the Respondents
notified them, when they filed their opposing papers on the
day
before the return date of the
rule nisi,
that they intended to
withdraw the main application without tendering costs, and only
two-and-a-half months later, after the Respondents
had already
instructed Counsel to prepare and appear to argue the postponed costs
application, filed a notice to withdraw the opposed
costs
application.
[4]
The Respondents’ Notice of Withdrawal incorporated a tender for
party and party costs which the Appellants regarded as
inadequate in
view of the history of the matter. When the Respondents refused
to accede to their written demand to tender
costs on an Attorney and
Client scale with higher Advocates’ costs, the Appellants
proceeded with the Rule 27 application.
[5]
The Rule 27 application was dismissed on 10 April 2019 as follows:
“
Application for
costs on attorney and Client scale, which costs are to include higher
Advocates costs, is dismissed with costs.”
[6]
The sole reason advanced for this order was that:
“
No case had been
made out to justify increased fees as prayed.“
[7]
The Appellants aver that the order was made without the Court
a
quo
having exercised her discretion judicially,
inter alia
by
failing: to consider the circumstances of the case; to carefully
weigh the various issues; to consider the conduct of the parties;
to
take into account that the Respondents’ urgent
ex parte
application had been fatally defective; to consider all other
circumstances which may have had a bearing upon the question of
costs;
and, as a consequence, failing to make a costs order that
would have been fair and just between the parties.
[8]
The Respondents, on the other hand, maintain that the Magistrate did
consider all the circumstances since she had been in possession
of
the parties’ heads of argument and had listened to their legal
representatives’ arguments. In their view the
‘reasons’
for the Magistrate’s judgment confirm such judicial exercise of
her discretion.
[9]
To decide whether these allegations have any substance, one needs to
consider the facts leading up to the Applicants’
insistence on
costs to be awarded on an Attorney and Client scale.
[10]
The Respondents on 12 April 2018 instituted a patently defective
urgent application on an
ex parte
basis. The court
granted them an interim interdict, operative with immediate effect,
in the form of a
rule nisi
returnable on 17 May 2018, which:
10.1 Interdicted the
Appellants from making any payments to Pillay, “and/or to
Fountain View (Pty) Ltd or to any other third
party or juristic
entity”
;
and
10.2 Ordered the
Appellants “to forthwith transfer the funds to Realty 1 CC
Bloemfontein”.
[11]
In the Appellants’ Opposing Affidavit, filed on 16 May 2018,
they asked for a costs order on an Attorney and Client scale,
based
on the numerous grounds upon which the defective Main Application was
opposed, namely:
11.1 The material
non-joinder of Fountain View (Pty) Ltd against whom the order was
made but which was not even cited as a party
to the proceedings;
11.2 The order against
the Appellants while the application was based on breach of a rental
agreement between Pillay and the Respondents
to which the Appellants
were not a party.
11.3 The unenforceable
orders in that the first was widely framed as to effectively prohibit
the Appellants from paying their own
employees’ salaries or
their creditors, and the second so vague as to refer to unspecified
funds.
11.4 The Respondents’
failure to establish a
prima facie
or clear right as against
the Appellants in the absence of a legal nexus between them, dragging
the Appellants into a dispute in
which they had not been involved.
11.5 The Respondents’
seeking payment of amounts that exceeded the monetary jurisdiction of
the Magistrates’ Court.
11.6 The Respondents’
claiming that the Appellants had consented to the jurisdiction of the
Magistrates’ Court while
the Appellants had not been a party to
either the rental agreement on which the Respondents relied or any
subsequent undertakings
made by Pillay.
11.7 The Respondents’
obtaining
ex parte
relief while providing no grounds or
justification for an
ex parte
order against the Appellants.
[12]
On 17 May 2018 the
rule nisi
was then discharged and the
application was postponed to 24 August 2018 for the costs to be
argued.
[13]
Only two-and-a-half months later, on 3 August 2018, did the
Respondents file a Notice of Withdrawal with a tender for party
and
party costs. That was after the Appellants had already
instructed Counsel on 19 July 2018 to prepare and attend to the
postponed proceedings on 24 August 2018.
[14]
The Appellants felt aggrieved since their legal costs were
unnecessarily incurred as a result of the Respondents’ failure
to take proper steps, which conduct they regarded as an abuse of the
court process. They averred that, had the Respondents
served
the Main Application on them instead of obtaining the
rule nisi
on
an
ex parte
basis, they would have been able to oppose the
urgent application right away, which would have limited the amount of
subsequent
legal costs.
[15]
They accordingly informed the Respondents that party and party costs
would leave them out of pocket, and demanded costs on
an Attorney and
Client scale, failing which they would approach the Magistrates’
court for such a costs order in terms of
Rule 27. The
Respondents withdrew the application on 20 August 2018, but refused
to adjust the costs tender. The Appellants
then instituted the Rule
27 Application which led to the order against which they now appeal.
[16]
The basic rule regarding costs in litigation is that costs are in the
discretion of the court.
[2]
The Appellate Division has laid down the principle that the court’s
decision must be exercised judicially, i.e. not
arbitrarily, upon a
consideration of all the facts of each case.
[3]
In
Muller
v Erasmus
[4]
the court determined, furthermore, that such discretion, although
wide, is not unfettered.
[17]
In
Fripp
v Gibbon
[5]
,
though, the Appellate Division warned that where the court
a
quo
“brings
his unbiased judgment to bear on the matter and does not act
capriciously or upon any wrong principle” a court
of appeal may
not interfere with the honest exercise of that discretion.
[18]
The court’s discretionary decision has to be a matter of
fairness to both sides.
[6]
In coming to its decision the court needs to carefully weigh the
issues in the case, the conduct of the parties and
any other
circumstances which may have a bearing on the issue of costs, to
enable it to make a costs order that would be fair and
just between
the parties.
[7]
[19]
A court of appeal may only interfere in a costs order, even if it
would itself have exercised that discretion differently,
if the court
a quo
failed to exercise its discretion judicially,
[8]
(a) in that it violated settled practice and principles upon which
costs are awarded;
[9]
(b) in
that the decision was made without any grounds upon which a
reasonable person may have reached a similar decision;
[10]
(c) in that the decision is one to which no court could reasonably
have come;
[11]
(d) in that the
court
a
quo
exercised
its discretion capriciously or upon a wrong reason, or upon a wrong
principle, or has not acted for substantial reasons;
[12]
or where the court
a
quo
failed
to consider the circumstances of the case and to carefully weigh the
issues, the conduct of the parties and any other
circumstances which
may have a bearing upon the question of costs in order to make such
order as to costs which would be fair and
just between the
parties.
[13]
[20]
In
R v
Zackey
[14]
the
Supreme Court of Appeal held that:
“
Questions of costs
are always important and sometimes difficult and complex to
determine, and in leaving the magistrate a discretion
the law
contemplates that he should take into consideration the circumstances
of each case, carefully weighing the various issues
in the case, the
conduct of the parties and any other circumstances which may have a
bearing upon the question of costs, and then
make such order as to
costs as would be fair and just between the parties. And if he does
this and brings his unbiased judgment
to bear upon the matter and
does not act capriciously or upon any wrong principle, I know of no
right on the part of a Court of
appeal to interfere with the honest
exercise of his discretion.”
[21]
The Constitutional Court, in turn, summarised the position regarding
the setting aside of a decision of a lower court based
on the
exercise of a discretion in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[15]
as
follows:
“
A Court of appeal
is not entitled to set aside the decision of a lower court granting
or refusing a postponement in the exercise
of its discretion merely
because the Court of appeal would itself, on the facts of the matter
before the lower court, have come
to a different conclusion; it
may interfere only when it appears that the lower court had not
exercised its discretion judicially,
or that it had been influenced
by wrong principles or a misdirection of facts; or that it had
reached a decision which in the result
could not reasonably have been
made by a court properly directing itself to all the relevant facts
and principles.”
[22]
Bearing the above principles in mind, in order to determine whether
it would be justified to interfere, this Court therefore
has to
investigate the merit or otherwise of the Appellants’
submission that the Court
a quo
in the instant case failed to
exercise its decision judicially.
[23]
The purpose of an award of costs is to indemnify the successful party
that has incurred expenses to bring or oppose an application.
[16]
Section 48(d) of the Magistrates’ Court Act provides that the
court has a discretion, to be judicially exercised upon
a
consideration of all the facts in each particular case, to grant such
costs as it considers to be just, including costs on an
attorney and
client scale.
[24]
Rule 33(8)(c) empowers a magistrate’s court, in appropriate
circumstances, in application proceedings
[17]
,
to award costs on any scale higher than that on which the costs of
the proceedings would otherwise be taxable. This discretion
should be exercised sparingly, however, and only where the
circumstances justify it, such as where the unsuccessful party
acted
unreasonably in his conduct of the litigation,
[18]
or where the application was an abuse of the process of court even
though that may not have been the intention of the applicant,
[19]
and also where the application suffered from grave defects and the
disclosure of the patent flaws in the Answering Affidavit
caused the
applicant to withdraw its application
[20]
.
[25]
While the purpose of a party and party costs order is to fully
compensate the successful party for costs and expenses reasonably
incurred in litigation, for instance money due to the attorney for
his fees and disbursements,
[21]
such party is entitled to burden his opponent only with such fees as
are sanctioned by the Magistrate’s Court rules,
[22]
i.e. those laid down in the tariff schedule or allowable as necessary
expenses under Rule 33(5).
[23]
[26]
Attorney and client costs, on the other hand, are those which the
attorney is entitled to recover from his client in respect
of
disbursements made on behalf of the client,
inter
alia
to
engage experts, to compensate witnesses and to brief counsel to draft
the necessary papers, to draft heads of argument and to
argue the
matter in court. Such costs are intended to compensate the
successful party for expenses reasonably incurred but
not chargeable
in the party and party bill of costs in order to ensure that such
party is not left out of pocket in respect of
the expenses caused to
him by the litigation.
[24]
[27]
Costs on that scale are not awarded only to signify disapproval of
the losing party’s conduct, in other words as a form
of
punishment. Such costs are also awarded by reason of special
considerations arising either from the circumstances which
give rise
to the action or from the conduct of the losing party, or from the
complexity of the matter.
[28]
The Magistrate, in my view, erred in stating that the “
potential
ramification that the order in the main action might have had on the
operation of the respondent’s”
was not the case
argued before her and that “
the issue was only that of
costs”
. From that remark it is evident that she did
not weigh up the effect of such order upon the Respondents as against
the effect
on the Appellants to determine where the balance of
convenience lies. That requirement for an interim interdict was
therefore
not met.
[29]
In making the above statement, furthermore, she appears to have
implied that the costs argument in the Rule 27 application
should or
could be decided independently of the consequences or the merits or
demerits of the Main Application. In the circumstances
of this case I
cannot agree with that stance.
[30]
The general rule is that a judgment for costs cannot stand alone, but
that the merits of the matter in the court
a
quo
must
be investigated at least to some degree. Even where a decision
concerning costs is divorced from the merits because a
decision on
the merits is not required, the decision on costs should not be
reached in total isolation from considerations linked
to the
merits.
[25]
[31]
In the instant case the merits were adjudicated on an
ex parte
basis, i.e. solely on the Applicants’ version. Before the
merits could be finally determined, upon receipt of the Opposing
Affidavit in which the numerous flaws were addressed, the Respondents
withdrew the application.
[32]
If a party proceeds
ex
parte
instead
of by application on notice to his opponent(s) in a matter in which
notice is required, he will be liable for the costs
unnecessarily
incurred.
[26]
An
ex
parte
application
is used when the applicant is the only person who is interested in
the relief which is being claimed,
[27]
or where the nature of the relief sought is such that the giving of
notice may defeat the purpose of the application, or where
immediate
relief is sought in the form of a
rule
nisi
,
even temporarily, because harm is imminent.
[33]
Good faith is a
sine
qua non
in
ex parte
applications.
[28]
Therefore such application cannot be brought or granted unless the
applicant provides the court with a proper motivation
in its founding
papers for the need for such an application. In the instant
case there was no motivation or explanation for
the need to file the
application without proper notice to the Appellants.
[34]
In
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
[29]
the
majority held that where an order for costs is appealed against, the
court of appeal does not judge a party’s right to
his costs in
the court
a
quo
by
asking whether the appellant was the successful party in that court,
but by asking “Ought he to have been the successful
party in
that court?”
[35]
Accordingly, the merits of the dispute in the Court below need to be
considered to enable a decision as to whether the tender
as to costs
in that dispute was properly made or not, especially where the merits
were not finally decided, as in the present case.
After all, as
Mr van Amstel correctly submitted, an applicant who withdraws his
application is in the same position as an
unsuccessful litigant
because his claim is futile and the respondent is entitled to all
costs associated with the withdrawing of
the applicant’s
institution of the proceedings.
[36]
In the present case the merits and the procedural flaws are
inextricably intertwined and neither can be ignored in coming to
a
just decision regarding the appropriate scale of costs the Appellants
would be entitled to. Therefore, although the matter
was not
finally adjudicated because of the withdrawal of the application, the
numerous technical flaws in the main application
which rendered the
relief prayed for unenforceable against the Appellants, should have
played a significant role in the scale on
which costs were to be
awarded.
[37]
In
Germishuys
v Douglas Besproeiingsraad
[30]
the
court held that very sound reasons for such withdrawal must exist
before a respondent should not be entitled to its costs. In
this case
the Respondents averred that their reason for the withdrawal was a
settlement agreement allegedly reached with Pillay
which enabled them
to discharge the
rule
nisi.
That
does not constitute the required ‘
very
sound reason’
with
reference to the Appellants, however, since they were, as they aptly
put it in their Opposing Affidavit, ‘
dragged’
into a dispute between the Respondents and Pillay to which they were
not a party notwithstanding the lack of a legal nexus between
them
and the Respondents.
[38]
It does not automatically follow that where a matter is withdrawn,
costs must be awarded on a party and party scale.
As held
in
Hugo
v Hugo
[31]
the
question to be investigated would be whether the party that withdraws
the litigation was justified in instituting the litigation
in the
first instance.
[39]
In the present case, in my view, while the Respondents may have been
justified in instituting the litigation against Pillay,
they did not
establish any justification for the relief obtained against the
Appellants, much less by way of an
ex parte
application.
[40]
From the papers it appears that Pillay was the party who rented the
premises from the Third Respondent, and who in turn rented
the
premises to students. As such he is the party liable for
payments to the Respondents. Yet the Appellants found
themselves bound by court orders which the Respondents attempted
to enforce against them in the absence of any legal
nexus
having
been established between them.
[41]
That the Main Application suffered from several fatal flaws, is clear
from the Opposing Affidavit. I agree with Mr Johnson’s
submission that the Appellants had no other option than to oppose the
matter. The submission on behalf of the Respondents that
the
Appellants opposed the matter only on legal grounds and hardly
touched on the merits in the Opposing Affidavit does not change
the
fact that the application was fatally flawed from its inception and
that the interim orders should never have been granted
against the
Appellants.
[42]
In my view, therefore, the Appellants were indeed entitled to insist
on being adequately compensated for their litigation costs
and on not
being left out of pocket by the Respondents’ inadequate tender
of costs.
[43]
I find no evidence in the court
a quo’s
1½-page
judgment that she indeed took into consideration all the facts
of the case. She merely recorded in three
brief paragraphs the
Applicant’s submissions in the Rule 27 application as follows:
1. That the Respondents
acted unreasonably and hastily, and failed to establish a
prima
facie
or clear right regarding the Appellants.
2. That the Respondents
applied for a
rule nisi
and obtained an order which would have
rendered the Appellants unable to function properly.
3. That the Respondents’
conduct was “
tantamount to reckless litigation and abuse of
process”
and that the Appellants therefore had no option to
oppose the main application.
[44]
Similarly, she merely summarised the Respondents arguments in three
brief paragraphs as follows:
1. That they do not deny
that they are liable for the Appellants’ costs, including
wasted costs on one occasion;
2. That the main
application was justified and not vexatious in any way; that
their application was necessary at the time
due to the prevailing
circumstances when the main application was instituted.
3. That the prejudice
suffered by the Appellants could have been compensated by a
reasonable payment of party and party costs as
tendered.
[45]
The sole extent of her reference to facts was that the
rule nisi
was set down for 17 May 2018; that the Respondents informed the
Appellants on 16 May 2018 that they did not intend to proceed with
the application; that the
rule nisi
was discharged in court on
17 May 2018; and that the matter was then postponed for argument on
costs; and that no senior counsel
appeared on behalf of the
Respondents.
[46]
Without any discussion or weighing up of the submissions made by the
opposing parties, or any indication as to which submissions
she
accepted and which she rejected, the court
a quo
then averred
that although she was mindful of the potential ramification that the
order obtained in the main action might have had
on the operations of
the respondents, that was not the case argued before her, only one of
costs.
[47]
Whether she implied that the ‘potential ramifications’
was a factor which she considered of her own accord, or
whether she
implied that that played no role in the costs argument is
impossible to determine. And whether she implied
that the
absence of Senior Counsel militated against costs on a scale as
between attorney and client, or meant that only Senior
Counsel was
entitled to higher advocate’s fees, is not discernible from the
judgment.
[48]
The next and final line of the judgment is the one that reads:
“No case had been made out to justify increased
fees as prayed
by the applicants.” Contrary to what the Respondents averred,
therefore, no reasons for that conclusion appear
from the judgment.
[49]
With regard to her refusal to grant higher counsel fees, her only
reference to counsel was the one line which read: “on
this date
no senior counsel appeared on behalf of the applicants”
.
There is no requirement that only when a senior advocate appears,
‘higher advocates’ costs’ can be awarded. The
determining factors are the complexity of the matter and not only the
appearance of counsel to argue the matter, but also the drafting
of
papers and Heads of Argument.
[50]
Wright J in
Eerste
Nasionale Bank van Suid-Afrika Beperk (handelend as Wesbank) v
Mokotso
[32]
stated
that granting an order for higher counsel fees does not mean that
such costs should be escalated to the next scale.
It simply
means that a higher than the normal fee prescribed for advocates in
the Magistrate’s Court Rules is awarded to
the advocate in view
of the particular circumstances and, especially, the complexity of
the relevant case. The determination of
a reasonable amount or
percentage increase is still left in the hands of the taxing master.
[51]
Item 26(1)(b) of Schedule 2 to the Magistrate’s Courts Rules of
Court stipulates that the court may on request allow
a higher fee for
counsel in regard to,
inter alia,
item 22 which provides for
an allowance in lieu of the fee for first day for which the counsel
was briefed where the matter was
withdrawn on or before the date of
the hearing, as well as for the drawing up of pleadings and heads of
argument.
[52]
In
The
Road Accident Fund v Forbes
[33]
it was held that an award of three times the amount specified in the
tariff is specifically authorised by Note 26(1)(b) and that
the award
was neither incompetent nor arbitrary, and did not amount to an
unjustified interference with the taxing master’s
discretion.
That court confirmed that whether increased costs for counsel should
be awarded depends on the circumstances
of the matter as well as on
the complexity of the case.
[34]
[53]
Mr Johnson did submit that he was briefed, right from the outset, to
consult with the Appellants, to advise on the merits,
to oppose the
applications, to draft all the necessary papers, including heads of
argument, and to appear to oppose the
rule nisi
as well as to
argue the postponed costs application. Those are the matters
regarding which item 26 of Schedule 2 to the Magistrate’s
Court
Rules provides for higher costs.
[54]
The matter was definitely not a trivial one, seeing that it involved
so many legal issues and suffered from so many flaws of
a legal
nature rather than just factual errors despite the Second Applicant
being an attorney, that the advocate’s assistance
by way of
duly researched papers in my view was justified.
[55]
The Respondents’ refusal to admit their liability for attorney
and client costs and higher advocates’ fees in view
of the
circumstances of the case and the inadequately motivated urgent
application with all its flaws, undoubtedly obliged the
Appellants to
reply. In
Jonker
v Scultz
[35]
the court stated that the costs awarded to a successful litigant
because he was obliged to defend himself are seldom a total
compensation
because of taxation, but the award is intended to
compensate that party for costs already incurred.
[56]
As in that case, the Appellants were entitled to costs and the
Respondents by first withholding that relief, then refusing
to admit
their liability for adequate compensation for the Appellant’s
costs and waiting until Counsel had already been briefed
to argue the
opposed costs issue, forced the Appellants to approach the court for
relief and exposed the Appellants to the costs
of not only that step,
but the institution of a Rule 27 application for attorney and client
costs.
[57]
Besides all the other flaws regarding the court
a quo’s
consideration of the issues or lack thereof, the Magistrate gave
no indication that she took cognisance thereof that the lower court
had had no jurisdiction to grant the orders since the amounts claimed
far exceeded its monetary jurisdiction. She made no
reference
to the Appellants’ denial of having consented to its
jurisdiction on the basis that it was not a party to the agreement
between the Respondents and Pillay or to any further agreements
concerning jurisdiction either.
[58]
She also failed to indicate that she had taken into consideration the
fact that the Respondents had brought and obtained the
application
against the Appellants on an
ex parte
basis without any
justification or explanation for such an approach.
[59]
It is clear from the record, furthermore, that the Magistrate gave no
indication of having taken into consideration the fact
that the Main
Application was materially flawed, as set out in the Opposing
Affidavit thereto, and that the relief prayed for left
the Appellants
with no other option than to oppose the application.
[60]
In my view, then, the Court
a quo
failed to apply her mind
properly when she dismissed the application for higher advocate’s
costs and, similarly, failed to
exercise her discretion judicially
when she dismissed the application for costs on an attorney and
client scale. Not only
that, but in applying the wrong
principles, she failed to make a costs order that would have been
fair and just between the parties.
[61]
This court therefore has the right to interfere in the court
a
quo’s
decision regarding costs.
WHEREFORE
I make the following order:
1. The order by the court
a quo
to dismiss the application for costs on an attorney and
client scale is set aside with costs.
2. It is substituted with
the following order:
“
1. The application
for costs on an attorney and client scale with higher advocate’s
fees succeeds with costs.
2. The First, Second and
Third Applicants in the main application are ordered to pay the costs
of the Second and Third Respondents
therein, jointly and severally,
the one to pay, the other to be absolved, on an attorney and client
scale, which costs are to include
higher advocate’s fees.”
_________________
MURRAY
AJ
I
concur and it is so ordered.
_________________
NAIDOO J
For
the Appellants:
Adv JMC Johnson
Instructed by
Mr LE Companie
Appellants’
Attorney
Phatshoane Henney
Attorneys
35
Markgraaff Street
Westdene
BLOEMFONTEIN
For
the Respondents:
Adv PC Ploos van Amstel
Instructed by:
Mr C Dippenaar
Attorney for Respondents
Christo Dippenaar
Attorneys
21 Reid Street, Reid
Plaza 4
Westdene
BLOEMFONTEIN
[1]
Jones
& Buckle, RS 12, 2016 Rule-p27-4:
[2]
Kruger Bros and Wasserman v Ruskin,
1915 AD 63
69
[3]
A C Cilliers: The Law of Costs, 2
nd
Ed, at p.9
[4]
1959 (2) SA 465
(T) at 465
[5]
1913 AD 353 363
[6]
McDonald
t/a Sport Helicopter v Huey Extreme Club
2008 (4) SA 20
(C) at 22A –
B. See also LP v PR 2018 (3)
SA
507 (WCC) at 513D – 514C.
[7]
Fripp
v Gibbon & Co
1913 AD 354
at 363.
[8]
SA Scottish Finance Corporation Ltd v Smit 1966 (3) SA 629 (T).
[9]
Jonker v Schultz
2002 (2) SA 360
(D) at 364, with reference to Penny
v Walker
1936 AD 241
at 260.
[10]
Merber v Merber
1948 (1) SA 446
(A) at 453 in which the court held
that “
The
discretion must be judicially exercised and therefore there must be
some grounds for its exercise, for a discretion exercised
on no
grounds cannot be judicial. If however there be any grounds,
the question of whether they are sufficient is entirely
for the
Judge at the trial to decide and this Court cannot interfere with
his discretion. I presume that ‘any grounds’
mean
any grounds on which a reasonable person would come to the
conclusion arrived at.”
[11]
S v G Kearney
1964 (2) SA 495
(AD) at 504 B – C.
[12]
Jonker v Schultz,
supra,
with
reference to Letsitele Stores (Pty) Ltd v Roets
1959 (4) SA 579
(T).
[13]
R v Zackey
1945 AD 505
with reference to Fripp v Gibbon & Co
1913 AD 354
at 363.
[14]
Supra.
[15]
2000 (2) SA 1
(CC) at par [1]
[16]
Jones
& Buckle, RS 12, 2016 Rule 33-21
[17]
Sybrand
Smit Trust (Edms) Bpd v Fouche
1972 (2) SA 804
(C); and Waar v Louw
1977 (3) SA 297 (O).
[18]
De
Souza v Technology Corporate Management (Pty) Ltd
2017 (5) SA 577
(GJ) at 655C – 655J
[19]
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999 (2) SA 279
(T) at
339
E - J
[20]
James
v Jockey Club of SA
1954 (2) SA 44
(W). See also: Associated
Musical Distributors v Big Time Cycle House 1982 (1) SA 616 (O).
[21]
Nationwide
Detectives & Professional Practitioners CC v Standard Bank of
Namibia Ltd
2008 (6) SA 75
(NmHC) at 761-J.
[22]
Reliable
Motor and Cycle Works v Tocknell
1954 (2) SA 606
(T) at 608
[23]
Mears
v Jeffers
1964 (3) SA 32
(N).
[24]
Jones
& Buckle, SR 18.2018 Rule 33-24
[25]
Erasmus
v Grunow
1980 (2) SA 793
(O) at 798. See also:
Cilliers,
supra,
par
2.21 at 20
[26]
In
Office Automation Specialists CC v Lotter
1997 (3) SA 443
(E) at 448
the court held that while applications of the type referred to in
rule 56(1) can be brought
ex
parte
,
an applicant bringing such application does so at his peril if he
does not make out a good and proper case as to why an order
should
be granted without notice to the other party.
[27]
Erasmus: Superior Court Practice, Vol 2, SR 7,2018 at D1-60
[28]
Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v
National Director of Public Prosecutions
2009 (1) SA 1
(CC) at 115 A
– E.
[29]
1948
(1) SA 839
(A) at
[30]
1973 (3) SA 299
(NC) at 300D – E
[31]
1947 (1) SA 325 (O)
[32]
2003 JDR 0655 (O) at p.7
[33]
(CA 197/05)
[2006] ZAECHC 47
(
28
September 2006)
[34]
Eerste Nasionale Bank van Suid-Afrika (Handelend as Wesbank) v
Mokotso 2003 JDR 0655 (O)
[35]
2002 (2) SA 360
(O) and