About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 251
|
|
Free State Gambling Liquor and Tourism Authority v First National Bank Ltd and Another (4350/2019) [2019] ZAFSHC 251 (13 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4350/2019
In
the matter between:
FREE
STATE GAMBLING LIQUOR AND
TOURISM
AUTHORITY
Applicant
and
FIRST
NATIONAL BANK
LTD
1
st
Respondent
NEO
LILIAN
SEHULARO
2
nd
Respondent
HEARD
ON:
5 DECEMBER 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
13 DECEMBER 2019
Wasted
costs occasioned by intransigent refusal of postponement - Insistence
on arguing a matter that has become moot – Duty
on the legal
representatives to make sensible proposals to each other to obviate
court’s intervention - Unreasonable party
ordered to pay the
costs.
[1]
This matter concerns the payment of costs occasioned by the
postponement on 31 October 2019 and costs of the application.
[2]
The background facts are fairly straightforward. On 18
September 2019 the applicant issued an urgent application against
its
former employee being the second respondent. The applicant was
seeking an order interdicting the second respondent from
withdrawing
the sum of R186 135.00 to be deposited by an entity called
Sanlam into her bank account held with the first respondent.
The interim order was granted with the return date set for 31 October
2019.
[3
It appears that on 16 October 2019, the attorney for the second
respondent sent an e-mail to the attorney for the applicant
requesting an indulgence to file the opposing affidavit on/or about
22 October 2019. It was granted. Given the issues
raised,
the attorneys for the applicant requested an indulgence too and
suggested that it will be unnecessary to brief counsel
and that the
matter should be postponed in chambers before a Judge. This was
flatly refused without providing any reasons.
It therefore
necessitated the briefing of counsel to argue postponement.
Only on 31 October 2019 the parties agreed that
the matter be
postponed and costs order to be reserved.
[4]
It is a trite principle of our law that the discretion to award costs
lies in the court and it must be exercised judicially
in a fair and
equitable manner. The attorney for the second respondent acted
in an unreasonable and inconsiderate manner
by insisting that the
matter proceed when the situation partly emanated from his side.
He asked for the indulgence which
meant that the attorneys for the
applicant had to reply. They could not do so within the limited
time remaining before the
return date. In any event, there was
no prejudice to the second respondent because the funds were not in
her bank account.
This intransigence led to the applicant
incurring unnecessary costs which could have been avoided. It
will be unfair that
the applicant is out of pocket because of the
actions of the attorney for the second respondent. Litigation
by ambush must
be discouraged. It will only be fair that the
second respondent pays the costs.
[5]
The next instalment in this matter deals with the pertinent issue of
who should bear the costs of the application. According
to the
applicant, the matter became moot when Sanlam paid the funds into a
bank account different to the one held with the first
respondent.
The exposition of the argument of the second respondent is that the
application was still born from the outset.
The reliance is on
the e-mail dated 13 September 2019 from Sanlam to the applicant with
copy circulated to the second respondent
stating that verification on
her bank account failed. Sanlam requested both the applicant
and second respondent to provide
it with a copy of her identity
document and bank statement. The result is that on 27 September
2019 Sanlam paid out the funds
into a different account belonging to
her held at Capitec Bank.
[6]
I broached the issue with counsel for the second respondent to
explain what is really conveyed in the e-mail referred to above.
Reluctantly he conceded that it can mean a number of things like the
account has been closed or there is any other bank issue with
it.
Therefore there is no merit in the submission that the
applicant ought to have known that the application will not achieve
its purpose.
[7]
On discovering that payment has already been made as a result of the
second respondent circumventing the costs order by providing
Sanlam
with a Capitec bank account, the attorney for the applicant proposed
to the attorneys for the second respondent that the
matter be
withdrawn and each party pays its own costs. This offer was spurned
and they insisted that the issue of costs should
be determined by the
court. It begs the question why the attorney for the second
respondent rejected a reasonable proposal
made with sole purpose of
avoiding a protracted proceedings and piling of legal costs.
[8]
In
John
Walker Pools v Consolidated Aone Trade & Invest
[1]
,
the court stated the principle as follows:-
“
As a general
rule, litigants and their legal representatives are under a duty,
where an appeal or proposed appeal becomes moot during
the pendency
of appellate proceedings, to contribute to the efficient use of
judicial resources by making sensible proposals so
that an appellate
court’s intervention is not needed. If a reasonable proposal by
one of the litigants is rejected by the
other, this would play an
important part in the appropriate costs order”
This
is the basis upon which this court concludes that the second
respondent must pay the costs of the application.
[9]
Therefore the order is the following:-
8.1.
The application is
removed from the roll.
8.2.
The second respondent
is ordered to pay the wasted costs occasioned by the postponement on
31 October 2019.
8.3.
The second respondent
is ordered to pay the costs of the application.
___________________
M.
A. MATHEBULA, J
On
behalf of applicant: Adv. S. Rautenbach
Instructed
by: Huggett Retief Inc
BLOEMFONTEIN
On
behalf of 1
st
& 2
nd
respondent: Adv. C.
Hendriks
Instructed
by: Motaung Attorneys
BLOEMFONTEIN
[1]
2018 (4) SA 433
(SCA) at
para 10