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[2018] ZAGPPHC 761
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Motsepe and Others v Local Municipality of Madibeng (A444/2016) [2018] ZAGPPHC 761 (9 February 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
In the matter between:
CASE
NUMBER : A444/2016
9/2/2018
PHINEUS
MATHOLO MOTSEPE
FIRST
APPLICANT/APPELLANT
REUBEN
NELSON
SECOND
APPLICANT/APPELLANT
DAMONS
BEORAMS
THIRD
APPLICANT/APPELLANT
ALL
UNKNOWN UNLAWFUL OCCUPIERS
OF
PORTIONS 6, 11, 16, 23, 24, 60, 64, 97 &
119
OF THE FARM ELANDSFONTEIN 440
JQ
& FARM ELANDSFONTEIN 570 JQ
FOURTH
APPLICANT/APPELLANT
and
LOCAL
MUNICIPALITY OF MADIBENG
RESPONDENT
JUDGMENT
KUBUSHl,
J
[1]
The respondent brought an interdict application against the
appellants for restraining
occupation and stand allocation at
Portions 6, 11, 16, 23, 24, 60, 64, 97 and 119 of the Farm
Elandsfontein 440 JQ and Farm 570
JQ ("the stands") at the
magistrates' court Madibeng held at Brits. A
rule nisi
in
respect thereof was granted returnable on 21 October 2015 whereat,
per
agreement between the parties a final order was granted.
[2]
It transpired that the respondent had
also launched an eviction order application against the appellants in
respect of the same
stands. The eviction order was granted unopposed
on 21 October 2015, which is the same date on which the final order
for the interdict
application was granted. It is this eviction order
that is the basis for the rescission application and subsequent
appeal.
[3]
The appellants subsequently instituted a
rescission application against the eviction order. The appellants'
rescission application
had Section A and B. Section A was to stay the
eviction order pending the rescission application whilst Section B
was to rescind
the eviction order. Section A was set down for hearing
on 18 November 2015. On that day,
per
agreement between the parties the
stay of execution was granted and the rescission application
postponed. Section B of the notice
of motion, that is, the rescission
application was heard on 10 February 2016. The trial court having
listened to the arguments
by the respective parties found in favour
of the appellants. The trial court granted the rescission application
and ordered costs
to be in the cause. The appellants noted an appeal
against the cost order.
[4]
The cost order sought by the appellants
in regard to Section A of the notice of motion was for an attorney
and client cost; and
in regard to Section B was for a party and party
cost.
[5]
Before the trial court, the appellants'
submission was that the general rule is that costs follow the event,
that is, the successful
party should be awarded her or his costs. It
was further argued on behalf of the appellants that if costs are
granted in favour
of the appellants they should be awarded on a
punitive scale of attorney and client. When awarding a cost order on
an attorney
and client scale, the trial court was urged to take into
account the misleading actions by the respondent and his legal
representatives
in failing to place relevant information before the
trial court to enable it to come to a just and equitable decision; in
not affecting
proper service of the application and not informing the
trial court about it; as well as misleading the applicants by not
informing
them of the eviction application even though the respondent
was aware that the appellants did not want to be evicted from the
stands,
which makes it clear that the respondent abused the court
process and as such the court's disapproval of this conduct was
reflected
in the cost order.
[6]
The respondent did not argue costs in
its written heads of argument but did so in its oral argument. In its
argument before the
trial court, the respondent contended that the
conduct complained of by the appellants was not meant to mislead the
court nor was
such conduct unbecoming in any way as it was not
outside the parameters of the law.
[7]
In its judgment the trial court granted
an order for costs in the cause. The trial court later provided its
reasons for judgment
as to costs in terms of rule 51 of the
Magistrates' Court Rules. The reasons for judgment indicate that the
trial court considered
the oral arguments of the parties before it
and case law dealing with the discretion of the court in awarding
costs in particular
awards of punitive cost orders on an attorney and
client scale. It, on that basis, could not find that there was bad
faith or reprehensible
conduct justifying a punitive cost order
against the respondent. And, relying on the general rule in the law
of costs that the
ultimate victor at trial may get her or his costs
against the loser and including all interlocutory applications, the
trial court
accordingly granted costs in the cause.
[8]
Before us only the cost order is
appealed. The respondent's argument in its heads of argument is based
on the attorney and client
cost order sought by the appellants in
Section A of the notice of motion. The trial court could not have
decided on the costs sought
in Section A of the notice of motion
since that part was not before it. The only section before the trial
court was Section B which
sought a relief on party and party costs.
It is apparent from the record that even though the cost order sought
by the appellants
in the notice of motion in Section B was for party
and party costs, before the trial court what the appellants argued
for was a
cost order on an attorney and client scale.
[9]
It was contended on behalf of the
appellants that the merits of the cost order were adjudicated by the
trial court without proper
consideration of the appellants' basis or
entitlement to be awarded costs. It was further submitted that the
trial court erred
in finding that there is no basis to award the
appellants costs despite being substantially successful and
considering the conduct
of the respondent and its legal
representatives.
[10]
In my understanding, the trial court did not disallow costs to the
appellants it only disallowed
such cost to be awarded on an attorney
and client scale. The trial court was well aware that the appellants
as the successful parties
were entitled to their costs of suit. It
should be remembered that in Section B of the notice of motion the
appellants sought a
cost order on a party and party scale but when
arguing before the trial court the appellants urged the court to
award costs on
attorney and client scale. The trial court having
found in favour of the appellants declined to order costs on an
attorney and
client scale and instead the award was for costs in the
cause.
[11]
A 'costs in the cause' cost order is an
award of costs made in interlocutory proceedings which are to stand
over and to be paid
by a party who is ultimately ordered to pay the
costs of the main action.
[1]
[12]
It means that the trial court awarded
costs in favour of the appellant as a successful party but the costs
are deferred to the end
of the matter and then only to be paid to the
appellant if they succeed in the main application. The costs are
awarded with a proviso
that the appellants first prove that they are
the legal occupants of the stands in issue. In such an instance, it
will not be necessary
for the parties to argue the costs afresh at
the end of the main application as they have already been awarded.
This is different
from an order for reserved costs that will have to
be argued afresh at the hearing in due course.
[13]
In terms of the cost order granted, the
appellants are entitled to the costs of the rescission application
only if it can be found
that they are legally entitled to occupy the
stands in issue. It would be unfair to order the respondent to pay
the costs of the
application only to find later that the appellants
were in illegal occupation of the stands and should not have in the
first place
been allowed to defend the main application.
[14]
The parties are agreed, correctly so,
that the issues in this matter are constitutional issues and an order
of costs should be granted
along those lines. Having concluded that
the appellants have been granted costs I see no reason to delve into
these issues. What
requires further adjudication is whether the cost
order as granted by the trial court is final in nature and thus
appealable.
[15]
A rescission of judgment application is
interlocutory in nature. The order granted as a result is purely
procedural and disposes
of no issue in the main litigation between
the parties. The issues raised therein do not in any way bind the
court that will in
due course, if the litigation continues, be seized
of the main litigation. In the circumstances such an order would not
be appealable.
[2]
The issue before us, however, is not the application itself but the
cost order granted.
[16]
In its heads of argument, the appellants
state that the cost order granted by the trial court is final in
nature and thus appealable.
Whereas the respondent's submission is
that the order is not final since it is an interlocutory application
and the matter is part
heard.
[17]
Normally such costs as granted by the
trial court are granted in interlocutory proceedings where the matter
is still to be decided
at a later stage. I would think that the
general principle of finality of an order which renders it appealable
is not appropriate
for applicability herein. The final award of costs
is dependent on the final outcome of the main application. At this
stage of
the proceedings, it cannot be determined whether the
appellants are justified in occupying the stands in issue. It is
rather premature
to decide, at this stage, whether a particular
litigant was justified to institute or defend the main action because
the rescission
of judgment outcome is not a focal point on the
awarding of costs. As far as the award of costs is concerned, the
rescission application
cannot be decided in isolation to the
occupation of the stands by the appellants. I would in that regard
rule that the cost order
is not appealable at this stage of the
proceedings and has to await the final outcome of the main
application.
[3]
[18]
Both parties were late in filing their
heads of argument. Each party applied at the commencement of argument
and was granted condonation
for such late filing.
[19]
I would in the circumstances propose the following order:
1.
The appeal is dismissed with costs.
E.M KUBUSHI
JUDGE OF THE HIGH COURT
I
concur and it is so ordered
T. MAUMELA
JUDGE OF THE HIGH COURT
[1]
See Erasmus: Superior Court Practice Vol. 2 p D5-3.
[2]
Adams & Adams
v
Pointer Fashion International (324/2013)
[2014] ZASCA 11
(19 March 2014) para 14.
[3]
Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation
Board, Durban, and Others
[1986] ZASCA 6
;
1986 (2) SA 663
(A) at 683A) and
Maccsand CC v Macassar Land Claims Committee &
Others {594/03) ZASCA (2004] (30
November 2004).