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[2018] ZAFSHC 1
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One Time Dream Team Promotions and Events Management CC v Mangaung Metropolitan Municipality (630/2017) [2018] ZAFSHC 1 (31 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 630/2017
In
the matter between:
ONE
TIME DREAM TEAM PROMOTIONS AND EVENTS
MANAGEMENT
CC
Plaintiff
And
MANGAUNG
METROPOLITAN
MUNICIPALITY
Defendant
HEARD
ON:
30 JANUARY 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
31 JANUARY 2018
[1]
Sometime in January 2017 the plaintiff issued summons against the
defendant claiming inter alia payment of the amount of R1
199 620.35
plus interest a tempore morae on the aforesaid amount
calculated from the 1ih November 2016 until
date of
final payment. The claim was based on a written agreement
entered into by and between the parties. The defendant
in defence
raised a special plea alternatively denied that the plaintiff
complied with its obligation.
[2]
On the day of trial to wit 30 January 2018, the parties approached
me in chambers and requested to engage each other with
a view
to settle the matter. This was generously granted. Around tea time
they emerged and informed me about the progress that
they were making
and that only few issues were outstanding. After lunch time they
presented me with a draft order and beseeched
that it be made an
Order of Court. They further informed me that they could
not agree on the costs aspect. This
is the bone of contention
and what I am called upon to adjudicate on.
[3]
The question to award costs or not lies in the discretion of the
court. This principle was succinctly stated in Union Government
v
Heiberg
1919 AD 477
at 484 per Solomon AJ in the following manner:-
“
The ordinary practice is, of
course, that costs follow the event but that is subject to the
general rule of our law that costs -
unless expressly otherwise
enacted - are in the discretion of the Judge…”
[4]
The discretion referred to should not be exercised in a vacuum. In
Ward v Sulzer
1973 (3) SA 701
(A) at 706 G the court pointed out
that:-
“
In awarding costs the Court has
a discretion, to be exercised judicially upon a consideration of all
the facts; and, as between
the parties, in essence it is a matter of
fairness to both sides. See Gelb v Hawkins, 1960 (3)
SA 687
(A.D.) at page 694 A;
and Graham v Odendaal,
1972 (2) SA, 611
(A.D.) at page 616.
Ethical considerations may also enter into the exercise of the
discretion; see Mahomed v Nagdee,
1952 (1) SA 410
(A.D.) at page 420
in fin”.
[5]
Counsel for the plaintiff argued that
the defendant must bear the costs
because the
plaintiff has substantially succeeded in its claim and
that the defendant has accepted liability. The submission
of the
counsel for the defendant is essentially that the plaintiff was not
prepared to proceed with the trial to finality hence
the settlement
that part of the claim stand over still to be determined at a later
stage.
[6]
Clause 10 of the written agreement between the parties provides that
parties must engage in mediation processes during any dispute
before
embarking on “normal legal
procedures”. This can only
be
done before issuing summons. The plaintiff issued
summons on the 8
th
February 2017.
It appears that the plaintiff attempted mediation
only
three (3) months later as shown in the communication
between parties around the 8
th
May 2017. This clause
cannot be interpreted to mean that dispute would be declared when the
plea was served and filed. In that
scenario the parties would have
reached litis contestatio of the "normal legal
procedures". The plaintiff in my
view, brought the matter before
court prematurely and cannot blame any other party for incurring
costs
[7]
The argument about substantial success is
also misplaced. At the moment the
parties
have an agreement on approximately 28% of the claim. The
substantial portion of it still has to be agreed upon at
a
later stage when proper documents are on hand and the parties are ad
idem on every line item.
[8]
The defendant, on the other hand, appears to have been playing for
time and contributed to the delay in the finalisation of
this matter.
Initially the basis of the defence was a denial that the plaintiff
has not performed as per the written agreement.
Through engagement
the defendant accepted liability and agreed to make
payment of R350 000 and almost the entire
claim at a later
stage. It is undesirable that a public entity should conduct business
utilising public purse in such a flippant
and truant manner. The time
has come that the court should hold public officials engaged in this
practice personally liable for
legal costs. Again it appears that the
defendant was correct not to pay over the money to the plaintiff
without proper basis. Even
at this late stage the plaintiff has not
provided such documents or given cogent reasons regarding their
unavailability.
[9]
In this matter, I was not privy to the discussions culminating in the
settlement agreement. In the exercise of my discretion
and taking all
relevant considerations into account, I remain unconvinced that any
party should be ordered to pay the costs. It
will be unjust and
inequitable to do so.
[10]
Accordingly, I make the following order:-
10.1
Each party to pay its own costs.
_________________
MATHEBULA,
AJ
On
behalf of Plaintiff:
Adv. WA van Aswegen
Instructed
by:
McIntyre van der Post
Bloemfontein
On
behalf of Defendant:
Adv. ND Khokho
Instructed
by:
Maduba Attorneys
Bloemfontein
/roosthuizen