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[2017] ZANCHC 13
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Niekerk and Others v Pretorius (1233/14) [2017] ZANCHC 13 (15 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO: 1233/14
In
the matter between:
KEITH
VAN
NIEKERK
1
st
Applicant
FRANK
LOUW
2
nd
Applicant
JS
REID
3
rd
Applicant
GS
ROOI
4
th
Applicant
FW
NOWALAZA
5
th
Applicant
DIE
UITVOERENDE RAAD VAN CHRISTEN
GEMEENTES
INTERNASIONAAL
6
TH
Applicant
And
PIETER
PRETORIUS
Respondent
Coram: Olivier J et
Lever AJ
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Lever
AJ
1.
This
is an application for leave to appeal the costs order which formed
part of a judgment handed down by myself and my Brother
Lacock J on
the 26 June 2015. The present application for leave to appeal appears
to have been filed on the 25 November 2016.
2.
The
issues to be decided in the present application for leave to appeal
are twofold. Firstly, whether the period within which the
Notice of
Application for leave to Appeal should be extended. Secondly, whether
the order for costs that formed part of the judgment
handed down on
the 26 June 2015 is ambiguous.
3.
It
is necessary to give a bit of background to place these issues in
context. The original application and the judgment handed down
dealt
with the review and setting aside of a decision to suspend the
applicant in the original application (Pieter Pretorius hereinafter
referred to as the respondent) from certain offices he held in the
church concerned, pending the completion of an investigation
into
certain allegations against him.
4.
As
is evident from the judgment concerned, the court found in favour of
the respondent and set aside the said suspension. The court
also
ordered the first, second and third applicants herein to pay the
costs of the original application, the one paying the others
to be
absolved.
5.
Turning
now to the first issue, whether or not the 15 day period within which
an application for leave to appeal should be filed.
It is common
cause that the judgment concerned was handed down on the 26 June
2015. It is also common cause that the Notice of
Application for
leave to appeal was filed on the 25 November 2015. The said notice
regarding the application for leave to appeal
was filed some 17
months after the judgment was handed down.
6.
Paraphrasing
the reasons put forward by the applicants in order to show ‘good
cause’ to extend the relevant 15 day period,
the applicants
state that: They were advised that it is not always cost effective to
appeal a costs order; They should try and
settle this issue or wait
until there was an attempt to execute the costs order; and They
suspected that the respondent was litigating
with church money.
7.
There
is no effort in the present application to show that there was any
bona
fide
attempt on the part of the applicant to try and settle the issue of
costs with the respondent. The only correspondence attached
by the
applicants is a letter dated 8 March 2016, which invited the
respondent to establish that he was not using church funds
in the
litigation concerned. There is no attempt to explain why there was a
delay from the 8 March 2016 to the date that the present
application
was filed on the 25 November 2016. Nor is there any attempt to
explain what happened in this period or why it took
applicants from
the 26 June 2015 to the 8 March 2016 to write the relevant letter.
8.
However,
having regard to the special circumstances that will become apparent
when considering the relevant costs order it is both
just and
equitable to give the applicants the benefit of the doubt and extend
the period within which to bring an application for
leave to appeal
as contemplated by Rule 49(1)(b) of the Uniform Rules of Court (the
Rules).
9.
In
the original application the first, second and third applicants
herein were cited as respondents in their dual personal and official
capacities. The executive committee of the church concerned was cited
as the sixth respondent. However, both the Notice of Motion
and
founding affidavit in the original review application indicated that
no relief was sought against the sixth respondent. The
third
respondent is a special case which will be dealt with separately
below.
10.
There
was also a controversy as to who took the decision that was subject
to the review. The present applicants, maintained that
the said
decision was taken by the ‘Workers Council’ the highest
decision making body in the said church. The present
respondent
maintained that it was the “Executive Council’ that took
the decision that was the subject of the review.
The first to third
applicants herein were or are members of both the ‘Workers
Council’ and the “Executive Council’
of such
church. The executive council was the sixth respondent to the
original review application, but the ‘Workers Council’
was not cited as a party to the original review application. Also, no
order for costs was sought against the ‘Executive Council,
the
sixth respondent in the review application. Therein lay the dilemma.
11.
Where
parties are cited in both their official and personal capacities and
they are taken to task for their conduct of their official
duties, it
is only in special circumstances that they will be held personally
liable for the legal costs of such litigation. The
judgment shows
that such special circumstances were not outlined and assessed. This
is a strong indication that the intention of
the court
a
quo
wished to hold them liable for the costs in their official
capacities. Having regard to the dilemma outlined above, this would
have been the equitable order to have made.
12.
However,
the order relating to costs reads, “The 1
st
, 2
nd
and 3
rd
respondents are to pay the costs on a party and party scale, the one
paying the others to be absolved.” The qualification,
‘the
one paying the others to be absolved’, is an indication that
costs were awarded against them in their personal
capacities.
13.
The
Notice of Motion and founding affidavit in the review application
shows that the applicant therein (present respondent) sought
a
punitive costs order against the first, second, fourth and fifth
respondents in their personal capacities. The founding affidavit
also
shows that the third respondent was cited only in his official
capacity so that he would have knowledge of the review proceedings.
No costs order was sough against the third respondent in the review
application.
14.
From
what is set out above, it is clear that the order relating to costs
in the judgment handed down on the 26 June 2015 is at least
ambiguous. In these circumstances leave to appeal to the full bench
of this division must be granted. The full bench of this division
will have to decide if costs should be awarded against first and
second respondents in their official capacities and whether or
not
costs should be awarded against the third respondent in any capacity.
15.
In
my view it is unnecessary and undesirable to make the declaratory
order requested by the applicants in their application to extend
the
relevant time period for the filing of an application for leave to
appeal that the provisions of
s 18(1)
of the
Superior Courts Act 10
of 2013
applies pending the finalisation of this application for
leave to appeal.
16.
Finally,
in regard to the costs of this application, it will be equitable to
order that they be costs in the appeal.
In
the circumstances the following order is granted:
1)
The
extension of the time period required by
Rule 49(1)(b)
is granted.
2)
The
applicants are granted leave to appeal the costs order made in the
judgment handed down on the 26 June 2015.
3)
The
said appeal will be to the full bench of this division.
4)
The
costs of the application for leave to appeal will be costs in the
appeal.
___________________
Lawrence
Lever
Acting
Judge
Northern
Cape Provincial Division
I
agree,
___________________
Judge
Olivier
Judge
Northern
Cape Provincial Division
On behalf of
Applicants
:
Mr
Elliott, Maris, Wilman
& Hay
On behalf of
Respondent:
Ms
Duncan
& Rothman
Date of
Hearing:
15 February 2017
Date of
Judgment:
15 February 2017