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[2017] ZANCHC 52
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Minister of Police v January (1486/2016) [2017] ZANCHC 52 (19 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case number:
1486/2016
Datum verhoor/Date heard:
12 / 06 / 2017
Datum gelewer/Date
delivered:
19 / 06 / 2017
In
the application of:
THE
MINISTER OF
POLICE
Applicant
and
KGOSIMANG
JACOB JANUARY
Respondent
Coram:
ERASMUS,
AJ
JUDGMENT IN
APPLICATION FOR LEAVE TO APPEAL
ERASMUS,
AJ
[1]
The applicant approached this Court for leave to appeal against a
cost order of Matlapeng AJ in an application for condonation
for the
non-compliance with the provisions of s3(2)(a) of the Institution of
Legal Proceedings against Certain Organs of State
Act, Act 40 of 2002
(‘the Act’).
[2]
The applicant is the defendant in an action under case number
1486/2016 (‘the action’) and was the respondent in
the
application for condonation (‘the main application’).
The respondent herein is the plaintiff in the action
and was the
applicant in the main application. I shall refer to the parties
as in the application for leave to appeal.
[3]
Matlapeng AJ had ordered the applicant to pay the costs of the main
application on a scale as between party and party, which
costs would
exclude the costs of preparing, perusing and lodging of pages 25 to
82 of the record.
[4]
S17 of the Superior Courts Act, Act 10 of 2013 regulates applications
for leave to appeal and provides as follows:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a
reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on
the matter under consideration;
(b)
…the decision sought on appeal does not fall within the ambit
of section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.”
[5] S16(2)(a) of the
same Act provides as follows:
“
(a)(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or
result, the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.”
[6]
As submitted by Adv Botha, on behalf of the respondent, a proper
reading of s17 of Act 10 of 2013, leads one to conclude that
either
of the two requirements referred to in s17(1)(a), but both
requirements contained in s17(1)(b) and (c), need to be established
for leave to appeal to be granted.
[7]
The test to be applied when adjudicating an application for leave to
appeal is now, under Act 10 of 2013, whether there is a
reasonable
prospect that another court
would
come to a different conclusion to that reached in the judgment that
is sought to be taken on appeal. The use of the word
“would”
in s17(1)(a)(i)
[1]
is indicative
of a raising of the threshold since previously, all that the
applicant was required to demonstrate was that there
was a reasonable
prospect that another court could come to a different conclusion.
[2]
The object of s17 thus appears to be to limit circumstances in which
a High Court may grant leave to appeal.
[8]
It is within the legislative framework, set out above, and the
specific facts of this matter that this Court must adjudicate
the
application for leave to appeal.
[9]
Mr Botha further submitted that the Court
a
quo
had
not misdirected itself in any material way, that this application for
leave to appeal does not pass the threshold laid down
in s17 read
with s16 of Act 10 of 2013 and that no exceptional circumstances
exist why the appeal should be heard.
[10]
The grounds of appeal were set out in the NOTICE OF APPLICATION FOR
LEAVE TO APPEAL, dated 6 December 2016. In short,
the
application is based thereupon that the Court
a
quo
had incorrectly exercised its discretion in relation to the cost
order granted against the applicant. As the applicant had only
opposed the main application as a result of the punitive cost order
sought, the respondent should have been held liable for the
applicant's costs.
[11]
In his judgment Matlapeng AJ set out the background and facts
pertaining to the main application. I do not deem it necessary
to repeat it. I cannot find that he had misdirected himself on
the facts.
[12]
From the evidence and correspondence it appears, as Matlapeng AJ had
found, that the applicant was under the mistaken impression
that the
respondent had to approach the Court for condonation.
[13]
The applicant did not provide any other acceptable reason why he had
not consented to the institution of legal proceedings.
Throughout the period leading up to the application, in the opposing
affidavit as well as at the time of the hearing of the application,
it was the position of the applicant that it could not grant
condonation/ concede to the action proceeding without proper notice
and that only the court could do so. As a result of the
applicant’s refusal the respondent had to apply for condonation
and sought a punitive cost order against the applicant.
[14]
Adv Sieberhagen, on behalf of the applicant, submitted that the
application was opposed because a punitive cost order had been
sought
in the Notice of Motion. Although this was stated in the applicant’s
answering affidavit, it is not borne out by the
correspondence
between the parties. The applicant had indicated that the relief
pertaining to the condonation would not be opposed,
but that the
application would be opposed ‘solely on the basis of costs’
and that they were of the opinion that the
respondent is not entitled
to the costs of their application. The applicant had not
referred to the punitive cost order sought
by the respondent.
[15]
In terms of s3(1)(b) of the Act an organ of state may consent in
writing to the institution of legal proceedings and thus has
a
discretion to consent to the institution of proceedings.
Matlapeng AJ, in line with the decision of
Minister
of Safety and Security v De Witt
[3]
,
found that the decision by a debtor whether to apply for condonation
for non-compliance with the Act depended on the attitude
of the organ
of state. In my view he had not misdirected himself in this
regard.
[16] It was
submitted on behalf of the applicant that the Court
a quo
had
incorrectly relied on the case of
Premier Western Cape v Lakay
2012 (2) SA 1
(SCA) at 15 A-C, in which it had been found that where
applications for condonation in terms of the Act are opposed, costs
should
follow the result. The relevant portion of that judgment
reads as follows:
“
[25]
… Ordinarily, in applications for condonation for
non-observance of court procedure, a litigant is obliged to seek the
indulgence of the court whatever the attitude of the other side and
for that reason will have to pay the latter's costs if it does
oppose, unless the opposition was unreasonable. I doubt that this is
the correct approach in matters such as the present, as an
application for condonation under the 2002 Act has nothing to do with
non-observance of court procedure, but is for permission
to enforce a
right, which permission may be granted within prescribed statutory
parameters; and such an application is (in terms
of s 3(4)) only
necessary if the organ of state relies on a creditor's failure to
serve a notice.
13
In the circumstances there is much to be said for the view that where
an application for condonation in a case such as the present
is
opposed, costs should follow the result…”
[17]
The applicant did not explain why the reliance on the Lakay judgment
was misplaced. Proper reading of the paragraph quoted
above
leads me to conclude that where an organ of state relies on the
creditor's failure to serve the notice and refused to consent
to the
institution of legal proceedings and it, as a result thereof becomes
necessary for the creditor to launch an application
for condonation,
the costs should follow the result. If the creditor is granted
condonation, he/she was successful and should
be awarded costs.
[18]
In my view the Court
a
quo
correctly found that in cases such as the main application, the
applicant was not requesting an indulgence and that the approach
to
the granting of costs of such an application is different to that in
respect of an application for condonation for non-compliance
with
court rules. Matlapeng AJ found, correctly so, that the
applicant's refusal to consent to the institution of legal
proceedings had been unreasonable as it was solely based on the wrong
impression that the applicant could not consent to the institution
of
legal proceeding and thereby condoning non-compliance with the
provisions of s3(2)(a) of the Act. The costs incurred
by
having to lodge an application for condonation would not have been
necessary, had the applicant understood the legal position
correctly
and consented to the institution of legal proceedings timeously.
The respondent was successful with the application
and was therefore
entitled to his costs.
[19]
It was further submitted on behalf of the applicant that the appeal
against the cost order would have a reasonable prospect
of success
and further the appeal should be heard, because there appears to be
conflicting judgments on the matter under consideration.
In
this regard the applicant referred to the decision of Olivier J in
the matter of
White
v Kheis Municipality
[4]
.
[20]
The judgment of Olivier J is distinguishable from the matter in
casu.
In
that case it had specifically been found that the applicant had
provided much more information in the founding affidavit than
he did
in the letter in terms of which he had requested the respondent to
consent to the institution of the legal proceedings.
It had
been this further information that had convinced the respondent not
to oppose the application for condonation on the merits
and which had
led to the order directing the applicant to pay the respondent’s
costs of the application. In the present
matter all the facts
had been presented to the applicant in the correspondence and it had
never been the case for the applicant
that something surfaced in the
founding affidavit or annexures that had convinced the applicant not
to oppose on the merits.
[21]
I am satisfied that in this instance there is not any prospect that
a court of appeal would interfere with the exercise of
the discretion
of Matlapeng AJ in respect of the cost order. There is no
compelling reason why the appeal should be heard.
The
application for leave to appeal therefore stands to be dismissed.
No reasons were advanced why costs should not be awarded
to the
successful party.
I therefore make the
following order:
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.
_______________________
SL
ERASMUS
ACTING
JUDGE
On
behalf of the Applicant: Adv. A.S
Sieberhagen (oio The State Attorney)
On
behalf of the Respondents
:
Adv. C.H. Botha (oio Elliott, Maris, Wilmans & Hay)
[1]
Superior Courts Act, No 10 of
2013
[2]
S
eatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
(2016) 37 ILJ 1485 (LC); See also
Besserglik
v Minister of Trade, Industry and Tourism (Minister of Justice
Intervening
1996(4)
SA 331(CC)
[3]
2009(1) SA 457 (SCA) at 461G-H and 462A
[4]
1828/2016
[2016] ZANCHC 38
(9 December 2016)