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[2016] ZAFSHC 29
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Hlathi v Free State Gambling and Liqour Authority and Another (4575/2015) [2016] ZAFSHC 29 (25 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 4575/2015
In
the matter between:
MAPULE
MERIAM
HLATHI
Applicant
and
FREE
STATE GAMBLILNG AND LIQOUR AUTHORITY
1
st
Respondent
THE
CHAIRMAN OF THE FREE STATE GAMBLING
AND
LIQOUR
AUTHORITY
2
nd
Respondent
CORAM:
BOKWA, AJ
HEARD
ON:
10 DECEMBER 2015
JUDGMENT
BY:
BOKWA, AJ
DELIVERED
ON
:
25 FEBRUARY 2016
A.
INTRODUCTION
[1]
This court is called upon to decide the issue of the reserved costs
occasioned by the postponement on 26
th
November 2015.
[2]
The order of the Honorable JP Molemela dated 26
th
November 2015 reads as follows:
“
That: (By
agreement)
1.1
The main application and
application for condonation are postponed to the opposed roll of the
10
th of
December 2015.
1.2
Costs to stand over for later
adjudication”.
[3]
At the hearing of the application on the 10
th
December 2015 the Respondents conceded to the main relief and
consented to an order in the following terms:
“
1.3 Dat die Eerste en Tweede
Respondente gelas word om die Applikant se aansoek om ‘n
registrasiesertifikaat vir ,n taverne,
ten opsigte van ,n perseel
geleë te Erf 5239, Sone 6, Thumahole, Parys, Vrystaat Provinsie
te oorweeg binne 21 (EEN - EN -
TWINTIG) dae na verkryging van die
bevel.
1.4
Dat die Eerste Respondent die
koste van hierdie aansoek betaal op die skaal soos tussen prokureur
en klient”.
[4]
The parties could not agree in respect of the costs occasioned by the
postponement of the 26
th
November 2015. They proceeded to argue the matter only on costs.
After hearing the counsels, I requested them to submit supplementary
heads only in respect of the costs aspects. I am indebted to both
Counsels for their heads of arguments.
B.
BACKGROUND
FACTS
[5]
The application was issued on 23
rd
September 2015 and served on Respondents on 25
th
September 2015. The Respondents had to file their notice of
opposition by 20
th
October 2015. Respondents failed to file their notice of opposition
within the prescribed time limits.
[6]
The Applicant enrolled the matter for hearing on 29th October 2015.
The Respondents only filed their notice of opposition on
22
nd
October 2015, resulting in the matter being removed from the roll on
29
th
October 2015 and the first Respondent tendering to pay the wasted
costs.
[7]
Subsequent thereto, the Respondents had to file their opposing
affidavit by 11
th
November 2015. They failed to do so.
[8]
The Applicant proceeded to enroll the matter on 13
th
November 2015 for hearing on 26
th
November 2015. The Applicant heads of argument were filed on 18
November 2015.
[9]
On 18 November 2015, Respondents filed a notice of motion (for
condonation) accompanied by an answering affidavit. The Applicant
filed a notice of opposition to the condonation application on 24
th
November 2015.
[10]
On 24
th
November 2015 the Respondents filed their heads of argument.
[11]
On 26
th
November 2015 both the main application and the application for
condonation were postponed to the 10
th
of December 2015, by order of the Honorable JP Molemela.
C.
ISSUES
FOR DETERMINATION
[12]
This Court must decide the issue of reserved costs of the 26
th
November 2015, which order stated amongst others that the “costs
to stand over for later adjudication”.
D.
APPLICABLE
LEGAL PRINCIPLES
[13]
The fundamental principles governing the awards of costs have been
dealt with by our courts. The basic rule is undoubtedly
the one that,
the award of costs is in the discretion of the court. The general
rule of our law is that costs follow the event,
meaning that the
successful party is awarded his costs. Innes CJ stated as follows in
Kruger
Bros & Wasserman v Ruskin:
[1]
“
The rule of our law is that all
costs – unless expressly otherwise enacted – are in the
discretion of the Judge.
His discretion must be judicially
exercised, but it cannot be challenged, taken alone and apart from
the main order, without his
permission.”
[14]
The SCA has on more than one occasion laid down the principle that
the court’s discretion must be exercised judicially
upon a
consideration of the facts of each case, and that in essence it is a
matter of fairness to both sides.
[2]
“Judicially” means not arbitrarily.
[3]
The Courts’ discretion is wide, though not unfettered.
[4]
E.
ANALYSIS
[15]
The common cause facts are that:
At
the hearing of the application on 10
th
December 2015 the Respondents conceded to the main relief and an
order was obtained by agreement in favour of the Applicant, the
only
issue being the costs of 26
th
November 2015.
[16]
It was furthermore common cause, that the parties were of the view
that the main application and the interlocutory application
for
condonation were not ripe to be proceeded on, and as a result that a
postponement was necessary for the filing of further
affidavits.
In the circumstances the Respondents could not have been under the
impression that the matter will be proceeded
on.
[17]
The Respondents had not filed their heads of argument, which had to
be filed by Friday the 20
th
November 2015 before 11:00 am. It is common cause that the
Respondent’s heads were only filed on 24
th
November 2015.
[18]
The Applicant counsel in his submissions, requested me to have regard
to the decision in
Burger
v Kotze and Another
[5]
where the Court held as follows:
“
I do not think that it is
correct to state as a general rule that the wasted costs are to be
paid by the party who seeks a postponement.
That may be the normal
order if no one is to blame for the fact that the trial has to be
postponed. But if a postponement has become
necessary in consequence
of the fault or default of one of the parties, or his representative,
it is the normal rule, I think,
that wasted costs are awarded against
the party who was at fault or in default”.
[19]
The Respondent’s Counsel, Mr. Choudree, conceded that their
answering affidavits were not filed timeously. He was
at pains
to argue that Respondents were not in willful default or that the
Applicant had suffered no prejudice by such late filing.
He
attributed further delays to the fact that the reports were in
Afrikaans and had to be translated, to English.
[20]
In the circumstances he implored the Court not to award a punitive
costs order against the Respondents.
[21]
I am not persuaded by the explanation for the delay submitted by the
Respondent’s Counsel. I must agree with Applicant’s
Counsel that it is not only unconvincing but also without merit.
[22]
The conduct of the Respondents had been less than satisfactory.
They failed in many respects to comply with the rules
of the Court.
They were late in terms of filing their Notice of Opposition,
Answering Affidavits and the Heads of Arguments.
The
Respondent’s responsibilities and obligations are statutory in
nature as envisaged in the Liquor Act and the Constitution.
The
Respondents conducts amounts to a blatant disregard for the rights of
Applicants such as in this case. Their conduct
in my view
invites a punitive cost order.
F.
RELIEF
[23]
In the circumstances It is ordered that:
1.
The costs
occasioned by the postponement of the 26
th
of November 2015, is costs in the main application.
2.
The first
Respondent is ordered to pay Applicant’s costs on a scale
between Attorney and Client.
________________
I.R.O.
BOKWA, AJ
On
behalf of the Applicant:
Adv. C. D. Pienaar
Instructed by:
Honey Attorneys
BLOEMFONTEIN
(Mr. JM Burger)
On
behalf of 1
st
& 2
nd
Respondents:
Adv. A. B. G. Choudree
Instructed by:
Kirshen Naidoo &
Company Inc.
SANDTON,
JOHANNESBURGg
[1]
1918
AD 63
- 69. See also Graham v Odendaal 1972 (2) SA 611 (A)
616; Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A).
[2]
Marks v Estate Gluckman
1946 AD 289
314 – 315; Van der Ploeg v Vivier
1966 (3) SA 218
(SWA) 222;
Jordan v New Zealand Insurance Co Ltd 1968 (2) SA 238 (E) 245.
[3]
Merber v Merber
1948 (1) SA 446
(A)
453; Bruwer v Smit
1971 (4) SA 164
(C); Barron v Cantor
1912 CPD 295
– 297.
[4]
Moller v Erasmus 1959 (
2) SA 465
(T)
467; See also par 2.06 n 1. Contra: JW Jagger & Co Ltd v Van
Graan 1942 CPD 195 – 198.
[5]
1970 (4) SA 302
(W).