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[2016] ZAGPPHC 30
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Sewpersadh v Government of the Republic of South Africa and Another (71706/2011) [2016] ZAGPPHC 30 (22 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 71706/2011
22/01/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
RAJAN
RAMNATH
SEWPERSADH APPLICANT
And
THE
GOVERNMENT OF THE REPUBLIC OF 1
st
RESPONDENT
SOUTH
AFRICA
SPECIAL
PENSIONS APEAL
BOARD 2
nd
RESPONDENT
JUDGMENT
A.M.L.
PHATUDI J.
[1]
The Applicant seeks an order:
'1. That all costs
previously reserved in this matter be awarded to the Applicant.
2. That the costs
of the applicants in terms of Rule 35(7) heard before the above
Honourable Court on 6 August 2013
be awarded in favour of the
Applicant on an attorney and client scale.
3. That the costs of this
application be awarded to the Applicant.’
[2]
At the commencement of the hearing, the applicant' s counsel placed
on record that the Applicant's Notice of Application dated
19 June
2015 remains unopposed. He sought clarity from the respondents if
they indeed do not oppose the said application. The respondents
counsel submitted that the respondents do not oppose the application.
[3]
In the said application, the applicant sought the transcript of the
record of the hearing on the 6 August 2013; 29 February
2012; the
Application papers brought in terms of Rule 35(7); the First
respondent's objection and the applicant's atorneys' affidavit
"be
admitted into evidence in proceedings before the above Honorable
Court".
[4]
The factual background set out in the founding affidavit is that on 6
August 2013, this Court issued an order in terms of the
main
application in favour of the applicant. The order read that '[t]he
respondent defense be struck out and the following order
be granted:
1.1...
1.2...
1.3...
1.4...
1.5 Costs in the
application
[5]
It is further alleged that the Court failed or did not deal with
costs which were previously reserved and costs of the Rule
35(7)
application apparently heard on 6 August 2013.
[6]
In an attempt to resolve the issue of the said costs, the applicant
wrote a letter to the respondents' attorney. The following
was
stated:
'As you are aware all the
reserved costs orders were made at your clients request and at his
insistence. Our client is clearly entitled
to the reserved costs...'
[7]
The deponent further stated:
'7.1
I confirm that the Respondent is liable for all the reserved costs
herein and for the costs for the Rule 35(7) Application
heard on 06
August 2013
7.2
In this respect the Applicant sought attorney and client costs
against the Respondent.
7.3
Inadvertently this matter has not alluded to a Court Order directly.
For the sake of clarity I respectfully request that this
aspect also
be included in the Court Order sought in the present Application.'
[8]
When answering to the said contentions, the respondent stated that
there are no reasons advanced by the applicant why he believed
that
he was entitled to the reserved costs and costs of Rule 35(7)
application on an attorney and client scales.
[9]
It is settled law that the purpose of awarding costs is to indemnity
a successful party who incurred expenses in instituting
or defending
a case before court or tribunal. It is further settled law that in
awarding costs, the court has a discretion which
must be exercised
judicially upon consideration of the facts in each case. The word
"costs" means party and party costs
and where attorney and
client costs are intended, the costs order should be expressly
stated.
[10]
The applicant submits that when granting the order set out in
paragraph [4] above, the court
a quo
did not specifically
award costs which were previously reserved and those of the
application in terms of Rule 35(7) which was scheduled
to be heard on
that day (6 August 2013).
[11]
Having accepted the record of proceedings of both the 29 February
2012 and those of 6 August 2013, I find it inevitable to
first deal
with the proceedings of the 29 February 2012.
29
February 2012
[12]
It is clear from the record of the proceedings of the day that
counsel for the applicant submitted before the unopposed motion
court
that 'the matter has [since] become opposed, properly opposed by both
1& 2 respondents. I have taken the liberty of preparing
a draft
order, it is not by consent
[1]
.
The following then transpired:
'
Court
: Do we have
a letter confirming that the 2nd Respondent will pay the costs?"
Counsel for Applicant
: Unfortunately not
Court:
Costs
are reserved’
[2]
[13]
It is trite law that the relief sought has to be found in the
evidence supported by facts set out in the Founding Affidavit.
It is
further trite that the Notice of Motion and Founding Affidavit form
part of both the pleadings and evidence respectively.
The judicial
officer in civil proceedings must resolve the dispute on the issues
raised by the parties and confine the enquiry
to the facts placed
before court and must not have regard to extraneous issues.
[3]
[14]
Considering the contentions espoused by the applicant in his letter
to the respondents, an extract I set out in paragraph [6]
above, were
clearly not correct. The reserved costs of the 29 February 2012 were
clearly not made at the respondent's "request
and . . .
insistence." The court on the 29 February 2012 enquired if the
respondents agreed to costs being awarded against
them. The response
was clearly in the negative. There are no other facts set out in the
applicant's founding affidavit before this
court why the said
reserved costs should be granted in favour of the applicant.
6
August 2013 and Rule 35(7) Application
[15]
The applicant did not spell out facts on what transpired on the day
in question. All that is said is:
"On 06 August 2013,
the above Honourable Court granted an order in terms of which the
costs of the main application (that is
the Application for Review)
was awarded in favour of the applicant".
[16]
On my perusal of the record of proceedings on the day in question,
counsel for the applicant placed on record that ' ...the
parties were
very close saying that there was an issue of costs that is separated
but nobody has reverted since.' In the ultimate,
the Court granted an
order with an award of "costs in the application."
[17]
In the absence of any evidence that the Court did not exercise its
discretion judicially when awarding such an award as to
costs, this
Court will not be in a position to find any misdirection. This Court
is not a Court of appeal either. This Court is
further not placed in
the position of the Court that awarded the costs on 6 August 2013.
[18]
In reiteration of the settled principle that the relief sought has to
be found in the evidence supported by the facts set out
in the
founding affidavit still find application with regard to costs of the
application not dealt with on the 6 August 2013. The
costs awarded on
were "costs in the application." An award of "costs in
the application" means that a party
that is entitled to costs at
the end of the trial will be entitled to the costs of that interim
proceeding unless otherwise ordered.
An award of "costs in the
application" can in my view, be equated with "costs in the
cause" which is an order
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
[4]
.
[19]
I cannot agree more with the respondents' counsel that the issue of
costs in respect of Rule 35 (7) application had been covered
in the
order made on the 6 August 2013. The matter is thus res
judicata.
The issue of costs in respect of the application in terms of Rule
35(7) is, in my view,
candid quaestio.
This Court cannot
revisit that order.
[20]
It is trite that costs follow. the event. The successful party is, as
a general rule, entitled to its costs. The respondents
succeeded in
opposing the application and are thus entitled to the costs of this
application.
[21]
I, in the result, make the following order:
ORDER
The
applicant's application is dismissed with costs.
___________________________
AML
PHATUDI
JUDGE
OF THE HIGH COURT
Heard
on: 02 November 2015
For
the Appellant: Viren Singh
Instructed
by: Messrs.' Viren Singh Attorneys: Durban
For
the Respondent: Adv. ZZ Matebese
Instructed
by: Messrs. State Attorney: Pretoria
Date
of Judgment: 11December 2015
[1]
Record, page 104
[2]
Record, page 105
[3]
Director of Hospital Services v Mistry l 979( l )SA626(A) page 635;
Kleynhans v Van Der Westhuizen NO 1970(1) SA 565(0)
[4]
Erasmus Superior Court Practice, second edition, volume 2,
Appendices, page D5-3