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[2016] ZAGPPHC 317
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University of South Africa v Mothata (68225/12) [2016] ZAGPPHC 317 (10 May 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
10/5/16
CASE NO: 68225/12
Reportable: No
Of interest to other judges: No
Revised.
UNIVERSITY OF SOUTH
AFRICA
Plaintiff
and
PROFFESSOR MATOANE STEWARD
MOTHATA
Defendant
JUDGMENT: COSTS IN TERMS OF RULE 34
AC BASSON, J
[1] This is an action instituted by
the plaintiff, the University of South Africa (hereinafter also
referred to as "UNISA")
against the defendant, Prof Motoane
Mothata. UNISA issued summons against the defendant claiming damages
in the amount of R 789
079.20 resulting from an alleged breach of
contract.
[2] On 15 April 2016 this court made
the following order:
1. The plaintiff's claim is dismissed.
2. The defendant breached the
agreement attached to the papers as "Annexure A".
3. The defendant is ordered to pay
damages to the plaintiff in the amount of R 236 00.00.
4. The defendant is ordered to pay the
costs.
[3] Immediately after judgment was
handed down counsel for the respondent handed up an offer to settle
made in terms of Rule 34
of the Rules. A date was arranged for the
parties to argue the matter before court. There was no appearance on
behalf of the plaintiff
at the hearing of argument.
[4] In terms of the without prejudice
offer of settlement, the defendant offered to settle the plaintiff's
claim by payment of an
amount of R 476 000.00 and to pay the
plaintiff's taxed or agreed party and party costs of suit to the date
of this offer. It is
clear that the amount offered to the plaintiff
to settle the amount is significantly less than what was ultimately
ordered in favour
of the plaintiff.
[5] It is trite that once a court has
handed down a judgment on the question of costs and it is thereafter
brought to the court's
attention that a prior offer to settle without
prejudice was made to the plaintiff, this court is obliged to
consider afresh the
issue of costs. However, although this Rule
obliges the court to reconsider the issue of costs, the court retains
its discretion
whether or not to award the costs to the defendant
incurred after the date of the offer was made to the plaintiff. The
principles
are succinctly summarised in
Naylor and Another v
Jansen
2007 (1) SA 16
(SCA):
"There is no rule that entitles a
plaintiff to the costs in respect of the issue of liability where a
discretion of the Judge.
Where a plaintiff in an action sounding in
money has not succeeded in obtaining an award that exceeds an offer
made without prejudice,
there are two important considerations to be
borne in mind by the Judge exercising the discretion: (1) the purpose
behind the Rule
(which is to enable a defendant to avoid further
litigation and, failing that, to avoid liability for the costs of
such litigation);
and (2) that the Rule in no way fetters the
judicial exercise of the discretion. Ordinarily the purpose behind
Rule 34 would cause
the Judge to order the defendant to pay the
plaintiff's costs incurred up to the date of the offer, and the
plaintiff to pay the
defendant's costs thereafter. That does not
mean, however, that there is a 'rule' to this effect, from which
departure is justified
only in the case of 'special circumstances'.
All it means is that the exercise of the Court's discretion as to
costs in this way
would usually be proper and unimpeachable, and
failure to do so would, if unjustifiable, amount to a misdirection.
But it needs
to be emphasised, as the proviso to Rule 34(12) makes
clear, that the Rule does not dictate this result, even
provisionally. Where
the law has given a Judge an unfettered
discretion it is not for the appeal Court to lay down rules that,
while purporting to guide
the Judge, will only fetter that
discretion. If, therefore, there are factors which the trial Court in
the exercise of its discretion
can and legitimately does decide to
take into account so as to reach a different result, a Court on
appeal is not entitled to interfere
- even although it may or even
probably would have given a different order. The reason is that the
discretion exercised by the
Court giving the order is not a 'broad'
discretion (or a 'discretion in the wide sense' or a 'discretion
loosely so called') which
obliges the Court of first instance to have
regard to a number of features in coming to its conclusion and where
a Court of appeal
is at liberty to decide the matter according to its
own view of the merits and to substitute its decision for the
decision of the
Court below simply because it considers its
conclusion more appropriate. The discretion is a discretion in the
strict or narrow
sense (also called a 'strong' or a 'true'
discretion). In such a case, the power to interfere on appeal is
limited to cases in
which it is found that the Court vested with the
discretion did not exercise the discretion judicially, which can be
done by showing
that the Court of first instance exercised the power
conferred on it capriciously or upon a wrong principle, or did not
bring its
unbiased judgment to bear on the question or did not act
for substantial reasons".
[6] I have considered the matter and I
am of the view that, taking into consideration the fact that the
defendant has made a substantial
offer to the plaintiff in an attempt
to settle the matter and that such offer was substantially more than
what was eventually awarded
to the plaintiff, the plaintiff should be
ordered to pay the defendant's costs as from the date of the without
prejudice offer
which was 10 April 2013.
[7] In the event the following costs
order is made:
The plaintiff is ordered to pay the
defendant's costs from 3 April 2013 being the date on which the
defendant's offer to settle
without prejudice was filed with the
Registrar of this court which costs include the further costs of the
trail.
_________________
AC BASSON
JUDGE OF THE HIGH COURT