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[2016] ZAGPPHC 658
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R v City of Matlosana (A341/2015) [2016] ZAGPPHC 658 (28 July 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Case
number: A341/2015
Date:28/7/16
In
the matter between:
R.
P.: S.
C.
APPELLANT
And
CITY
OF
MATLOSANA
RESPONDENT
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1]
The appellant instituted an action for damages against the respondent
after she was raped and assaulted at her place of employment
with the
respondent.
[2]
She in due course withdrew her claim but did not tender costs. The
respondent then launched an application in terms of Rule
41(1)(c) of
the Uniform Rules of Court to compel the appellant to pay the
respondent's costs. This application was opposed but
on 5 September
2014 the respondent's application was granted and appellant was
ordered to pay the respondent's costs.
[3]
The appellant's application for leave to appeal was dismissed but on
29 April 2015 the Supreme Court of Appeal granted leave
to appeal to
the full Court of this division.
[4]
The appellant contends that the facts of this matter give rise to
exceptional circumstances that warrant that the appellant
should not
be liable for the costs of the action which was withdrawn.
BACKGROUND
[5]
The appellant was employed as an assistant librarian
prior to 2002 which library was operated
by the
respondent.
[6]
It seems to be common cause that since the beginning of January 2002
the Appellant reported incidents of crime at the Manzil
library. She
reported that she was threatened with violence, mugged, assaulted,
robbed and her tires were slashed. She also reported
numerous
burglaries at the premises of the Respondent. On 9 September 2002 the
Appellant suffered an attempted rape at the library.
Various requests
over the subsequent years for additional protection or security
measures fell on deaf ears. The fact is that no
additional security
measures were ever implemented by the Respondent. On 14 July 2008 at
approximately 09:00 the Appellant
was brutally raped and
assaulted in the library.
[7]
After the rape Appellant instituted action against the Respondent.
She alleged that the rape and assault were caused exclusively
by the
gross negligence of the Respondent, who ignored notices of the safety
risks at the premises and who did not address the
issue. She alleged
that the Respondent failed to take the necessary safety measures to
ensure the safety of its personnel at the
Manzil Park Library.
[8]
Prior to the institution of the action the Appellant gave proper
notice to the Respondent in terms of Section 2 of the
Institution of
Legal Proceedings against Certain Organs of State Act, No. 40 of
2002.
[9]
In its plea delivered on 9 February 2009 the Respondent denied the
rape and that it failed to take the necessary safety measures.
[10]
In addition to the Respondent's aforesaid denial,
it pleaded as follows:
"5.
2
Without derogating
from
the
generality
of
the
aforesaid
denial
and
in
the event
of
this
Honourable Court finding
that
the
Plaintiff
was assaulted
and raped at
her
place of work, whilst
she was
in the employ of
the
Defendant,
acting within
the
course and
scope
of
her
employment,
which
is
still
denied,
Defendant
specifically
denies
that
the
Defendant was
negligent as
alleged
or
in
any
other way whatsoever
or
that
the
Defendant, in
the circumstances
could
have
foreseen
and/or reasonably
take steps to
prevent
the assault
and rape
of
an
employee at
the
library at
09:00
in
the morning.
5.3
In the alternative and in the event of this Honourable Court finding
that the Plaintiff was assaulted and raped at her place
of work,
whilst she was in the employment of the Defendant, acting within the
course and scope of her employment and that the Defendant
was
negligent as averred, which is denied as set out in this
plea, then and in that instance the Defendant pleads that
the
Plaintiff was also negligent in failing to take reasonable steps in
the prevailing circumstances to safeguard her person
against
any form of attack."
[11]
The Respondent persisted with the aforementioned denial almost up to
trial. It also seems to be common cause that the Appellant
discovered
various letters to the Municipal Manager preceding the attack, as
well as the contents of the police docket. Particulars
of the medical
examination and the photographs of the library were discovered as
well as particulars of the criminal trial and
various expert notices
and summaries delineating the Appellant's trauma and damages
suffered. All these irrevocably pointed to
the incident having
in fact taken place.
[12]
The matter was initially enrolled on the trial roll of 17 May 2010.
At a preceding pre-trial conference the Respondent indicated
that it
intended amending its plea. Subsequently, the Respondent delivered an
amended plea 7 days before the aforesaid trial date
wherein, for the
first time, both the rape and assault and the Appellant's employment
with the Respondent were admitted.
[13]
In addition to the aforesaid admissions however, the Respondent at
this stage inserted a special plea to the effect that, due
to the
Appellant's employment, the assault and rape was an
"occupational
injury
. .." and thus a personal injury sustained as
a result of an
"accident'
as defined in terms of
the provisions of Section 1 of the Compensation Act, 130 of
1993 (the Compensation Act).
Accordingly, the
Respondent still denied liability.
[14]
The special plea reads as follows:
"
On
or about
16
July 2008 and in terms
of the relevant provisions
of the Compensation
Act,
a
written claim was instituted
for
and on
behalf of the
Plaintiff
to
recover the benefits
to
which
the
Plaintiff
is
entitled
under
the Compensation Act
as
a
result of
the occupational injury
Plaintiff
sustained
as
referred
to in paragraph
1
A. 1 above
in the
prescribed
form
against the
Director-General which claim
is,
to
the best
of
the
Defendant's
knowledge,
not finalised as yet."
[15]
Subsequent to the special plea being filed the Appellant withdrew her
claim against Respondent on the advice of her attorney
The
Respondent, not satisfied with the simple withdrawal of the action by
the Appellant without a tender by her for its costs,
launched the
application in terms of rule 41(1)(c) for costs. The matter was set
down for hearing on 13 November 2013. On that
day however, the action
did not feature on the trial roll but the Appellant alleged that
unbeknown to the Appellant it had been
set down by the Respondent on
the unopposed motion court roll where the Respondent attempted to
obtain the costs order sought.
When this was discovered by the
Appellant's legal representatives, argument was presented regarding
improper service of the set-down
and the matter was postponed sine
die with costs thereof being reserved resulting in the
matter featuring on
the opposed motion court roll before
Prinsloo J.
APPLICABLE
LEGAL PRINCIPLES
[16]
The
general
rule
is that
an
unsuccessful
litigant
should
pay
the costs
of
his/her
opponent
and
generally,
when
a
party
institutes action
but
withdraws
it,
he/she should
pay
the
costs
of the Defendant
unless
good
grounds
exist
[1]
. It
is however
merely
a
general
rule
and
our
Courts
have
developed
a
flexible
approach
which
allows
for
deviation
from
this
rule
under appropriate circumstances.
[17]
The principles to
legal
costs were
summarised
as
follows
i
n
Goldfields
Ltd
and
Others
v
Motley
Rice
LLC
[2]
:
"
The
starting point
for an
analysis
of the South African
legal position
for legal
costs
is
the general
rule
that:
(a)
In
ordinary cases
costs
should
follow
the
event
-
the successful
party
is
ordinarily
entitled
to
costs against
the
unsuccessful
party;
(b)
Costs
are
awarded
in
the discretion
of
the court
which
may
in appropriate
cases not award
costs
to a successful
part
y
or
even
award costs against
such part
y
. ..
The existence
of a discretion
of
the court
in
all
cases
(constitutional
and
otherwise)
ensures
that
the court is
always
in
a position
to balance
the interest
of the parties
and to
protect
its own process,
if necessary
through
costs orders.
In this
context
there is no party
which is
a
priori
immune
from
the
court's power
to protect
its
own
process through
costs orders."
(my
emphasis)
[18]
The
Constitutional
Court
has
summarised
the
position
pertaining
to
costs
as
follows
in
Ferreira
v
Levin
NO and Others:
[3]
The
Supreme
Court
has,
over
the
years,
developed
a
flexible
approach
to
costs
which
proceeds
from
two
basic
principles,
the
first
being
that
the
award
of
costs,
unless expressly
otherwise
enacted
is
in
the
discretion
of
the
presiding judicial officer
and
the
second
that
the
successful party
should,
as
a
general
rule,
have
his or her costs. Even
this
second
principle
is
subject
to
the
first.
The
second principle
is
subject
to
a
large
number
of
exceptions
where
the
successful
party
is
deprived
of
his
or
her
costs.
Without
attempting
either
comprehensiveness
or
complete
analytic
accuracy,
depriving
successful
parties
of
their
costs
can
depend
on
circumstances
such
as,
for
example,
the
conduct
of
the
parties,
the
conduct
of
their
legal
representatives,
whether
a
party
achieves technical success
only,
the
nature
of
the
litigants
and
the
nature
of
the proceedings."
[19]
It is with the aforesaid principles in mind that I proceed to
consider the appeal before us.
[20]
The Court
a
quo
in its judgment carefully
considered the general rule pertaining to costs and the circumstances
of the case and concluded that there
should not be a deviation from
the general rule. It is trite that costs are awarded in the
discretion of the Court and to interfere
with that discretion
requires that we will have to find that the discretion was not
properly exercised or that the Court misdirected
itself.
[21]
Although the Court considered the
circumstances
of
the
case I
am of
the
view
that
the
Court
did
not
give
sufficient
consideration to
the
background
of
the matter.
The
Appellant
is
a
rape
victim
who was raped
at
her
workplace
after
her
employer
was
warned
about
safety
concerns,
but
chose
to
do
nothing
about
it.
The
Respondent
is
furthermore a
public
entity
who
is
constitutionally
obliged
to
provide
a
safe
and
healthy
environment
and
who
failed
abysmally
to
do
just
that
in
relation
to
its
employees
and
in
particular
the
Respondent
[4]
.
This
failure
resulted in
the
rape
of
the
Appellant
and
the
institution
of
the
action
against
the
Respondent.
[22]
The further important aspect is the content of the respondent's plea.
The rape was initially denied and the respondent even
raised an
alternative invoking the provisions of the Apportionment of Damages
Act. This plea implicated that the Appellant was
partially to blame
for the rape on her. I find this plea offensive, even bizarre and
deeply insensitive to the Appellant who must
have suffered
unimaginable trauma as a result of the rape.
[23]
The
Court
a
quo
stated
in
its
judgment
that
Defendants
are
free
to
raise
any
defence
that
is
good
in
law
and
that
the
wording
of
the
aforesaid plea
is
standard
in
similar
pleadings
[5]
. I
agree
with
this
view
as
a
general
assumption.
However
the
mere
fact
that
a
defence is
a
generally
acceptable
defence
does
not
mean
that
a
Court should not
take
into
account
that the defence
is
palpably
without
merit
and offensive and insensitive
to
the
suffering of a party when
considering
an
appropriate
cost
order.
[24]
The Appellant went further and amended its pleadings and instituted a
special plea in terms of sec 35 of the Compensation
Act, and
alleged that the incident falls within the ambit of that Act.
[25]
A
similar
set
of facts arose
in
DN
v
MEC
for
Health,
Free
State
[6]
,
a
medical
practitioner claimed damages from her
employer
for the injuries
she
sustained
during
an
assault
and
rape
while
on
duty
at a
State
hospital.
The
employer
filed
a
special
plea
alleging
that
the
employee
was precluded by sec 35 of the Compensation Act from instituting any
action against the employer. This special plea accords
with that of
the Appellant in the present matter.
[26]
The Court
held
that
the
incident
was
not
an
"accident"
as contemplated
in
sec
35 of
the
Compensation
Act
and the provisions
of
the
said
section
were
accordingly
not
applicable.
The
plaintiff
in
that
matter
was
not
precluded from
claiming
damages
from the employer and
the
special plea
was
dismissed
[7]
.
[27]
The Appellant's attorney was seemingly not aware of the
aforementioned case and advised her, on strength of the special plea
to withdraw her action. The Court a
quo'
s
view was that the Appellant was legally represented and as such
she must live with the advice of her representative or sue him. In
my
view this approach loses sight of the fact that it was Respondent who
raised this defence which was bad in law and, but for
the special
plea, the action, which by now has prescribed, would not have been
withdrawn.
[28]
In my view one should also consider the litigants before Court. On
the one hand we have a vulnerable member of society who
was raped at
her place of employment after her employer was warned of the safety
risks and on the other hand we have a public entity
that has a duty
to provide a safe working environment.
[29]
The learned judge should also have considered the huge financial
disparity between Appellant and the Respondent. Respondent
has the
public purse available to finance litigation. The Appellant is a
librarian whose financial resources must be limited.
[30]
An order against the Appellant to pay the costs in view of all the
circumstances constitutes a further violation of a vulnerable
member
of society who has already suffered the most unspeakable violation of
her bodily integrity and who must also have suffered
severe emotional
trauma.
[31]
The learned judge in the Court
a quo
for the reasons set out
above misdirected himself and this Court should intervene. I
therefore find that exceptional circumstances
do exist which would
allow for a deviation from the normal cost order. Consequently the
appeal should be upheld.
[32]
I make the following order:
32.1
The appeal is upheld;
32.2
The order of the Court
a quo
is set aside;
32.3
The respondent is ordered to pay the appellant's costs of the action
up to and including the postponement of the trial on 17 May 2010;
32.4
It is ordered that each party shall after the aforesaid date be
liable for its own costs of the action;
32.5
The respondent is to pay the appellant's costs of the application in
terms of Rule 41(1)(c); and
32.6
The respondent is ordered to pay the costs of the appeal and the
preceding applications for leave to appeal in the Court a
quo
and in the Supreme Court of Appeal
__________________________
R
G TOLMAY
JUDGE
OF
THE
HIGH
COURT
I
AGREE:
__________________________
N
KOLLAPEN
JUDGE
OF
THE
HIGH
COURT
I
AGREE:
__________________________
D
MAKHOBA
JUDGE
OF
THE
HIGH
COURT
DATE
OF HEARING:
8 JUNE 2016
DATE
OF JUDGMENT:
28 JULY 2016
ATTORNEY
FOR APPELLANT:
THERON JORDAN
& SMITH INC
ADVOCATE
FOR APPELLANT:
DAVIS (SC)
ATTORNEY
FOR RESPONDENT:
OOSTHUIZEN DU PLOOY
ADVOCATE
FOR RESPONDENT: C RIP
[1]
Germishuys
v
Douglas
Besproeiingsraad
1973(3)
SA
299
(NK)
[2]
2015(4)
SA
299
(GJ)
at
paragraphs
[29]
and
[32]
[3]
3 1996(2) SA 621 (CC) at [3]:
[4]
See sec 152(1)d of the Constitution
[5]
Judgment,
p 4,
par
10
[6]
2014(4)
SA
49
(FB)
[7]
At
par
[18] and [22]