About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 904
|
|
Sibara v Minister of Safety and Security (31416/2012) [2016] ZAGPPHC 904 (13 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
31416/2012
13/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
AMON
SIBARA
PLAINTIFF
and
THE
MINISTER OF SAFETY AND
SECURITY
DEFENDANT
JUDGMENT
MALI
J
[1]
The plaintiff herein seeks costs for the employment of Senior
Counsel. The issue for costs arises out of a postponement of the
matter as agreed between the parties legal representatives, based on
the request of the defendant.
[2]
The plaintiff sued the defendant for an amount of R500 000 for
damages arising out of his unlawful arrest by the members of
the
South African Police Service ("SAPS"). The defendant is the
Minister of Safety and Security a ministry responsible
for SAPS.
[3]
It is common cause that on 13 November 2013 the plaintiff conceded
the merits, the order was granted by agreement and the quantum
was
postponed for hearing.
[4]
The plaintiff proceeds to prepare for trial and the matter was set
down for 29 April 2016. The plaintiff went to the extent
of filing 7
(seven) various medico legal reports and an actuarial report, as well
as serving a Rule 35 (3) Notice to discover specific
documents. The
defendant's attorneys wrote a letter requesting indulgence to respond
to the Rule 35 (3) Notice.
[5]
On 15 January 2016 the plaintiff amended its particulars of claim. As
a result of the amendment the amount claimed for damages
increased to
R13, 620, 000.00 (Thirteen Million, six hundred and twenty thousand
rand only). The defendant never reacted to the
said amendment.
Instead, on 17 February 2016 the defendant's attorneys wrote a letter
requesting an indulgence to respond to Rule
35 (3) Notice. The
defendant failed to attend thereto despite the indulgence being
granted.
[6]
On 29 March 2016 the plaintiff's attorneys wrote to the defendant's
attorneys and informed them that they were not in possession
of the
defendant's amended pleas and that they were neither in possession of
a reply to the plaintiff's Notice in terms of Rule
35 (3) Notice. The
plaintiff's attorneys enclosed a copy of the said notice in the
correspondence.
[7]
On 11 April 2016 the defendant's attorneys requested a copy of the
notice of set down which the plaintiff provided. On 12 April
2016 the
plaintiff's attorneys dispatched correspondence to the defendant's
attorneys appraising them of their failure to file
their medico legal
reports as well as their omission to file the defendant's plea to the
plaintiff's amended particulars of claim.
They further requested the
defendant's offer of settlement under the new circumstances and
indicated that the plaintiff's experts
have been reserved for trial.
[8]
Only on 21 April 2016, eight days before the trial the defendant's
attorneys indicated that the merits should not have been
conceded.
They were conceded without the defendant's approval, in that regard
they indicated that they had instruction to proceed
with an
application to rescind the order of 13 November 2013. On 26 April
2016 the defendant filed an application for rescission,
and the
plaintiff agreed to a postponement of the trial in order to deal with
the application for rescission. The dispute now is
about the costs,
in particular that of Senior Counsel.
COSTS
[9]
In The Civil Practice of the High Courts of South Africa by Herbstein
& van Winsen, Volume 2 page 954 to 956 the learned
authors
states:
"Ill
FUNDAMENTAL RULES RELATING TO AWARDS OF
COSTS
The
award of costs is
a
matter wholly within the discretion of the
court, but this is
a
judicial discretion and must be exercised
on the grounds upon which
a
reasonable person could have come
to the conclusion arrived at. In leaving the magistrate (or judge)
a
discretion,
...
the law contemplates that he should take into consideration the
circumstances of each
case,
carefully weighing the various
issues in the
case,
the conduct of the parties and any
other circumstances which may have
a
bearing upon the question
of
costs
and then make such an order
as
to
costs as
would be fair and just between the parties. And if he does this,
and brings his unbiased judgment to bear upon the matter and does
not
act
capriciously or upon any wrong principle, I know of no
right on the part of
a
court of appeal to interfere with the
honest exercise of his discretion.
Even
the general rule, viz that costs follow the event, is subject to the
overriding principle that the court has a judicial discretion
in
awarding costs.
An
appellate tribunal, in its reluctance to interfere with the
discretion of a trial judge, refused to set aside the order as to
costs given by him merely on the ground that the appellate tribunal
might have taken a different view of the sufficiency of the
grounds
upon which the discretion was exercised. The court's discretion
should be exercised within the limits of certain general
rules that
the courts have, over the course of many years, laid down for
guidance. The most important of these rules is that the
successful
party in entitled to costs unless the court for good reason, in the
exercise of its discretion, deprives him of those
costs.
In
Ferreira v Levin, Vryenhoek v Powell Ackermann J delivered an
important judgment concerning costs, which was concurred in by
all
the other members of the court. In the course of his judgment
Ackermann J Stated:
[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 f costs, unless
expressly otherwise enacted, is in the discretion of the presiding
judicial officer,
and the second that the successful party, as a
general rule, have his or her costs. Even the 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 ... the principles which have been developed
in
relation to the award of costs are by their nature sufficiently
flexible and adapted to meet new needs which may arise sufficiently
flexible and adaptable to meet new needs which may arise in regard to
constitutional litigation. They offer
a
useful point of
departure. If the need arises the rules may have to be substantially
adapted: this should however be done on
a
case by case basis.
It is unnecessary, if not impossible, at this stage to attempt to
formulate comprehensive rules regarding costs
in constitutional
litigation.
A
statute may in isolated cases, expressly authorise
a
court to
depart from the general rule that costs follow the event. For
instance, the National Environmental Act, 1998, expressly
authorises
courts not to award costs against unsuccessful litigants in certain
proceedings aimed at the protection of the environment
and some
related matters. It has been held that, in order to avoid persons
aggrieved by pollution being discouraged from brining
proceedings
under section 28(12) or section 32(1) of the above-mentioned Act,
'the Legislature sought to ameliorate the general
principle that an
unsuccessful party should guide the court are as follows:
(1)
As
a
general rule, the successful party is entitled to costs.
(2)
In
determining who is the successful party, the court should look to the
substance of the judgment and not merely its form.
(3)
The court
can, for good reason, deprive
a
successful party of costs, in
whole or in part.
(4)
The court
can, for good reason, order
a
successful party to pay the
whole or portion of the costs of the other party.
The
court can, in special cases, make an order that the unsuccessful
party must pay the costs of the successful party on an attomey-and
client basis.
"
[10]
Argument tendered on behalf of the plaintiff is that the amount
claimed (of R13 260 000.00) is enormous. It was further stated
that
the nature of medico-legal experts including
inter alia
neurologist, neurosurgeons, etc and because of the serious
injuries sustained by the plaintiff the involvement of Senior Counsel
is justified.
[11]
It was argued on behalf of the defendant that the matter set down was
for the claim of R500 000.00, effectively disregarding
the amended
particulars of claim. According to the Counsel for the defendant the
defendant brought the application for rescission
in respect of the
judgment obtained for the claim of R500 000.00, therefore the
involvement of one Counsel was justified. I cannot
accept this
contention, it is common cause that the judgment was granted in
respect of merits only.
[12]
The defendant was served with a notice to amend the particulars of
claim and was sent various follow up correspondence pertaining
to
same. As indicated above there has never been any reaction on the
part of the defendant. The plaintiff's amendment is valid,
the amount
being claimed is R13 620 000.00. The contention on behalf of the
defendant that both Counsel for the plaintiff proceeded
to prepare
for trial on 22 April 2016 fully knowing that the defendant would be
bringing an application for rescission cannot be
accepted. I do not
see how the plaintiff's legal team would have started preparing a
mere 7 days before the trial. It is clear
from the exchange of
correspondence between the parties that the plaintiff's attorneys
were preparing for a trial based on amended
particulars of claim. It
is reasonably acknowledged that in cases of this magnitude the
preparations commence as early as possible
and the Counsel get
reserved on time as submitted on behalf of the plaintiff.
[13]
In exercising my discretion
inter alia
I have considered the
defendant's conduct. The defendant unjustifiable took time to
institute the application for rescission, therefore
causing the
plaintiff's legal team to believe that the matter would go on trial.
Having regard to the above I am persuaded that
the plaintiff's case
justifies the cost of two Counsel, both junior and senior.
[14]
In the result the following costs order is made;
14.1 The defendants are ordered to pay
the wasted costs of the plaintiff including costs of Senior Counsel.
_________________________
N.P.
MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff: J G Cilliers SC & N Swart
Instructed
by: ERWEE ATTORNEYS
Counsel
for the Defendant: B F Gededger
Instructed
by: SATE ATTORNEY PRETORIA
Date
of hearing: 29 April 2016
Date
of Judgment: 2016 -10- 13