Naylor and Another v Jansen (508/05) [2006] ZASCA 94; [2006] SCA 92 (RSA); 2007 (1) SA 16 (SCA) (31 August 2006)

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[2006] ZASCA 94
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Naylor and Another v Jansen (508/05) [2006] ZASCA 94; [2006] SCA 92 (RSA); 2007 (1) SA 16 (SCA) (31 August 2006)

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THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number : 508/05
Reportable
In
the matter between :
MICHAEL
NAYLOR FIRST APPELLANT
ATOMAER
(RSA) (PTY) LTD SECOND APPELLANT
and
P J JANSEN RESPONDENT
CORAM : CLOETE JA, THERON
et
CACHALIA AJJA
HEARD : 15 AUGUST 2006
DELIVERED : 31 AUGUST 2006
Summary: Defamation ─ offer of settlement, rule
34(12) ─ discretion as to costs ─ when an
appeal court will interfere. The damages awarded by
the trial court were reduced on appeal to
an amount less than that tendered by the defendants.
The trial court nevertheless refused to
amend the costs order in favour of the plaintiff.
This court refused to interfere and further
refused to give a costs order in favour of the
defendants in respect of the previous appeal.
Neutral citation: This judgment may be referred to
as Naylor v Jansen [2006]
SCA 92 (RSA).
_________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA:
[1] The plaintiff in the court
a quo
, Mr Jansen,
was a manager employed by Atomaer (RSA) (Pty) Limited, the second
defendant in the court
a quo
; and he was the local person in
charge of the South African operations of the group of which Atomaer
formed a part. The first defendant
in the court
a quo
was Mr
Naylor, the CEO of Atomaer’s holding company and all subsidiary
companies in the group. It would be convenient to refer
to the
parties by name, and to Naylor and Atomaer jointly as ‘the
defendants’.
[2] In September 2002 Naylor came to South Africa and
discovered that Jansen had breached his service contract in various
respects.
Naylor confronted Jansen, who was less than frank about
what he had done. Jansen was suspended. Also in September, Naylor
attended
a meeting with a number of employees of Iscor which was
presided over by Iscor’s engineering manager at Vanderbijlpark, Mr
Bezuidenhout.
Jansen had, from late 2000, been involved in
negotiations with Iscor in connection with the joint development of
technology by Atomaer
and Iscor, and he enjoyed a good relationship
with its management. His absence from the meeting obviously required
an explanation,
which Naylor gave in the following terms (as recorded
in Iscor’s minutes of the meeting):
‘
Mr Naylor informed the meeting that Mr Jansen of the
South African local office had been suspended from his position
because he had
misappropriated Atomaer funds to a company of which he
holds a directorship.’
This announcement had a profound effect on those present
at the meeting, and Bezuidenhout subsequently telephoned Jansen to
ask him
‘hoekom het jy gesteel’ and to inform him that he was
persona non grata
at Iscor.
[3] In October 2002 Jansen took an ex parte order
against Naylor to confirm the jurisdiction of the Johannesburg High
Court. As envisaged
in the order, Naylor put up security. The High
Court subsequently ordered Jansen to pay the costs of those
proceedings.
[4] Early the following month, Jansen issued summons
against Naylor and Atomaer in which he claimed damages in an amount
of R250 000
for defamation. In his particulars of claim, Jansen
alleged inter alia:
‘
As a result of the publication of the aforesaid
defamatory statement the plaintiff has been damaged in his
reputation, generally and
within the industry within which he
operates, and has suffered damages in the sum of R250 000.’
The action was defended. In their plea, the defendants
repeatedly denied that Naylor had uttered the words appearing in
Iscor’s
minute of the meeting. As one of several alternative
defences, the defendants pleaded that if the words had been uttered,
they were
true and that their publication was in the public interest.
[5] Shortly before the trial commenced before Willis J
in the Johannesburg High Court, the defendants made a without
prejudice officer
in terms of uniform rules of court 34(1) and (5)
1
to settle the plaintiff’s claim for R15 500 and to pay the
plaintiff’s costs in the event of the tender being accepted.
The
offer stated, as envisaged by rule 34(5)(a), that it was made
‘without prejudice as an offer of settlement’; and it went
on to
say that it was also made ‘without any admission of liability on
the part of the defendants’.
[6] The trial proceeded for five days in the
Johannesburg High Court. The trial judge found in favour of the
plaintiff and ordered
the defendants to pay damages in an amount of
R30 000 together with costs, or to apologise in specified terms
to
Jansen and to pay attorney and client costs. (The
defendants never exercised the apology option, and the propriety of
the alternative
order need not be considered further.)
2
The defendants appealed with the leave of the trial judge, who also
gave leave to Jansen to appeal against the costs order made against
him in respect of the application to arrest Naylor to confirm the
jurisdiction of the court.
[7] Jansen successfully prosecuted the costs appeal in
which he was the appellant,
3
but abided the decision of this court and did not appear in the
defamation appeal in which he was the respondent. Several of the
defences raised at the trial by Naylor and Atomaer were abandoned on
appeal. In particular, it was no longer in issue that the words
reflected in the Iscor minute of the meeting had been uttered by
Naylor; and the defence of justification was not persisted in. The
defences which were persisted in, were rejected by this court
although the amount of damages ordered by the court
a quo
was
reduced from R30 000 to R15 000.
4
The reasoning adopted by this court in making the reduction may be
summarised as follows: Although Jansen had not been guilty of
stealing money from Atomaer and diverting it to a company in which he
had an interest (the sense in which this court held the Iscor
employees would have understood the words uttered by Naylor), Jansen
had breached the duty of good faith he owed to Atomaer; that
conduct,
like theft, involved dishonesty; there was a direct link between the
making of the defamatory statement and Jansen’s conduct;
and the
trial court should have taken this conduct into account in assessing
the damages awarded. On the question of costs, Scott
JA said the
following:
5
‘
To sum up, none of the defences raised by the
defendants can be sustained and, to this extent, the appeal must
fail. The limited success
achieved on appeal, namely, by the
reduction of the amount of R30 000 to R15 000, does not, in
my view, justify an order
of costs in favour of the defendants.
Jansen, it will be recalled, abided the judgment of this Court.’
No order was made in regard to the costs of the appeal.
[8] The costs orders made by Willis J and this court
were made in ignorance of the defendants’ without prejudice tender
which preceded
the trial.
6
Rule 34(12) provides:
‘
If the court has given judgment on the question of
costs in ignorance of the offer or tender and it is brought to the
notice of the
registrar, in writing, within five days after the date
of judgment, the question of costs shall be considered afresh in the
light
of the offer or tender: Provided that nothing in this subrule
contained shall affect the court’s discretion as to an award of
costs.’
The defendants duly gave notice of the order to the
registrars of the Johannesburg High Court and this court, and
requested both reconsideration
of the order for costs made by the
High Court and also an order for costs in their favour by this court
in respect of the previous
appeal.
[9] The matter was argued before Willis J who, for
reasons I shall deal with presently, did not alter the costs order he
had made
in favour of Jansen. Scott JA, who had presided over the
appeal in this court, initially directed that if the parties did not
reach
agreement on the question of costs, each party was to submit a
draft of the order it contended should be made together with
submissions
in support thereof; and that the draft and submissions
were to be served on the other party, who, if he wished, might file a
reply.
7
Once Willis J granted leave to the defendants to appeal against his
refusal to alter the costs order made at the end of the trial,
the
previous direction was substituted with a direction that the issue of
the costs of the earlier appeal would be considered at
the same time
as the appeal from the judgment of Willis J.
[10] It would be convenient at this stage to dispose of
the defendants’ argument that the appeal should be dismissed
because of
the provisions of s 21A of the Supreme Court Act, 59 of
1959. That section provides, to the extent relevant for present
purposes:
‘
(1) When at the hearing of any civil appeal to the
Appellate Division or any Provincial or Local Division of the Supreme
Court the
issues are of such a nature that the judgment or order
sought will have no practical effect or result, the appeal may be
dismissed
on this ground alone.
…
(3) Save under exceptional circumstances, the question
whether the judgment or order would have no practical effect or
result, is
to be determined without reference to consideration of
costs.’
I had occasion in
Logistic Technologies (Pty) Ltd v
Coetzee
8
to express the view that a failure to exercise a judicial discretion
would (at least usually) constitute an exceptional circumstance.
I
still adhere to that view ─ for if the position were otherwise, a
litigant adversely affected by a costs order would not be able
to
escape the consequences of even the most egregious misdirection which
resulted in the order, simply because an appeal would be
concerned
only with costs; and that obviously cannot be the effect of the
section. Indeed, I understood senior counsel representing
Jansen on
appeal, who was not responsible for the heads of argument in which
the point was taken, effectively to concede the point.
[11] In view of the attack launched by the defendants on
the judgment of the trial court, it is necessary to set out the law
in regard
to the nature and proper exercise of the discretion vested
in a trial judge when it comes to the making of an appropriate order
as
to costs and the circumstances under which an appeal court can
interfere with the exercise of that discretion.
[12] Where a plaintiff in an action sounding in money
has not succeeded in obtaining an award which exceeds an offer made
without
prejudice, there are two important considerations to be borne
in mind by the judge exercising the discretion. The first is the
purpose
behind the rule. The second is that the rule in no way
fetters the judicial exercise of the discretion.
[13] The purpose behind the rule is clear. It is
designed to enable a defendant to avoid further litigation and
failing that, to avoid
liability for the costs of such litigation.
9
The rule is there not only to benefit a particular
defendant, but for the public good generally as Denning LJ made clear
in
Findlay v Railway Executive
:
10
‘
The hardship on the plaintiff in the instant case has
to be weighed against the disadvantages which would ensue if
plaintiffs generally
who have been offered reasonable compensation
were allowed to go to trial and run up costs with impunity. The
public good is better
secured by allowing plaintiffs to go on to
trial at their own risk generally as to costs.’
It is therefore important that courts should take
account of the purpose behind the rule, and not give orders which
undermine it.
Clayden FJ put the position thus in
Doyle v Salgado
(2)
:
11
‘
In cases in which the continuance of the action
cannot be justified on some ground apart from the recovery of money,
as for example
to establish a disputed right, the Courts, in
exercising the discretion to award costs, must obviously be concerned
to ensure that
the rules do not fail in this purpose.’
[14] 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.
12
That does not mean, however, that there is a ‘rule’ to this
effect, from which departure is only justified in the case of
‘special
circumstances’, as suggested in
Van Rensburg v AA
Mutual Insurance Co Ltd
.
13
and
Mdlalose v Road Accident Fund
.
14
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 this court to lay down rules which, whilst
purporting to guide the judge, will only have the effect of fettering
the
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.
15
The reason is that the discretion exercised by the court giving the
order is not a ‘broad’ discretion
16
(or a ‘discretion in the wide sense’
17
or a ‘discretion loosely so called’
18
)
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.
19
The discretion is a discretion in the strict or narrow sense
20
(also called a ‘strong’ or a ‘true’ discretion).
21
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.
22
Put differently, an appeal court will only interfere with the
exercise of such a discretion where it is shown that
‘…
the lower court had not exercised its discretion
judicially, or that it had been influenced by wrong principles or a
misdirection
on the facts, or that it had reached a decision which in
the result could not reasonably have been made by a court properly
directing
itself to all the relevant facts and
principles.’
23
[15] In the present matter, the trial judge was acutely
aware of the fact that he was exercising a discretion. He was also
aware of
the parameters of that discretion. He referred to the
Omega
cases
24
and said:
‘
This series of judgments affirms that ordinarily
where a tender has been made which is above [the amount] determined
by a court, the
defendant should pay the plaintiff’s costs up to
the date of payment and the plaintiff should be ordered to pay the
costs incurred
thereafter.’
He immediately went on to point out:
‘
Nevertheless, it was said in [the first
Omega
case] that in appropriate circumstances a court may make a different
apportionment of the costs in the exercise of the discretion
that it
retains under the rule.’
The trial judge then emphasised that the action was a
defamation action, and said that ‘in defamation actions the quantum
is largely
irrelevant’ and ‘it is well settled law that in a
defamation action the quantum most often essentially takes the form
of a
solatium
’. He then went on to say that costs on the
High Court scale are ordinarily allowed in defamation actions despite
the fact that
a plaintiff’s level of success falls within the
jurisdiction of the magistrate’s court, and said that ‘this
principle seems
to me to underline how important it is for a person
who has been defamed to come to the High Court in order to clear his
or her name
and reputation and how relatively unimportant, in the
greater scheme of things, is the actual quantum that is ultimately
awarded’.
After these introductory remarks, the trial judge applied
his mind to the facts of the particular case before him. He first
pointed
out that Jansen in his particulars of claim had pertinently
made the allegation that he had ‘been damaged in his reputation
generally
and within the industry within which he operates’, and
went on to make the additional allegation that he had ‘suffered
damages
in the sum of R250 000’. The trial judge then
expressed the view that ‘it seems clear from the particulars of
claim, never
mind the ordinary principle that is applicable in
matters such as this, that the plaintiff came to the High Court inter
alia, but
perhaps most importantly for him, to vindicate his
reputation’. Second, the trial judge emphasised that the tender
upon which the
defendants relied contained no admission of liability,
no acknowledgement that a defamatory statement had been made and,
more particularly,
no acknowledgement that the statement had been
made wrongfully. Third, the trial judge underlined the fact that the
tender contained
no apology and expressed his conviction that the
question of whether or not an apology accompanies a tender is
relevant to the exercise
of the discretion in regard to costs. The
trial judge concluded his judgment as follows:
‘
It seems to me that although the plaintiff ultimately
succeeded in proving damages in an amount of R15 000 whereas the
defendants
had tendered R15 500, the plaintiff nevertheless
needed to persist with the action in order to vindicate his
reputation, more
especially his reputation “generally and within
the industry within which he operates”. Accordingly, I am satisfied
that in this
particular case a judicial exercise of a discretion
requires me not to vary the costs order which I made on 31 October
2003 in this
matter.’
[16] The defendants’ counsel sniped at some of the
introductory remarks made by the learned judge. Indeed, as counsel
representing
Jansen correctly conceded, they are open to some
criticism. But what is important is not so much whether these remarks
state the
law completely accurately in the unqualified form in which
they were made, but the purpose for which they were made. The golden
thread
running through the trial judge’s entire reasoning process,
which ultimately led to his decision to exercise his discretion as
he
did, was that Jansen was obliged to come to court to clear his name.
I am unable to fault this approach. I propose dealing with
the
criticisms advanced by the defendants’ counsel to demonstrate why I
am of this view.
[17] It was submitted that the trial judge was wrong in
stating that quantum in defamation matters is largely irrelevant, and
reference
was made to cases which say that the amount awarded in a
defamation case should carry with it a complete vindication of the
plaintiff’s
character. That argument is misplaced. In the present
matter, Naylor had effectively called Jansen a thief. By denying that
the defamatory
words had been spoken, a defence which was persisted
in at the trial, the defendants call into question Jansen’s
veracity as well.
And by pleading justification in the alternative,
the defendants repeated the defamation. The offer was expressly said
to be ‘without
any admission of liability’. If Jansen had
accepted the offer, Naylor could have persisted in the falsehood that
Jansen had never
been defamed, or continued to assert that the
defamatory statement he had made was true. The amount offered was not
so significant
that it carried with it an obvious admission that the
defences pleaded were without substance ─ ie those who came to hear
of the
offer would not conclude that the defendants must have defamed
Jansen, for otherwise they would not have offered to pay out
compensation:
R15 500 is not so substantial an amount and it
could quite easily be explained on the basis that defending the
action was simply
an unattractive commercial proposition. In these
circumstances, whilst it is correct to say that where a defamation
has been admitted
or proved, the amount awarded by the court serves
inter alia to vindicate a plaintiff’s reputation, it is wrong to
say that acceptance
of the same amount ─ offered secretly, without
admission of liability and coupled with a public denial of wrongdoing
─ achieves
the same result. It manifestly does not. The attitude of
the defendants that Jansen should have been satisfied with the money
is
reminiscent of the Roman character Lucius Veratius,
25
who walked the streets slapping the faces of his fellow citizens, and
then ordered a slave who was following him with a bag of money
to pay
each 25 asses (the amount prescribed by the Twelve Tables) in
compensation.
26
[18] The defendants’ counsel submitted (I quote from
the heads of argument) that Jansen ‘came to court for money. He
asked for
nothing else. He did not ask to have his reputation
vindicated. Had that been the focus of his concern, he could and
should have
included the necessary declaratory orders in his prayers
for relief’. The defendants’ counsel also submitted that there is
not
in existence a rule of practice entitling a plaintiff to the
costs of the issue of liability, and that an argument to the contrary
has been rejected.
[19] In support of the argument that Jansen should have
asked for a declaratory order that he had been defamed and for an
apology,
if that is what he indeed wanted, the defendants’ counsel
referred to the decision of
Mineworkers Investment Co (Pty) Ltd v
Modibane
27
and the unreported case referred to in para 16 of that judgment. But
those cases reflect a novel approach, the correctness of which
has
not yet been approved by a higher court.
28
It cannot be inferred from the fact that Jansen adopted the
traditional and well-established method of formulating his claim,
that
he was not interested in vindicating his reputation. Although
Jansen’s claim sounded in money, it is quite apparent from his
particulars
of claim that he came to court to address his reputation
generally and also his reputation within the industry where he
operates,
as well as to recover damages. An award of damages
necessarily involves a finding ─ a public finding, usually by the
High Court
─ that the plaintiff’s reputation was impaired. The
learned judge correctly emphasised the allegations in Jansen’s
particulars
of claim regarding the impairment of his reputation. I
have already referred to the cutting remark made by Bezuidenhout of
Iscor
and his barring of Jansen from Iscor’s premises on the
strength of the defamatory statement made by Naylor. Jansen did not
appear
in the appeal to resist the attack on the amount of damages
awarded by the trial court, much less seek to increase the award in a
cross-appeal. In the circumstances, the suggestion that all Jansen
was interested in was money, is unwarranted.
[20] It is correct that there is no rule of practice
entitling a plaintiff, in a matter such as the present, to the costs
of the issue
of liability. That used to be the English practice, but
the Federal Supreme Court held in
Doyle v Salgo
(2)
29
that it could no longer be the practice in England
30
and that it was not the practice in the Federation, which had a rule
similar in terms to the rule with which this appeal is concerned.
Doyle’s
case, however, far from being in favour of the
defendants, is against them. What happened in that matter is that the
plaintiff husband
did not succeed in obtaining an award of damages
which exceeded the amount paid into court by the second defendant who
had committed
adultery with the plaintiff’s wife. The court of
first instance nevertheless awarded the costs of the third day of the
hearing
to the plaintiff because the second defendant had made the
baseless allegation that the plaintiff had connived at the adultery.
The
full court held that this was a proper exercise of the discretion
in relation to costs. On a parity of reasoning, where (as here)
the
whole trial was necessary to enable Jansen to clear his name, there
could be no objection to a similar exercise of judicial discretion
in
respect of all the costs of the trial; and indeed, that was the view
of the Federal Court as appears from p 44A where Clayden
FJ said:
‘
Gray v Jones
,
1939 (1) AER 798
, was an action
for slander, again a case in which the grant of costs to the
plaintiff on the issue of liability would be justified.’
31
[21] There is accordingly no merit in the criticism of
the approach of the trial judge. The second main attack on the
judgment was
in regard to its overall effect. The first of two
arguments in this regard was succinctly thus stated in the heads of
argument:
‘
[The trial judge] declined to apply the normal rule.
Instead, he formulated a new rule and a new set of principles’ and
‘His findings
constitute radical departures from existing law.’
This argument is misplaced. It ignores the nature of the
discretion vested in a trial judge when it comes to deciding on an
appropriate
award of costs. As I have already pointed out, there is
no ‘normal rule’. Nor did the trial judge formulate a ‘new
rule’.
Nowhere did the trial judge suggest that the approach which
he followed was the only approach which could legitimately be
followed,
or that it should be followed in similar matters. And the
fact that he followed the approach which he did, creates no precedent
binding
on judges called upon to exercise the same discretion in
future. If another court, in exactly the same circumstances as
pertain in
the present case, were to exercise its discretion in
favour of ordering the plaintiff to pay the defendant’s costs after
the offer,
this court would similarly not interfere. The reason is
that the exercise of a narrow discretion necessarily involves a
‘choice
between permissible alternatives’,
32
and accordingly, ‘different judicial officers, acting reasonably,
could legitimately come to different conclusions on identical
facts’.
33
[22] The second criticism based on the effect of the
judgment was that if it is allowed to stand, defendants in defamation
actions
who deny the defamation and make no apology, cannot
henceforth protect themselves against costs. I see no objection to
that where
a denial is a so-called ‘tactical’ denial ─ if a
defendant denies uttering words which were defamatory, well knowing
that he
did so, it seems to me a perfectly fair and proper exercise
of the court’s discretion to order the defendant to pay the costs
despite
a secret offer which exceeds the amount tendered but in which
liability is not admitted. A hypothetical apology, for example ‘if
I said these words, I apologise’ or ‘if these words can bear this
meaning, then I withdraw them and apologise’ may well be
permissible in cases of genuine uncertainty, provided there is
included an admission that the defamatory charge is untrue (although
where words are clearly defamatory on their face, a hypothetical
apology is unlikely to appear sincere).
34
And a defendant could also without prejudice offer to make an
apology, with or without an offer of monetary compensation.
[23] Then finally, in regard to the judgment of Willis
J, the defendants’ counsel submitted that the fact that the
defendants ‘did
not admit’ the defamation and did not
tender an apology, were relevant in the assessment of
the amount awarded; and accordingly, so the argument went, should not
play any
part in determining an appropriate order as to costs. I fail
to see why not. The facts mentioned are relevant in both instances.
There is no duplication. It was submitted on behalf of the defendants
that if this was so, the conduct of Jansen taken into account
by this
court in reducing the amount of damages awarded to him, should also
have been taken into account by the court
a quo
when it
reconsidered its costs order. This argument was not contained in the
appellants’ notice of appeal, was accordingly not
dealt with by
Willis J and cannot be raised now.
[24] The appeal accordingly falls to be dismissed. I
turn to consider the question whether, as the defendants contend, an
order directing
Jansen to pay the costs of the previous appeal should
be made. Rule 34(12) has no application to this court, but the
practice of
this court is to follow the uniform rules of court, so
far as practicable, where its own rules are silent. Counsel submitted
that
had the respondent accepted the tender, the matter would not
have proceeded to trial and no appeal would have been required. That
argument was rejected by this court in
Griffiths v Mutual and
Federal Insurance Co Ltd
35
where the plaintiff achieved substantial success on appeal; although
she did not beat the tender, she was awarded the costs of appeal.
In
the present matter, the trial court held for good and sufficient
reasons that Jansen was justified in not accepting the offer
and in
incurring the costs of a trial to clear his name. On appeal, the
limited success achieved by the defendants on the merits
was held not
sufficient to carry the costs of the appeal. In all the
circumstances, I do not consider the additional fact that the
offer
made before the trial commenced exceeded the amount awarded,
justifies an order for costs in favour of the defendants in the
previous appeal.
[25] That brings me to the question of costs of the
present proceedings. In the appeal there is no reason why the costs
should not
follow the result. The application for a costs order in
the previous appeal, was a procedure separate from that appeal and
should
carry its own costs:
Gentiruco A G v Firestone South Africa
(Pty) Ltd
.
36
Both parties asked for the costs of two counsel where two counsel
were involved. The defendants were originally represented by senior
and junior counsel, who signed the heads of argument and the
submission in support of a costs order in the previous appeal,
although
senior counsel did not appear before us; and junior counsel
alone signed the heads of argument on behalf of Jansen, but was led
by
senior counsel when the matters were argued. In the circumstances
I shall in both matters award the costs of two counsel, where two
counsel were involved, to Jansen.
[26] I make the following order:
1. The appeal is dismissed, with costs.
2. The application for a costs order in the appeal
previously heard by this court, is dismissed with costs.
3. In each instance the costs of two counsel, where two
counsel were involved, shall be allowed on taxation.
______________
T D CLOETE
JUDGE OF APPEAL
Concur: Theron AJA
Cachalia AJA
1
‘(1) In any action in which a sum of money is claimed, either
alone or with any other relief, the defendant may at any time

unconditionally or without prejudice make a written offer to settle
the plaintiff’s claim. Such offer shall be signed either by
the
defendant himself or by his attorney if the latter has been
authorised thereto in writing.
(5)
Notice of any offer or tender in terms of this rule shall be given
to all parties to the action and shall state─
(a) whether the same is
unconditional or without prejudice as an offer of settlement;
(b)
whether it is accompanied by an offer to pay all or only part of the
costs of the party to whom the offer or tender is made,
and further
that it shall be subject to such conditions as may be stated
therein;
(c) whether the offer or
tender is made by way of settlement of both claim and costs or of
the claim only;
(d) whether the defendant
disclaims liability for the payment of costs or for part thereof, in
which case the reasons for such disclaimer
shall be given, and the
action may then be set down on the question of costs alone.’
2
See
Dikoko v Mokhatla
, a decision of the
Constitutional Court in case CCT 62/05 given on 3 August 2006 and
especially paras 63-70 and 109-121.
3
Naylor v Jansen
;
Jansen v Naylor
2006 (3) SA 546
(SCA)
paras 20 to 32.
4
Id paras 15 to 17.
5
Id, para 18.
6
Rules 34(10) and (13) provide:
‘(10) No offer or
tender in terms of this rule made without prejudice shall be
disclosed to the court at any time before judgment
has been given.
No reference to such offer or tender shall appear on any file in the
office of the registrar containing the papers
in the said case.
(13) Any party who,
contrary to this rule, personally or through any person representing
him, discloses such an offer or tender
to the judge or the court
shall be liable to have costs given against him even if he is
successful in the action.’
7
This is the usual practice: See eg
Gentiruco
AG v Firestone South Africa (Pty) Ltd
1972 (2) SA 772
(A);
Omega
Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd
1978 (4) SA 675
(A).
8
1998 (3) SA 1071
(W) at 1075J-1076A.
9
Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co
(Pty) Ltd
1978 (3) SA 465
(A) at 477A-B.
10
[1950] 2 All ER 969
(CA) at 972E-F, approved in
Garner v Cleggs
[1983] 2 All ER 398
(CA) at 403a-c.
11
1958 (1) SA 41
(FC) at 43A.
12
Omega Africa Plastics (Pty) Ltd v Swisstool
Manufacturing Co (Pty) Ltd
, above n 9, at p 477B.
13
1969 (4) SA 360
(E) at 366
in fine
–
367B.
14
2000 (4) SA 876
(N) at 885B-C.
15
The principle has often been stated by this court
─ see eg
Fripp v Gibbon and Co
1913 AD 354
at 361, 363 and
365;
Penny v Walker
1936 AD 241
at 260;
Molteno Bros v
South African Railways
1936 AD 408
at 417;
Merber v Merber
1948 (1) SA 446
(A) at 452-3;
Cronje v Pelser
1967 (2) SA 589
(A) at 592H-593A.
16
Dikoko v Mokhatla
, above n 2, para 59.
17
Media Workers Association of South Africa v
Press Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4)
SA 791
(A) at 800C-D.
18
Bookworks (Pty) Ltd v Greater Johannesburg
Transitional Metropolitan Council
1999 (4) SA 799
(W) at 804J.
19
Knox D’Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996 (4) SA
348
(A) at 360D-362G;
S v Basson
2005 (12) BCLR 1192
(CC)
para 154.
20
Ganes v Telecom Namibia
Ltd
2004 (3) SA 615
(SCA) para 21.
21
S v Basson
, n 19 above, para 110;
Dikoko v Mokhatla
,
above n 2, para 59.
22
Benson v SA Mutual Life Assurance Society
1986 (1) SA 776
(A)
at 781I-782B and cases there cited.
23
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs
2000 (2) SA 1
(CC) para 11.
24
Above, nn 7 and 9.
25
Referred to by Aulus Gellius,
Noctes Atticae
20.1.13:
‘And therefore your
friend Labeo also, in the work which he wrote
On the Twelve
Tables
, expressing his disapproval of that law says: “One
Lucius Veratius was an exceedingly wicked man and of cruel
brutality. He used
to amuse himself by striking free men in the face
with his open hand. A slave followed him with a purse full of asses;
as often
as he had buffeted anyone, he ordered twenty-five asses to
be counted out at once, according to the provision of the Twelve
Tables”.’
(Translation by Rolfe,
The Attic Nights of Aulus
Gellius
, Loeb Classical Library, vol III p 411.)
26
Jolowicz,
Historical Introduction to the Study of Roman Law
(3rd ed) 273; Schulz,
Classical Roman Law
p 594; Van Oven
Leerboek van Romeinsch Privaatrecht
(3
rd
ed) 346;
Zimmermann
The Law of Obligations
p 1052.
27
2002 (6) SA 512
(W).
28
This is not the place to consider whether those
cases are correct, or whether the South African law should be
developed by judicial
pronouncement to facilitate and place greater
emphasis on an apology in defamation cases:
Dikoko v Mokhatla
,
n 2 above,
loc cit
; contrast
Mthembi – Mahanyele v Mail
& Guardian Ltd
2004 (6) SA 329
(SCA) paras 117 and 118.
29
Above, n 11.
30
Subsequently in
Hultquist v Universal Pattern and Precision
Engineering Co Ltd
[1960] 2 QB 467
(CA) at 481-2, Sellers LJ
said that the cases cited in the Annual Practice in favour of such a
practice ‘must be treated as relying
on their special facts’ and
went on to say: ‘I do not think they can be regarded at the
present time as authorities which require
a judge to grant such
costs, or which require this court to intervene if he fails to do
so. The whole question must be dealt with
in the discretion of the
judge in accordance with the rule.’ The law as to costs in England
has since undergone substantial revision;
for a summary in regard to
defamation cases see
Gatley on Libel and Slander
(10
th
ed) chapter 35 section 5.
31
See also the reasoning at 44E-G.
32
Media Workers Association of South Africa v Press Corporation of
South Africa (‘Perskor’)Ltd
above n 17 at 800D-F;
Wijker
v Wijker
1993 (4) SA 720
(A) at 727J-728B.
33
Ganes v Telecom Namibia Ltd
above n 20,
loc cit
.; and
see also
Knox D’Arcy Ltd v Jamieson
, above n 19 at 362D-E.
34
cf
Gatley on Libel and Slander
9
th
ed para 31.2.
35
[1993] ZASCA 121
;
1994 (1) SA 535
(A) at 549B-E.
36
Above, n 7.