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[2013] ZAFSHC 138
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Thabo Mofutsanyana District Municipality v Badenhorst (A114/2012) [2013] ZAFSHC 138 (8 August 2013)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A114/2012
In the appeal between:-
THABO MOFUTSANYANA
DISTRICT MUNICIPALITY
..........
Appellant
and
F H BADENHORST
..............................................................
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
LEKALE, J
_____________________________________________________
HEARD ON:
29 APRIL 2013
_____________________________________________________
JUDGMENT BY:
EBRAHIM, J
_____________________________________________________
DELIVERED ON:
8 AUGUST 2013
_____________________________________________________
[1] This appeal has its
genesis in a number of actions, approximately 3000, instituted in the
magistrates’ courts in various
districts in the Free State
during 2008, in which appellant claimed,
inter alia
, the
submission of proper statements of account and the debatement thereof
alternatively payment of an estimate of levies from
registered
regional services levy payers. The respondent is one of such payers,
being a private person who carries on the business
of farming at his
farm “Farm At Last” in Harrismith.
[2] The appellant’s
particulars of claim claimed the following relief from the
respondent:
“
2.
The Regional Services Council for the
Eastern Free State Region, established in terms of the provisions of
section 3 of the Regional
Services Councils Act, no 109 of 1985 (the
‘
RSC Act’
) by Administrator’s Notice no 78
promulgated in provincial Gazette (Free State Province) no 70 of
25
May 1989
, was dissolved and substituted for by the Eastern Free
State District Council in terms of Provincial Proclamation no 124
promulgated
in Provincial Gazette no 78 of
22 November 1996
,
which was in turn disestablished with effect from
15 December 2000
in terms of section 21F of Part 1 of the Schedule, promulgated in
Provincial Notice no 184 of 2000 in Provincial Gazette (Free
State
Province) no 112 of
28 September 2000
(‘
the
Schedule’
), and substituted for by the Thabo Mofutsanyana
District Municipality (the plaintiff) in terms of section 16(1) read
with 20 of
Part 20 of the said Schedule.
4.
The defendant is, as contemplated in
section 12 of the RSC Act:
an employer who employs or who is
deemed to employ employees within the region: and/or
a person or entity carrying-on or
deemed to be carrying-on a business or enterprise within the region;
and is legally obliged to register
with the Plaintiff as a levypayer in terms of the RSC-act.
5.
In terms of the provisions of section
7 of the Eastern Free State District Council Establishment
Proclamation, 1996:
the assets, liabilities, rights and
obligations of the Regional Services Council devolved upon the
District Council;
the regional services levies and
regional establishment levies claimed and payable by virtue of the
provisions of section 12(1)(a)
of the RSC-Act and other monies
payable to or recoverable by the Regional Services Council, are
payable to or recoverable by
the District Council.
6.
In terms of sections 5 and 6 of Part 1
of the Schedule, the Thabo Mofutsanyana Municipality (the plaintiff)
became the successor-in-law
and has succeeded to the rights and
obligations of the disestablished Eastern Free State District Council
with effect from
15 December 2000
.
7.
In terms of
section 59(2)
of the
Small
Business Tax Amnesty and Amendment of Taxation Laws Act no 9 of 2006
,
any regional services levy or any regional establishment levy for
which liability arose in terms of the RSC Act before or on
30 June
2006
, may be collected by a municipal council in accordance with
the provisions of the RSC Act.
8.
In the premises, the plaintiff being
such a municipality as contemplated in section 59(2) of the said Act,
at all times material
hereto, and in terms of the laws of the
Republic of South Africa, the statutory entitlement to recover the
regional services levies
and the regional establishment levies (‘
the
regional levies’
), as defined in section 1 of the RSC Act,
from those who are not exempt from paying them, vested in the
plaintiff,
alternatively
in the plaintiff’s
predecessors-in-law, whose rights and obligations have devolved upon
the plaintiff by operation of law.
11.
In terms of paragraph 9(4) read with
9(1), 9(3) and 10 of the regulations promulgated in terms of section
12(1)(b) read with section
12(1A) of the RSC Act, in government
notice R340 of
17 February 1987
(‘
the
RSC-Regulations’
), the defendant was obliged to register as
a levypayer of regional levies and to submit to plaintiff, until
30
June 2006
, within a period of twenty (20) days after the end of
each succeeding month, payment of the regional levies together with a
monthly
return in which it disclosed:
the remuneration figure paid to or
payable by the defendant to its employees during the preceeding
month; and the amount of his/her
drawings in relation to its
enterprise or partnership during the preceeding month;
and
the turnover figure of the sale of
goods, fixed property, rental, trade, earnings, services or the like
in its business or enterprise.
12.
The defendant failed to so register
and to render returns for the period 1 July 1996 to 30 June 2006
(‘
the relevant period’
).
13.
Pursuant to the defendant’s
failure to submit returns, the plaintiff, acting in accordance with
the provisions of paragraph
11 of the RSC-Regulations, assessed the
defendant to be liable to it in respect of regional levies probably
payable in respect
of the relevant period, in the estimated amount of
R100 000.00
, and which amount is presently due, owing,
payable and recoverable in terms of the provisions of paragraph 11(4)
of the RSC-Regulations.
14.
Notwithstanding demand, the defendant
fails and/or refuses and/or neglects to make payment of the aforesaid
amount.
WHEREFORE PLAINTIFF CLAIMS FOR
JUDGMENT AGAINST DEFENDANT AS FOLLOWS:
1. Payment of the amount of
R100 000.00
;
2. Payment of interest on the
aforesaid amount at a rate of 15,5% per annum
a tempore morae
,
from date of summons till date of payment;
3. Costs of suit;
4. Further and/or alternative relief.”
[3] The respondent, who
was sued in the magistrates’ court Harrismith, delivered notice
of his intention to defend the action
on 24 June 2008. He also
requested further particulars to the summons, which were furnished on
28 July 2008. Due to the insufficiency
thereof an application to
compel further and better particulars was brought by the respondent,
which was granted with costs on
31 July 2008.
[4] The appellant
thereafter gave notice of its intention to amend its particulars of
claim in terms of Rule 55A of the Magistrates
Court Rules. On 17
October 2008 the respondent notified his intention to oppose the
amendment. The appellant consequently delivered
an application for
the grant of the proposed amendment, which although initially opposed
by the respondent, was granted by consent
on 11 March 2009 with costs
being costs in the cause. The appellant delivered amended particulars
of claim in accordance with the
amendment granted on 17 March 2009.
On 19 March 2009, despite its earlier consent to the amendment, the
respondent noted an exception
thereto on,
inter alia
, the
following grounds:
(a) the appellant’s
lack of
locus standi
to institute proceedings for the
submission of accounts and for the recovery of service levies;
(b) that the appellant
was not authorised to embark on a process of estimating levies;
(c) there was no basis in
law for appellant’s demand for a delivery of a statement of
account and for the debatement thereof.
[5] It was at this stage
that the parties reached an agreement that the appellant would not
proceed with the multitude of summonses
it had issued against all the
other levy payers against whom it had instituted action and that all
these actions would be held
in abeyance, pending the outcome of an
appeal in the Supreme Court of Appeal by the appellant against three
registered regional
service levy payers in which the issue to be
decided was whether the appellant’s demand for the submission
of accounts and
for the debatements thereof, had any basis in law. On
29 September 2011 that court dismissed that appeal with costs,
upholding
the exception, which the respondents had taken to the
appellant’s particulars of claim that it disclosed no cause of
action,
on the grounds that it is only the Regional Services Council
established in terms of the Regional Services Council Act 109 of
1985,
which is empowered to estimate levies payable for municipal
services rendered. The court confirmed that in terms of section 12 of

that Act and paragraph 1 of the Regulations promulgated thereunder by
virtue of Government Notice R340 dated 17 February 1987,
that power
has been delegated to and resides with the Commissioner of the South
African Revenue Services. See
Thabo Mofutsanyana District
Municipality v Steyn-Enslin & Vennote, Rudnat (Pty) Ltd, Afgri
(Pty) Ltd
(639/2010)
[2011] ZASCA 168
(29 September 2011).
[6] Pursuant to this
judgment the chief magistrate Harrismith on 27 February 2012 granted
an order in the respondent’s favour
upholding his exception to
the appellant’s particulars of claim, with costs. In addition
the appellant was afforded 30 days
within which to amend its
particulars of claim. The magistrate further ordered the appellant to
pay all costs awarded to the respondent
since the inception of the
action, such costs to be taxed and paid prior to appellant
recommencing the proceedings, after amending
its particulars of
claim.
[7] It is against this
latter part of the order pertaining to costs that the present appeal
lies. Mr Ploos van Amstel SC for the
appellant asked us to bear in
mind that this is a novel issue, there being no definitive judgment
in point and that any order on
appeal will impact directly on the
approximately 3000 actions instituted by the appellant against levy
payers throughout a significant
area of the Free State, at least 673
of which were instituted in Reitz and Harrismith alone. He argued
that the magistrates’
courts would be inundated with applicants
seeking immediate taxation and payment of interim costs orders and
lead to an uncontrolled
outbreak of such taxations. He argued that
multiple costs orders in each case would have to be taxed and that
such a course of
conduct in proceedings such as the present was not
envisaged by the legislator, hence the reason for Rule 33(3) of the
Magistrates’
Court which provides that, as a general rule
“
unless the
Court shall
for
good cause
otherwise order. Costs of interim orders shall not be taxed until the
conclusion of the action…”
(the
underlining is my own)
He has urged us not to
overlook the fact that in granting the order, the learned magistrate
in the court
a quo
heard no evidence and consequently was
unable to and did not make any factual findings to serve as a basis
for the prerequisite
of “good cause”. This, he argues is
fatal to the decision of the court
a quo
. As authority for
this proposition, he relies on an earlier decision of this court in
Thabo Mofutsanyana District Municipality v Van Zyl Staalwerke
FSHC A168/2009, a judgment delivered on March 8, 2010.
[8]
This appeal accordingly turns on the question as to whether the
respondent has shown good cause or just cause, entitling him
to
immediate taxation and payment of his costs thus far in the
litigation process. It is clear to me that the court
a
quo
based
its decision to grant an order favouring immediate taxation and
payment of the respondent’s costs on the English decision
of
In
re
Romer
& Haslam
[
1893
]
2
Q.B. 286
at 301 where it was held
“
A
solicitor who is retained to conduct a simple legal proceeding is not
entitled, in the absence of a special agreement, to send
in a Bill of
Costs and ask for payment until the conclusion of the business or the
termination of his retainer. Where, however,
the proceedings are of a
long and protracted character the solicitor may, at any reasonable
break in the proceedings, deliver a
Bill of Costs for work done up to
such a break and ask for payment.”
The
learned magistrate considered the lull in proceedings, as agreed to
by both parties, pending the outcome of the decision of
the SCA in
the matter referred to, as a reasonable break in the proceedings,
such as to justify the drafting of an interim Bill
of Costs for
taxation and payment.
[9] As further
justification for the grant of the order, the court
a quo
found that the matter was not a simple matter, in its infancy. I
quote from the learned magistrate’s reasons for judgment
at
page 114 of the record:
“
Ek is
oortuig daarvan dat daar nie meer gesê kan word dat die saak
nog in sy kinderskoene is nie, gesien (in) die lig van
al die
aansoeke asook die eksepsie wat al ‘n draai in die Appèlhof
gaan draai het. Daar het al baie tyd verloop soos
reeds hierbo
aangedui en kan ek nie sien dat die sage binnekort tot ‘n einde
gaan kom nie. Eiser het onder andere self te
kenne gegee dat die saak
waarskynlik in die Grondwethof sal eindig. Afgesien daarvan en sonder
om te veel klem daarop te lê
is dit egter duidelik dat die saak
reeds vir baie lank aan die gang is.
Eiser het ook te kenne gegee dat dit
glad nie ‘n ingewikkelde saak is nie en dat dit net ‘n
kwessie is van om oor die
eerste hekkie te kom. Ek kan nie hiermee
saamstem nie. Hoekom het die aangeleentheid dan al ‘n draai in
die Appèlhof
gaan maak en hoekom voorsien die Eiser dat dit
nog in die Grondwethof gaan eindig? Hoekom sukkel ons na meer as drie
jaar nog om
dit afgehandel te kry? Dit, na my mening, dui nie op ‘n
eenvoudige saak nie. Eiser sukkel nou al hoe lank om oor die eerste

hekkie te kom, om sy woorde te gebruik. Dit dui vir my net op een
ding en dit is dat dit ‘n besondere hoë hekkie is,
wat
daarop dui dat dit inderwaarheid ‘n ingewikkelde saak is.”
[10] He stressed the
point in his judgment that as at the date of his order (27/2/2012), a
period of three years and eight months
had elapsed since the issue of
summons against the respondent in June 2008.
The learned magistrate,
correctly, in my view, considered that the fact that the issue
between the parties on the substance of the
dispute was deserving of
adjudication by the Supreme Court of Appeal was indicative of its
complexity and I did not understand
Mr Ploos van Amstel to challenge
this. He concluded, on the basis that there had been a reasonable
break in the proceedings, that
the matter was long, protracted and
complicated and would take a while to finalise, “most probably”
ending up in the
Constitutional Court as factors indicative of the
respondent having discharged the onus he carried of showing “good
cause”
to justify a departure from the stringent application of
the provisions of Rule 33(3). As further justification, he considered
it improper and unfair to expect the respondent to wait any longer to
recoup costs accumulated and expended thus far in defending

litigation, which was through no fault or default of his own, fatally
flawed.
[11] 11.1 Mr Danzfuss SC,
on behalf of the respondent, supported the judgment of the court
a
quo
in its entirety. He contended that the court
a quo
in
deciding on the respondent’s application for the grant of an
order of taxation of an interim Bill of Costs and payment
thereof,
was called upon to exercise a discretion, which it had exercised
judicially and correctly in respondent’s favour.
He submitted
that the concept of “good cause” embodied a wide
discretion and relied for support on the dictum in
Du Plooy v
Anwes Motors (Edms) Bpk
1983 (4) SA 212
(O) at 216H.
11.2. He submitted that
in deciding whether respondent had shown good cause, it was
permissible for the court
a quo
to have had regard to the
pleadings and affidavits, the sequence of the proceedings and the
time it took for various sequences
to reach completion. He also
stressed that common sense should play a significant role in deciding
whether good cause has been
shown. To illustrate this submission, he
referred repeatedly to the fact that none of the orders given against
the appellant were
of the respondent’s making and on that
account alone, respondent should not be left to his own devices as
regards the funding
of the further conduct of his defence. He has
urged this court to keep in mind that respondent has had to meet the
costs of his
own legal team; which he informed us has not been
inconsiderable and that respondent has been frustrated in his right
to finalise
the litigation instituted against him by appellant,
because the appellant’s tardiness in pleading, has protracted
the litigation
process. He contends strongly that this is in fact the
strength of the respondent’s case, because he cannot be
expected to
carry on his defence in the knowledge that the appellant
is nowhere nearer to the finalisation of its case than it was three
years
and eight months before the order appealed against was granted,
i.e. when summons was first issued. Mr Danzfuss has asked the
rhetorical
question “How can this not be good cause?.”
11.3. He has also urged
us to dismiss this appeal on the basis that the litigation between
his client and the appellant, which he
describes as “senseless”,
must come to an end and the taxation allowed to proceed so that the
public can be informed
of the costs of this litigation to tax and
rate payers. He also takes issue with Mr Ploos van Amstel’s
argument that to allow
an interim taxation would result in chaos,
because of the thousands of bills which would have to be taxed. He
submits that at this
stage, due to the fact that agreement exists
that the other actions ought to, for the moment, be dormant, there
would only be a
maximum of eight (8) bills of costs which would have
to be taxed and paid immediately given the various legal steps and
procedures
which unfolded in the present matter. However were the
taxations all to be held over until the conclusion of the litigation,
chaos
would certainly reign once the bills of costs in all 3000 odd
cases are presented for taxation. He has reminded this court that

ultimately the question is whether the learned magistrate failed to
exercise his discretion judiciously in light of the prerequisite
of
“good cause”. He argues that, on the facts of this case,
the magistrate cannot be faulted and accordingly the appeal
must be
dismissed with costs.
[12]
Mr Ploos van Amstel has taken issue with this approach. His
contention is that there can be no room for the question of the

exercise of a judicial discretion when it comes to deciding the
narrow issue we are faced with in this appeal
viz
whether the court
a quo
was correct in making an order for immediate taxation and payment of
an interim Bill of Costs. He argues that such an order is
in the
nature of a punitive order and not an indulgence. Consequently the
question of the exercise of a judicial discretion does
not arise. I
do not agree. The fact that the respondent is seeking an order of
court, the effect of which is to enable him to act
in a manner
contrary to that sanctioned by the prescribed rule of court (Rule
33(3)) that in any litigation, only one Bill of Costs
is to be taxed
at the conclusion of such litigation, amounts, in my view, to the
seeking of an indulgence from the court for the
granting of which
that court needs to be satisfied “on good cause” shown
that facts and circumstances exist in the
particular case justifying
it. So, without elevating it to a necessary prerequisite in such
matters, I shall assume, without deciding,
for the purpose of this
judgment, that in the court
a quo
the learned magistrate was requested to indulge the
respondent,
on good cause shown, with an order for the immediate taxation and
payment of an interim Bill of Costs and that he did
so by the
exercise of a discretion vested in him for that purpose. This
discretion is a wide one, essentially because a judge is
not just a
referee to see to it that the rules of the game are being observed.
He/She is an administrator of justice and must see
to it that justice
is done.
[13] In
Fripp v
Gibbon and Co
1913 AD 354
Lord De Villiers CJ at 357 said:
“
In appeals
upon questions of costs two general principles should be observed.
The first is that the Court of the first instance
has a judicial
discretion as to costs; and the second is that the successful party
should, as a general rule, have his costs. The
discretion of such
Court, therefore, is not unlimited, and there are numerous cases in
which courts of appeal have set aside judgments
as to costs where
such judgements have contravened the general principle that the
successful party should be awarded his costs”
It has repeatedly been
stated by our courts that an appeal tribunal will not readily
interfere with an exercise of discretion by
the court
a quo
in
awarding costs, merely because it would have taken a different view
of the facts. (
Penny v Walker
1936 AD 241
at 260.)
In
Ritter v Godfrey
[1920] 2 KB 47
, the following was said in regard to the nature and
extent of the discretion exercised and what is meant by “judicial
discretion”.
“
The
discretion must be judicially exercised and therefore there must be
some grounds for its exercise for a discretion exercised
on no
grounds cannot be judicial. If however, there be any grounds, the
question of whether they are sufficient is entirely for
the judge at
the trial and this court cannot interfere with his discretion.”
It is only where it is
shown that the court
a quo
acted arbitrarily that a court of
appeal would be at large to interfere and exercise its own
discretion. But having said that,
the mere fact that the appeal court
would have given more weight to the grounds/facts of the case does
not mean that the trial
court acted arbitrarily and not with judicial
discretion. (
Merber v Merber
1948 (1) SA 446
(A) and
Beimash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
SCA.)
[14] I turn now to the
tricky question of the definition of the concept of “good
cause”. It is a tricky issue because
the concept is not a
definitive one, there being no “numerous clauses” of good
reasons sufficing to constitute “good
cause”. Each case
must be decided according to the facts peculiar to it. In any event,
to attempt to define “good cause”
is undesirable and
hardly possible. It is something which is only capable of a
contextualised meaning in the light of the circumstances
relevant to
the case. According to the learned authors Jones & Buckle in
their work:
The Civil Practice of the Magistrate Courts in SA
10
th
edition, volume 2 at p 33 – 35, good cause
embraces:
“…
the
length of the proceedings taken as a whole, i.e. the whole action,
including the interim proceedings. If the case is long and

complicated, the attorney should be allowed to send in his bill at
some reasonable break in the proceedings and be allowed taxation

thereof.”
They rely for support of
this stance on the English decision of
Romer
,
supra
.
[15] Mr Ploos van Amstel
has submitted that in approximately 673 actions sued out of the
magistrates’ courts in Harrismith
and Reitz, all of the
defendants have approached these courts with interim Bills of Costs,
demanding taxation and immediate payment
of their interim costs as at
the date of the dismissal of the appellant’s appeal in the SCA.
Mr Ploos van Amstel has urged
us to consider this as the gravamen of
the appeal
viz
that any order granted by this court dismissing
this appeal necessarily means that the same order will be applied to
all of those
673 cases held in abeyance in the magistrates’
courts of Harrismith and Reitz and that the appellant will have to
pay costs
orders worth thousands of rands notwithstanding that those
actions are still pending and not finalised. I have considered this
argument as best I can and fail to understand on what basis this
court can be persuaded to dismiss the appeal on that ground alone,

that a multiplicity of taxations of interim Bills of Costs would
eventuate and create administrative chaos in those courts and
cause a
significant depletion of public funds. There is no evidence on record
relating to any of the other actions instituted by
the appellant, the
extent to which the litigation in each of them has proceeded and the
rationale for the submission that each
defendant would be entitled to
demand taxation of an interim Bill of Costs, prior to the conclusion
of the litigation in each case.
That being so this court is not at
large to have regard to any submissions concerning those actions.
[16] But even if,
however, there has been some agreement to the contrary with the
appellant, which I doubt very firmly to be the
case, I still fail to
see how such a factor can be brought to bear upon the decision making
process we are called upon to undertake
in this appeal for it was
this very argument which caused this court in the
Van Zyl
Staalwerke
case,
supra
, to find for the appellant in
that appeal. In the
Van Zyl Staalwerke
case,
supra
,
this court had occasion to deal, on appeal, with a similar issue and
held, as follows (at page 3 of the typed judgment):
“…
the
learned magistrate allowed irrelevant consideration to cloud his
judgment in coming to the decision that he did… I say
so
because he erred in ascribing to the appellant the difficulties
experienced by himself as the only judicial official dealing…

with the copious load of civil litigation which he said would be
generated by the appellants institution of the multiplicity of

actions based on the same cause of action as the present case…
such a reason cannot satisfy the test of… good cause…

No evidence… qualifying the requirement of good cause was
placed before the learned magistrate and consequently no such

evidence could be taken into account by him in coming to a
decision…”.
That decision makes light
work of Mr Ploos van Amstel’s submissions in this regard and, I
do not hesitate to say, it is indicative
of the appellant shooting
himself in the foot. For on the one hand, he has urged this Court to
regard that decision as the alpha
and omega of this appeal and find
that the respondent has produced no evidentiary basis for showing
good cause and in the next
breath would have this court do precisely
the opposite and accept the lack of an evidentiary basis as support
for its case that
a multitude of taxations of interim Bills of Costs
is evidence militating against the finding of the requisite “good
cause”
in respondent’s favour.
[17] Mr Ploos van Amstel
has also challenged the learned magistrate’s application of
certain principles relating to the taxation
of Bills of Costs
enunciated in the
Romer
case as a basis for his finding
that respondent had discharged the
onus
of showing good cause,
as a material misdirection. This was primarily because, as I
understood the argument, of his insistence
that the principle of a
“reasonable break in proceedings” dealt with a
“recognised break” or a “natural
break” and
not a break randomly plucked out of the air as was done, he submitted
by the learned magistrate. He also placed
strong reliance on the fact
that the
Romer
case had dealt with arbitration
proceedings which had been completed before the issue of taxation
arose and that the taxation related
to attorney and own client costs
and not party and party costs, as is the issue in the present appeal.
What difference the nature
and type of costs makes to the question
whether the discretion to grant the order was judicially exercised,
is not clear to me
in the context of the provisions of Rule 33(3) and
have assumed, for the purposes of the adjudication of this appeal,
that the
learned magistrate in the court
a quo
also did not
regard the distinction as relevant to the debate.
[18] Whilst it is correct
that the
Romer
decision did not deal with the
interpretation of a provision such as Rule 33(3), it did deal with
the situation where money had
to be collected from a client by his
solicitor and the court in that case listed certain factors which had
to inform any judicial
decision taken to grant those costs. I agree
with Mr Danzfuss that there is no conceivable reason why those
factors should not
have been taken into account by the learned
magistrate when called upon to decide whether the respondent ought to
be allowed to
tax a bill of his interim costs, especially in view of
the fact that the learned magistrate was guided in his election to do
so
by the sanction of the authors Jones & Buckle,
supra
,
of those very factors as valid and worthy of consideration by a court
when called upon to exercise a judicial discretion. These
factors,
inter alia
, are the length of the litigation, the fact that a
reasonable break in the proceedings had occurred and the relative
complexity
of the litigation, all of which the court
a quo
had
regard to in its deliberations. I fail to see how an agreement
between the parties to suspend the further progress of the litigation

between them for the specific purpose of obtaining a definitive
judgment from the Supreme Court of Appeal on a matter intrinsic
to
the litigation between them, can be termed a break “randomly
plucked out of the air”. This was no arbitrary situation,
of
the learned magistrate’s own making. I am of the view and make
the finding that in these circumstances, the learned magistrate
was
correct in regarding the suspension in the proceedings as a
“reasonable” and/or a “natural” and/or
a
“recognised” break.
[19] It is a
fait
accompli
that the litigation between the parties has been long
and protracted, summons having been issued in June 2008, 5 years
prior to
the date of the grant of the order appealed against. Now is
not the time to apportion blame and, quite rightly, the learned
magistrate
did not apply his mind to that inconsequence. What was
important to the debate was inordinate delay in the finalisation of
litigation
and the court
a quo
, correctly in my view took this
factor into account. However, it considered that, notwithstanding a
number of amendments, the appellant
was unable since June 2008 right
up to when proceedings were suspended, to get its house in order and
to plead a proper case as
a further ground for finding that good
cause had been proved by the respondent and that it would be unfair
(“onbillik”)
for the respondent not to be paid the costs
he had incurred before continuing with the litigation. I cannot fault
this approach
and it would seem to me to be pre-eminently in
accordance with the principles of equity that a man, who through no
fault of his
own is dragged to court to answer a charge bad in law,
ought to be paid the costs he has incurred over a period of 5 years
during
the subsistence of the earlier litigation before being made to
incur any further costs in the pursuit of that litigation. This is

not a case of a matter which has sustained for a couple of months on
an incorrect legal premise. I think given the manner in which
the
litigation between the parties has progressed, it would not be remiss
of this court to find the financial expense to which
the respondent
has unnecessarily been put by the appellant in defending an action
brought on the basis of an invalid legal premise,
as not
inconsiderable, given the period of the delays of 3 years and 8
months,
alternatively
5 years since the issue of summons. The
appellant was ordered to pay the respondent’s costs for the
first time in respect
of its failure to furnish proper particulars to
the summons on 31 July 2008. I find that the learned magistrate was
quite correct
in accepting the long delay and the protracted
litigation between the parties as a factor justifying his finding of
good cause.
[20] Although not
considered by the court
a quo
as a factor influencing the
exercise of its discretion, the legal effect of a successful
exception on litigation definitely has
a bearing thereon especially
in the present matter. The respondent’s exception was
successful and that in effect means that
the appellant’s
particulars of claim as initially pleaded and thereafter amended has
been set aside. Consequently the effect
for the respondent is that,
after approximately 5 years, the litigation through which he was put
and for which he paid out of his
own pocket is non-existent and was
an exercise in futility from the onset. That litigation did not
disclose any claim against the
respondent and it has taken
approximately 5 years for the appellant to be made to accept that.
Despite repeated objections to its
summons and particulars of claim
as disclosing no cause of action, the appellant steadfastly and
adamantly refused to accept that
it had no basis in law for the
relief it had claimed against the respondent and so it persisted with
fruitless litigation against
the respondent, in the vain hope, no
doubt, of being vindicated by the Supreme Court of Appeal. The
exception taken by the respondent
to the appellant’s
particulars of claim went to the root and the heart of the
appellant’s case. The appellant’s
persistence with a
fatally flawed action in the face of what was clearly and
self-evidently an exception of legal substance, spoke
of its reckless
disregard for the respondent as a lay litigant who, unlike the
appellant, did not have the endless financial resources
to embark on
protracted litigation in circumstances where same was unwarranted and
could not be justified. On all accounts therefore,
I find that the
approach of the learned magistrate in the court
a quo
cannot
be faulted.
ORDER
[21] The appeal is
dismissed with costs.
_____________
S. EBRAHIM, J
I
concur.
______________
L. J. LEKALE, J
On
behalf of applicant: Adv C. Ploos van Amstel SC
With
him:
Adv
C. Coetzer
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv F.W.A. Danzfuss SC
Instructed
by:
Phatshoane
Henney
BLOEMFONTEIN
/spieterse