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[2006] ZASCA 109
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Hyperception Properties 572 CC v Waterhouse Properties CC and Others (93/06) [2006] ZASCA 109; [2006] SCA 137 (RSA) (21 November 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Not
Reportable
Case
no: 93/06
In
the matter between:
HYPERCEPTION
PROPERTIES 572 CC
Appellant
and
WATERHOUSE
PROPERTIES CC
First
Respondent
JEAN-MARIE
DENIS MAURICE MOORE
Second Respondent
JUANITA
CATHERINE MOORE
Third Respondent
________________________________________________________________
Coram
:
Farlam,
Navsa JJA et Malan AJA
Date
of hearing:
13 November 2006
Date
of delivery:
21 November 2006
Summary
: Withdrawal
of application for condonation for late lodging of an appeal record â
in circumstances no basis for exceptional costs
order.
Neutral citation:
This judgment may be referred to as
Hyperception v Waterhouse
[2006] SCA 137 (RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA
JA
NAVSA JA:
[1] This is an application for
condonation for the late lodging of an appeal record in a matter that
involves a dispute between the
owners of two adjoining properties on
the banks of the Vaal River, in Parys, on the Free State Province
side. The applicant and the
first respondent are the respective
owners. The second and third respondents are members of the first
respondent. The Bloemfontein
High Court ordered the demolition of a
structure which the applicant had erected on its property and which
the respondents found
offensive and had submitted was erected
unlawfully. The application for condonation relates to an appeal
against that order.
[2] In the midst of submissions on the
application for condonation and after requesting a short adjournment
to take instructions,
applicantâs counsel informed the court that
he was withdrawing the application as his client conceded the merits.
The effect of
the withdrawal of the application for condonation is
that the Bloemfontein High Courtâs order that the structure be
demolished
remains extant. The applicant tendered costs on a party
and party scale. The tender included all the costs involved in the
prosecution
of the now abandoned appeal.
[3] Counsel for the respondents urged
us to order the applicant to pay their costs on an attorney and
client scale, submitting that
from the outset the applicant had
behaved recklessly and unreasonably: first, in resisting attempts
before the structure had been
erected to reach an amicable
resolution, and thereafter by adopting a high-handed attitude after
litigation commenced until their
concession before this court in
medias res. Furthermore, it was submitted on behalf of the
respondents that the appeal was prosecuted
in an extremely careless
and inept manner and that this court should in the totality of these
circumstances show its disapproval
by ordering that costs be paid on
an attorney and client scale.
[4] In respect of the merits of the
matter the respondents were rightly unsuccessful in their attempt to
persuade the Bloemfontein
High Court to order the applicants to pay
costs on an attorney and client scale. The applicant resisted the
respondents in the court
below on the basis of legal advice it
obtained. The litigation does not appear to have been conducted in a
manner that warranted
an exceptional costs order.
[5] It is necessary to consider the
time delay in the prosecution of the appeal. The applicant obtained
leave to appeal against the
judgment of the Bloemfontein High Court
on 10 June 2005, lodged a notice of appeal on 11 July 2005,
but only
lodged the record of appeal on 2 March 2006. The
applicant has not provided a proper explanation for this inordinate
delay.
It is true that the appeal was prosecuted carelessly and that
in fact the explanation afforded on behalf of the applicant for the
inordinate delay is hardly an explanation at all. However, the
circumstances are not such as to warrant the costs order sought by
the respondents.
[6] In the result the respondents are
constrained to accept the tender by the applicant. No order is made.
_________________
M
S NAVSA
JUDGE
OF APPEAL
CONCUR:
FARLAM JA
MALAN AJA