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[2013] ZAECMHC 19
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Qakathayo v South African Social Security Agency (2058/11) [2013] ZAECMHC 19 (17 January 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE: MTHATHA
CASE NO: 2058/11
Heard on: 22/11/12
Delivered on: 17/01/13
NOT REPORTABLE
In the matter between:
CETYISWA QAKATHAYO
....................................................................
Applicant
and
THE SOUTH AFRICAN SOCIAL
SECURITY AGENCY
...........................................................................
Respondent
_____________________________________________________________
JUDGMENT ON COSTS
____________________________________________________________
NHLANGULELA J:
[1] In this matter the issue for decision is whether the
attorneys of record for the applicant, Manitshana Tshozi Attorneys,
are
liable to pay costs
de bonis propriis
which were incurred
due to a postponement of the interlocutory application on 22 November
2012.
[2] I must say something about how the interlocutory
application was brought. Before it came up there was an application
brought
on 26 August 2011 in which the applicant is seeking the
following relief against the respondent, namely:
“1. That the applicant be and is hereby granted leave to
exhaust the internal remedies as provided for in the
Social
Assistance Act 13 of 2004
by lodging an appeal with the Minister of
Social Development.
2. That the Applicant’s application launched on 26
th
August 2011 under case number 2058/1022 be and is hereby stayed
pending the finalisation of the internal remedies aforesaid or
pending the expiry of the period the Minster will be given to
consider and decide Applicant’s Appeal.
3. That the applicant be and is hereby granted leave to file a
supplementary founding affidavit after the exhaustion of internal
remedies or after the expiration of the period set out in paragraph 2
above dealing with the issue of exhaustion of internal remedies
should it be necessary.
4. That there be no order as to costs except if the Respondent
opposes this application in which event she should be directed to
pay
costs thereof.”
[3] It is common cause that the application brought on
26 August 2012 is referred to as the main application.
[4] The respondent opposed the relief sought by
delivering an answering affidavit in which a defence in
limine
was
raised that
s 7(2)(a)
of PAJA prohibits judicial reviewing of the
application since an internal administrative review remedy for
impugning the decision
of the respondent as provided in terms of
s 18
of the
Social Assistance Act 13 of 2004
, substituted by
s 3
of Act 5
of 2010, has not yet been invoked.
[5] The provisions of s 18 of Act 13 of 2004 make it
peremptory for a person aggrieved by a decision of the respondent to
lodge
an appeal to the Agency/Minister against such a decision.
[6] Then, instead of pursuing the main application by
setting it down for hearing on the point of law as raised in the
notice, the
applicant brought the interlocutory application. Pursuant
thereto, the applicant secured a date for arguments, set down the
matter
for hearing on 22 November 2012 and appeared before me with
the opponent to present arguments. To appreciate the nature of the
interlocutory application I must set out hereunder the terms of the
relief sought as they appear in the notice of motion. They read:
“1. That the Respondent’s administrative action of
awarding applicant a disability grant (hereinafter referred to as
the
pension or grant) attached with an unfair condition of temporariness
as at 16
th
September 2008 without a proper notice to the
Applicant and without observing the rules of natural justice be and
is hereby declared
unlawful, unconstitutional and invalid and is
hereby reviewed, corrected and set aside.
2. That the respondent be and is hereby ordered to re-instate the
applicant’s disability grant within a period of three weeks
from the grant of this order, such re-instatement to be with effect
from the date of the termination of payment of the applicant’s
disability grant, that is August 2009 and be further directed to pay
applicant’s pension continuously until properly terminated
in
terms of the law.
3. That the Respondent be and is hereby directed to pay the applicant
all unpaid moneys owed to her as a result of the unlawful
pension
stoppage or termination as from August 2009 until the date of the
grant hereof together with interest thereon at the legal
rate.
4. That the respondent be directed to advise Applicant’s
Attorneys when she has complied with the orders set out above and
to
do so within twenty days of having complied.”
[7] During arguments both
Mr Mtshabe
and
Mr
Zilwa
, counsel for the applicant and respondent respectively,
conceded that a decision on the relief sought in the interlocutory
application
will automatically dispose of the relief sought in the
main application. Yet the main application did not serve before me.
In the
event I did not have authority to deal with it. And
Mr
Mtshabe
declined an invitation made by me that the parties may
just as well permit the adjudication of both applications. In the
light
of the stalemate I was driven to the decision that the
interlocutory application serving before should be postponed to a
future
date for hearing together with the main application. What then
remains is a question of wasted costs of hearing incurred on 22
November 2012.
[8]
Mr Mtshabe
tendered the payment of costs by
the applicant. However,
Mr Zilwa
argued strenuously that
punitive costs
de bonis propriis
against the attorneys for the
applicant would be an appropriate and effective award of costs since
the applicant was indigent and,
being uneducated and ignorant of the
law, her attorneys had a duty to dissuade her from piloting the
unmeritorious interlocutory
application. The respondent has had to
defend the unmeritorious litigation by utilizing public funds simply
because of a failure
on the part of the attorneys to desist from
piloting the unmeritorious application; so the argument went.
[9] Mr Mthokozisi Morris Tshozi filed an affidavit in
which he stated that there are no reasons for mulcting his firm with
wasted
costs. He alleged that the fact that the applicant is indigent
is not adequate basis for costs to be paid by her attorneys; a
decision
on the defences raised by the respondent towards the
interlocutory application would not result in a dismissal of the main
application;
the decision that the interlocutory application be
postponed was made by the Court
mero motu
; and the attorneys
have in any event not been shown to be negligent or unreasonable in
not setting down the main application for
hearing on 22 November
2012. He stated further that, in any event, an attorney has no legal
obligation to pay for a client’s
case.
[10] Supplementary heads of argument were filed by both
parties dealing with the question of cost.
[11] I have already found that the issues raised in both
applications are the same, hence the order I made that both
applications
must be heard together. I have also found that the
reason for a postponement of the interlocutory application was the
failure on
the part of the applicant to set down the main application
for hearing. Arising from these findings is the question why it was
that the applicant did not see a need to cause both applications to
be heard on 22 November 2012 when, as the
dominis litis
, she
ought to have ensured that both applications are heard together. This
question could not be answered by those who represent
the applicant
It being obvious that the applicant would never be able to make such
a complex decision, those instructed by her
had to profer a
reasonable explanation for the Court to decide whether to mulct or
exonerate them from paying the costs. To that
end, the Court must
assess the allegations of law and fact as they stand in the
affidavit. It matters not that the respondent did
not controvert
those allegations. All that I have to do is to evaluate the
allegations against the following factors: the cause
of action and
the nature of defence proffered, indigency of the applicant, the
reason for the set down of the interlocutory application,
the purpose
of the postponement and whether or not the applicant acted
negligently, recklessly, irresponsible or maliciously.
[12] In my judgment there was no good reason for the
setting down of the interlocutory applications as the adjudication of
it alone
would be impossible. In both applications the cause of
action is the reviewing of the decision of the respondent, the
parties are
the same and the relief sought is virtually the same. The
defence based on the provisions of s 18 of Act 13 of 2004 does not
only
have merit, but it has also been conceded by the applicant.
There was no reason for setting down the interlocutory application in
the circumstances. I would not dismiss the interlocutory application
because the issues therein, including the special defence
of law, are
pending in the main application. Instead of setting down the main
application so that it is heard and finalized the
applicant brought
an application which is similar to the main application. I am acutely
aware of a growing number of similar applications
in this division
that are being brought against the department merely to provoke a
protracted litigation which is punctuated with
numerous postponements
deliberately, to cause a delay in the finalization of disputes and to
squeeze the public purse of as much
“legal fees” as long
as it is possible. This case is quintessentially the same. I am not
persuaded by the argument
raised in the affidavit of Mr Tshozi in so
far as it says that the attorney has a right to implement client’s
instructions
even where doing so is to repeat one and the same
application. Surely, a line must be drawn between the execution of
reasonable
instructions and the doing of something else to frustrate
and abuse the legal process as the attorneys for the applicant have
done
in this case. A comment by Davis J in
Brown v Papadatis
And Another NNO
2009 (3) SA 542
(C) at 545J-546D is apposite
here. The learned Judge said:
“Mr Khan submits that he was given instructions to so pursue
this course of action, but attorneys must surely apply a professional
standard in deciding to do this. See the dictum of Innes CJ in
Vermaak’s Executor v Vermaak’s Heirs
1909 TS 679
at 691. Applicants have rights, but the courts are not playthings, to
be abused at the convenience of litigants who raise spurious,
reckless arguments which jeopardize the integrity of the court, so as
to postpone proceedings, when they, as in this case, have
clear
rights, which can protect any interest or rights which they may have.
In my view, this is a case where the court should say: Of course,
litigants have rights; of course, courts must fastidiously respect
these rights; of energetically as he or she may be able, to protect
these rights. But when the boundary is overstepped so grossly
in
circumstances where there is no legal basis, no precedent, no serious
evidential edifice on which to launch such an application
(ie even on
these vague affidavits could a recusal application ever be brought?),
the court should say, you have overstepped the
mark and have crossed
a bridge in circumstances where an order of costs
de bonis
propriis
must follow.”
[13] I am in full agreement with Davis J.
[14] It is not the case of Manitshana Tshozi Attorneys
that the applicant instructed them to litigate in a manner that will
over-burden
the Court with a prolix of papers unnecessarily. In the
circumstances they cannot fault their client for the decision they
took
which has resulted in unnecessary costs at the expense of the
respondent. In the case of this division in
Khan v Mzovuyo
Investments (Pty) Ltd
1991 (3) SA 47
(Tk) Hancke J stated that
the test applicable in measuring up the conduct of a representative
of a party in litigation is one of
unreasonableness/negligence. I
quote the words of Hancke J at 48E-F:
“There must be good reasons to order a litigant in a
representative capacity to pay the costs
de bonis propriis.
Cilliers
Law of Costs
2
nd
ed at 162 and
authorities cited there. The principle of awarding costs
de bonis
propriis
is summed up by Innes CJ in
Vermaak’s Executor
v Vermaak’s Heirs
1909 TS 679
at 691 as follows:
‘The whole question was very carefully considered by this Court
in
Potgieter’s
case
(
1908 TS 982)
, and a general
rule was formulated to the effect that in order to justify a personal
order for costs against a litigant occupying
a fiduciary capacity his
conduct in connection with the litigation in question must have been
mala fide,
negligent or
unreasonable.’
(My Italics) See also
Estate Orr v The Master
1938 AD 336
;
Gangat v Bejorseth NO
1954 (4) SA 145
(D) at 150;
Grobbelaar
1959 (4) SA 719
(A) at 725B-C;
Venter NO v Scott
1980 (3)
SA 988
(O) at 993H.”
[15] It is my view that the attorneys for the applicant
were grossly negligent in the circumstances of this case at the
expense
of the respondent and the court. They are liable to pay the
costs incurred by reason of the postponement of the matter.
[17] In the result I make the following order:
“
Manitshana, Tshozi Attorneys to pay attorney and client
costs incurred on 22 November 2012
de bonis propriis.”
_____________________________
Z.M.
NHLANGULELA
JUDGE
OF THE HIGH COURT
Counsel for the applicant : Adv. N Z Mtshabe
Instructed by : Manitshana Tshozi Attorneys
c/o L G Nogaga Attorneys
MTHATHA
Counsel for the respondent : Adv. P.H.S. Zilwa
Instructed by : State Attorney
c/o Potelwa & Co
MTHATHA