About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 102
|
|
Ramolibe and Another v Nusun Development (Pty) Ltd and Another (4882/2011) [2012] ZAFSHC 102 (24 May 2012)
VRYSTAAT HOË
HOF, BLOEMFONTEIN
REPUBLIEK VAN SUID
AFRIKA
Case Number: 4882/2011
In the matter between:-
BOGATSU DAVID
RAMOLIBE
…..........................................
First
Applicant
MARIA RAMOLIBE
….......................................................
Second
Applicant
and
NUSUN DEVELOPMENT
(PTY) LTD
…............................
First
Respondent
HSU-LIEH HO:
Manager-Nusun
….............................
Second
Respondent
_________________________________________________________
DELIVERED BY:
SNELLENBURG, AJ
HEARD:
19
APRIL 2012
DELIVERED:
24 MAY 2012
[1] This is an
application for rescission of a default judgment granted in terms of
Uniform rule 31(5)(
b
)(
i
) and (
ii
).
[2] The first respondent,
Nusun Development (Pty) Ltd, summonsed the first and second
applicants, Mr and Mrs Ramolibe for payment
of the amount of
R186 674,28; interest thereon at the rate of 15 percent from 4
August 2010 to date of payment in full; an
order to have certain
immovable property declared specially executable and costs on the
scale as between attorney and own client.
[3] The first
respondent’s cause of action is based the breach by the
applicants of a written loan agreement entered into
and concluded
between it and the applicants on 15 October 2009 at Bloemfontein in
terms whereof the first respondent extended a
loan in the amount of
R164 750,00 to the applicants, subject to the terms and
conditions contained in the agreement and secured
by a second
mortgage bond registered over some immovable property. According to
the allegations in the summons the applicants had
defaulted in their
monthly payments as result whereof the total outstanding balance as
on 3 August 2011, in the amount of R186 674,28,
became
immediately due and payable.
[4] The first respondent
applied for default judgment against the applicants in terms of the
provisions of Uniform rule 31(5), the
same which was duly granted by
the court registrar on 22 December 2011.
[5] It is this judgment
that the applicants seek to set aside.
[6] The first respondent
did not file an answering affidavit and elected to argue the matter
on the applicants’ version as
set out in the founding
affidavit. The second respondent has not opposed the application and
the applicants have abandoned their
prayer for costs against this
respondent.
[7] The applicants rely
on the provisions of Uniform rule 31(2)(
b
) to set aside the
default judgment.
[8] Rule 31(2)(
b
)
is applicable only when a default judgment is granted by a court in
terms of the provisions of rule 31(2)(
a
). That much is clear
from the rule:
“
(2)(a)
Whenever in an action the claim or, if there is more than one claim,
any of the claims is not for a debt or liquidated demand
and the
defendant is in default of delivery of notice of intention to defend
or of a plea, the plaintiff may set the action down
as provided in
subrule (4) for default judgment and the court may, after hearing
evidence, grant judgment against the defendant
or make such order as
to it seems meet.
2(b) A defendant may
within twenty days after he or she has knowledge of such judgment
apply to court upon notice to the plaintiff
to set aside such
judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems
meet
.
”
As substituted by GN 417 of 14 March 1997.]
[9] The reference in
subrule 2(
b
)
to ‘
such
judgment’
clearly
refers to a judgment granted in terms of subrule 2(
a
).
[10] In this matter the
judgment was granted in terms of rule 31(5)(
b
)(
i
)
and (
ii
),
in as much as the registrar only awarded costs on the scale as
between party and party contrary to the first respondent’s
request for costs on the scale as between attorney and own client.
The request for default judgment did not include a prayer to
have the
immovable property declared specially executable. It is now settled
that the court registrar cannot grant such an order
where the
immovable property is the primary residence of the judgment debtor.
Only the court may grant such order after having
considered all
relevant circumstances.
1
[11] The question that
must be answered is on what basis the applicants could or should have
approached the court to set aside the
judgment, which was granted in
their absence.
[12] Rule 31(5)(
d
)
provides that:
“
Any
party, dissatisfied with a judgment granted or direction given by the
registrar may, within 20 days after he has acquired knowledge
of such
judgment or direction, set the matter down for reconsideration by the
court
.
”
[13] In
Bloemfontein
Board Nominees Ltd v Benbrook
1996 (1) SA 631
(O) at 633H,
Hancke J held that ‘
reconsideration by the court
’
of a default judgment granted by the registrar in terms of rule
31(5)(
d
) does not mean that the court substitutes its
discretion for that of the registrar, but that the court will only
interfere with
the judgment of the registrar if it is of the opinion
that the registrar has erred.
[14] In the Pansolutions
Holdings Ltd v P & G General Dealers & Repairers CC
2011 (5)
SA 608
(KZD), Swain J however disagreed with the finding in Benbrook
supra, and refused to follow it. Swain J held that reconsideration
by
the court as referred to in rule 31(5)(
d
) means the exact
opposite (as opposed to the finding in Benbrook), namely that the
court is empowered to substitute its discretion
for that of the
registrar. The court held that the anomalous position arises on the
clear wording of the relevant rules that a
different standard applies
when a default judgment granted by the court is sought to be set
aside, as opposed to a default judgment
granted by the registrar.
[15] With reference to
what it means to ‘reconsider’ as used in Uniform rule
6(12)(
c
), Swain J held that when a rescission of a default
judgment granted by the registrar is to be reconsidered in terms of
rule 31(5)(
d
), the underlying need for the grant of such a
power is equally the absence of the aggrieved party at the time the
judgment was
granted; that the object is equally to obtain redress
against an injustice, or an imbalance created by the judgment and
that of
importance will also be factors relating to the reasons for
the absence of the aggrieved party, as well as the period the
judgment
has been in existence without challenge.
[16] Swain J therefore
held that a court, in deciding whether to reconsider, in terms of
rule 31(5)(
d
), a default judgment granted by the registrar
would cause no affront to the provisions of this rule if it applied
the criteria
enunciated by the courts over many years, in determining
whether an applicant has established 'good cause' for the rescission
of
a judgment granted by the court. It was further held that such an
approach has the merit of removing any unwarranted distinction
between the criteria, which are to be satisfied to achieve success in
either instance.
[17] I respectfully
disagree with the well reasoned findings of Swain J.
[18] Rule 31(2), as
originally published on 12 January 1965, was amended to its present
form (by substitution) by GN R417 of 14
March 1997. Prior to the
amendment rule 31(2) read as follows:
“
(2)(a)
Whenever a defendant is in default of delivery of notice of intention
to defend or of a plea, the plaintiff may set the action
down as
provided in sub-rule (4) for default judgment and the court may,
where the claim is for a debt or liquidated demand, without
hearing
evidence, and in the case of any other claim, after hearing evidence,
grant judgment against the defendant or make such
order as to it
seems meet.
(b) A defendant may
within twenty-one days after he has knowledge of such judgment apply
to court upon notice the plaintiff to set
aside such judgment and the
court may upon good cause shown and upon the defendant furnishing to
the plaintiff security for the
payment of the costs of the default
judgment and of such application to a maximum of R20, set aside the
default judgment on such
terms as to it seems meet
.
”
[19] The present rule as
quoted in paragraph [8] above, as stated, was introduced on 14 March
1997.
[20] Rule 31(5) was first
inserted by GN R2365 of 10 December 1993 and came into operation on
10 January 1994.
[21] Rule 31(5)(
a
)
was then amended by the very same notice that introduced the present
sub-rule 2(
a
) and (
b
) [GN R417 of 14 March 1997].
[22] If the intention of
the Rules Board for Courts of Law was to have the same standard apply
in cases where the default judgment
was granted by a court as when
the registrar entered judgment in terms of rule 31(5), then the rule
would have been amended to
provide expressly for this. No cogent
reason comes to mind that would justify the rule maker to expressly
word the two sub-rules
differently if it intended the same standard
to apply, as Swain J proposes. The judgment under consideration
acknowledges the clear
differences between the sub-rules. The
different wording of the relevant sub-rules under consideration must
be taken to be deliberate.
[23] Although it is a
well recognised principle of interpretation of statutes that there is
generally speaking a presumption that
the same words and expressions
in the same Act are intended to bear the same meaning when used
[
Consolidated Textile Mills Ltd v President of the Industrial
Court and Others
1989 (1) SA 302
(A) at 308C], this is not an
immutable rule as appears from the latter judgment. Whether the word
bears the same meaning will depend
on the specific context within the
act [rule] it is used in. The same will apply to interpretation of
the Uniform rules of court.
[24] Definitions of words
in dictionaries are often of fundamental importance in the judicial
interpretation of that word in a statute
or in a contract or in a
will. The task of interpretation is however not always fulfilled by
recourse to a dictionary definition,
for what must be ascertained is
the meaning of that word in its particular context in the enactment
or contract or other document.
Loryan (Pty) Ltd v Solarsh Tea &
Coffee (Pty) Ltd
1984 (3) SA 834
(W) at 846G. The latter case
conveniently summarises the applicable principles regarding the use
of dictionaries in judicial interpretation.
In
S v Collop
1981 (1) SA 150
(A) it was held [at 161E-F], that although often a
useful tool in judicial interpretation, dictionaries do not always
provide the
answer to the problem of construction. In
De Beers
Industrial Diamond Division (Pty) Ltd v Ishizuka
1980 (2) SA 191
(T)
,
which is apposite to the issue under consideration, the court per
Nicholas J (at 196E) held:
“
A
dictionary meaning of a word cannot govern the interpretation. It can
only afford a guide. And where a word has more than one
meaning, the
dictionary does not, indeed it cannot, prescribe priorities of
meaning. The question is, what is the meaning applicable
in the
context of the particular document [
rule
]
under consideration.”
My
inclusion.
[25] In the Pansolutions
case it was held, after considering the dictionary meaning of
‘reconsider’ as dealt with in
Lourenco and Others v
Ferela (Pty) Ltd and Others (No 1)
1998 (3) SA 281
(T) [at
290D], with reference to the power to ‘
reconsider
’
provided for in rule 6(12)(
c
), that the underlying need for
the grant of such a power in rule 31(5)(
d
) is equally the
absence of the aggrieved party at the time the judgment was granted.
To my mind this finding does not acknowledge
the fundamental
distinction between the two rules. The pivotal consideration in rule
6(12)(
c
) is not default of a party in isolation, but the
interrelation of the said sub-rule with the preceding sub-rules. The
court or
judge hearing the urgent application may dispense with forms
and service and may in general dispense with the matter (as far as
practicable in terms of the rules) in any manner it seems meet. The
same considerations do not apply to default judgments granted
by the
court registrar.
[26] The sub-rule must be
considered in context as is the case with rule 6(12)(
c
). In
Standard Bank of SA Ltd v Ngobeni
1995 (3) SA 234
(V) at 235C-E the
following was said regarding the purpose of the sub-rule under
consideration:
“
The
purpose of the amended Rule was clearly to relieve the burden resting
on the Judges of the Supreme Court by delegating to the
Registrar the
right (and duty) to grant or refuse judgment in uncomplicated default
matters where he simply checks that all administrative
and formal
steps have been taken to justify a judgment. He is not expected to
decide extraordinary or obscure points of law or
fact. The golden
rule is: If the Registrar has any legitimate doubt whether judgment
should be granted or not, it is his duty to
refer the matter for
hearing in terms of Rule 31(5)(b)(vi)
.”
Nedbank
v Mortinson
[2005] ZAGPHC 85
;
2005
(6) SA 462
(W)
at
472B–D.
In Standard Bank of South
Africa Ltd v Saunderson and Others
2006 (2) SA 264
(SCA) para 24 the
Supreme Court of Appeal defined the function of the Registrar as:
“
All
that is required of the Registrar is a formal evaluation of whether
the summons discloses a proper cause of action - that is
a task quite
distinct from evaluation of the kind reserved for a court and does
not involve the Registrar in performing a judicial
function
.
”
[27] The sub-rule does
not purport to provide a general remedy for the rescission of default
judgments simply because it was granted
by the registrar in terms of
rule 31(5). It is evident from the purpose of rule 31(5)(
d
)
and the functions that the Registrar performs, that what is indeed
intended is not for the court reconsidering the order or decision
by
the registrar, to substitute its discretion for that of the
Registrar, but that the court will only interfere with the judgment
of the registrar if it is of the opinion that the registrar has
erred. A striking example for reconsideration by the court in terms
of the sub-rule would be the granting of a judgment by the registrar
for a claim that is not for a debt or liquidated demand.
[28] If the purpose of
the rule was different it would have expressly provided for that.
[29] That does not mean
that the party against who the default judgment was granted in terms
of rule 31(5) has no remedy or is subject
to a different standard.
[30] In the Pansolutions
case the parties accepted that the matter had to be argued and
considered on the same basis as in rule
31(2)(
b
), albeit in
terms of Rule 31(5)(
d
). The parties in that matter were
ad
idem
that the good cause standard should apply when an aggrieved
party seeks to set aside an order granted in terms of rule 31(5). I
agree, but to my mind the answer is not to read more into rule
31(5)(
d
) than what it is clearly intended for.
[31] The court has always
had the power to rescind a judgment granted in absence of a party at
common law.
De
Wet v Western Bank Ltd
1979
(2) SA 1031
(A);
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) at 764I-J. This would include judgments granted in
terms of rule 31(5). Such party will also have the advantage that he
(or
she) is not subject to the time limit of 20 days, subject thereto
that such party must approach the court without undue delay. Any
inordinate delay may influence the court’s overriding
discretion when it considers whether to grant the relief, or not.
[32] An applicant for
rescission at common law must show good cause. The requirements for
good cause were restated by the Supreme
Court of Appeal in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para
11:
“
With
that as the underlying approach the Courts generally expect an
applicant to show good cause (a) by giving a reasonable explanation
of his default; (b) by showing that his application is made bona
fide; and (c) by showing that he has a bona fide defence to the
plaintiff's claim which prima facie has some prospect of success
(
Grant
v Plumbers (Pty) Ltd, 20 HDS Construction (Pty) Ltd v Wait supra, 21
Chetty v Law Society, Transvaal
)
.
”
[33] The requirements
evidently corresponds with what is expected of an applicant in terms
of rule 31(2)(
b
).
[34] It is therefore
unnecessary to import the meaning of words used in other rules to
cater for a remedy where the sub-rule itself
does not provide for it
and a suitable remedy all ready exists.
[35] In light of the
afore-mentioned a party against who default judgment is granted in
terms of rule 31(5)(
d
) is in no worse position than a party
against who a court granted judgment, nor is there any substance in
the complaint that different
standards will apply. The same standard
eventually applies whether the party is obliged to apply for
rescission in terms of rule
31(2)(
b
) or the common law.
[36] In the present
matter the applicants cannot apply in terms of rule 31(2)(
b
)
as they purport to do. If the registrar did not err in granting the
judgment, they are also
non
suited in terms of the
provisions of rule 31(5)(
d
).
They can however apply for rescission in terms of the common law.
Whether the applicants have made a proper case for the rescission
is
a different matter, which will be evaluated hereunder.
[37] The mere fact that
an applicant approaches a court for rescission in terms of a specific
rule - in this instance erroneously
in terms of rule 31(2)(
b
)
- does not bar the court hearing the application from entertaining it
in terms of another rule or the common law, provided that
such
applicant has met the requirements thereof.
De
Wet v Western Bank Ltd
,
1977 (4) SA 770
(T) at 780H–781A.
Swart
v Absa Bank Ltd
,
2009 (5) SA 219
(C).
[38] What remains is to
consider whether the applicants have met the requirements to rescind
the judgment granted in their absence
by the registrar, either in
terms of rule 31(5)(
d
)
if the registrar erred or the common law. As the registrar has not
erred the matter is evaluated in terms of the common law standard.
[39] For the reasons that
follow it will serve no purpose in light of the facts of the present
matter to evaluate the three requirements
for good cause
individually. In absence of a
bona fide
defence to the
plaintiff's claim, which
prima facie
has some prospect of
success, the application stands to be dismissed.
[40] The uncontested
evidence of the applicants show that they resided
at 19 Doringboom Street,
Mandela View, Bloemfontein [the domicilium address] until they
purchased the immovable property better
known as 20 Doringboom
Street, Edenpark, Mandela View, Bloemfontein [the property]. Both the
afore-mentioned properties belonged
to the first respondent, at least
until the applicants’ purchased the property from first
respondent.
[41] In order to purchase
the immovable property the applicants loaned an amount of R740 581.00
from Nedbank. The loan was
secured by a first mortgage bond
registered in favour of the Nedbank over the property. The applicants
do not state the exact date
when the agreement was concluded, but it
can be safely be inferred to be a few days after 13 October 2009,
being the date reflected
on the pre-agreement statement from Nedbank
to the applicants.
[42] The first
respondent’s case as set out in the summons, as stated, is that
a loan, secured by a second mortgage bond over
the property, was
advanced to the applicants in terms of a written agreement on 15
October 2009.
[43] The applicants deny
that such loan agreement was indeed concluded.
[44] To this end the
applicants’
bona fide
defence is tersely stated in the
founding affidavit to be:
“
.
. . the purported document relied upon was not presented to me as a
contract but as a quotation as the heading of the document
which
reads as PRE-AGREEMENT STATEMENT AND QUOTATION FOR INTERMEDIATE &
LARGE CREDIT AGREEMENTS suggests. For ease of reference
the
Honourable Court is referred to the attached document marked as
annexure “AB3”
.
”
[45] Annexure AB3
contains the said heading to ‘Part 1’ of the document as
the applicants contend for. The document
however exists of part 1 and
part 2. The parts are clearly distinguished. Part 2 has the heading
“
TERMS AND CONDITIONS FOR THE INTERMEDIATE MORTGAGE
AGREEMENT
”. On page 8 in bold highlighted capital letters,
the following heading appears, “
ACCEPTANCE BY THE CONSUMER
CONSTITUTING THE PROPOSED AGREEMENT
”. The said chapter then
continues (I quote only the relevant parts):
“
1.
I confirm that:
the
quotation/pre-agreement statement (Part 1) and the terms and
conditions (Part 2) have been explained to me and that I understand
my rights and obligations, and the risks and costs of the loan.
1.2 I have been informed
that I can refer any further questions I may have to the credit
provider at any time.
1.3 I accept the offer of
the loan contained in Part 1 and the related terms and conditions in
Part 2, and confirm that:
. . .;
This acceptance read
with Part 1 and Part 2, constituted a binding agreement, being the
whole of the Agreement between myself
and the credit provider.
2. . . .;
3. . . .;
4. I am aware that I must
not accept this Agreement unless I understand my rights and
obligations and the risks and costs of the
loan.”
[46] The applicants not
only initialled every page of the document but the document provides
for the full signature of the consumer
(applicants) both at the end
of Part 1 and again in Part 2, immediately underneath paragraph 4 (as
quoted) of the acceptance by
the consumer constituting the proposed
agreement part. Both applicants’ full signatures appear at both
the designated places
as well as signatures of a witness and the
representative of the first respondent.
[47] It is not clear
whether the applicants purport to rely on an
iustus
error
brought about by a misrepresentation by
the first respondent regarding the document, or whether it is their
case that the document
itself constitutes a misrepresentation,
which induced an
iustus error
or excusable mistake.
A document can
constitute a misrepresentation in certain circumstances.
Brink
v Humphries & Jewell (Pty) Ltd
2005
(2) SA 419
(SCA). The document in question is however not misleading.
The applicants simply fail to deal with Part 2 of the document. They
do not explain how it came about that they initialled all the pages
and why they signed the document or, for that matter, how they
could
labour under any mistaken impression as to what they were signing
bearing in mind the content of Part 2 and the acceptance
clause. The
applicants have failed to set out averments which, if established at
the trial, would entitle them to the relief they
ask for.
[48] Save for the
afore-mentioned, the applicants’ have a much more fundamental
problem with their version. The loan agreement
is subject to the
registration of a second mortgage bond. The applicants indeed
registered the second mortgage bond in favour of
the first respondent
as continuing covering security for due compliance by them with their
obligations in terms of the loan agreement.
The exact amount of the
loan which was extended by the first respondent – which formed
the subject-matter of the action with
regards whereto the default
judgment was granted - is admitted in the bond to be due, owing and
payable by the applicants to the
first respondent. The applicants
have significantly failed to deal with the said bond, notwithstanding
that it is specifically
pleaded in the summons. The applicants have
clearly been less than frank.
[49] It is necessary to
deal with the applicants’ averments that no proper service of
the summons took place.
The summons was served on
both the applicants respectively at 19 Doringboom Street, Edenpark,
Mandela View, Bloemfontein by service
on Me M Maila, a domestic
worker, ostensible a responsible person and not less than 16 years of
age, of and in control of the chosen
domicilium
citandi et executandi
in the applicants’
absence.
[50] The applicants’
submission regarding the alleged invalid service is premised on two
grounds.
[51] Firstly, the
applicants contend that no agreement came into existence and thus the
parties did not chose domicilium addresses
for service of legal
process or notices. The applicants argue that the service was
accordingly invalid. This ground has effectively
been disposed of by
my findings that an agreement was concluded and the applicants have
failed to show any prima facie ground that
would entitle them to be
released from the agreement. The argument also fails to take into
consideration that the same address
where service was effected was
also chosen as domicilium address for purpose of service of legal
process and all notices (in terms
of the bond) in the second mortgage
bond that was registered in favour of the first respondent by the
applicants.
[52] The second ground
entails that the first respondent was
mala
fide
to have the summons served at the chosen
domicilium address when its manager, the second respondent, knew or
ought to have known
that the applicants no longer resided at the said
address.
[53] The applicants
appointed the domicilium address in the loan agreement as well as in
the second mortgage bond, as stated. The
applicants never changed the
address, notwithstanding that they were entitled to do so in writing.
[54] The said address was
agreed to by the parties to be the address where the applicants would
accept service of all notices in
terms of the agreement and the
second mortgage bond as well as the service of legal process in
connection with the agreement and/or
the bond.
[55] Rule 4(1)(
a
)(
iv
)
authorises service on a chosen
domicilium
citandi et executandi
by delivering or
leaving a copy at the domicilium so chosen. Where a
domicilium
was chosen, service there will be adequate even though
the defendant, the applicants
in casu
,
are known not be living there anymore.
Gerber
v Stolze and Others
1951 (2) SA 166
(T)
at 170D–G.
Prudential Building
Society v Bothma
1953 (3) SA 887
(W).
Loryan (Pty) Ltd v Solarsh Tea & Coffee
(Pty) Ltd
,
1984 (3) SA 834
(W).
[56] It follows that the
service was proper and lawful.
[57] The applicants have
failed to advance a
bona fide
defence with some prospects of
success. The application can never be said to have been made
bona
fide
.
[58] I am therefore of
the view that the applicants have failed to show good cause for
rescission of the judgment and as such the
application stands to be
dismissed with costs.
[59] The costs of 15
March 2012, when the matter was postponed by agreement, were reserved
to be determined by the court hearing
the matter.
[60] The applicants
contend that the first respondent should have notified them in terms
of Uniform rule 6(5)(d)(iii) that it would
take a legal point
regarding the form of notice of motion that the applicants had used,
instead of disclosing this for the first
time in its heads of
argument. The applicants thus contend that the first respondent is
substantially to blame for the postponement
and should pay the wasted
costs.
[61] This was however not
the reason why the applicants could not proceed with the application
on the day that they had enrolled
it for hearing. To this end, the
first respondent gave proper notice of its intention to oppose the
application and the matter
was enrolled in the opposed motion court.
The applicants then failed to comply with the rule 13.3 of the Rules
regulating the conduct
of the proceedings of the Orange Free State
Provincial Division of the High Court of South Africa (now the Free
High Court, Bloemfontein)
[published in GN 820 of 7 September 2007].
In terms of the said rule parties must file heads of argument in
opposed motions with
the court registrar no later than 15h00 on the
Tuesday immediately preceding the motion day, or, if such Tuesday is
a public holiday,
on such court day preceding such holiday. The
applicants filed no heads of argument. The applicants proceeded at
their peril by
electing not to file heads of argument in the
circumstances. The consequence of their failure was inevitably that
the application
could not proceed on that day.
[61] In
Gelb v
Hawkins
1960 (3) SA 687
(AA), Holmes AJA at 694A said:
‘
In
seeking a basic principle to apply, I do not think it is necessary or
desirable to say more than that the Court has a discretion,
to be
exercised judicially upon a consideration of the facts in each case,
and that in essence it is a matter of fairness to both
sides. The
various decisions in the reports in regard to costs seem to me to be
illustrations of this basic principle.”
[62] I have already found
that the application was not bona fide and had no prospect of
success.
[63] Justice will be best
served if the reserved costs follow the result.
[64] In the result, the
application is dismissed with costs.
______________________
N. SNELLENBURG, AJ
First and Second
Applicant: Adv. N D Khokho
Instructed by:
Ponoane Attorneys,
Bloemfontein
First Respondent : Adv. M
C Louw
Instructed by:
McIntyre & Van der
Post Attorneys,
Bloemfontein
1
Uniform
rule 46(1)(
a
)(
ii
); Gundwana v Steko Development and
Others
2011 (3) SA 608
(CC); Mkhize v Umvoti Municipality and Others
2012 (1) SA 1
(SCA).