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[2011] ZAFSHC 194
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Minister of Safety and Security v Janse Van Vuuren and Another (3970/05) [2011] ZAFSHC 194 (1 December 2011)
1
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3970/05
In
the matter between:-
MINISTER
OF SAFETY AND SECURITY
….............................
Applicant
and
JAN FREDERICK
JANSEN VAN VUUREN
…................
1
st
Respondent
JOHAN JAGGA
…..........................................................
2
nd
Respondent
_____________________________________________________
HEARD ON:
16 SEPTEMBER 2011
_____________________________________________________
JUDGMENT BY:
MATHEBULA, AJ
_____________________________________________________
DELIVERED ON:
1 DECEMBER 2011
_____________________________________________________
[1] This is an
application for leave to appeal against an order made on the 16
th
August 2011. In particular, the applicant is seeking leave to appeal
against paragraph 2 of the order. The grounds for leave to
appeal are
as follows:-
The Honourable Acting
Justice Mathebula erred in not making the agreement reached by the
parties that the Respondents should pay
the wasted costs occasioned
by the postponement an order of court and ordering, instead, that
there shall be no order as to costs.
(ii) The Honourable
Acting Justice Mathebula erred in not taking into consideration that
the postponement was made at the instance
of the Respondents and that
the Applicant was ready to proceed with the trial.
In the circumstances
where:
the parties had agreed
that the Respondents should pay the costs occasioned by the
postponement;
the postponement was
at the instance of the Respondents; and
the Applicant was
ready to proceed with the trial and not at all to blame for the
postponement, the Honourable Acting Justice
Mathebula failed to
exercise his discretion judiciously or exercised it improperly, in
that in the circumstances a proper
and judicious exercise of
discretion dictated an award of costs in the Applicant’s
favour.
[2] Both counsels
approached me in chambers having agreed to postpone the matter. It
has earlier come to my attention that the instructing
attorney for
the respondents (plaintiff in the main case) had suffered stroke a
week or two before the trial date. This was the
main reason for the
postponement.
[3] I informed them that
I was aware of the prevailing circumstances and that I consider the
matter to be beyond the control of
all of us. On that basis I
indicated to them that despite their agreement, as to costs, I will
exercise my discretion to make no
costs order. Almost like a
thunderbolt Mr Mene fiercely protested in an unruly manner that I
have no grounds to rule in that manner.
Mr Greyling left it in my
discretion to make a ruling. I indicated to Mr Mene that we should
then deal with this matter in open
court of which he angrily refused
citing that a ruling had been made. I shall not deal with other
insinuations that Mr Mene levelled
against me which at times bordered
on contempt.
[4] In his submission, Mr
Mene did not advance any argument more than what is contained in the
papers. Mr Greyling submitted that
the decision to award costs lies
in the discretion of the court.
[5] The question to award
costs or not lies in the discretion of the court. In
UNION
GOVERNMENT v HEIBERG
1919 AD
477
at p. 484 Solomon AJ
said the following:-
“
The
ordinary practice is, of course, that costs follow the event, but
that is subject to the general rule of our law that costs
- unless
expressly otherwise enacted - are in the discretion of the Judge ……”
See also
MOFOKENG v
GENERAL VERSEKERING BPK
1990 (2) SA 712.
[6] The relevant
principles in regard to costs were summarised as follows in
WARD
v SULZER
1973 (3) SA 701
(A) at p. 706 G – 707 D:
“
1.
In awarding costs the Court has a discretion, to be exercised
judicially upon a consideration of all the facts; and, as between
the
parties, in essence it is a matter of fairness to both sides. See
Gelb
v. Hawkins,
1960 (3) S.A. 687
(A.D.) at p. 694A; and Graham v.
Odendaal,
1972 (2) S.A. 611
(A.D.) at p. 616.
Ethical considerations may also enter into the exercise of the
discretion; see
Mahomed
v. Nagdee,
1952 (1) S.A. 410
(A.D.) at p. 420
in fin.
2. The same basic
principles apply to costs on the attorney and client scale. For
example, vexatious, unscrupulous, dilatory or
mendacious conduct
(this list is not exhaustive) on the part of an unsuccessful litigant
may render it unfair for his harassed
opponent to be out of pocket in
the matter of his own attorney and client costs; see
Nel v.
Waterberg Landbouers Ko-operatiewe Vereniging,
1946 A.D. 597
at p.
607,
second paragraph. Moreover, in such cases the Court’s
hand is not shortened in the visitation of its displeasure; see
Jewish Colonial Trust, Ltd. v Estate Nathan,
1940 A.D. 163
at p.
184, lines 1-3.
3. In appeals against
cost the question is whether there was an improper exercise of
judicial discretion, i.e., whether the award
is vitiated by
irregularity or misdirection or is disquietingly inappropriate. The
Court will not interfere merely because it might
have taken a
different view.
4. An unsuccessful appeal
against an order involving costs on the basis of attorney and client
does not necessarily entitle the
respondent to the costs of appeal on
the same basis. A Court of appeal must guard against inhibiting a
legitimate right of appeal,
and it requires the existence of very
special circumstances before awarding costs of appeal on an attorney
and client basis; see
Herold v. Sinclair and Others,
1954 (2) S.A.
531
(A.D.) at p. 537.
The decision also indicated the
undesirability, in that case, of elaborating on the generality of the
expression “very special
circumstances”. Without seeking
to limit it, I think it safe to say that relevant considerations
could include, amongst others,
the degree of reprehensibility of the
appellant’s conduct, the amount at stake, and his prospects of
success in noting an
appeal, whether against the main order or
against the special award of costs with its censorious implications”.
[7] The main reason that
the matter had to be postponed was the indisposition of the attorney
for the respondents. The court is
there to do simple justice between
parties. That is the discretion bestowed upon it which must be
exercised judicially in manner
that is just and equitable. In doing
so one must consider all facts. It is beyond the control of the
respondents that their attorney
suffered stroke. In this matter, the
main trial has not begun despite the matter being on the roll for
sometime. There is no prejudice
to the parties and in particular the
applicant. I can only conclude that another court will not come to
any different order than
the one I gave on the
16
th
August 2011
. Instead the applicant is only delaying this
matter and I can find no basis for this application. This application
is not brought
as a matter of principle but only a flex of muscles by
a well resourced litigant. There are simply no prospects of success
in this
matter.
[8] As the general rule
is that the costs follows the event. I will depart from this rule in
order to allow the parties to enrol
the matter so that it can proceed
to finality. The issue of costs can still be argued at a later stage.
[9] Accordingly I make
the following order:-
9.1 The application
for leave to appeal is dismissed.
9.2 Costs stand over
to be argued at the conclusion of the matter.
___________________
M.A. MATHEBULA, AJ
On behalf of appellant:
Adv. B.S. Mene
Instructed by:
State Attorney
BLOEMFONTEIN
On
behalf of respondents: Adv. P. Greyling
Instructed
by:
Goodrick
& Franklin Attorneys
BLOEMFONTEIN
MAM/sp