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1986
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[1986] ZASCA 138
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Community Development Board v Mahomed and Others (351/1985) [1986] ZASCA 138 (28 November 1986)
LL
Case No 351/1985
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
THE COMMUNITY DEVELOPMENT BOARD
Appellant
and
RABIA ESSA
VALLI MAHOMED N O
MAHOMED SAYED MAHOMED N O
SHABIR AHMED MAHOMED N O
SHIRAZ ESSA VALLI MAHOMED N O
Respondents
CORAM
: TRENGOVE, HOEXTER, BOTHA, GROSSKOPF
et SMALBERGER JJA
HEARD
: 15 AUGUST 1986
DELIVERED
: 18 SEPTEMBER 1986
POSTEA
: 28 NOVEMBER 1986
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
In this appeal judgment was delivered on 18 September 1986. A provisional
order of costs was then made, ordering the appellant to
pay one-half of the
respondents' costs of the appeal. Pursuant to leave granted to them to do so,
the parties have now filed written
heads of argument relating to the provisional
order. The appellant submits that the order should stand. The respondents
contend that
the order should be changed, so that the respondents be awarded all
their costs of the appeal, or, alternatively, 90% of their costs
of the
appeal.
The respondents' contention rests on certain calculations which have been
made with a view to showing that the success achieved by
the appellant in terms
of the Court's order amounted, in monetary terms, to no more than 10% of the
total sum involved in the issues.
That result does not diverge appreciably from
the
prima
/
facie
...
3.
facie
view expressed in the main judgment that the finan= cial
implications of the appellant's limited success ap= peared to be rather
insignificant.
The respondents' argument in support of their contention that the provisional
order should be changed in the manner indicated, loses
sight of the fact that it
was, after all, the appellant that achieved success in the appeal, albeit to a
limited extent, and it also
loses sight of the fact that the respondents could
have safe= guarded their position by making a suitable tender, which they failed
to do, in respect of the issue on which the appellant succeeded.
The respondents' submissions have not revealed any relevant factor that was
overlooked by the Court in making its provisional order
as to costs, and have
not raised any consideration sufficient to cause this Court to review its
provisional order.
The order of the Court is as follows:
/1. ...
4.
1.
The provisional order of
costs is made final.
2. The respondents are to pay the costs of the appellant in connection with the
written argu= ments filed concerning a variation
of the provisional order of
costs.
A.S. BOTHA JA
TRENGOVE JA
HOEXTER JA
CONCUR
GROSSKOPF JA
SMALBERGER JA