Board for Sheriff's and Another v Koen (A962/01) [2002] ZAWCHC 43 (16 August 2002)

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[2002] ZAWCHC 43
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Board for Sheriff's and Another v Koen (A962/01) [2002] ZAWCHC 43 (16 August 2002)

in
the high court of South Africa
(cape of good hope provincial
division)
Case No A962/01
In the matter between:
the board for sheriffs
First Appellant
the executive committee of
the board for sheriffs
Second
Appellant
and
benjamin jeremia koen
Respondent
Judgment: delivered 16 August 2002
Griesel J:
This is an appeal against a costs order, granted
in favour of the present respondent by
Mjoli AJ
in the court
a quo
.
It arises from
an urgent application brought by
the respondent (as applicant) against the Minister of Justice (first
respondent),
the Board for Sheriffs
(second respondent) and
the Executive Committee of the Board
for Sheriffs (third
respondent
).
For
the sake of convenience I refer to the present appellants herein as
‘the Board’
and
‘the Executive Committee’
respec­tively and to the respondent as
‘the
applicant’
.
The Minister does
not play any role in this appeal.
The application was aimed, in essence, at
redressing the refusal by the Board (alter­natively the
Executive Committee) to issue the
applicant
with a fidelity fund certificate for the year 2000, as required by
sec 30(1)(a)
of the Sheriffs Act 90 of 1986 (
the
Act
).
At the time of the hearing before
Mjoli AJ
,
more than year after the launch of the application, all issues
between the parties had been resolved, save for the question of
costs. Having heard argument on the matter, the learned Judge
awarded the costs of the application to the applicant, hence this
appeal, which comes before us with leave granted by Hlophe JP.
Factual Background
The applicant had been the sheriff for the
district of Mitchell’s Plain since 1994. As such, his office is
regulated by the provisions
of the Act.
In terms of
sec
22(1)
of the Act every sheriff must open and keep a separate
trust account with a financial institution, into which any money
held or
received by the sheriff on account of any person must be
deposited. A
sheriff is required to
keep
separate records of monies deposited or invested by him in, and
payments made by him out of, the said trust account, which
records
must be audited by an auditor at least once annually.
1
Each sheriff is obliged at all times to be the
holder of a fidelity fund certificate and may not act in any manner
as a sheriff
unless he or she is the holder of such a certificate.
2
A sheriff may apply on the
‘prescribed
form’
to the Board for a fidelity
fund certificate,
3
which remains valid until 31 December of the year in respect of
which it has been issued.
4
In terms of the applicable Regulations, 31 July
of any particular year has been determined as the dead­line for
submission
by a sheriff to the Board of an annual audit report, as
contemplated by
secs 23(1)(b)
and
23(2)
of the Act. Levies and interest
payable to the Board and the Fidelity Fund are due on the same date.
Appli­cations for renewal
of fidelity fund certificates, on the
‘prescribed form’
and
accompanied by the
‘prescribed
contribution’
,
5
signed before a commissioner of oaths, are due by 31 October of each
year.
It is not disputed that the applicant was aware of these
requirements and the respective deadlines in respect thereof. When
he
failed to comply with the July deadline, he was reminded by
officials of the Board of the afore­mentioned requirements on
more
than one occasion. At a meeting with the Board’s Messrs
Stemmet and Greyling during August or September 1999, it was pointed

out to the applicant that a fidelity fund certificate could not be
issued to him for the following year unless he complied with
all the
statutory requirements. A written reminder to the same effect was
sent to the applicant on 11 October 1999.
On 19 November 1999 the applicant eventually filed his application
for a fidelity fund certificate for the year 2000. However,
the
application was incomplete. Certain questions were simply left
un­answered. Moreover, the all-important audit report remained
out­standing.
In a letter addressed to the Board, dated 14 December 1999, the
appli­cant’s office manager, one Booysen, undertook on behalf
of the applicant that an auditor’s report with all relevant
supple­mentary docu­men­tation would be delivered to
the
Board’s offices by 20 December 1999.
On 17 December 1999, instead of the promised
auditor’s report, the Board received a letter from the applicant’s
auditors to
the effect that they had been unable to establish the
trust balances
‘aangesien geen
rekords gehou is van trustgelde ontvang en uitbetaal nie’
.
In the circumstances the auditors refrained from expressing an
opinion concerning the trust audit.
This development prompted Stemmet on behalf of
the Board to address two letters to the applicant on 22 December
1999. In the first
letter, the applicant was informed that the Board
had decided to appoint an inspector in terms of
sec
56(1)(b)
of the Act to inspect his
office and to report to the Board.
In the second letter the applicant’s attention
was drawn to various short­comings in his appli­cation, viz

he had failed to comply with the require­ment
of
sec 23(1)(b)
of
the Act to have his records audited annually;
he had failed to comply with various regulations,
inter alia
by failing to pay interest on his trust account to the Board,
accom­panied by a certificate from an auditor;
he had failed to obtain compulsory professional
indemnity in­surance, as required by
sec
30(1)(b)
;
he had not paid over the prescribed levy to the Board, which failure
or omission con­stituted an offence.
The letter concluded by pointing out that, in
terms of
sec 33(1)(i)
and
(m)
of
the Act, the Board could not issue a fidelity fund certificate to the
applicant for the year 2000. It was also pointed out that,
by virtue
of the provisions of
sec 30(1)(a)
,
the applicant was not allowed to perform any functions assigned to a
sheriff without being the holder of a fidelity fund certificate.
It
is common cause that Booysen received this letter on the same day (ie
22 December 1999) at the applicant’s office. The applicant
had in
the meantime left for New Zea­land on vacation.
It was against this background that an urgent
special meeting of the Board (in the form of a telephonic
conference) was convened
for 24 December 1999.
6
After discussion, the Board unanimously resolved that a fidelity
fund certificate for the year 2000 would not be issued to the
applicant. This was the primary resolution which the applicant
sought to set aside in the review.
By notice dated 4 January 2000, the Deputy
Minister of Justice removed the applicant from the office of sheriff
in terms of
sec 4(3)(a)
of
the Act, appointing one of his deputies as acting sheriff in his
place. However, this decision was subsequently rescinded after
the
applicant’s attorneys made repre­sentations to the Minister on
his behalf in a letter dated 6 January 2000. The Minister
afforded
the applicant an opportunity until (31 January 2000) to place his
case before the Board, failing which his removal from
office would
be re­considered.
By letter dated 19 January 2000 the applicant’s
attorneys addressed representations to the Board, at the same time
seeking to
cure some of the defects pointed out in the Board’s
second letter of 22 December 1999.
7
The attorneys enclosed
inter alia
a belated audit report, dated 14 January 2000 from new auditors,
Barends Knight, who had in the interim been appointed by the

applicant. The report on the prescribed form, filed in pur­ported
com­pliance with the provisions of
sec
23
of the Act, states in un­equivocal
terms:
‘In our opinion B J Koen (name of Sheriff) did not comply
complied
with sections 22 and 23(1)(a) of the Act during the year.’
In the covering letter accompanying their report
the auditors referred to an
‘audit’
which
revealed
‘that certain accounting and
administrative controls were not functioning or were non-existent
during the period of our review’
. A list of
six qualifications was annexed to the report, recording
inter
alia
that:
no proper books of account had been kept or presented to them, with
the result that it was not possible to reconstruct a trust
creditors’ ledger;
no monthly bank reconciliations had been prepared;
it was
‘extremely
difficult’
to ascertain the source
of funds deposited into the trust bank account;
during the period from October 1998 to February 1999 certain funds
amounting to some R29 000 had not been banked;
interest earned on trust monies was not paid over to the Board on a
timely basis;
for a period of three weeks during November 1998 the trust account
was in an overdraft position.
The auditors certified that interest in an amount of R306,22 had been
earned on monies deposited in the
applicant
’s
trust account and a cheque in the same amount, drawn by the
applicant
on 18 January 2000, was enclosed with the attorneys’ covering
letter.
A further cheque in an amount of R9 297,30, drawn on the same
day, was enclosed with the attorneys’ said letter, this amount
being in respect of levies and contributions due to the Board in
terms of
sec 31(2)
.
In further support of his representations, the applicant enclosed
written submissions, one from his office manager, Booysen,
ex­pres­sing
the view that the applicant
‘had the
stability and financial back up and expertise to make the Sheriff’s
office operate efficiently as well as effectively’
, and
another from Barends Knight dated 18 January 2000, ex­pressing
a commitment to assist the applicant on a monthly
basis while
recording the appli­cant’s acknowledge­ment
‘that
certain internal controls were lacking with regard to his trust
account’
.
Curiously (especially in the light of the history of defaults
outlined above), the letter concludes with an ultimatum by the
attorneys,
demanding that the Board issue a fidelity fund
certificate for the year 2000 to the appli­cant on or before 21
January 2000
(ie within two days), failing which the applicant would
proceed with an urgent court application.
Further correspondence followed, but was inconclusive. In the
circum­stances t
he present application
was
launched and set down for 3 February 2000.
Relief claimed
In the Notice of Motion the applicant sought a
rule nisi
,
having the effect of an interim interdict, in the following terms:
Hersiening en tersydestelling van die besluit van die Derde
Respondent
[the Executive Committee]
op 24 Desember 1999, om
nie ’n getrouheidsfondssertifikaat aan Applikant uit te reik vir
die jaar 2000, nie.
Hersiening en tersydestelling van die besluit van Tweede
Respondent
[the Board]
en/of Derde Respondent, klaarblyklik
op 22 Desember 1999, ingevolge waarvan ’n inspekteur aangestel
was om ’n ondersoek rakende
Applikant te doen en daarna aan
Tweede en/of Derde Respondente te rapporteer.
Hersiening en tersydestelling van die besluit geneem namens
Eerste Respondent
[the Minister]
op 4 Januarie 2000 deur die
Agbare Adjunk-Minister, ingevolge waarvan Applikant onthef was uit
sy posisie as Balju van die Hooggeregshof
en laer-howe, met
onmiddellike effek, welke besluit klaarblyklik deur die voormelde
Adjunk-Minister terug­getrek is.
’
n Bevel ingevolge waarvan die Respondente, gesamentlik en/of
afsonderlik, verbied word om enige administratiefregtelike besluit
rakende Applikant te neem in Applikant se afwesigheid en sonder dat
Applikant voldoende geleentheid gebied was om sy kant van
die saak
aan enige van die Respondente, gesamentlik en/of afsonderlik, voor
te lê, met of sonder die hulp en bystand van sy
regs­verteen­woordiger(s).
’
n Bevel ingevolge waarvan die Respondente gesamentlik en/of
afsonderlik gebied word om onmiddellik by die vergadering van
Tweede
en/of Derde Respondent belê vir 3 Februarie 2000, ’n
getrouheidsfondssertifikaat vir die jaar 2000 aan Applikant uit te
reik,
hangende afhandeling van die aangeleentheid, en in terme van
Artikel 33(2) van die Wet op Balju’s, Wet 90 van 1986, soos
gewysig,
en onderworpe aan gepaste en billike voorwaardes wat die
Agbare Hof mag goeddink.
’
n Bevel ingevolge waarvan Tweede en/of Derde Respondente
gebied word om by die vergadering belê vir 3 Februarie 2000 te
besin
en te besluit oor die Applikant se
getrouheidsfondssertifikaat, en om Applikant geleentheid te bied om
teenwoordig te wees en
vertoë te rig, indien nodig, tydens die
vermelde vergadering.
The thrust of the
applicant
’s complaint,
as set out in his founding affidavit, was that decisions had been
taken against him by the Board in his absence
and without affording
him an opportunity to state his case or to be heard. He relied in
this regard on the right to procedurally
fair administrative action,
as enshrined in
sec 33(1)
of the Constitution, 1996, read
with art 23(2) of Schedule 6 to the Constitution.
8
When the matter came before court on 3 February
2000, it was by agree­ment post­poned for a week, and a
timetable for the
filing of further papers was fixed. At the next
appearance on 10 February 2000 the application was, again by
agreement, postponed,
this time
sine
die
. It was further ordered by
agree­ment:
‘
2. Tweede
respondent
[ie
the Board] onderneem om die aansoek van Applikant om ’n
getrouheidsfondssertifikaat in goeie trou op Dinsdag 15 Februarie
2000 te oorweeg.
‘3. Die Applikant en sy regsverteenwoordigers sal geregtig wees om
die vergadering om 9h00 op 15 Februarie 2000 by te woon en
mondelinge en/of skriftelike vertoë namens applikant te lewer …’
Leave was granted to the applicant, should his application to the
Board be un­successful, to approach the court on the same papers,
duly amplified. By agreement, costs were ordered to stand over.
Subsequent events
The meeting, envisaged in the aforesaid order,
was duly held and was addressed on behalf of the applicant by his
counsel, Adv
Moses
,
who represented him throughout these proceedings. At the meeting
counsel frankly conceded that
‘the
facts reflect that proper bookkeeping had not taken place’
.
Nonetheless, Adv
Moses
submitted that the applicant was a
‘suitable
person’
and that
‘he
(ie applicant) has learnt now to appreciate the importance of proper
book­keeping…’
He accordingly
exhorted the Board to give the applicant the chance to prove to them
that he would address the problem.
In conclusion, Adv
Moses
conceded, in response to a question by the Chairman, that in view of
the acknowledged deficiencies in the original application,
the
applicant was asking the Board
‘in
the interest of fairness please exercise your discretion in the
favour of applicant (in terms of
sec
33(2)
of the Act)’
.
After lengthy deliberation, the Board decided,
with two votes against and two abstentions, to issue a fidelity fund
certificate
to the applicant in the exercise of the discretion
vested in them by virtue of the provisions of
sec
33(2)
of the Act. The decision was
subject to the con­dition that audited finan­cial
state­ments be submitted by the applicant
every month for a
period of six months and further subject to the con­currence of
the Minister.
Fortified, no doubt, by his perceived vindication
before the Board, the applicant argued before the court
a
quo
that he was entitled to recover
the costs of the urgent application because he had been
substantially successful. What is more,
he claimed to be entitled to
costs on an attorney and client scale.
Prior to the hearing before the court
a
quo
the applicant, with­out any
formality, pur­ported to supplement the papers by simply filing
a transcript of the complete
pro­ceedings before the Board on 15
February 2000. The permissibility of this step, and hence the
admissibility of the transcript
as evidence, was hotly con­tested
on behalf of the Board, both before the court
a
quo
and on appeal before us.
In
the view I take of the matter, however, it is not necessary to reach
a final con­clusion on the admissibility or otherwise
of this
document. I shall assume in favour of the
applicant
,
without deciding, that the trial court was en­titled to have
regard to the events that took place at the meeting as reflected
in
such transcript and that it properly forms part of the record on
appeal.
The judgment of the court a quo
At the hearing before Mjoli AJ it was argued on behalf of the
applicant
, with reference to the outcome
of the meeting of 15 February 2000, that the
applicant
had been sub­stantially successful inasmuch as the decisions
com­plained of had all been reviewed and set aside by the
Board
at the said meeting.
It was further argued
that in terms of the
rules of natural justice, it was incumbent on the Board, before
refusing to issue a fidelity fund certificate
to the
applicant
,
to give the
applicant
a hearing; that
their failure to do so constituted a fatal irregularity and that by
consenting to the order of 10 February 2000,
the Board had by
implication conceded that the procedure adopted by them had been
irregular and in violation of the rules of natural
justice.
These arguments found favour with the learned Judge, who held as
follows:
‘
I
am satisfied, therefore,
that
even without getting into the merits of the application
,
failure by the respondents to comply with the rules of natural
justice in removing the applicant from the post of Sheriff and
declining to issue a fidelity fund certi­fi­cate was fatally
defective and could have decided the whole issue. It is for
this
reason, therefore, that I am of the view that the applicant would
have been successful.’ [my underlining]
The Board and the Executive Committee (the present appellants) were
accordingly ordered to pay the costs incurred by the applicant
jointly and severally.
Approach to appeals against costs orders
The correct approach to an appeal against a costs order has been
stated on many occasions, it is well settled and does not require
citation of authority. It is trite law that the court of first
instance has a judicial discretion as to costs. Such discretion,
however, is not unlimited, and will be set aside on appeal where the
court of appeal is satisfied that the exercise of the court’s
discretion is vitiated by misdirection or ir­regularity, or the
absence of grounds on which a court, acting reasonably, could
have
made the order in question.
The successful party should, as a general rule, be awarded its
costs. Al­though this is not an inflexible rule, it should not
be departed from except upon good grounds. Indeed, in an appeal
against a costs order, the court's decision, in the absence of
other
relevant factors, would in the normal course be largely based on
whether or not the appellant was or would have been successful
on
the merits.
Where the merits of the case had been settled prior to the hearing,
the Court should not have to hear evidence to decide the disputed
facts in order to decide who is liable for costs, but the Court
must, with the material at its disposal, make a proper allocation
as
to costs.
(
Gamlan Investments (Pty) Ltd &
Another v Trilion Cape (Pty) Ltd & Another
1996 (3) SA 692
(C) 700G

I).
Discussion
Where the learned Judge
a quo
purported to approach the
matter on the basis that a decision on costs could be reached
‘
even
without getting into the merits of the application’
,
such approach would clearly run counter to the well-established
authority referred to above. Reading the judgment as a whole,
however, it seems that what was meant by the above-quoted extract,
was that it was possible to come to a decision on the question
of
costs without considering the merits of the application before the
Board. To put it differently: because the procedure followed
by the
Board was
‘irregular’
(as found by the court
a quo
),
it was irrelevant to enquire whether or not the decision reached by
them was in the circumstances the correct one.
The crisp question for decision therefore is whether the court
a
quo
was correct in finding that the procedure adopted by the
Board at their meeting of 24 December 1999 was
‘irregular’
or procedurally unfair due to their failure to comply with the
audi
rule.
In my view, the short answer is no. It is trite law that a fair
administrative action depends on the circumstances of each case.
9
In the context of appli­cations for the renewal of licences,
permits and certificates (such as the fidelity fund certificate
in
casu
), I accept that a hearing is ordinarily required before the
licence or other similar benefits are revoked, varied, suspended or
refused.
10
De Smith et al
put it as follows:
11
‘Thus a strong presumption exists that a person whose licence is
threatened with revocation should receive prior notice of that
fact
and an opportunity to be heard. The presumption should be especially
strong where revocation causes deprivation of livelihood
or serious
pecuniary loss, or carries an implication of misconduct.’
The following passage
12
by the same learned authors tends to lend further support to the
applicant
’s argument in this regard:
‘Non-renewal of an existing licence is usually a more serious
matter than refusal to grant a licence in the first place. Unless
the licensee has already been given to understand when he was
granted the licence that renewal is not to be expected, non-renewal
may seriously upset his plans, cause him economic loss and perhaps
cast a slur on his reputation. It may therefore be right to
imply a
duty to hear before a decision not to renew irrespective of whether
there is a legitimate expectation of renewal, even
though no such
duty is implied in the making of the original decision to grant or
refuse the licence.’
On the other hand, there is authority in this Division to the effect
that, if it should have been foreseen by an
applicant
that certain issues would be raised to the detriment of his or her
application for a licence, then any neglect by the
applicant
to deal therewith cannot successfully be raised on review, despite
the fact that the administrative tribunal failed to alert such
applicant
to it.
13
This principle could be applied especially, I suggest, in a
situation where an appli­cation has to comply with certain
statutory
requirements and has to be in the
‘pre­scribed
form’
, as in the present matter.
Whichever approach one adopts in this matter, one arrives at the
same con­clusion. As I have shown in the summary above,
14
the
applicant
was well aware of the
statutory requirements for an application to renew his fidelity fund
certificate. Moreover, he was repeatedly
reminded by officials of
the Board, both orally and in writing, to comply with such
requirements. In my view, he had ample opportunity
to place his case
before the Board. The fact that he chose to do so in a manner that
was, to his know­ledge, clearly flawed
and defective cannot be
blamed on the Board.
To sum up as far as this aspect is concerned,
I
am satisfied on the facts of this case there had been due compliance
with the
audi
principle.
In the result I
am satisfied that the decision of the Board on 24 December 1999 not
to renew the applicant’s fidelity fund certificate
was arrived at
in a manner that was procedurally fair in all the circumstances. It
follows that in my view the applicant would
not have succeeded in
obtaining any of the relief claimed before the court
a
quo
.
But there was a second string to the applicant’s
bow. As a fall-back position, it was argued that, having found that
the application
was defective by reason of one or more of the
factors mentioned in
sec 33(1)
,
it was thereupon incumbent on the Board
mero
motu
to consider whether or not to
grant a fidelity fund certificate in the exercise of their
discretion in terms of
sec 33(2)
.
I disagree. The Board is empowered in terms of
sec 33(2)
to
issue a fidelity fund certificate to a sheriff who is subject to a
disability
‘when he applies therefor’
. The
applicant
did not apply for a certificate to be issued to him in terms of
sec
33(2)
until his attorneys addressed the letter dated 19 January
2000 to the Board. In the result, there was no need for the Board to
have
considered the provisions of this section at its meeting of 24
December 1999.
It was further argued that, by belatedly agreeing on 10 February
2000 to give the
applicant
a hearing, the
Board was conceding by implication that they had been wrong not to
give him a hearing in the first place.
In my view there is no merit in this argument. As
I have shown above, the Board had not been called upon, prior to the
meeting of
15 February 2000, to consider an application in terms of
sec 33(2)
of the Act.
The
facts and considerations before them on the second occasion were
totally different from the facts and considerations before
them on
the first occasion. Whereas
the
Board
was,
at its meeting of 24 December 1999, precluded by the peremptory
provisions of
sec 33(1)
from issuing a fidelity fund
certificate to the
applicant, the situation at
the meeting of 15 February 2000 was totally different. At the second
meeting the applicant approached
the Board as supplicant on the
basis of an acknowledgement that his original application had not
been in order. On this second
occasion, he thus threw himself upon
the Board’s mercy, as it were, exhorting them to exer­cise
their discretion in his favour
in terms of
sec
33(2)
. The fact that he managed,
through his counsel, to persuade the Board to accede to this plea
does not, in my view, entitle him
to claim substantial success in
the main application.
For the reasons set out above, I am of the view that the Board, and
not
the
applicant,
would have been
the successful party, had the merits of the appli­cation been
argued before the court
a quo
.
However, even if I were to have erred in coming to this conclusion
and even if the
applicant
were to be
regarded as the party who was sub­stantially successful in the
litigation, there are at least two further considerations
that ought
to have persuaded the court not to award costs in his favour.
In the first place, it is a well-recognised principle that where the
decision of a statutory body or tribunal, such as the Board
in this
instance, is assailed, costs will not normally be awarded against
such body where it acted reason­ably and in good
faith.
15
In my view, this is exactly what happened in this in­stance. The
alle­gations to the contrary by the
applicant
in his founding affi­davit where he labels the actions of the
Board as
‘bevooroordeeld, party­dig en …kwelsugtig’
are
not only unfounded; they are scurrilous and demon­strate his own
lack of judgment. For this reason alone, the Board would,
in my
view, have been justified in opposing the application.
16
Secondly, it is equally well-established that where a litigant
applies to court for condonation of non-compliance with the
provisions
of a statute or the rules of court, the general rule is
that such party should pay the costs of the application.
17
Such costs will ordinarily include the costs of reasonable
opposition to the relief claimed.
18
Neither of these principles was considered by the court
a quo
.
Had they been considered, they would in all likelihood have led the
court
a quo
to a different finding regarding costs.
For all these reasons, I conclude that the approach adopted by the
court
a quo
in relation to costs was fundamentally flawed and
amounts to a clear misdirection, entitling this court on appeal to
interfere
with the order granted.
Sec 21A of the Supreme Court Act 1959
One final aspect remains to be dealt with. As is evident from the
above summary, the substantive issues between the parties have
become aca­demic, save for the question of costs. In the light
of this fact, counsel were requested prior to the hearing of
the
appeal to submit supplementary heads of argu­ment in relation to
the applicability or otherwise of the provisions of
sec 21A(1),
read with
sec 21A(3)
of the Supreme Court Act 59 of 1959
(as amended). Counsel have responded to this request and we are
indebted to them for the full
and helpful supple­mentary
sub­missions that have been made.
Sec 21A(1)
provides as follows:
‘When at the hearing of any civil appeal to the Appellate Division
or any Provincial or Local Division of the Supreme court the
issues
are of such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.’
In terms of
s 21A(3)
the question whether or not the judgment
or order sought would have no practical effect or result is, save
under
‘exceptional circumstances’
, to be determined
without reference to con­sideration of costs.
Having reconsidered the matter, I am not persuaded that these
provisions ought to be applied in the present case. In the first
place, it cannot be held, in my view, that the judg­ment or
order sought will have no practical effect or result in this
instance.
Apart from anything else, the judgment of the court
a
quo
con­stitutes a binding precedent (until overruled),
imposing certain onerous duties on the Board with regard to
appli­cations
for fidelity fund certificates. The judgment of
the court
a quo
requires the Board, in each case where an
application for a fidelity fund certificate is defective by reason
of one or more of
the factors listed in
sec 33(1)
of the
Act,
mero motu
to consider whether or not to issue such a
fidelity fund certificate in terms of sec 33(2)
and
to afford
the
applicant
an opportunity to be heard,
before taking their decision. For the reasons set out above, I am
satisfied that, in the circumstances
of this case, no such duty
rested upon them. The Board was therefore entitled to approach this
court to challenge that finding
by the court
a quo
.
Furthermore, the fact that there is of necessity an on-going
relation­ship between the
applicant
,
in his capacity as sheriff, and the Board as con­trolling
statutory body, makes it desirable, in my view, to spell out to
the
parties what their respective rights, duties and obligations are.
This is all the more neces­sary in view of the lamentable
lack
of insight and judgment dis­played by the
applicant
in the conduct of this whole saga. To this day, the
applicant
appears to regard himself as the innocent victim of a harsh and
un­reasonable con­trolling body, rather than as the author
of his own misfortune. Unfortuna­te­ly the judgment of the
court
a quo
added grist to his mill in that regard, in that
the
applicant
apparently regards the
judgment as vindication for his conduct and actions, and
con­comitantly, as a form of censure of the
Board in relation to
their actions. These misconceptions had to be rectified on appeal.
In any event, even where a the judg­ment or order sought will
have no practical effect or result, that is not the end of the
matter because, in terms of
sec 21A(3)
, considerations of
costs may in excep­tional circumstances be taken into account in
considering whether the order sought will
have no practical effect.
What constitutes exceptional circumstances must of course depend
upon the facts of each individual case. I am satisfied that
exceptional
circumstances are indeed present in this case. In the
first place, the costs were awarded (wrongly, as I have found)
against a
statutory body. Such costs, which one may assume are not
inconsiderable, there­fore would have to be paid from public
funds.
In these circumstances, I suggest, a court should be more
inclined to have regard to considerations of costs than where the
litigants
are private individuals or corporations.
Furthermore, the appeal relates to what has been found to be a
mis­direction on the part of the learned Judge
a quo
and
a failure to exercise a judicial discretion. In
Logistic
Technologies (Pty) Ltd v Coetzee & Others
19
it was held that this consideration in itself would usually
constitute ‘
exceptional circumstances’
which would
satisfy the requirement set by
sec 21A(3).
I respectfully
agree with those sentiments.
Conclusion
For the reasons set out above, I am of the view that the appeal
ought to succeed. Although attorney and client costs were initially
sought by the Board, Mr
Goodman
in his heads of argument as
well as his address before us confined the claim to party and party
costs.
In the circumstances the appeal is upheld with costs. The order of
the court
a quo
is set aside and replaced with the following:
‘
The
applicant
is directed to pay the costs of the application.’
B M Griesel
Ngwenya J:
I agree.
S J Ngwenya
McDougall AJ:
I agree.
R D McDougall
1
sec
23(1)
2
sec
30(1)(a)
3
sec
31(1)
4
sec
32(2)
5
as
contemplated by sec 32(1) and (2)
6
The
original unedited minutes of the meeting indicated that it had been
a meeting of the Executive Committee. This prompted the
applicant
to take the point that the decision was formally defective,
inasmuch as it had been taken by the incorrect functionary.
However,
as pointed out on behalf of the Board, the required quorum
of Board members had been present. In the result, nothing turns on

this issue.
7
See
para [12]
supra
8
For
the position since 30 November 2000, sec 3(1) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA)
9
see
now sec 3 of PAJA
10
De
Smith Woolf & Jowell
Judicial
Review of Administrative Action,
5
th
ed, 8-023
11
loc cit
12
op
cit
8-026
13
Gentle
Hooker Visserye Trust v The Minister of Environmental Affairs &
Tourism
[2000]
JOL 7325
(C) at p26 per
Van
Reenen J
14
paras
[6]

[12]
supra
15
See
eg Cilliers
Law
of Costs
§10.05

10.08 and cases cited therein
16
Cf
Deedat v The
Master & others
1998 (1) SA 544
(N) 550B

C
17
Cilliers
op
cit
§2.33
18
Cilliers
op cit
§2.34
19
1998
(3) SA 1071
(W) 1075J-1076A