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[2024] ZAFSHC 173
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National Energy Regulator of South Africa and Another v Senwes Limited and Another (3995/2020) [2024] ZAFSHC 173 (30 May 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case
number:
3995/2020
In the matter between:
NATIONAL ENERGY
REGULATOR OF SOUTH AFRICA
First Applicant
TSWELOPELE
LOCAL MUNICIPALITY
Second Applicant
and
SENWES
LIMITED
First Respondent
MEC FOR COOPERATIVE
GOVERNANCE
AND
TRADITIONAL AFFAIRS: FREE STATE PROVINCE
Second
Respondent
CORAM:
LOUBSER,
J
HEARD
ON:
26 FEBRUARY 2024
JUDGEMENT
BY
:
LOUBSER,
J
DELIVERED
ON:
30 May 2024
[1]
The First Applicant made application
for condonation for the late filing of its answering affidavit in
review proceedings launched
earlier by the First Respondent in this
Division. This application for condonation is opposed by the First
Respondent. Later on,
the Second Applicant also made application for
condonation for the late delivery of its own answering affidavit in
the review proceedings,
which condonation application is likewise
opposed by the First Respondent. The Third Respondent did not
participate in the two
condonation applications.
[2]
For ease of reference,
the First Applicant will be referred to as "NERSA", The
Second Applicant will be referred to as
the "Municipality",
and the First Respondent will be referred to as "Senwes".
[3]
Initially, NERSA, held
the view that the review application should be heard simultaneously
with the condonation application to save
the Court's time and to save
the legal costs of attending Court on two separate occasions. On the
other hand, Senwes insisted that
the condonation application be heard
first and separately, because it was loath to incur the costs of
consultation and preparing
a replying affidavit in the review
application before the admissibility of the answering affidavits of
NERSA and the Municipality
has been determined in the condonation
applications.
[4]
Since this dispute was
causing an inordinate delay in the hearing of the review application,
the matter became referred for case
management by a Judge to expedite
the further conduct of the matter to finality. The case management
Judge then found that the
condonation application was ripe for
hearing, whilst the review application was not. To ensure that the
review application also
became ripe for hearing as soon as possible,
it was ordered that the condonation application be determined first
and separately
from the review application. Hence the present
application before the Court.
Factual Background
[5]
On 19 October 2020
Senwes filed its review application. In terms of the Notice of
Motion, it sought the review and setting aside
of a resolution passed
by the Municipality on 30 June 2020 to impose a monthly basic charge
in respect of electricity
provision
to
the
Bultfontein
grain
silo
of
Senwes
in
the
amount
of R68 719.72 per month
in respect of the period 1 July 2020 to 30 June 2021. Senwes further
sought the review and setting aside
of the approval granted by NERSA
during 2020 to the Municipality to impose the monthly basic charge
referred to. Senwes also sought
ancillary relief in the form of a
declarator to the effect that the basic electricity charge payable in
respect of its silo, shall
be that applicable to electricity
consumers
falling
in the
category
of
"bulk
industrial" as
defined
in the Municipality's
tariff policy, alternatively that the determination of the basic
electricity charge be re-submitted
to the Municipality and
NERSA for re-determination.
[6]
Further hereto, Senwes
sought an order that the Municipality shall reimburse to it the
difference between the basic electricity
charge applicable to the
category "bulk industrial", alternatively the basic charge
determined upon re-submission thereof,
and the basic electricity
charge actually paid by Senwes, calculated from 11 July 2020.
[7]
The Municipality
and NERSA were also
directed in the Notice of Motion to submit all records and documents
related to the impugned resolution to the
Registrar within 15 days,
and to deliver their notice of opposition to the application within
15 days of service of the application.
They were further required to
deliver their opposing papers within 30 days after Senwes had filed a
supplementary affidavit and/or
amended Notice of Motion upon receipt
of the records and documents sought.
[8] As things turned out,
this Court was later called upon by Senwes to make an order
compelling the Municipality, and to a certain
extent NERSA, to submit
all the records and documents it had sought in its Notice of Motion.
This Court accordingly made such an
order on 30 September 2021.
Pursuant to the Court order, both the Respondents then complied and
filed their records and documents
by 3 November 2021. Senwes then
proceeded to file its supplementary affidavit on 7 July 2022. In the
supplementary affidavit it
is mentioned that attempts were meanwhile
made by Senwes to resolve the dispute with the Municipality, and to
come to an amicable
resolution, after Senwes had received the
respective records from the Respondents. However, the negotiations
with the Municipality
have broken down and have come to an end. To
this supplementary affidavit, Senwes attached a report received from
Motla Consulting
Engineers, setting out a more detailed proposal of
how the Municipality had to calculate the basic charge.
[9]
On 23 August 2022 NERSA
presented Senwes with a notice in terms of Rule 35(12) and (14),
requiring it to produce for inspection
certain documents and/or tape
recordings for the purpose of pleading. This request also included
all the source documents relied
on by Motla Consulting Engineers in
preparing the more detailed
proposal
of
how
the
Municipality
had
to
calculate
the
basic
charge.
Senwes provided the
required documents for inspection on 26 September 2022.
[10]
The answering affidavit of NERSA in the review application was then
filed on 4 May 2023, together with the present application
for
condonation for the late filing of the answering affidavit. Here it
needs mentioning that NERSA, who was unaware of the negotiations,
had
got wind by 6 April 2022 that Senwes and the Municipality were in
negotiations to settle the review application out of Court,
and it
made enquiries in this regard. Two months later, on 6 June 2022,
Senwes notified NERSA by e-mail that the negotiations with
the
Municipality
have
come to an end and that an amicable resolution could not be found.
[11]
On 23 May 2023 the
Municipality followed suit and it also filed its answering affidavit
to the application for a review. This was
followed by a substantive
application for condonation by the Municipality on 8 September 2023.
In terms of the Notice of Motion,
it sought condonation "insofar
as it may be necessary" for the late institution of the
condonation application, and secondly,
"insofar as it may be
necessary", for condonation for the late delivery of the
Municipality's answering affidavit to
the review application.
Condonation
affidavits
[12]
As already mentioned,
NERSA filed its answering affidavit in the review application on 4
May 2023. In this affidavit NERSA refers
to the reasons why
condonation for the late filing of the affidavit should be granted.
Those reasons boil down to the following:
The application for review
was launched on 19 October 2020 by Senwes. On 15 September 2021
Senwes filed an application to compel
NERSA and the Municipality to
file their respective records. NERSA then filed its records on 29
September 2021, it says. On 4 October
2021 this Court granted an
order compelling the Municipality
to file its record,
which it then did on 3 November 2021.
[13]
In March 2022 Senwes and the
Municipality entered into negotiations with a view of settling the
review application out of Court.
These settlement negotiations
suspended the progression of the review proceedings. On 6 June 2022
the attorneys of Senwes communicated
the collapse of these
negotiations to NERSA. Senwes then filed its supplementary affidavit
on 7 July 2022. On 24 August 2022 NERSA
filed a notice in terms of
Rule 35 (12) and (14), requiring Senwes to produce certain specified
documentation which form the basis
of the case of Senwes. On 26
September 2022 Senwes served its answer to this notice. Meanwhile,
NERSA had sought an expert opinion
from Acacia Economics. Because of
the delay in the response of Senwes to the Rule 35 (12) and (14)
notice, the Acacia report became
only finalised by the end of 2022.
[14]
NERSA goes on to say
that the review matter is complex, and that the process of finalising
the answering affidavit has taken longer
because of the issues
involved, the consultations with the experts as well as the delay in
the provision of crucial information
by Senwes. There is a prospect
of success for NERSA in the review, while there is no prejudice to
Senwes because of the late filing.
It is in fact NERSA that stands to
suffer prejudice should condonation not be granted. If condonation is
not granted, NERSA will
be denied an opportunity to adequately
respond to the issues raised by Senwes in the review proceedings, it
concludes.
[15]
On 10 May 2023 Senwes
filed its notice of intention to oppose the application for
condonation of NERSA. This was followed by the
answering of Senwes to
the condonation application, which was filed on 26 May 2023. In this
answering affidavit, Senwes stated
the following: Condonation must be
applied for as soon as possible and delays in applying for
condonation are not acceptable. An
applicant for condonation must set
out fully and cogently the explanation for the delay, which
explanation must cover the entire
period of the delay, and must be
reasonable and acceptable. The question of prejudice to an applicant
for the condonation does
not even arise if he is unable to
demonstrate an acceptable reason for the delay. In the absence of an
acceptable explanation for
the late application, the prospects of
success in the main proceedings do not even fall to be considered.
[16]
Senwes further provided a chronology
of the proceedings and emphasized the fact that its supplementary
founding affidavit was filed
on 7 July 2022, meaning that the
dies
for the filing of
the answering affidavit of NERSA had already expired on 19 Augustus
2022. However, the Acacia report of NERSA
was only finalised on 17
November
2022,
while
the
answering
affidavit
was
sent
electronically
to
the attorneys of Senwes
on 5 May 2023. The answering affidavit of NERSA was consequently
filed 178 days out of time. NERSA dismally
failed to provide
acceptable reasons for such excessive delay and leaves long periods
of time unexplained, with special reference
to the period between 17
November 2022, when the Acacia report was finalised, and 3 May 2023,
when the answering affidavit had
been deposed to. This represents a
period of almost 6 months. This delay of 6 months had occurred after
NERSA consulted their experts
and obtained their report dated 17
November 2022. The consultation with experts could therefore not have
delayed the answering
affidavit.
[17]
Further to this, NERSA
offered no explanation for its failure to apply for condonation
timeously. For this reason, the prospects
of success on the merits do
not even fall to be considered by the Court, Senwes says. Likewise,
the issue of prejudice to NERSA
should condonation be refused, also
does not arise for consideration, because of the lack of a plausible
and acceptable explanation
for the excessive delay in filing the
answering affidavit. Senwes itself will be prejudiced if condonation
is granted, because
it will then have to consult with experts to
prepare a replying affidavit in response to the answering affidavit.
This will incur
further costs for Senwes.
[18]
Lastly, Senwes points
out that the negotiations with the Municipality could not have any
bearing whatsoever on the late filing of
the answering affidavit.
This is so, because the period for the filing of an answering
affidavit had only commenced on 8 July 2022,
that is the day
following the filing of the supplementary founding affidavit by
Senwes. This date came after the negotiations terminated,
Senwes
says. If condonation is refused, NERSA would suffer no prejudice at
all, because if the relief is granted as sought in the
review
application, it will affect only the Municipality.
[19]
NERSA filed a replying
affidavit on 6 July 2023, denying that Senwes would suffer any
prejudice should condonation for the late
filing be granted. Senwes
was going to incur the costs of consulting with experts and the
filing of a replying affidavit in any
event, irrespective of whether
NERSA's answering affidavit was filed timeously or not, it says. It
further denies that there was
not a sufficient explanation for the
failure to file the answering affidavit between 17
th
November 2022 to
the 3
rd
of
May 2023. In this period, there was a pending request by NERSA for
the source documents from the expert of Senwes, and
there was also
ongoing requests by NERSA for a referral of the matter for case
management, which requests were opposed by Senwes.
Interestingly
enough, Senwes did not raise the request of NERSA for outstanding
documents and how it impacted on the delay in finalising
the
answering affidavit.
[20] After the
negotiations between Senwes and the Municipality fell through, NERSA
had to consult different stakeholders in order
to reconsider the
matter. This also took time. Further in its replying affidavit NERSA
deals at some length with its prospects
of success in the review
application, and concludes that the prospects of success and the lack
of prejudice on the part of Senwes
tilt the case in favour of
granting the application for condonation.
[21] The Municipality
filed its answering affidavit in the review application on 23 May
2023. In that affidavit it indicated that
it would seek condonation
for the late filing thereof. The application for condonation was only
filed on 8 September 2023. In that
application the Municipality
contends that the application only became necessary when this Court
issued the case management directive
on 23 August 2023. In that
directive Senwes was ordered to file its replying affidavit in the
review application within 20 days
should the condonation application
of NERSA succeed.
[22]
The Municipality further says that
following the breakdown in negotiations on 11 April 2022, Senwes
proceeded to file its supplementary
founding affidavit, also out of
time. It contends that Senwes has not been prejudiced by the
Municipality's delay, and that it
is in the interests of justice that
condonation for the late delivery of the answering affidavit be
granted. The public interest
will also be better served if the
answering affidavit of the Municipality is allowed. It is further
pointed out that the impugned
decision of the Municipality to adopt
certain electricity tariffs, was approved by NERSA. Since the review
application was launched
by Senwes, it has refused to
pay
its
municipal
accounts
and
it
is
now
in
arrears
in
a
substantial
sum,
the
Municipality says. This refusal of
Senwes has clear adverse implications for the fiscus.
[23] In response to this
application of the Municipality, Senwes only filed a notice of its
intention to oppose the application
for condonation. It is stated in
this notice that Senwes "shall rely on legal argument only"
for its opposition to the
condonation application. Consequently, no
answering affidavit was filed by Senwes in the application.
[24] At the hearing of
the applications, counsel representing Senwes emphasized the ordinary
principles underlying applications
for condonation, and submitted
that those principles favour the dismissal of the applications. The
respective counsel for NERSA
and the Municipality, on the other hand,
focused on the interests of justice and the unreasonable opposition
to the applications
displayed by Senwes.
[25]
Now whenever condonation is sought, the Court has a discretion, to be
exercised judicially, on a consideration
of the facts of each case,
and in essence it is a matter of fairness to both sides. In this
process the Court will consider factors
such as the efforts made
towards compliance with the Rules, the degree of non-compliance (the
length of the delay), the explanation
therefor, the prospects of
success, and the importance of the case. Such factors are not
individually decisive, but must be weighed
one against the other.
[1]
[26]
Thus, a slight delay and a good explanation for the delay may help to
compensate for prospects of success which are not strong.
Or the
importance of the matter and strong prospects of success may tend to
compensate for a long delay. At the same time, the
respondent's
interest in finality must not be overlooked.
[2]
[27]
In
Grootboom
v National Prosecuting Authority
[3]
the
Constitutional Court held that the explanation must be reasonable
enough to excuse the default. In
Mulaudzi
v Old Mutual Life Assurance Co (South Africa) Ltd and Others
[4]
the
Supreme Court of Appeal held that what calls for an explanation is
not only the delay in the timeous prosecution of the appeal,
but also
the delay in seeking condonation. An appellant should, whenever he
realizes that he has not complied with a rule of the
court, apply for
condonation without delay. In
Van
Wyk v Unitas Hospital and Another
[5]
the
Constitutional Court held that the explanation must be a full
explanation for the delay, and it must cover the entire period
of the
delay. Moreover, the explanation given must be reasonable.
[28]
It has also been stated authoritatively that the court will grant
condonation when it is in the interests of justice to do
so.
[6]
Whether
it is in the interests of justice to grant condonation depends on the
facts and circumstances of each case.
[7]
In
the Grootboom-case referred to, the Court stated that the concept of
"interests of justice" is so elastic that it is
not capable
of precise definition. It includes the nature of the relief sought,
the extent and the cause of the delay, the effect
of the delay on the
administration of justice and other litigants, the reasonableness of
the explanation of the delay, the importance
of the issue to be
raised in the intended proceedings, and the prospects of success. The
ultimate determination of what is in the
interests of justice must
reflect due regard to all the relevant factors but it is not
necessarily limited to those above. The
particular circumstances of
each case will determine which of these factors are relevant.
[8]
[29]
These are then the legal principles that govern the question of
whether condonation should be granted or not. During argument,
counsel for NERSA and the Municipality made frequent reference to the
recent judgement by Leech, AJ in
Adcorp
Fulfilment Services (Pty) Ltd v Prodigy Human Capital Architects
(Pty) Ltd
[9]
to
advance the point that the reasonableness of the opposition to an
application for an indulgence should also be determined by
the Court.
A proper reading of that judgement, however, will show that the
reasonableness of the opposition will only have a bearing
on the
costs to be awarded eventually.
Application of NERSA
for Condonation
[30] NERSA's application
appears to be marked by unique circumstances in which both NERSA and
Senwes played a significant role.
These circumstances caused the
inordinate delay in the progress of the review application. In the
review application, NERSA is
not only joined as an interested party,
but specific relief is sought against it. That relief, in terms of
the Notice of Motion,
is that the approval granted by NERSA to the
Municipality to impose the impugned tariff policy on the levying of
fees in respect
of electricity provision, be reviewed and set aside.
NERSA was also called upon to file with the Registrar within 15 days
the records
of its decision of approval. In terms of Rule 53 (4),
Senwes could then file a supplementary affidavit within 10 days after
receipt
of the record from the Registrar. As will appear hereunder,
these timeframes became clouded, to put it softly, by the events that
then followed.
[31] Since the record of
NERSA's decision was not forthcoming, Senwes filed an application
almost 12 months later in terms of Rule
30 A to compel the filing
thereof. NERSA then filed the record on 29 September 2021. Instead of
filing its supplementary affidavit
within the next 10 days as far as
the record of NERSA is concerned, Senwes entered into negotiations
with the Municipality during
March 2022 in order to settle the review
application without the knowledge of NERSA. Up to this point, it is
clear that both NERSA
and Senwes had adopted an attitude of not
complying with the provisions of Rule 53 and rather to take their own
time in the process
of the review application. The negotiations
practically stalled the further proceedings in terms of the Rules.
[32] This attitude is
confirmed by the fact that on 2 June 2022 NERSA requested from Senwes
the source documents of the Metia report
that it first relied on when
it launched the review application. This happened approximately a
year and a half after the application
was filed. Apparently, NERSA
needed those documents in order to arrange their own expert report
and subsequent answering affidavit.
Some four days later, on 6 June
2022, NERSA received the news that negotiations between Senwes and
the Municipality had terminated
unsuccessfully. Senwes then filed its
supplementary affidavit on 7 July 2022.
[33]
If this filing on 7 July 2022 was to indicate the view of Senwes that
compliance with the Rules was now to resume again, it
is clear that
Senwes itself failed to comply with the Rules in this very first step
itself. The filing of the supplementary
affidavit should have
taken place within 10 days after receipt of the record, and the
filing thereof was therefore late by twelve
days. Notwithstanding,
Senwes never applied for condonation for the late filing, and it can
therefore be safely assumed that Senwes
did not regard itself bound
by the Rules any more at that stage. This becomes more glaring if
regard is had to the fact that, according
to the Municipality, the
negotiations had already fallen through on 11 April 2022.
[34] On 1 August 2022
NERSA again requested the documents referred to above, and on 24
August 2022 it filed a notice in terms of
Rule 35 (12) and (14)
requiring Senwes to produce certain documentation. Senwes simply
ignored this request and failed to respond
to this notice. On 21
September 2022 NERSA filed a Rule 30 A notice informing Senwes that
it would apply to Court for an order
compelling Senwes to provide the
required documentation should it fail to do so. On 26 September 2022
Senwes served its answer
to the Rule 30 A notice.
[35] On 24 October 2022
NERSA proposed that the parties jointly agree to the case management
of the review application by the Court
in order to expedite the
exchange of outstanding information between the parties. Although the
Municipality was not opposed to
this proposal, Senwes indicated on 17
November 2022 that it did not agree with the proposal. On the same
day, an expert economist
report by Acacia Economics on the
comparisons and contentions made in the Metia report of Senwes,
became available to NERSA. NERSA
had requested this economist report
earlier to assist it in the preparation of their answering affidavit
in the review application.
[36] Unfortunately, as
mentioned earlier, this answering affidavit of NERSA was only filed
on 4 May 2023, together with the application
for condonation for the
late filing thereof. It speaks for itself that the delay from 17
November 2022 was excessive. The explanation
of NERSA for this long
delay is not convincing. It says that, since the matter is complex,
the finalizing of the answering affidavit
took longer because of the
issues involved and the consultations with the experts. This
explanation lacks detail and is extremely
vague. At the same time, it
is clear that by then both the parties had already abandoned the
timeframes provided for in the Rules.
Viewed objectively, Senwes had
played a major role in the prior delays in the matter, and in the
ignorance of the Rules throughout
the whole process. In this sense it
is strange that Senwes now suddenly insist on compliance with the
Rules, while they themselves
had shown little respect for the Rules
and the speedy resolution of the review application throughout the
whole process.
[37] The decision of this
Court must be fair to both sides. It cannot be denied that NERSA does
have prospects of success in the
review application, since its stance
is supported by an expert report. The matter is also of public
importance, because the higher
tariffs under scrutiny will have an
effect downwards on consumers. Most importantly, should condonation
not be granted, the Court
of review will be deprived of all the
information it needs to adjudicate the matter satisfactorily, while
Senwes will benefit unfairly
from a one-sided presentation of its
case, which is of considerable public importance. There can be no
doubt, in the unique circumstances
of this application, that it is in
the interests of justice to grant NERSA the condonation it seeks,
despite the excessive delay
in question and the unsatisfactory
explanation therefor. Senwes can suffer no prejudice as a result.
After all, the ultimate determination
of what is in the interests of
justice, must reflect due regard to all the relevant factors, and the
particular circumstances of
each case will determine which of these
factors are relevant.
Application of the
Municipality for Condonation
[38] Much of what has
been set out above, also applies to the application of the
Municipality and will not be repeated. The focus
will rather fall on
the conduct of the Municipality itself. It has already been mentioned
that the Municipality filed its answering
affidavit in the review
application on 23 May 2023. In that affidavit it indicated its
intention to seek condonation for the late
filing of the answering
affidavit, insofar as this may be required. It explains that the
review application engages complex and
technical issues which
required lengthy consultations with experts. It also refers to the
negotiations it had with Senwes to seek
a settlement in the review
application, which negotiations broke down on 11 April 2022. Senwes
thereafter filed its supplementary
affidavit far out of time, thereby
confirming that the timelines imposed by Rule 53 had long ceased to
apply, the Municipality
says. Moreover, Senwes did not respond to the
Municipality's answering affidavit at all.
[39] The Municipality
also refers to the efforts made towards the end of 2022 to have the
application case managed, which efforts
came to naught. In the
intervening period, however, it engaged the services of counsel for
the purposes of preparing its answering
affidavit, which was prepared
during November 2022. During or about that time the appointment of
the then acting municipal manager
came to an end, and a new acting
municipal manager had to take over the many tasks of his office,
including the issue of the pending
review application, it says. On 4
May 2023, the Municipality received NERSA's answering affidavit, and
the new acting municipal
manager then imposed upon the Municipality's
legal manager that it would be appropriate to deliver an answering
affidavit for the
Municipality as well. For such purposes urgent
consultations with counsel were held on 16 May 2023, and the draft
answering affidavit
settled. This explanation for the delay appears
to be reasonable and acceptable, although the whole period of the
delay is not
covered satisfactorily.
[40] The formal
condonation application was only filed on 8 September 2023. In the
founding affidavit, the Municipality contends
that the filing of the
condonation application only became necessary after this Court handed
down the case management order on
23 August 2023. Up to that date,
the Municipality held the view that the condonation application would
be pursued before the review
Court. The case management order,
however, put an end to that expectation, the Municipality says. It is
for this reason that the
application was filed so late. Viewed
objectively, this explanation appears to be reasonable and
acceptable.
[41] Senwes also did not
file any opposing affidavits in the Municipality's formal condonation
application. It only filed a notice
of intention to oppose, stating
that it would rely on legal argument only.
[42] In the
circumstances, condonation should be granted for the late filing of
the Municipality's answering affidavit, and for
the same reasons
pointed out in the condonation application of NERSA above. As in the
case of NERSA, the timelines relating to
the filing of papers in
terms of Rule 53 had long ceased to apply when an answering affidavit
had to be filed, and it is consequently
difficult to comprehend how
it can be alleged by Senwes that the answering affidavit should have
been filed before a specified
date. In addition, the Municipality has
a reasonable prospect of success in the review application. There can
also not be any prejudice
to Senwes when condonation is granted.
Above all, it is in the interest of justice to grant condonation to
the Municipality.
Costs
[43] Only the question of
costs remains. In circumstances where the timeframes no longer
applied and where it had become imperative
that the review
application be determined as soon as possible, it was unfortunate
that Senwes had opposed the condonation applications.
Having done so,
it had caused a further unnecessary delay in the review proceedings.
[44]
On the other hand,
it
cannot be said that the opposition was unreasonable. Senwes probably
had reason to believe that it would be successful because
of the long
time it took the two applicants to file their answering affidavits,
the explanations therefor and the long time
it took the
Municipality to file the formal condonation application. This Court
takes note of the view that the awarding
of
costs is a matter of fairness to both sides.
[10]
Also,
that as a general rule, the applicant for an indulgence pays the
costs
of
the
application
as
well
as
the
costs
of
any
reasonable
opposition
thereto.
[11]
This
will be reflected in the costs order the Court will make. In my view,
in
the
unique
circumstances
of
this
case,
punitive
costs
would
not
be
just
and
equitable.
[23]
In the premises, I make
the following order:
1.
The late filing of the
First Applicant's answering affidavit is condoned.
2.
The First Applicant
shall pay the costs of its application, including the costs of the
opposition thereto.
3.
The late filing of the
Second Applicant's answering affidavit is condoned.
4.
The Second
Applicant
shall pay the costs of
its application, including
the costs of the
opposition thereto.
5.
The First Respondent
shall file its replying
affidavit
to the two Applicants'
answering affidavits within 20 Court days of receipt of this Order.
P.J LOUBSER, J
For the First
Applicant:
Adv. P. Managa
Instructed
by:
Mchunu Attorneys, Rosebank
c/o Poswa Inc,
Bloemfontein
For the Second Applicant:
Adv. AS. Ayayee
Instructed
by:
Majavu Attorneys, Kroonstad
c/o Rampai Attorneys,
Bloemfontein
For the First Respondent:
Adv. M. G. Hitge
Instructed
by:
Meyer, Van Sittert and
Kropman, Klerksdorp
c/o Phatshoane Henney
Attorneys, Bloemfontein
/roosthuizen
[1]
S
v Yusuf
1968 (2) SA 52
(AD) pp 53 - 54
[2]
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532 D -F
[3]
2014
(2) SA 68
(CC) par. 23
[4]
2017
(6) SA 90
(SCA) par. 26
[5]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) par. 22
[6]
Grootboom
v National Prosecuting Authority, ibid, par. 22; Van Wyk v Unitas
Hospital and Another, ibid, par.20
[7]
Van
Wyk v Unitas Hospital and Another, ibid, par.20
[8]
Grootboom
v National Prosecuting Authority, ibid, par. 22
[9]
ZAGP
JHC 579 (26 May 2023)
[10]
Ward
v Salzer
1973 SA 701
(A) at 706 G
[11]
HDS
Construction {Pty) Ltd v Wait
1979 (2) SA 298
{E) at 302 B-C