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[2024] ZAECMHC 52
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Bara and Another v Nedbank Limited (5345/2022) [2024] ZAECMHC 52 (13 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Case no: 5345/2022
In the matter between:
DR MARCUS BONGANI
BARA
First Applicant
KOSTANTINOS
APOSTOLOU
Second Applicant
And
NEDBANK
LIMITED
Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
KUNJU AJ :
A.
Introduction
:
[1]
This is application for leave to appeal an
order and a Judgment handed down on 26 March 2024.
[2]
What I decided in the judgment was a
question of costs. In other words, I was called upon to decide who
between the applicants and
the respondent was entitled to costs of
the application.
[3]
I found that each party was liable for its
own costs. It is that finding that is the subject of this application
for leave to appeal.
Looked at it on another angle, this is an
attempt to upset the said finding. Ineluctably, the appealability of
such an order forms
an integral part of the present application.
Invariably, the provisions of section 17 of Act no. 10 of 2013 will
be considered.
So is the nature of the discretion exercised.
[4]
In this judgment I deal with this matter
under the following headings:
[4.1] the issue in the
main application;
[4.2] the applicants’
compliance with the provisions of rule 35(4) of the uniform rules of
court;
[4.3] the legal
requirements for an appeal against a cost order and the legal test on
leave to appeal;
[4.4] the notice of
application for leave to appeal and the grounds of appeal; and
[4.5] conclusion.
[5]
It is to these headings stated above that I
now turn.
B.
The issue in the main application
[6]
It was common cause between the parties
that they needed a decision on costs. The reason for that position
was that the respondent
had provided the documents required to the
applicants and in doing so it did not concede that the applicants had
made out a case
in terms of the rule 35(14). As a consequence, what
remained unresolved was the issue of costs. It is that aspect I was
called
upon to decide.
[7]
In other words, the main issue between the
parties was settled but outstanding was the determination of who
between the parties
was liable for costs.
[8]
For proper allocation of costs in such
circumstances, I was bound to assess the merits or demerits of the
application. I stated
in paragraph 13 of my judgment the following :
“
Of
course, in this situation the appropriate approach is to have regard
to the merits of the matter and if the applicant would have
succeeded
the costs of the application would ordinarily be granted in his
favor. If not, applying rule of costs, the respondent
would be
entitled to costs. The Court makes the proper allocation of costs
with the material at its disposal.”
[9]
If the applicants had made out a case in
terms of rule 35(14) provisions, potentially they could have gotten
an order of costs in
their favour. They achieved minimal success. The
majority of documents which were demanded by the applicants were
successfully
resisted by the respondents.
[10]
The above was not the only issue that
persuaded me to issue the order I did. In paragraphs 37-38 of the
judgment I stated the following:
“
37.On
costs, I have taken into account the nature of the proceedings and
the effect a costs order will have on either of the parties
and the
prevailing circumstances.
38.I must mention that is
it difficult to understand why a founding affidavit consisted of 15
paragraphs and on the other hand have
a replying affidavit with up to
30 paragraphs (Bara matter) and 24 paragraphs in the Apostolou
matter”.
C.
Applicants’ compliance with
the provisions of rule 35 (14)
[11]
In respect of the reconciliation document
demanded under rule 35(14) I found in favour of the applicants.
Equally, the dishonored
or honored payments set-out in paragraph 11
of the judgment were found necessary to be furnished to the
applicant. In this respect,
I stated that one can reasonably believe
that the reconciliation statement would exhibit these documents. In
respect of dishonored
payments I issued the order in favour of the
applicant and
ex abundanti cautela
.
That I did not consider it to be a success in favour of the
applicant.
[12]
The relevant jurisdictional requirements
under rule 35(14) which the applicants were expected to articulate
and address are:
12.1 a clearly
specified document for purposes of pleading; and
12.2 be relevant to
a reasonably anticipated issue in the action.
[13]
Nowhere in the founding affidavits do the
applicants indicate how and why are:
13.1 the required
documents necessary for pleadings; and
13.2 are relevant to
a reasonably anticipated issue in the action.
[14]
It is why in paragraph 25 of the judgment
and in context of items (d) to (g) I found as follows:
“
it
is not stated in the founding affidavit why are these documents
relevant for pleading purposes and why are likely to form an
issue in
the action, it is equally not discernible from the pleading why they
should be necessary or relevant.”
[15]
In short, the applicants’ application
did not meet the requirements set out under rule 35(14) and it is why
it failed in those
instances where such allegations were strictly
necessary or it was difficult and impossible for me to infer from the
founding affidavit
that indeed the documents concerned would have
been discoverable under the provisions of rule 35(14).
D.
The Legal requirements for an
appeal on costs and on leave to appeal
[16]
The general principle on costs is
enunciated in
Ferreira vs Levin N.O and
others; Vryenhoek and others v Powell NO and others
[1996] ZACC 27
;
1996 (2) SA 621
CC para 3
as follows:
“
The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject to
the first.
The
second principle is subject to a large number of exceptions where the
successful party is deprived of his or her costs
.
Without attempting either comprehensiveness or complete analytical
accuracy, depriving successful parties of their costs can depend
on
circumstances such as, for example, the conduct of parties, the
conduct of their legal representatives, whether a party achieves
technical success only, the nature of the litigants and the nature of
the proceeding. I mention these examples to indicate that
the
principles which have been developed in relation to the award of
costs are by their nature sufficiently flexible and adaptable
to meet
new needs which may arise in regard to litigation…” (my
underlining)
[17]
A Court of appeal will generally be very
loath to interfere with an order as to the award of costs. In
Hotz
and others vs University of Cape Town
2018 (1) SA 369
CC in
paragraphs 25 and 28
, the
Constitutional Court said:
“
[25]
In
Trencon Construction (Pty) Ltd vs
Industrial Development Corporation of South Africa
[2015] ZACC
22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC)
this court dealt with the power of an appellate court to interfere
with the High Court’s order. It held that the proper approach
on appeal is for an appellate court to ascertain whether the
discretion exercised by the lower court was discretion in the true
sense or whether it was a discretion to loose sense. The distinction
in either type of discretion, the Court held, “will
create the
standard of the interference that an appellate court must apply”.
This Court remarked, per Khampepe J,
that “[a] discretion in the true sense is found where the lower
court has a wide range
of equally permissible options available to
it
”.
In
such instances, the ordinary approach on appeal is that the “the
appellate court will not consider whether the decision
reached by the
court at first instance was correct, but will only interfere in
limited circumstances; for example, it is shown
that the discretion
has not been exercised judicially…”
.
This type of discretion has been found by this Court in many
instances, including matters of costs…”. The question
remains whether the High Court, in considering the relevant
circumstances and available options
,
judicially exercised its
discretion in mulcting the applicants with costs.
[28] It is established
that a court of first instance has discretion to determine the costs
to be awarded in light of the particular
circumstances of the case.
Indeed, where the discretion is one in the true sense, contemplating
that a court chooses from a range
of options, a court of appeal will
require a good reason to interfere with the exercise of that
discretion. A cautious approach
is, therefore required. A Court of
appeal may have a different view on whether the costs award was just
and equitable. However,
it should be careful not to substitute its
own view for that of the High Court because it may, in certain
circumstances be inappropriate
to interfere with the High Court’s
exercise of discretion”.
[18]
In
R vs Zackey
1945 AD 505
with reference to
Fripp
vs Gibbon & Co
1913 AD 354
at 363
,
the Court said:
“
Questions
of costs are always important and sometimes difficult and complex to
determine,
and in leaving the
magistrate a discretion the law contemplates that he should take into
considerations the circumstances of each
case, carefully weighing the
various issues in the case
, the
conduct of the parties and any other circumstances which may have a
bearing upon the question of costs, and then make such
order as to
costs as would be fair and just between the parties.
And
if he does not act capriciously or upon any wrong principle, I know
of no right on the part of a Court of appeal to interfere
with the
honest exercise of his discretion”
.
(my underlining).
[19]
A Court of appeal will be bound to first
consider if there are grounds to interfere with the exercise of my
discretion as set out
in my judgment. It is only after that finding
is made that the judgment could be altered. The grounds for
interfering with the
discretion I exercised are usually only where it
was not exercised judicially, or where the decision was influenced by
wrong principles,
or where the decision was affected by a
misdirection on the facts, or where the decision could not reasonably
have been reached
by a court properly directing itself to the
relevant facts and principles.
[20]
Tebeila Institute of Leadership,
Education, Governance and Training vs Limpompo college of Nursing and
Another
2015 (4) BCLR 396
(CC)
tells us
in paragraphs 13 and 14 thus :
“
13.
Few appellate Courts countenance appeals on costs alone, and indeed
the statute regulating appeals from a High Court to a Full
Court or
the Supreme Court of Appeal has long provided that an appeal may be
dismissed on the sole ground that the decision sought
‘will
have no practical effect or result” and that,
save
under exceptional circumstances
,
the question whether there would be any practical effect or result
must be determined “without reference to any consideration
of
costs”.
The practical impact of
this provision is that appeals on costs alone are allowed very rarely
indeed
.
14. All this makes
this Court reluctant to correct the mistake here. And we have given
careful consideration to the alternative.
This is to dismiss the
application and send the applicant back to the High Court, in order
to seek its leave to appeal against
the costs order to the Full
Court.
But, as shown above, that course may fail on the very
point that appeals against costs orders alone are not countenanced
”.
[21]
As set out in the above judgments, section
16(2)(a) of the Superior Courts Act, 10 of 2013(the Act),
contemplates that exceptional
circumstances must be established for
the application to succeed in an application for leave to appeal on
costs. Very substantial
costs could constitute exceptional
circumstances. That is not the case here.
[22]
The main application being an interlocutory
opposed matter, it can never be characterized as exceptional on the
basis of costs incurred.
That is not what is contemplated under the
requirement. Otherwise, all simply and straightforward matters that
are heard in the
opposed court will be regarded as such. Put
otherwise, all costs orders granted in motion under rule 35 (14)
proceedings will be
regarded as appealable.
[23]
In
Barense and
Another vs
[2023] 3 ALL SA 381(WCC)
para11
said:
“
What
are exceptional circumstances? In S vs Petersen it was held as
follows:
“
Generally
speaking “exceptional” is indicative of something
unusual, extraordinary, remarkable, peculiar or simply different.
There are, of course, varying degrees of exceptionality, unusualness,
extraordinariness, remarkableness, peculiarity or difference.”
[24]
There is thus nothing exceptional about this matter. In arguing that
there are no exceptional circumstances in this matter,
during oral
submissions Mr Botma referred the Court to a case of
SeaTrans
Maritime
v
.
Owners
,
MV
Ais Mamas
&
another
2002
(6) SA 150
(C).
He
further argued that an appeal on costs will have no practical effect.
He referred the Court to
Oudebaaskraal
(
Edms
)
Bpk
en Andere v
Jansen
van Vuuren en.
Andere
2001
(2)
SA 806 (SCA)
.
He made reference to
Mgwenya
NO. v Kruger 2017 JDR 1488 (SCA)
as
well.
[25] The notice of
application for leave to appeal does not state the exact ground under
section17 of the Act on which this
application is based. It is safe
to assume that it is the following:
“
17(1)
Leave to appeal may only be given
where
the Judge
or Judges concerned
are
of the opinion that: (a)
(i) the appeal
would have a reasonable prospects of success” (my underlining).
[26] It is apposite
to refer to what was said in
MEC for Health, Eastern Cape vs
Mkhitha and Another
[2026] ZASCA 176.
At paragraphs16-17 :
there
the Court said:
“
[16]
Once again it is necessary to say that leave to appeal,
especially to this court, must not be granted unless
there
truly is a reasonable prospect of success
.
Section 17(1)(a)
of the
Superior Courts Act 10 of 2013
makes it clear that leave
to
appeal may only be given where the judge concerned is of the opinion
that the appeal would have a reasonable prospect of success;
or there
is some other compelling reason why it should be heard
.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal.
A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis
to
conclude that there is a reasonable prospect of success on appeal
.
[27] In
Zuma vs
Office of the Public Protector and others
(2020) ZASCA 138
in
paragraph 19
the Court said:
“
[19]
Since there is no appeal against the order dismissing the
review, the only question is whether the appeal against the costs
order
has a reasonable prospect of success. In this regard Mr Zuma
faces a formidable hurdle:
in granting a costs order, a lower
court exercises a true discretion. An appellate court will not
interfere with the exercise of
that discretion, unless there was a
material misdirection by the lower court
”.
[28]
In the case of
Commissioner for the South African Revenue
Service v Nyhonyha and Others (1150/2021) 2023 (6) SA 145 (SCA) (18
May 2023
)
:
“
[17]
It is trite that the scope for interference on appeal with the
exercise of a true discretion is limited. The question
is not whether
the appeal court would have reached the same conclusion, but whether
the discretion was exercised properly. For
present purposes it
suffices to say that interference would be called for if the exercise
of the discretion was based on a misdirection
of fact or a wrong
principle of law. See Ex parte Neethling and Others
1951 (4) SA 331
AD at 335E and Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd and Another
2015 (5) SA
245
(CC) (Trencon) para 88.
[18]
A
true discretion is one which provides a court with a range of
permissible options. Well-known examples are costs orders and awards
of damages.
See Media Workers Association of South Africa and
Others v Press Corporation of South Africa Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
(Perskor) at 800E and Trencon paras 84-85. This was articulated as
follows in Florence v Government of the Republic of South
Africa
2014
(6) SA 456
(CC) para 113:
‘
Where
a court is granted wide decision-making powers with a number of
options or variables, an appellate court may not interfere
unless it
is clear that the choice the court has preferred is at odds with the
law. If the impugned decision lies within a range
of permissible
decisions, an appeal court may not interfere only because it favours
a different option within the range.’
[19] It is clear
that the expression ‘wide decision-making powers’ in this
passage refers to the multitude of
permissible options that
characterise a true discretion. This must not be confused with a wide
or loose discretion which means
‘no more than that the Court is
entitled to have regard to a number of disparate and incommensurable
features in coming to
a decision’. See Knox D’Arcy Ltd
and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
AD at 361I, quoted
with approval in Trencon para 86.
[29] In
Fusion
properties 233 CC vs Stellenbosch Municipality
[2021] ZASCA 10-in
paragraph 18
the Court said:
“
[18]
Since the coming into operation of the
Superior Courts Act,
there
have been a number of decisions of our courts which dealt with
the requirements that an applicant for leave to appeal in terms of
ss
17(1)(a)(i)
and
17
(1)(a)(ii) must satisfy in order for leave to be
granted. The applicable principles have over time crystallised and
are now well
established.
Section 17(1)
provides, in material part,
that leave to appeal may only be granted 'where the judge or judges
concerned are of the opinion that-
'(a) (i) the appeal would have a
reasonable prospect of success; or (ii) there is some other
compelling reason why the appeal should
be heard. . ..' It is
manifest from the text of
s 17(1)(a)
that an applicant seeking leave
to appeal must demonstrate that the envisaged appeal would either
have a reasonable prospect of
success, or, alternatively, that 'there
is some compelling reason why an appeal should be heard'.
Accordingly, if neither of these discrete requirements is met,
there would be no basis to grant leave.”
[30]
Nwafor vs
The Minister of Home Affairs and others (2021) ZASCA58 in paragraph
25
- the Court had this to say:
“
[25] Section 17(1)
of the Act sets out the statutory matrix as well as the test
governing applications for leave to appeal. The
section states in
relevant parts, and in peremptory language, that leave to appeal may
only be given where the judge or judges
concerned are of the opinion
that: ‘. . . (a) (i) the appeal would have a reasonable
prospect of success; (ii) there is some
other compelling reason why
the appeal should be heard including, conflicting judgments on the
matter under consideration; . .
. (c) where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just
and prompt resolution of the real issues between
the parties.'
[31] It is thus
important for any litigant prior to bringing an application for leave
to appeal to closely consider the above
legal principles. An
application as this will be avoided – no doubt.
E.
The notice of application for
leave to appeal and the grounds of appeal
[32] The notice of
appeal has a strange features in that it is signed by an advocate. It
purports in certain instances to
be directed against the reasons for
the order as opposed to the substantive order granted (see:
Elan
Boulevard (Pty) Ltd vs Fnyn Investments (Pty) Ltd 2019(3) SA 441 SCA
at 448A
) and
ABSA Bank v Mkhize
2014 (5) SA 16
para 64)
.
That approach is not apt.
[33] Although I
dealt with two matters in one judgment the notice of appeal has made
it difficult and impossible for me to
know if the grounds of appeal
raised apply to either Bara or Apostolou matter. For that reason, the
application is not a model
of clarity.
[34]
Notwithstanding the above I deal with each ground set-out in the
notice of appeal below:
Ground no 1
(The learned judge
erred in finding that the requested documents were provided to the
applicants after receipt of the Rule 35 (14)
Notice because they were
actually provided post timeously and after the respective
applications were launched and set down. In
amplification, the
requested documents were furnished on the eve of the hearing i.e post
– timeous compliance to an application
to compel).
[34.1] this ground
complains that I said the documents were provided after receipt of
rule35(14) notice.
[34.2] my
consideration of the application was less about when were the
documents received. I concentrated more on whether
the application
passed muster or not. That I did by taking into account the
requirements that are necessary for the application
to succeed
against what was alleged or contained in the court papers. There was
no dispute about the stage of receipt of the documents
between the
parties.
[34.3] Above all,
the parties had agreed that the substantive order was no longer
necessary given that the documents were
handed over to the applicant
already.
[34.4] My focal
point therefore in the main application was not when the applicants
were given the documents but rather whether
rule 35(14) was properly
invoked or not. In any event, I should say the notice was filed
timeously. As a fact, the required documents
were received after rule
35 (14) notice was issued.
[34.5] In these
circumstances the first ground is destitute of merit and stands to
fail.
Ground no 2
(The learned judge
erred in finding that the applicants were in possession of the
reconciliation account. There is no basis for
this factual finding.
In fact, the applicants were not in possession of the reconciliation
account and it was not attached to the
summons hence the applicants
sought them in terms of Rule 35 (14). Furthermore, a balance of
statement and a reconciliation account
are different things which
must necessarily be distinguished).
[34.6] The above
ground suggests that the applicant is not in possession of the
reconciliation account. I was told from the
bar, that the issue that
was outstanding related to costs and all other issues were settled
between the parties.
[34.7] For that
matter, it is irrelevant whether the applicant was in possession of
this account or not because in relation
to this part of demand, I
found in favour of the applicant. In paragraphs 18-20 of my judgment
I explained why I believed the applicant
was entitled to the
reconciliation account. It is not clear why the applicants seek to
challenge this area of the judgment. This
finding is favourable to
the applicants, hence I do not understand the challenge. As to why
one would appeal a point favourable
to him, is indeed difficult to
comprehend. It actually is impermissible in law.
Ground no 3
(The learned judge
erred in finding that there was no need for the respondent to furnish
the applicant with the S129 Notice. In
amplification,
S129
(1)(b) of
the
National Credit Act 34 of 2005
requires a credit provider to
provide a defaulter with notice prior to instituting any legal
proceedings. In further amplification,
the respondent specifically
pleads (in its answer) that the
S129
Notice is the only document that
the applicants are entitled to).
[34.8] The
applicant does not appreciate the finding I made in this regard. The
finding is made in the context of
rule 35(14).
After a careful
consideration of the provisions of the rule, I found that for
purposes of pleading, it was not strictly necessary
for the applicant
to get such document before he could plead. I also found that the
applicants could have denied receipt of the
documents in its plea –
if that was the position. There is equally no merit on this ground.
[34.9] My
consideration of the requirements for the application was based on
the applicable rule not on what the respondents
had said to the
applicant. More so that the documents were given to the applicant
already and the issue that remained for a decision
was that of costs.
Ground no 4
(The learned judge
erred in finding that the applicants’ case is not made out in
the founding affidavit, proceeding on the
erroneous premise that the
applicants were in possession of the requested documents as attached
to the summons. In amplification,
material facts to sustain the cause
of action are pleaded in the founding affidavit in no uncertain
terms).
[34.10] The
criticism under this heading is incorrect. What was attached to the
summons had nothing to do with what was alleged
or not in the
founding affidavit. Indeed, the founding affidavit does not address
the jurisdictional requirements set-out under
rule 35(14).
Ground no 5
(The learned judge
erred in finding that the applicant acted opportunistically in
seeking production of documents that were attached
to the summons.
There was no factual basis for the adverse finding made by the
learned judge. In amplification, the reconciliation
account was not
attached to the summons and this supported by the respondents own
version as pleaded in answer. All that is attached
is a balance of
statement which must necessarily be distinguished from a
reconciliation account (emphasis).
[34.11] It is
difficult if not impossible to know whether the attack made herein
relates to the Bara matter or Apostolou matter.
This is the thread
running through this application for leave to appeal. It leaves the
court unable to know the exact judgment
to which the attack is
directed.
[34.12] Under this
ground of appeal I suspect that reference is made to paragraphs 16
and 25 – 28 of my judgment, where
I dealt with the Bara
judgment. There I mentioned the documents which I found attached to
the summons. I made a finding that
sections 129
notice and a copy of
the sale agreement were attached to the summons. A request for
“
ancillary documents
”, I found such demand
non-compliant with
rule 35(14).
I also found a demand for
correspondence sought as unnecessary because, the applicant
characterized such correspondence
as correspondence that was
exchanged between the parties.
My finding was that the applicant
was in possession of such information. I also found that not enough
was pleaded to enable the
court to gauge whether the demand meets the
requirements under
rule 35(14).
Absent necessary allegations and
motivation, the application lacked merit. I do not understand what
motivated the applicants to
seek documents or correspondence that was
in their possession.
[34.13] For the
reasons set-out in my judgment, I found that a proper case was not
made out for the production of items (d)
to (g) of
rule 35(14)
notice. Applicants would have succeeded in respect of demands (a) to
(c). apart from anything else, that was not a significant
success.
The tiny success did not entitle the applicants to a cost order.
Grounds no 6 and 7
(The learned judge did
not exercise his discretion judicially in the adjudication of the
issue of costs and in impugning fault against
the applicant premised
on the criticism of the length of the applicants replying affidavit
failing to take into account the following:
the seventeen paragraph
long and verbose background narrated by the respondent, issues of law
raised in the answering affidavit
and the various factual allegations
that require proper reply, which could not have been left to chance.
In amplification, there
is no factual basis to sustain an adverse
finding of opportunism against the applicants who merely ensured that
they reply thoroughly.
(The learned judge
erred in not ruling that costs should follow the result in favour of
the applicant having erroneous regard to
: (a) the finding that the
applicant sought documents that were attached to the summons; (b)
criticism levelled against the applicants
replying affidavit, failing
to take into account the factors mentioned in paragraph 6 above; and
whereas the costs of these opposed
applications are not
insubstantial).
[34.14] In exercise
of my discretion and as set out in paragraph 36 of my judgment, I
took into consideration the following
factors:
(a)
the nature of the proceedings;
(b)
the effect the costs order will have to
both parties;
(c)
the failure by the applicant to make out a
case in respect of demands (d) to (g) as set out in
rule 35(14)
notice; and
(d)
the unnecessarily copious replying
affidavit.
[34.15] Both
applications did not involve a large amount of work or costs. Both
parties were represented by Junior Counsel.
The hearing was completed
inside two hours.
F.
Conclusion :
[35] In my view, I
applied my discretion properly and there is nothing exceptional that
exists in this matter, neither is
it in the interest of justice to
grant a leave to appeal.
Rule 35
proceedings occupy our motion Court
rolls every week. I have no hesitation to characterise these
applications
(rule 35
(
14
)
) as “run – of –
the – mill cases”.
[36] The costs of
this application must be decided. For reasons stated above, I believe
that scale “
A
” is appropriate. I see no reason why
I should not direct the applicants to pay costs of this application.
Litigants
need to be reminded that they are required to pay for their
legal costs. Their opponents are not there to finance their
litigation.
Party and party costs are designed to compensate a losing
party for fees reasonably incurred. Not all fees are recoverable
under
that scale. It is for this reason that I remind the litigants
of their obligation.
[37] For all the
above reasons, an order in the following terms shall issue:
[37.1] The
applications for leave to appeal under cases no 5345/2023 and
5858/2023 are hereby dismissed with costs on Scale
“
A
”
V. KUNJU
ACTING JUDGE OF THE
HIGH COURT
For
the Applicants
Mr Ndabeni
Instructed
by
T. Ndabeni Incorporated
Attorneys
No 28 Sprigg Street
Mthatha
For
the Respondent
Mr Botma
Instructed
by
Straus Daly
Incorporated
C/O K. B. Mabanga
Incorporated
137 York Road
Meeg Bank Limited
Mthatha
Heard
:07 June 2024
Delivered
:13 June 2024