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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case Number: 15768/2023
In the matter between:
THE ROODEBERG RESIDENTS ASSOCIATION NPC Applicant
and
DRAKENSTEIN MUNICIPALITY First Respondent
DAVID HEILIG & ABRAMSE PROFESSIONAL Second Respondent
LAND SURVEYORS
CECILIASTRAAT ONTWIKKELING (PTY) LTD Third Respondent
JUDGMENT DELIVERED: THURSDAY, 19 SEPTEMBER 2024
NZIWENI, J
Introduction and Background
[1] This is a ruling on a request by the first and third respondents for a cost order
against the applicant or his attorney or the deponent to the applicant’s founding
affidavit (Mr Sass) [one of the three directors of the applicant]. The relief sought is
pursuant to the withdrawal of the applicant’s urgent application without conducting a
hearing on merits, on 03 October 2023.
[2] The applicant opposes an award of costs against it. According to the
applicant, this Court should depart from the normal rule that a party that withdraws
litigation should bear the costs as it undertook this litigation in the interest of the
public.
[3] The applicant is cited as ‘The Roodeberg Residents Association’, the First
respondent is the Drakenstein Municipality, and the third respondent is CeciliaStraat
Ontwikkelling (Pty) (Ltd) [the developer].
[4] The significant chronology of events which led up to the present dispute
begins on 06 May 2021. The recitation of the chronology of events is essential to
understand some of the parties’ contentions. During the hearing, I specifically
directed that the parties should prepare a chronology of events critical to this
application. The parties prepared a joint timeline. I am indebted to the parties for the
most helpful chronology of relevant events. The chronology of the pertinent events
as prepared by the parties are as follows.
The chronology of events
[5] As a background, the facts relevant to the present application may briefly be
summarised as follows.
[6] The third respondent submitted an application (“the application”) for
subdivision and a site development plan to the first respondent. On 25 May 2021, 84
residents of 1[...] of Paarl, lodged a petition against the proposed development.
Three directors of the applicant were amongst the signatories of the petition. On 03
June 2021, Mr and Mrs [H]... [residents of Ward 1[...]] lodged an objection to the
proposed development.
[7] On 08 July 2021, the first respondent’s Environmental Department approved
the third respondent’s application for subdivision and site development, subject to
certain conditions. On 15 July 2021, the first respondent’s Civil Engineering
Department also issued an approval of the third respondent’s application, imposing
certain conditions as part of the approval.
[8] On 13 April 2022, the first respondent ultimately approved the third
respondent’s subdivision and development applications with the imposition of the
conditions that were imposed by its departments.
[9] Pursuant to the approval of the applications, 19 community members
including the three directors of the applicant, appealed against the approval.
[10] On 14 October 2022, the first respondent dismissed the appeal.
[11] On 25 July 2023, the preparation of the site commenced.
[12] On 31 July 2023, attorneys wrote a letter of demand to the first respondent on
behalf of ‘concerned citizens residing in Ward 1[...]. In the letter of demand ‘the
citizens’ demanded that the first respondent should retract all permissions
associated with the third respondent’s application and should provide all the
information related to the compliance with the terms and conditions. The letter of
demand was not answered.
[13] On 08 August 2023, a final letter of demand on behalf of the ‘concerned
citizens residing in Ward 1[...]’ was sent to the first respondent.
[14] On 23 August 2023, the applicant was incorporated as a company with three
directors one of which is the applicant’s deponent to the founding affidavit [Mr Sass].
[15] On 05 September 2023, a letter was transmitted to the first respondent
recording its failure to reply to the letters of demand and warned of the intention to
institute this application.
Litigation
[16] On 12 September 2023, the applicant filed an urgent application seeking a
mandamus to be issued to direct the third respondent to:
• deliver updated studies as referred to in the memorandum issued by
the third respondent in approval of an application by the third respondent;
• enforce the conditions stipulated in a by-law on the Municipal Land Use
Planning.
[17] Additionally, the applicant in his notice of motion sought that a rule nisi be
issued interdicting and restraining all the respondents from continuing with the
development at Erf 8[...] Paarl, pending compliance with all the conditions and by-
laws of the first respondent. The application was scheduled to be heard on 03
October 2023.
[18] It is important to note that the applicant’s notice of motion pertinently stated
that the respondents were to deliver their answering affidavit by 22 September 2023
at 16h00. At the same time, it is also significant to note that, in terms of the notice of
motion the respondents were to deliver their heads of arguments on 02 October
2023 at 12h00.
[19] The first and third respondents timeously delivered their answering affidavits.
In addition, the third respondent filed a notice pursuant to the provisions of Rule 7 (1)
of the Uniform Rules of Court disputing the authority of the applicant’s attorney to act
on the applicant’s behalf.
[20] The applicant delivered its replying affidavit. On 02 October 2024, the first and
third respondents also delivered their heads of arguments.
[21] By email dated 02 October 2023 at 15h00 the applicant’s counsel advised the
judge on duty that the applicant would be withdrawing the application. The
applicant’s counsel wrote: “
1. . .
2. . . .
3. The applicant does not intend to argue the merits of the application,
and my instructions are that it will be withdrawing the application.
4. However, the opposing respondents . . ., may wish to address your
Judge on the issue of costs. They are still in the process of obtaining
instructions.
5. Will you be so kind as to bring this email to your Judge’s attention, as it
may impact the reading of the papers.
6. An updated email as to the conduct of the matter will follow as soon as
I have received confirmation from the opposing respondents.”
[22] On 03 October 2023, the parties, by agreement obtained an order
withdrawing the application and postponing the issue of costs for hearing on the
semi-urgent roll.
[23] It is thus common cause that this Court does not need to determine the merits
of this matter.
[24] Before summarising the respective submissions directed to the present
application, I need to address the issues between the parties.
The issue
[25] The very nub of this matter revolves around whether the applicant is liable to
pay the costs of the application pursuant to the withdrawal of the main application.
Simply put, the overarching question is whether this Court, in the exercise of its
discretion as to costs, should order that the ordinary rule related to the award of
costs when a party withdraws litigation, is inappropriate on the facts of this case.
[26] The first and the third respondent added the following issues to be addressed:
• The first respondent is seeking that a cost order should also be
awarded against a deponent to the founding affidavit [Mr Sass].
• It is, of course, the third respondent’s argument that the cost order
should be de bonis propriis against the applicant’s attorney and Mr Sass.
Submissions by the applicant
[27] According to Mr Engela on behalf of the applicant, this Court needs to look at
the chronology of events and the context in order to determine whether the applicant
acted reasonably by withdrawing the application and whether the application was
frivolous or vexatious. Accordingly, Mr Engela submitted that the issue of costs in the
instant case requires consideration of the history leading up to the litigation,
regarding the applicant’s dealings with the first respondent.
[28] Mr Engela emphasised that different principles apply in litigation involving the
State and a municipality, particularly litigation that is of constitutional nature with the
community. Interestingly, Mr Engela developed these submissions in the course of
his argument. He submitted that the general principle in similar litigation between two
private parties is that the party who withdraws is the unsuccessful litigant; he or she
should tender costs unless there is good reason not to do so.
[29] It is the submission of the applicant that this Court should not be rigid and
follow the traditional rule as far as costs rated to a withdrawn claim.
[30] It is averred on behalf of the applicant that this Court is dealing with a specific
type of litigation. The thrust of Mr Engela’s argument is that in such situations when a
court is dealing with public interest litigation, a different set of rules apply as far as
costs are concerned.
[31] Mr Engela illustrated his argument by stating that the applicant in this
application represented the interests of Ward 1[...], a small community. The public
interests require that the Municipality must be in compliance with its self-imposed
requirements.
[32] It is the applicant’s contention that the application is not for personal or private
interest. Mr Engela asserted that based on the main objective of the applicant as a
non-profit company as reflected at CIPC; the applicant is a community economic
empowerment foundation. Mr Engela asks this Court to find that the applicant was
undertaking litigation in the public interest in good faith.
[33] The applicant states that this application was triggered by the approval of the
application. Mr Engela averred that demand was made upon the first respondent to
retract all permissions; but there was simply no response.
[34] Accordingly, it was argued strenuously by counsel on behalf of the applicant
that an applicant who withdrew and had the foresight to withdraw an application
rather than persisting with it and losing it, should be in a better position than the
applicant who has lost a case. In essence, it is the applicant’s submission that costs
should not be awarded because, amongst others, the litigation was in the public
interest. And the applicant acted reasonably in launching the application. To that end,
Mr Engela invokes the authority of Environmental Alliance v MEC For Economic
Development 2020 (4) SA 453. It was further argued that the first respondent did not
respond to the concerns raised by the applicant before the launching of the
application.
[35] The essence of Mr Engela’s argument is that the applicants asked the first
respondent on behalf of the members of the community that a light industrial
development and a five-storey development be stopped. It is asserted on the
applicant’s behalf that the application was not acting frivolously or vexatiously when
it launched the application.
[36] It was further submitted on the applicant’s behalf that a party who has
withdrawn a case cannot be in a worse position than a party who has lost a case.
First respondent’s submissions
[37] To briefly summarise the arguments on behalf of the first respondent, it was
submitted by Mr De Jager, first respondent’s counsel; that the applicant in this matter
is on the same footing as an unsuccessful litigant.
[38] According to Mr De Jager, before the applicant was formed, incompetent
demands were made to the first respondent on behalf of unidentified citizens and the
municipality did not answer ‘the incompetent’ demands. It is submitted that the
prayer that was sought by the applicant that the municipality should deliver updated
studies is incompetent as it is not for the municipality to produce studies. So, the
argument continues that after the applicant was formed the same demand was made
but not on behalf of the applicant.
[39] It is further submitted on the first respondent’s behalf that this application was
brought a week after a third demand was made. Mr De Jager developed these
submissions in the course of his argument. He stated that the applicant should not
have sought an urgent hearing of this matter and on that ground, the application
would have been struck off the urgent court’s roll.
[40] Mr De Jager reinforced this submission by submitting that the applicant had
available to it, at the time it launched the application, an alternative remedy to
demand an undertaking from the developer to stop building or to pursue a damages
claim. And because the applicant did not avail itself of the alternative remedies, the
application would never have gotten off the ground.
[41] Moreover, it is further submitted that there is no standing for the applicant to
take up this case. Mr De Jager asserts that there is nothing to substantiate the claim
that the applicant has as its main objective, the community’s [Ward 15’s] economic
empowerment and foundation. The gravamen of the standing issue is that the
applicant was only formed in August 2023, after the directors had already objected to
the development. Additionally, Mr De Jager suggests that the fact that the applicant’s
directors objected to the development and appealed the first respondent’s decision in
their personal capacity before the formation of the applicant evinces that the three
directors are pursuing their personal agenda through the applicant.
[42] According to Mr De Jager his conclusion is fortified by the consideration that
after their appeal was dismissed by the first respondent, the applicant’s directors did
not launch a review in terms of PAJA. And when they realised that they ran out of
time to launch a review, they formed the applicant to bring a stop to the building. It is
submitted that it appears that the applicant was formed solely to pursue this
litigation. Mr De Jager submitted that the application is done by three individuals who
are personally interested in what is going on.
[43] Mr De Jager further submitted that the applicant is nothing but a sham that is
used as a device by the three directors to hide behind it. It is submitted on behalf of
the first respondent that the applicant is an entity used by its three directors to assert
their right to stop the development. It is further submitted that there is no evidence to
show that the application was brought in the public interest and that there is no
genuine public interest element in this matter.
[44] The first respondent submits that the deponent to the founding affidavit, Mr
Sass, had no authority to bring this application. Thus, the application was not
authorised. According to Mr De Jager, this is so because Mr Sass in his affidavit
does not say he is authorised to bring this application and the resolution does not
refer to this application.
[45] In relation to who is supposed to pay the costs, the first respondent submits
that it is crystal clear that the applicant must bear the costs of this application.
[46] Accordingly, Mr De Jager submitted that there is nothing in the papers that
indicated that the municipality failed to enforce any conditions. Mr De Jager
developed these submissions during his argument. He submitted that there is
nothing to demonstrate why the municipality should be directed to enforce
conditions. With the above submission in mind, Mr De Jager argues that the
application was a non-starter because, amongst others, all the orders sought against
the municipality are incompetent. Mr De Jager illustrated his argument by suggesting
that if the orders that were sought by the applicant were not incompetent the
application would not have been withdrawn.
[47] Mr De Jager further stressed that the applicant dragged the municipality into
an expensive arena of a court and when the municipality complied it was told on the
day of the hearing that the matter is being withdrawn. He further submitted that it is
the ratepayers who would bear the wasted costs associated with this litigation.
[48] It is Mr De Jager’s submission that no authority has been presented to show
that this Court should depart from the traditional rule that when the applicant
withdraws litigation it should pay the costs.
Submissions by the third respondent
[49] Ms Christians stated that she aligns herself with the submissions made by Mr
De Jager. According to her, there is nothing public about the relief that was sought in
October 2023. She submits that everything about this application is related to
personal interests. Ms Christians submits that the applicant’s three directors own a
property close to the site of the development.
Analysis
The public interest that the applicant sought to vindicate
[50] It is now firmly established that any policy, or government action or inaction
can be a subject matter of public interest litigation.
[51] Here it seems as if we are dealing with ‘public interests’ that require that the
municipality must be in compliance with its self-imposed requirements or conditions.
Public interest litigant or litigation
[52] In considering the competing submissions, I believe that the starting point
must be to analyse the phrases ‘public interest litigant’ and ‘public interest’.
[53] Public interest litigation is well known in South Africa and in most instances
than not has dedicated organisations pursuing it. Some of the organisations are
specialising and work in this specific area of the law.
[54] It seems, to me, that the question before this Court does not involve the issue
of standing but the issue of costs in ‘general public interest’ litigation. Public interest
litigation does not always concern Constitutional issues. In Black’s Law Dictionary
(7th edition) 1229, the term ‘public interest’ litigation has been described as follows
“Public interest litigation is a legal action initiated in a court of law for the
enforcement of public interest or general interest in which the public or class
of the community have a pecuniary interest or some interest by which their
legal rights or liabilities are affected.”
The phrase ‘public interest’
[55] There is a myriad of cases that state that the word public interests itself is not
capable of clear and comprehensive definition. Thus, in the interpretation of the
phrase, context as well as the scope of it are also very important. See Transnet Ltd
t/a Metrorail and Others v Rail Commuters Action Group and Others 2003 (6) SA 349
at paragraph 15 A.
[56] In Ex Parte President of the Conference of Methodist Church 1993 (2) SA 697
at 703C, the following was said regarding the phrase ‘public interest’
“The phrase ‘public interest’ does not permit a clear and comprehensive
definition. As was observed by Herbstein J in Argus Printing and Publishing
Co Ltd v Darby’s Artware (Pty) Ltd and Others 1952 (2) SA 1 (C) one must
adopt, in giving effect to the phrase, a‘broad commonsense view of the
position as a whole . . . (and it must be considered whether) . . . the public
would be better served if the applicant were to be allowed to proceed with its
scheme than by the continuation of the existing state of affairs.”
[57] In Argus Printing and Publishing Co Ltd v Darby’s Artware (Pty) Ltd and
Others (supra) at 8H, the following is stated:
“What is meant by the “general interest of the public?” Not only is the phrase
as a whole incapable of exact definition but each of its separate elements
lacks clarity. Who, for example, is to be included in “the public?” in Jennings v.
Stephens, 1936 (1) A. E. R. 409, Lord Wright said:
“‘The public’ is a term of uncertain import; it must be limited in every
case by the context in which it is used. It does not generally mean the
inhabitants of the world or even the inhabitants of this country. In any
specific context it may mean for practical purposes only the inhabitants
of a village or such members of the community as particular
advertisements would reach or who would be interested in any
particular matter, professional, political, social, artistic or local. . . Thus,
it is clear that by ‘public’ is meant . . . ‘a portion of the public’. That
particular portion of the public which is meant may sometimes be very
small indeed...”
One faces the same difficulty in determining the “general interest” of
that nebulous “public.”. The interests are a “general” one; not a
particular interest such as the possibility of larger dividends to
shareholders but one which is widespread though not necessarily
common to the whole group of “the public”.
How is this “general interest of the public” to be determined? It is
sufficient for the Court to utilize its own conception of what might be the
“general interest of the public” or is it necessary to determine it as a
matter of fact on evidence by members of the public? If it is the former,
the determination may be largely a matter of guess-work and
dependent upon a number of incalculable factors including inter alia,
the personality of a Judge. The Court might find that it was laying down
what it thinks the public interest should be and not what it really is.”
[58] Since time immemorial, as a general rule, a party that withdraws litigation
should tender costs unless the court orders otherwise. The court can depart from the
general rule for instance when the litigation serves the public interest. However,
during litigation the conduct of the party claiming to litigate in public interest is crucial
in the determination of costs. The starting point, of course, is that in such cases
[public interest litigation], it is incumbent upon the applicant [in public interest
litigation] to establish that the circumstances are such that the interests of the public
necessitate the [immediate] launching of the application. And if the litigation is not
followed, to do so would result in a manifest injustice to the public.
[59] In this matter it is not clear why the applicant failed to pursue the application
that was brought on a truncated timeline and then abandoned it on the eleventh
hour. This is perhaps one of the applicant’s most perplexing conduct. Voluntarily
launching the application and then simply withdrawing it on the eve of the hearing.
[60] Surely, as one would expect if the applicant was pursuing the litigation in the
public interest, it should have seen it through.
[61] Litigation expenses play an integral part in accessing litigation. For a variety of
obvious reasons, not everyone who institutes litigation believing or asserting that he
or she is doing so in the interest of the public can be absolved of the liability for the
payment of litigation costs. In this matter, the motive of the applicant to bring this
litigation is questioned by the first and the third respondents. As I have already
indicated, the first and third respondents question that the applicant launched this
application as a genuine public interest litigant who seeks to assert public interest.
[62] At the outset, I wish to state that the fact that the applicant is registered as a
community economic empowerment foundation does not automatically qualify it to
be a public interest litigant. Equally, the fact that the applicant is in possession of
petitions directed at an issue involving the litigation, does not translate to mean that
the mere existence of a petition warrants a person to litigate in order to vindicate
public interest.
[63] As will already be apparent, I readily accept that a party does not come within
the definition of a ‘public interest litigant’ based solely on characterisation as a ‘public
interest litigant’. A fact-specific approach should be employed to determine whether a
litigant is a public interest litigant. Thus, the determination of whether a litigant is a
public interest litigant is determined on a case-by-case basis and each case is to be
determined with due regard to its factual circumstances.
[64] Public interest litigation is generally viewed as a most powerful and very
effective accountability tool that seeks to hold the government [government including
municipalities] and its agencies to account for its decisions and any action that is
considered to be inappropriate. The courts have acknowledged this powerful
mechanism given to the citizens by which they can truly hold the government, and
public sector officials to account. This is especially true when an unsuccessful public
interest litigant is excused from costs liability.
[65] The general principles that public interest litigation costs are incident to the
cause are now well established. Thus, in cases involving issues of genuine public
interest, an unsuccessful party is not mulcted with opponent’s fees. See Biowatch
Trust v Registrar, Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA
232(CC); 2009 (10) BCLR 1014 (CC)
[66] The motive behind this principle is that the award of costs in this type of
litigation would deter ordinary members of the public from litigating important
questions involving matters of public concern for fear of incurring legal costs. It is my
view that there is an obvious distinction between a public interest litigant or group
promoting constitutional litigation and tone who pursues a general issue as in the
present case.
[67] In Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1
(CC) (8 October 2009), O’ Regan J, stated the following:
“The purpose of litigation concerning the positive obligations imposed by
social and economic rights should be to hold the democratic arms of
government to account through litigation. In so doing, litigation of this sort
fosters a form of participative democracy that holds government accountable
and requires it to account between elections over specific aspects of
government policy. When challenged as to its policies relating to social and
economic rights, the government agency must explain why the policy is
reasonable. Government must disclose what it has done to formulate the
policy: its investigation and research, the alternatives considered, and the
reasons why the option underlying the policy was selected. The Constitution
does not require government to be held to an impossible standard of
perfection. Nor does it require courts to take over the tasks that in a
democracy should properly be reserved for the democratic arms of
government. Simply put, through the institution of the courts, government can
be called upon to account to citizens for its decisions. This understanding of
social and economic rights litigation accords with the founding values of our
Constitution and, in particular, the principles that government should be
responsive, accountable and open.
Not only must government show that the policy it has selected is reasonable,
it must show that the policy is being reconsidered consistent with the
obligation to “progressively realise” social and economic rights in mind. A
policy that is set in stone and never revisited is unlikely to be a policy that will
result in the progressive realisation of rights consistently with the obligations
imposed by the social and economic rights in our Constitution. . .
It is true that litigation of this sort is expensive and requires great expertise.
South Africa is fortunate to have a range of non-governmental organisations
working in the legal arena seeking improvement in the lives of poor South
Africans. Long may that be so. These organisations have developed an
expertise in litigating in the interests of the poor to the great benefit of our
society. The approach to costs in constitutional matters means that litigation
launched in a serious attempt to further constitutional rights, even if
unsuccessful, will not result in an adverse costs order. The challenges posed
by social and economic rights litigation are significant, but given the benefits
that it can offer, it should be pursued.
This case illustrates how litigation concerning social and economic rights can
exact a detailed accounting from government and, in doing so, impact
beneficially on the policy-making process.” (Footnotes omitted)
[68] It is settled that the award of costs is a matter which is within the discretion of
the court considering the issue of costs. However, there may be instances where it
would not be appropriate to award such costs.
[69] In Biowatch (supra) the following was stated at par 16:
“In my view, it is not correct to begin the enquiry by a characterisation of the
parties. Rather, the starting point should be the nature of the issues. Equal
protection under the law requires that costs awards not be dependent on
whether the parties are acting in their own interests or in the public interest.
Nor should they be determined by whether the parties are financially well-
endowed or indigent or, as in the case of many NGOs, reliant on external
funding. The primary consideration in constitutional litigation must be the way
in which a costs order would hinder or promote the advancement of
constitutional justice”.
[70] Of course, in Biowatch this was stated in the context of Constitutional
litigation. Thus, not every aspect of it is applicable to the present case.
[71] I consider important that when a party asserts that it brings a case with a
motive to vindicate ‘general public’ interests, it is critical for the court to be mindful
amongst others of the following:
a) What is it that the public interest litigant seeks to address or serve? Stated
otherwise, what is the main reason and primary objective for the litigation?
b) Would the concern to pursue litigation vindicate or effectuate public
policy?
c) Whether the public interest litigation would result in the enforcement of
an important right affecting the public interest?
d) Would the public interest litigation bring a substantial obvious benefit to
the public at large? Put otherwise, whether the litigation is directed primarily to
the achievement of some public purpose.
e) Does the case involve matters of public importance?
f) Would the issue only implicate a particular public interest litigant or
would it be for the benefit and be important to the public at large?
g) Does the public interest litigant have a pecuniary or proprietary interest
in the result of the litigation?
h) Would the public interest litigation result only in vindication of the rights
of a few individuals?
i) Would the litigation benefit the public in the sense that the public would
be better off by having the litigation pursued by than being without it.
j) Would the public interest issue outweigh or transcend any private
interest that may be involved?
k) Does the matter involve litigation that only a private party can be
expected to pursue
l) Has the public interest litigation been taken in good faith or bad faith?
[72] Indeed, it is important to emphasise that, while it is important to litigate in
order to vindicate public interest, such litigation should definitely benefit the interests
of numerous people. Thus, the public generally would be better served by the relief
sought.
[73] I have already indicated (in paragraph 23 above) that the present case, the
court was not called to adjudicate the merits of the application as the applicant
abandoned pursuing the litigation. Thus, the issues between the parties were not
ventilated. Notwithstanding that this Court is still able to distill from the papers
whether the actions taken by the applicant were necessary in the interests of the
public. In any event, in the case of Wildlife & Environmental Society v MEC For the
Economic Affairs 2005 (6) SA on page 129B-E, Pickering J, endorsed the view that
an applicant which has withdrawn its application, can make reference to the
averments contained in the affidavit filed in the main application, in substantiation of
its contention that in bringing the application it acted reasonably. That is why in this
case, the history preceding the formation of the applicant, and the launching of this
application cannot be ignored.
[74] The evidence in this case indicates that the applicant’s three directors were
involved from the initial stages in taking this matter to court.
[75] The timing of the formation of the applicant cannot be ignored. The applicant
was formed on the eve of the institution of this litigation. In the circumstances of this
case, I would, however, like specifically to endorse all the respondents’ contentions
that the applicant’s formation was not for legitimate reasons but plainly for pretextual
ones.
[76] When the facts of this matter are considered, it becomes abundantly clear that
there was nothing that prevented the applicant’s directors from bringing the litigation.
This is so because they were also involved from the onset in the engagement with
the third respondent. It is also common cause in this matter that the three directors
are property owners in the area where the development in question is situated.
Hence, it is not even surprising that the founding affidavit was deposed to by Mr
Sass [applicant’s director].
[77] Clearly, property owners have a private interest in the construction of
development in their neighbourhood that is in close proximity to their properties. It is
however significant to note that the private interest of the property owners is not
always in alignment with the interests of the public at large. The corollary of this is
that when property owners institute litigation they are not always acting in the interest
of the public. This is so because they may have proprietary incentive to commence
the litigation. Thus, as far as costs are concerned, they may have private interests
that would balance the deterrent effect of litigation costs against them.
[78] Turning now to the applicant, in the circumstances of the case, the question
that aptly arises is; can it be said that the applicant qualifies as a public interest
litigant? In this case, it is difficult to say that the applicant is lacking a proprietary
incentive in the outcome of this matter. Particularly if regard is had to the background
that preceded the formation of the applicant and the timing of the formation of the
applicant that almost coincided with the institution of this matter.
[79] Moreover, the applicant’s directors are property owners in the Ward in
question. Thus, this litigation by the applicant is directly tied to homeowners. The
connection of the property owners to the applicant is too close. To my mind, the most
significant feature of respondent’s submission was that the applicant is a ‘sham’.
Given the plain connection between the applicant and its directors who are
homeowners in Ward 1[...], the respondents cannot be faulted for saying that the
applicant is a device used by the directors to hide behind and formed solely to
pursue this litigation.
[80] From the evidence placed before this Court, it is clear, therefore in my mind
that the applicant was formed to advance the interest of its directors. Furthermore
and significantly, it is evident from the papers that a significant part of the applicant's
motivation to bring this application is connected directly to its directors and this case.
It is highly unlikely that the applicant would have been formed if this litigation was not
going to be launched. Since it is only the applicant’s directors who also happen to be
the three homeowners who were actively involved in challenging the third
respondent before this litigation commenced, it is highly unlikely that the applicant
would have been formed in the absence of the three directors. I find it difficult to find
in the circumstances of this case that the applicant is acting genuinely in the ‘public
interest [in the interest of Ward 1[...] residence].
[81] The main difficulty in this case springs from the fact that the very same
applicant who purportedly brought the application to champion the interests of the
public, withdraws the application. There is an oddity around the fact that the
applicant withdrew the application. The withdrawal of the application is extremely
illuminating.
[82] Firstly, it bolsters and lends gravitas to the assertion that incompetent
demands were made to the applicant and that the application was never launched to
vindicate public interest. Secondly, it speaks to the bona fides of the applicant in
bringing the application. Moreover, there is now a line of cases lending authority for
the position that any person bringing proceedings to vindicate his or her perception
of the public interest should do so in good faith and the challenge should be genuine
and not frivolous. See Environmental Alliance case(supra).
The withdrawal of the application
[83] Parties should think very carefully before they take a case to court. For that
matter, I do not think it would be wise to create an impression that any party bringing
a proceeding to vindicate their perception of the public interest should be shielded
from an award of costs in all cases. Though such an intention should be considered,
it should not be considered to the exclusion of all other relevant and weighty factors.
[84] As to this point, I find it most telling that the applicant chose not to proceed
with the matter. Perhaps most telling and significant to me is the fact that it was
withdrawn, albeit it was ripe to be heard.
[85] So far as I am aware, there was no justification proffered for the withdrawal of
the application. There is nothing in the papers that provides a compelling reason why
the matter was not pursued. Of course, this begs the question as to how could it then
be found that the applicant acted reasonably in withdrawing or launching the
application.
[86] Viewed in the light of the above considerations, it is quite ironic if not
hypocritical that a litigant that came to court claiming that it seeks to vindicate a
public interest issue, yet on the eve of the hearing, the very litigant abandoned such
litigation that was even brought on an urgent basis.
[87] An additional irony is that the litigant that purports to be a public interest
litigant as far as the issues are concerned in this matter, does not even give a reason
for the withdrawal of the action. It is noteworthy that the application was withdrawn
whilst one of the issues that were raised against the application was the standing of
the applicant to bring the application.
[88] The abrupt withdrawal of the application, in my mind, shows that it was not
launched in good faith. Absent any evidence to the contrary, it is impossible to
conclude that this was public interest litigation. In my mind, this takes the present
case outside the scope of public interest litigation.
[89] Such litigation should not be financed by the taxpayers. To hold otherwise
would be to extend the scope of public interest litigation extremely wide. The fact that
the applicant is a non-profit company is neither here nor there.
[90] It is undeniable that the first and third respondents have incurred costs due to
the institution and the last-moment withdrawal of the application by the applicant.
Thus, the respondents are entitled to be reimbursed for the unnecessary expenses. I
agree with the applicant that if there is something to establish that the withdrawal is
reasonable. Such has not been established on the facts of this case or through oral
submissions.
[91] The withdrawal of an opposed application [that was brought on an urgent
basis] on the eve of a hearing, in my mind, constitutes behaviour that is extremely
unreasonable.
[92] There can be little doubt that it is in the public interest that a public interest
litigant undertaking litigation on behalf of the public, should see such litigation to its
finality. Otherwise, it would be difficult to find that an abandoned litigation was
undertaken in the public interest.
[93] A careful consideration of the evidence and the applicant’s submission fails to
disclose any public interest involved in this litigation. In the circumstances, it is
somewhat difficult to find that the issues that are raised in the applicant’s application
are prima facie meritorious and they transcend individual interests. It is difficult to
think of a case where an applicant should have thought much more clearly about
whether this was really a case where an application should have been pursued in the
fashion it was.
[94] It is undeniable that the matter was brought to this Court at no doubt
considerable further expense to the ratepayers.
[95] In consideration of all the circumstances before me, I conclude that in such
circumstances a party cannot escape cost consequences on a ticket of public
interest litigation. On the facts of this case, I consider that the first and third
respondents have put forward good reasons why the applicant should not be
excused from paying costs.
[96] The crucial question, then, is from who the respondents are entitled to recover
the costs.
Besides the applicant, who else should carry the cost burden?
[97] The respondents argued that the court should also order that the costs be
paid de bonis propriis by the deponent to the founding affidavit, Mr Sass. Mr Sass
was not a party in these proceedings. As such, I am not convinced that such an
order is appropriate without him having been joined in these proceedings. I believe
that the present case is readily distinguishable from the authority relied on by the
respondents of Interim Ward S19 Council v The Premier: Western Cape Province
and Others 2003 JDR 0413 (C). It is distinguishable in two important ways. Firstly,
here, unlike in Interim Ward S 19 case, there is no unfortunate, long and checkered
history that involves non-payment of taxed legal costs. The history of costs in Interim
Ward S 19 was somewhat complex. Secondly, there is no evidence that the
respondents would be unable to recover the costs from the applicant.
[98] For these reasons I agree with Mr Engela that no case has been made out for
an order de bonis propriis.
[99] Consequently, I make the following order:
The applicant is to pay the costs of the application.
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NZIWENI J
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant Adv RB Engela
Instructed by Len Dekker Attorneys Inc.
Ref Mr C Van Der Walt
Counsel for First Respondent: Adv N. De Jager
Instructed by Van Zyl Kruger Attorneys
Ref Mr A Van Greunen
Counsel for Third Respondent: Adv A G Christians
Instructed by Du Plessis Hofmyer Malan Inc
Ref JP Du Plessis