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2024
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[2024] ZAFSHC 373
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Mahamo v Venter and Others (A98/2024) [2024] ZAFSHC 373 (19 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not reportable
Appeal no: A98/2024
In
the appeal between:
PHEELLO MAHAMO
APPELLANT
And
MARYNA VENTER
FIRST
RESPONDENT
JAPIE
VENTER
SECOND
RESPONDENT
AUTO
& GENERAL COMMERCIAL FLEET SOLUTIONS
THIRD
RESPONDENT
Neutral
citation:
Mahamo v Venter & Others
(A98/2024) [2024] ZAFSHC (19 November 2024)
Coram:
Chesiwe J et Greyling-Coetzer AJ
Heard:
28 October 2024
Delivered:
19 November 2024
Summary:
Appeal – Costs only.
ORDER
1.
The appeal is dismissed.
2.
No order as to costs.
JUDGMENT
GREYLING-COETZER AJ et
CHESIWE J
[1]
The appellant approached this court on
appeal, challenging only the cost order granted against him in the
Bloemfontein Magistrate’s
Court on 22 March 2024.
[2]
The appellant sought condonation for the
late noting of the appeal. The application for condonation was not
opposed. Good cause
has been shown for the late noting and
condonation is therefore granted.
[3]
The appellant obtained default judgment
against the respondents on 7 August 2023 in the amount of R35 000.00.
Armed with the
default judgment, the appellant proceeded to take
execution steps against all three respondents. On 8 November 2023 the
respondents
launched a rescission application. The rescission
application was successful and the appellant was ordered to pay the
respondents’
costs on an attorney-and-client scale.
[4]
The appellant contends that the court
a
quo
erred in finding that the appellant
ought not to have opposed the rescission application; that it
erroneously applied
Re Alluvial Creek
1929 CPD 532
, and therefore erred in
awarding costs to be paid by the appellant to the respondents on an
attorney-and-client scale.
[5]
According to the appellant the appropriate
cost order would have been to grant cost in his favour, as the
respondents sought an
indulgence from the court, alternatively that
each party should have been ordered to paid their own costs.
[6]
Although a notice of opposition in respect
of the appeal was filed, the matter proceeded unopposed on the date
of hearing. The first
and second respondents appeared in person,
informed the court that their legal representative withdrewn and that
the main action
as instituted by the appellant in the Magistrate’s
Court has equally been withdrawn by the appellant. They indicated
that
they do not wish to proceed with any opposition and intend
abiding by the courts decision.
[7]
A
court of appeal will generally be reluctant to interfere with a cost
order. A court of appeal cannot interfere merely on the ground
that
it would in itself have made a different order.
[1]
In
Public
Protector v South African Reserve Bank
[2]
the Constitutional Court stated as follows:
“
An
important principle in this appeal is that the
courts
exercise a true discretion in relation to cost orders
.
A true discretion exists where
the lower court has a number of equal permissible options available
to it
. An appeal court
will
not likely interfere with the exercise of a true discretion
.
Ordinarily, it would be
inappropriate
for an appeal court to interfere in the exercise of a true
discretion
, unless it is
satisfied that the discretion was not exercised judicially, the
discretion was influenced by wrong principles, or
a misdirection on
the facts, or the decision reached could not reasonably have been
made by a court properly directing itself to
all the relevant factors
and principles. There must have been a
material
misdirection
on the part of the
lower court in order for an appeal court to interfere.
It
is not sufficient, on appeal against a cost order, simply to show
that the lower court’s order was wrong
.”
(Own underlining)
[8]
It
was submitted by the appellant that it had to prove exceptional
circumstances in order to justify interference by the appeal
court.
Relying on
Naylor
and Another v Jansen
[3]
it was argued that that the failure to exercise a judicial discretion
would usually constitute an exceptional circumstance.
[9]
It was further contended that
attorney-client costs are punitive in nature and ought only to be
granted to penalise dishonesty,
impropriety, fraud, reprehensive or
blameworthy conduct, none of which are apparent from the record and
the judgment by the court
a quo
.
[10]
It
is so that normally a court will not order a litigant to pay the
costs of another litigant on the basis of attorney-and-client
costs
unless some special grounds are present.
[4]
An award of attorney-and-client costs is granted by reason of some
special consideration arising either from the circumstances
of the
particular case, or from the conduct of the losing party. The list of
circumstances to find application is not exhaustive.
[5]
[11]
The court
a
quo
was confronted with the appellant
obtaining default judgment against all three respondents on the basis
that he concluded a verbal
agreement with all three respondents
whilst contending in the court
a quo
that the first- and second respondents were cited as they are
directors of the third respondent and for no other reason. Aligned
with the former the first- and second respondents contended that they
are directors and employees of the third respondent, and
therefore
were misjoinder. In obtaining the default judgment, it was on a
jointly and severally basis, the one to pay the other
to be absolved.
When the appellant proceeded with execution steps, such steps were
again directed to all three of the respondents
on the jointly and
severally basis.
[12]
The misjoinder was reluctantly conceded by
the appellant in the court
a quo
.
The court
a quo
held that the appellant should not have opposed the rescission
application in the circumstances. In this court it was argued that
the allegations in the rescission application warranted the
opposition and that opposition was required to proverbial ‘clear
the appellant’s name’.
[13]
Considering the merits of the rescission
application in determining whether the court
a
quo
exercised its discretion in respect
of costs judicially, the finding is unavoidable that the first- and
second respondents should
not have been parties to the action. It
further appears from the record that the appellant was procedurally
not even entitled to
the default judgment, as the request for default
judgment was made before the expiry of the dies.
[14]
In
Nel
v Waterberg Landbouwers Kooperatiewe Vereeniging
[6]
it was held that:
“
[t[he
true explanation of awards of attorney and client costs not expressly
auhrotised by Statute seems to be that, by reason of
special
considerations and arising either from the circumstances which give
rise to the action, or from the conduct of the losing
party, the
court in a particular case considers it just, by means of such an
order, to ensure more effectually than it can do by
means of a
judgment for the party-and-party cost that the successful party
will
not be out of pocket
[7]
in respect of the expenses caused to him by the litigation
.”
It is therefore in essence a matter of fairness to both
parties.
[8]
[15]
One
stands to be reminded that it is an order which is appeal against and
not the reasoning of the court
a
quo
.
Although an order of costs differentiating between the first and
second respondents and third respondent before the court
a
quo
may have been justified, or more accurate a costs allocation it may
have had little practical consequence. Nor is same in itself
sufficient to demonstrate that the court
a
quo
failed to exercised its discretion judicially. Even where a
misdirection had occurred, which is not the case here, if regard is
had to the amount involved, an interference won’t be justified.
[9]
[16]
Considering that set out herein above and
the applicable circumstances, the appellant has failed to demonstrate
that circumstances
exist for this court to justifiably interfere with
the order as granted by the court
a quo
.
[17]
Regards the costs in this appeal we are of
the view that considering the circumstances that presented itself and
that the main action
has since been withdrawn a deviation from the
general principle that costs should follow the event is appropriate.
[18]
In the result the following order is made:
1.
The appeal is dismissed.
2.
No order as to costs.
D. GREYLING-COETZER, AJ
I concur and it is so
ordered
CHESIWE J
Appearances:
For
the Appellant:
ADV.
KP MOHONO
Instructed
by:
Tsuinyane
Law Inc
[1]
Zuma
v Office of the Public Protector
(unreported, SCA case number 1447/2018, dated 20 October 2020) at
par [21]
[2]
2019
(6) SA 253 (CC)
[3]
(508/05)
[2006] ZASCA 94
; [2006] SCA 92 (RSA);
2007 (1) SA 16
(SCA) at par
[10]
[4]
Van
Dyk v Conradie and Another
[1963] 2 All SA 312
(C);
1963 (2) SA 413
(C) at 418
[5]
Nkume
v Trans Union Credit Bureaux (Pty) Ltd and Another
2014 (1) SA 134
(ECM) at 140 at par [12]
[6]
1946
AD 597
, referred to as such in
Swartbooi
v Brink
2006 (1) SA 203 (CC) 213
[7]
Ward
v Sulzer
1973 (3) SA 701 (A) 706
[8]
Epstein
& Payne v Fraay
1948 (1) SA 1272
(W) at 1276
[9]
Bowley
v Tuckers Land and Development Corporation (Pty) Ltd
1978 (2) SA 488
(T);
Woerman
v Teubner
1936 SWA 22