REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
{1)
(2)
(3) REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
In the matter between:
GREATER TZANEEN MUNICIPALITY
-and-
REXON SIKULIEZA SHINGWENYANA
PAULINA GRACE SHINGWENYANA
JUDGMENT CASE NO: HCAA13/2024
APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
2
DU PLESSIS AJ:
Introduction:
[1] The Appellant approaches this Court on appeal, challenging the award of costs
against it, which costs emanate from an application for an interdict heard on 3
August 2023 in the Limpopo Division of the High Court held at Polokwane.
Factual Background:
[2] On 19 July 2023 the Appellant disconnected the electricity supply of the
Respondents.
[3] On 20 July 2023 the Respondents approached the Appellant's offices where the
Appellant's employees informed the Respondents that they must pay 30% of the
outstanding amount in order for the electricity to be reconnected.
[4] This was done despite the Respondents' prior attempts to lodge a dispute in
respect of an error on their account and the fact that the Respondent previously
entered into a payment arrangement with the Appellant and was making
payments in that regard. The Appellant previously assured the Respondent that
the electricity supply would not be disconnected.
[5] On 24 July 2023 the Respondents instructed their legal representatives to direct
a letter to the Appellant in which they demanded the reconnection of the
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Respondents' electricity supply. The letter once again lodged the dispute with
the Appellant and requested information in respect of how the amounts of the
electricity account were calculated. The Appellant was again requested to
respect the payment arrangement between the parties.
[6] It must be noted that the Respondents were both elderly people and that the late
Mr. Shingwenyana suffered from diabetes and low kidney function.
[7] Despite the Respondents' attempt to settle the matter amicably, the Appellant
refused to reconnect the electricity supply. Therefore, the Respondents issued
an urgent application from the Limpopo Division of the High Court held at
Polokwane applying that the Appellant be directed to restore the electricity
supply to the Respondents and to be interdicted from disconnecting it again.
[8] Upon receiving the urgent application the Appellant proceeded to reconnect the
electricity supply on 26 July 2023 in an attempt to prevent the urgent application
from proceeding.
[9] The Appellant's attorneys then directed a letter to the Respondents' attorneys,
demanding that the urgent application be withdrawn or suspended.
[10] In reply the Respondents' Attorneys indicated that they are willing not to proceed
with the application on condition that prayers 3 and 4 of the urgent application
be granted and that the costs of the application to be postponed sine die.
4
[11] The Appellant refused and insisted that the application should be withdrawn
seeing that the harm suffered by the Respondents has been removed.
[12) As a result of the Appellant stance, the Respondents proceeded with the urgent
application.
[13] The application was heard on 3 August 2023 and an order was made that
13.1 the application was dismissed; and
13.2 the Appellant was order to pay the costs up to 1 August 2023.
[14] The Appellant requested written reasons for the judgment which was provided
by the Court on 21 September 2023.
[15] On 11 October 2023 the Appellant filed an Application for Leave to Appeal to the
Limpopo Division of the High Court, Polokwane, which was heard on 31 January
2024 and refused by the Court.
[16] The Appellant then approached the Supreme Court of Appeal and was granted
leave to appeal to the Full Bench of the Limpopo Division of the High Court,
Polokwane.
PARTIES SUBMISSIONS
5
[17] The Appellant submits that it is entitled to an order setting aside the cost order
granted against it on 19 July 2023. The main reason being that the awarding of
costs was based on the fact that the Appellant simply applied its by-laws by
merely requiring the Respondents to pay 30-50% of their outstanding debt before
their services would be reconnected .
[18J The Appellant further submitted that the costs should not have been granted
against them, seeing that the matter has become moot and the application was
dismissed by the court a quo.
[19J The Respondents submitted that the Appellants would not have reconnected
their electricity supply had they not brought the urgent application. They were
compelled by the conduct of the Appellants to incur legal expenses and to
instruct counsel to bring the application on their behalf.
DISCUSSION
[20] A court of appeal will generally be very loathe to interfere with an order as to the
award of costs. Appeal against cost orders are therefore an exception rather than
a norm. In Hotz and Others v University of Cape Town (CCT280/16) [20171
ZACC 10; 2017 (7) BCLR 815 (CC); 2018 (1) SA 369 (CC) at paragraphs 25
and 28, the Constitutional Court stated as follows in this regard:
"[25] In Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR
6
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 in the 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 if'.
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, if 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 ... "
And further at paragraph 28: -
'128] 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
7
that of the High Court because it may, in certain circumstances be inappropriate
to interfere with the High Court's exercise of discretion."
[21] Although the issue of costs remains in the discretion of the court, the discretion
cannot be exercised arbitrarily, but must be exercised judicially on grounds upon
which a reasonable person could have come to the conclusion arrived at. The
approach to awarding costs is succinctly set out in Ferreira v Levin NO and
Others, Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC) at paragraph 3:
"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 proceedings. 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 constitutional
litigation ... "
[22] In view of the above explanation, it cannot therefore be assumed that just
because the application in the court a quo was dismissed, that the costs would
not be awarded to the Applicant. The learned Judge exercised his judicial
8
discretion by taking the parties conduct into consideration when making the
order.
[23] For an appeal to succeed on costs, the Appellant must demonstrate exceptional
circumstances warranting interference with the order as to costs. In Naylor and
Another v Jansen {508/05) [2006] ZASCA 94; [2006] SCA 92 {RSA); 2007 {1)
SA 16 {SCA) at paragraph 10, the Supreme Court of Appeal stated as follows
in this regard:
"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 proceedings. 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 constitutional
litigation ... "
[24] In R v Zackey 1945 AD 505 with reference to Fripp v Gibbon & Co 1913 AD
354 at 363, the Appellate Division said the following in respect of the exercise of
the discretion on costs:
9
"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 consideration 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 this and brings his unbiased judgment to bear upon the matter and
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."
[25] Having regard to the aforesaid authorities, it is evident that the Acting Judge
properly applied his judicial discretion in awarding the cost order against the
Appellants.
[26] The Acting Judge provided proper reasons and explained in his written
Judgment dated 21 September 2023 that he was of the view that the Appellants
unreasonableness and misconduct justified the award of costs against them.
[27] On this basis, this Court is of the view that exceptional circumstances warranting
the interference by a court of appeal have not been shown to exist, and that the
Appellant is not entitled to the relief prayed for.
ORDER:
[28] In the result the following order is made:
28.1 The appeal is dismissed with costs.
APPEARANCES:
DATE OF HEARING
DATE OF JUDGMENT 10
S DU PLESSIS
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
,,,...,...J!,,,_ -DENDAAL
IGH COURT,
, POLOKWANE
I agree:
M BRESLER
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
31 JANUARY 2025
17 MARCH 2025
FOR THE APPELLANT
FOR THE RESPONDENT 11
Talane & Associates Attorneys
sizir@talaneattorneys.co.za
office@lebepelaw.co.za
Henstock van den Heever Attorneys
invorderings9@henstock.co.za