REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH Al :RICA
GAUTENG DIVISION, PRETOR IA
Court a quc case number: 71943/2016
Appeal Case Number: 149/2023
(1) REPORTABLE :
(2) OF INTERES T TO OTHER JUDG
(3) REVISED : -![) /-(?jr_, '<-4_.Q_r_.,., _;_-:-~_-_-("""' ___ _.,..,
DATE
In the matter between:
GP SMITH LETTING CC
And
JACOBS AND VAN ASWEGEN
PROPERTY DEVELOPERS CC
{Registration No. 2007/107707 /23)
HENK GERHARDUS VAN ASWEGEN
Coram: MODIBA J, STRIJDOM J, BOTSI-THULA ,E AJ Appellant
First Respondent
Second Respondent
Summary: Failure to ensure compliance with unifc rm rule 49(6)(a) -lapsing
appeal -application for condonation -factors to be c Jnsidered -cumulative effect
of such factors- the delay not satisfactorily explained• -Jack of prospects of success
in the appeal -condonat ion refused -re-instatemer t of the appeal refused.
JUDGMENT
BOTSI-THULARE AJ (Modiba J, Strijdom J concurring)
Introduction
[1] The appellant, GP Smith Letting CC (GP Smith LE tting) instituted an action
against the respondents Jacobs and Van Aswegen Pr )perty Developers CC (the
property developers) and Henk Gerhardus Van Aswe-gen (Mr Van Aswegen) for
the setting-aside of a court order which made an ar litration award an order of
court. It sought this relief on the basis that the under!) 1ng arbitration award which
was the subject of a settlement agreement between • he parties was actuated by
fraud allegedly perpetrated by the respondents .
[2] The court a quo per Senyatsi J (the court a quo) dismissed the action in a
judgment dated 13 August 2021. GP Smith Letting applied for leave to appeal
and it was granted by the court a quo on 7 Decemb, r 2021.
[31 The basis of the appeal by GP Smith Letting is tha the court a quo erred in its
application and interpretation of the law of hearsay c s against the facts that were
before it. The appeal is opposed by the respondent · i.
Factual background
[4] GP Smith Letting represented by Mr Smith a, .d the property developers
represented by Mr Van Aswegen concluded a Joi ,t Venture Agreement on 16
November 2006 (JV Agreement) in terms of whict-they agreed to embark on a
property development project on GP Smith Letti 1g's farm known as Bender
Meadows (the Property). Mr Van Aswegen was , .uthorised in terms of the JV
Agreement to manage, represent, act on behalf of and make any decisions
pertaining to the property development without GF Letting1s consent.
[5] Mr Van Aswegen appointed consultants to, inter ilia, procure the availability of
bulk services and township development rights. Jne of the consultants which
were appointed by the Mr Van Aswegen wa~ Vikna Consulting Civil and
2
Developmental Engineers , Polokwane (Vikna) which was represented by Nick
Spotswood (Mr Spotswood) .
[6] On 10 March 2011, GP Smith Letting repudiated the J ✓Agreement.In 2014, the
respondents instituted arbitration proceedings at: ainst GP Smith Letting
impugning the repudiation. They claimed the costs incurred in relation to the
consultants in an amount of R 1 502 933.36, and a me nagement fee equal to 8%
of the turnover for the property development I reject in an amount of
R6 600 000.00. During the arbitration proceedir gs, negotiations ensued
between the parties. They reached a compromise a 1d concluded a settlement
agreement in the amount of R1 211 724.76. On 20 April 2015, the Arbitrator
made an award incorporating the settlement agreem 3nt.
[7] GP Smith Letting is alleged to have breached thE award by failing to make
payment as ordered. This led respondents to launct an application for an order
making the arbitration award an order of court. GP ~ ,mith Letting did not oppose
the application. An order making the arbitration a, 11ard an order of court was
granted on 8 December 2015. During the period I ,etween the granting of the
award and order of court, GP Smith Letting mace various payments to the
property developers, including payment for an in ,oice of R250 000.00 from
Vikna.
Proceeding before court a quo
[8] In the court a quo, GP Smith Letting sought an ore ar for the setting-aside of the
8 December 2015 order of court on the basis that the settlement agreement on
which the award was based was induced by fra11d. It further alleges that the
respondents had misrepresented to it that the oulk of the amount claimed
included an invoice of R1 200 000.00 from Vikna v,. hen the latter amount was not
yet due and payable.
[9] GP Smith Letting further contended that after tt e settlement . it came across
information that the amount on the invoice prepa ·ed by Vikna was not due and
payable when the settlement agreement which led to arbitration award was
concluded. GP Smith Letting further alleged th tt when the compromise was
reached, Vikna would have only been entitled to payment in the amount of
3
R250 000.00 if the JV Agreement had been impler 1ented. The respondents
defended the action on the basis that the designs whi( h Vikna was contracted to
do were done, thus increasing the value of the propl •rty. This rendered the full
amount of Vikna's invoice due and payable.
(1 O] During the trial, Mr Smith testified on behalf of GP Smi :h Letting regarding a letter
written by Mr Spotwood's attorney (Mr Koos Gey ,er) to the South African
Revenue Service (SARS) and the Hawks represent ng that the invoice was a
proforma invoice and that the VAT input in rE-spect of the amount of
R1 200 000.00 was not claimed. The respondents ' v1rsion is that the letter was
not written at their request or on their behalf. GP S nith Letting did not call Mr
Spotwood to testify about this letter and/or Vikna's invoice to corroborate GP
Smith Letting's version.
[11] Against this background, the court a quo concluded that the mere production of
the letter to SARS and the Hawks; and Mr Smith's E 'lidence is not conclusive of
the facts set out in the letter as Mr Smith was not the author of the letter. Further,
the court a quo held that the contents of the letter car stitute inadmissible hearsay
evidence. The court a quo reasoned that it was n lt persuaded as to why the
authors of the letter was not called as a witness to confirm that the sum of
R1 200 000.00 invoiced by Vikna to the property de ,elopers was indeed not due
and payable. Further, the court a quo found tha GP Smith Letting failed to
establish the factual or legal basis for the hearsay evidence to be admitted in the
interest of justice.
[12] The court a quo concluded that the appellant's rel ance on hearsay evidence is
impermissible , therefore, it failed to discharge the >nus to prove the fraud .. As a
result, the court a quo held that GP Smith Lettin~ 1 failed to make out a proper
case for the relief sought.
Appeal proceedings
[13] In the present proceedings , GP Smith Letting reli 3S on the following grounds or
appeal:
4
a. The court a quo erred in relying on the followi ,g principles of law which
were outlined as follows in paragraphs 16 a 1d 17 of the court a quo
judgment:
"It is prerequisite to obtaining restitution in inte grum on the ground of fraud
that the document had not been available tot~ e party who seeks restitution
before an order was made. The position is the, same in a case where fraud
is committed in a manner other than falsifying jocuments .
The court will grant relief if the evidence thal was fraudulently considered
and came to light after the conclusion of the t ial which would have entitled
a party to a different judgment head this evid1 nee been procured, provided
that a party can show weighty reasons by '-•hich he was prevented from
producing such evidence at trial. The party se, king restitution must therefore
show that it was not through his own fault theta document was discovered
before the order was made."
b. The court a quo should have found that the i 1ppellant was in possession
of the document i.e. the invoice.
c. The court a quo erred by stating in paragrapl 20 of the judgment that the
mere production of the invoice and Mr Sm th's evidence on it was not
conclusive as the author of the letter was no-called upon to testify.
d. The statement by the court a quo that the ·e will be violation of law of
hearsay if the letter is accepted as conclusivE evidence (without the author
testifying on it) is wrong.
Condonation application
[14] GP Smith Letting seeks condonation for prosecu•ing the appeal out of time. It
delivered the notice of appeal on 23 December 20; 1. It only applied for a hearing
date on 12 May 2023, approximately 13 months I 3ter. This is outside of the 60
days period prescribed in terms of uniform rule 49 :e)(a). In terms of uniform rule
49(9), the appeal is deemed to have lapsed. It is for that reason that GP Smith
Letting seeks condonation for non-compliance wit 1 uniform rule 49(6)(a).
5
(15] GP Smith Letting further requests this court that, to the: extent it failed to comply
with uniform rule 49{13)(a) read with uniform rulf of 49(7)(a), such non
compliance be condoned . The condonation applic;1tion is opposed by the
respondents .
(16] Uniform rule 49(6)(a) provides as follows:
"Within 60 days after delivery of a notice of appeal, ar appellant shall make written
application to the registrar of the division where the appeal is to be heard for a
date for the hearing of such appeal and shall at the s 1me time furnish him with his
full residential address and the name and addresf of every other party to the
appeal and if the appellant fails to do so a respono 3nt may within 1 O days after
the expiry of the said period of 60 days, as in the Cf se of the appellant, apply for
the set down of the appeal or cross-appeal which h ~ may have noted. If no such
application is made by either party the appeal and c ross-appeal shall be deemed
to have lapsed: Provided that a respondent shall I ,ave the right to apply for an
order for his wasted costs."
[17] Uniform rule 49(6)(b) provides for the remedy GP Smith Letting seeks. It
provides as follows:
"The court to which the appeal is made may, on 1pplication of the appellant or
cross-appellant, and upon good cause shown, rein: tate an appeal or cross-appeal
which has lapsed."
[18] Therefore , to succeed in this application, GP Smit!. Letting is required to show
good cause for non-compliance with uniform rule 4< J(6)(a).
(19] GP Smith Letting's explanation for failing to prosec Jte the appeal on time is that
although it filed the appeal record timeously , it did n lt furnish security as required
in terms of uniform rule 49(13)(a) because its 1ttorney laboured under the
incorrect belief it was not required to furnish securi .y.
[20) On 4 April 2022, GP Smith Letting's attorney po! ted an inquiry on Caselines
about the allocation of a date for the hearing of th ~ appeal. He followed up with
further inquiries on 17 of May 2022, 7 June 202 2 and 18 July 2022. He then
made enquiries with colleagues regarding the w ual time frames within which
6
appeals are normally heard and was informed to le patient as there is a
substantial backlog of cases.
[21] GP Smith Letting's attorney concedes that the problem concerning the
application for a date was due to confusion on his put concerning the normal
practice directives and those relating to Caselines ; 1nd Covid 19. He alleges
that he is not familiar with the applicable practi ~e directives as well as
Caselines because he practices in Polokwane wr ere the relevant practice
directives are not applicable and Caselines in not us, d. As a result, he became
sidetracked and in the process, overlooked the re ~uirement in uniform rule
49(6)(a) as well as the applicable practice directives.
[22] The respondents argue that GP Smith Letting's cor cedes that it has failed to
comply with rule 49(6)(a), rule 49(13}(a) as well a: failed to properly or fully
comply with paragraphs 19, 49 and 52 of Practice C irective 2 of 2022. Further,
its attorney failed to make any enquiries regarding thf status of the appeal during
the entire period until 12 May 2023. Therefore, the ·espondents · contends, GP
Smith Letting has failed to show good cause.
The applicable law
[23] It is trite that where a party fails to comply with , prescribed time limitation,
whether statutory or in terms of the rules of court the High Court may grant
condonation in the interests of justice. 1
[24] In Dengetenge Holdings (Pty) Ltd v Southern Sphtre Mining and Development
Company Ltd & Others2 the Supreme Court of Appl !al held that:
·'Factors which usually weigh with this court in considering an application for
condonation include the degree of non-compl ianc 3, the explanation therefor, the
importance of the case, a respondent's interest i I the finality of the judgment of
the court below, the convenience of this court am the avoidance of unnecessary
delay in the administration of justice .... "
[25] The courts have consistently refrained from attempting to frame any
1 Yunnan Engineering CC v Chater 2006 (5) SA 571 (T) at 5 '8H-J.
2 [2013] 2 All SA 251 (SCA) al para 11.
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comprehensive definition of what constitutes good caL se for purpose of granting
of condonation for procedural shortcomings in appeals. Condonation is granted
at the discretion of the court, judicially exercised having regard to all the
circumstances of the case.3
[26] It is common cause that the appeal is deemed to have lapsed for reasons
advanced on behalf of GP Smith Letting. As a result, he respondents served on
GP Smith Letting an application for payment of their iVasted costs of the lapsed
appeal in terms of Rule 46(6)(a) on 13 April 2023. I was at this point that GP
Smith Letting's attorney started reaching out to the r1)spondents . This was after
a long period of inaction. He has offered no explanati Jn why he only reached out
to the respondents' attorney after the application fo • wasted costs was served
when he could have done so earlier, particularly afte • the respondents ' heads of
arguments in the appeal were delivered in October; 022.
[27] GP Smith Letting's attorney has demonstrated lack of diligence in prosecuting
the appeal. Counsel for the respondents delivered t is heads of argument in the
appeal on 7 October 2022. GP Smith Letting attornt ~Y incorrectly states that the
heads of argument were sent to his correspondem attorney for delivery on 27
October 2022. However, no e-mail to such effect is 3ttached to the affidavit filed
in support of the application for condonation. To n ,ake matters worse, he was
unaware that heads of argument were served on hi~ correspondent attorney until
February 2023 when he found an email from .he correspondent dated 9
November 2022 in his computer's deleted bin. He hen used an "unused" email
address of the correspondent attorney to enqu re whether non-compliance
indeed occurred. There is no evidence to suggef t that he followed up on the
email he had sent to his correspondent attorne) . These delays were clearly
occasioned by lack of diligence on his part.
[28] During March 2023 a further conversation took p ace between the attorney for
GP Smith Letting and counsel for the responde' its. During this conversation,
counsel for the respondent hinted that non-alloct tlon of a date for the hearing
3 PAF v SCF 2022 (6) SA 162 (SCA) at para 21. Also see U 1ited Plant Hire (Pty) Ltd v Hills 1976
(1) SA 717 (A) al 720E-G and Van Wyk v Unitas Hospital 'Open Democratic Advice Centre as
Amicus Curiae) 2008 (2) SA 472 (CC) at 477A-B.
8
may be due to GP Smith Letting's attorney failure I) properly prosecute the
appeal. The attorney for GP Smith Letting only realised that the "unused" email
did not reach the correspondent attorney when the re ,pondents' application for
costs was served on him on 13 April 2023. Only af er counsel for GP Smith
Letting came on board was an application for a heari 19 date made on 12 May
2023. This occurred a month after respondents' applic« 1tion for costs was served.
[29] GP Smith Letting, as an applicant for condonation , seE ks an indulgence from this
court and must provide a candid and full explanation of the entire period of the
delay and the reason/s for it. Its attorney has not beer candid with this court. He
has also not provided a full explanation for the delay. Further, his explanation is
not reasonable .
[30] In Unitrans Fuel and Chemical (Pty) Ltd v Dove-Co Carriers CC4 it was stated
that High Courts should in future require that the er tire period of the delay be
thoroughly explained1 regardless of the length of th1_! delay. In this regard, the
court observed :
''Firstly; it is often and undesirably so, in our Courts that the length of the delay in
condonation applications, determines how detailed :he explanation is.
To illustrate: if a delay of a few days has to be exp ained, then the failure to deal
with a day or two may well prove fatal to the appl cation. Likewise, if a delay of
some 3 weeks has to be explained, then a failure t > deal with 3-4 days, may lead
to the failure of the application.
In the case of much longer delays, such as the Cc se in casu, (of some 3 years),
applicants somehow, (but too often), regard the failure to explain 3-4 days as
negligible . In fact, much longer, unexplained periods seem to pale into
insignificance , simply due to the length of the to al delay, seemingly under the
impression that a few days or even weeks, herE and there, will not "break the
camel's bacl<'.
4 2010 (5) SA 340 (GSJ).
9
This is unacceptable. The test does not change due 1 J the length of the delay and
the duty to fully explain the entire period of the deli ,y, remains the same, quite
irrespective of the period of the delay. "5
(31] An inordinate delay induces a reasonable belief th:-,t the order had become
unassailable and the successful party is entitled to as ;ume that the losing party
has accepted the finality of the order and does not ir tend to pursue the matter
further.6 Thus, to grant condonation after an inordinatE delay and in the absence
of a reasonable explanation, would undermine the prir ciple of finality in litigation,
unless it is shown that it is in the interests of justice.7
[32) In my view, there are two separate periods of inaction which were not sufficiently
explained by GP Smith Letting. The first period is fror 1 4 April 2022 until 18 July
2022 during which the admitted wrong procedure was =allowed to apply for a date
of hearing (3 months and 14 days of inaction). These ;ond period is from 18 July
2022 until sometime in September 2022. This translc tes into a further period of
approximately 2 months of inaction.
[33] In other words, there was inaction on the part of the a1 :orney for GP Smith Letting
until he received the respondents' heads of argument on 7 October 2022. He
mentioned that the heads of argument had to be deli ,ered on 27 October 2022.
He failed to explain why the date on which he received the respondents' heads
is stated to be 20 days after they were served on his correspondent attorneys .
[34] The March 2023 conversation between the attorne" for GP Smith Letting and
counsel for the respondents does not mitigate Gf' Smith Letting's failure to
provide a full and reasonable explanation for its dela I in prosecuting the appeal.
[35] It is trite that lack of diligence on the part of an att xney causes harm to their
client. Generally , courts are loath to penalise a blar ,eless litigant due to lack of
diligence on the part of its attorney.8 However, the A >pellate Division in Saloojee
and Another NNO v Minister of Community Develop nent observed that:
5 Id at para 14-17.
6 Van Wyk v Unitas Hospital at 4 79H-480A .
7 Van Wyk v Unitas Hospital at 480A-B.
6 Shaik v Pi/lay 2008 (3) SA 59 (N) al 611.
10
"There is a limit beyond which a litigant cannot esca1 e the result of his attorney's
lack of diligence or the insufficiency of the explanatior tendered. To hold otherwise
might have a disastrous effect upon the observanc , i of the Rules of this Court.
Considerations ad misericordiam should not be allow 3d to become an invitation to
laxity .... The attorney, after all, is the representative vhom the litigant has chosen
for himself, and there is little reason why, in regard 1 J condonation of a failure to
comply with a Rule of Court, the litigant should b1 i absolved from the normal
consequences of such a relationship , no matter wt at the circumstances of the
failure are."9
[36] This statement has consistently been applied, not onl tin the case of appeals to
the Supreme Court of Appeal, but also in the case of 3ppeals to a full court from
a single judge and of appeals to the full bench 01 the High Court from the
magistrate's court.10 In my view, circumstances are pi oper for this principle to be
applied in this case.
[37] Seemingly it was only after the respondents ' applicat Jn for costs was served on
the attorney for GP Smith Letting that he did what he should have done from the
outset to properly prosecute the appeal. He failed .o ensure compliance with
uniform rule 46(6)(a). His explanation is unfortunate! ~• not satisfactory .
Prospects of success
[38] I have therefore reached the conclusion that the delay is not satisfactorily
explained . Despite, this is not the only factor to ::>e considered in order to
determine whether or not condonation applicatio r, should be granted. The
prospects of success on appeal should also be cor sidered. It is trite that good
prospects of success compensate for a poor expla 1ation for the delay in filing
and prosecuting the appeal.11
[39] In this matter, GP Smith Letting contends that the is ,ue of "hearsay evidence" in
relation to the contents of the letter and the affidavit c eposed to by Mr Spotswood
lies at the heart of the intended appeal. In my view, t 1e court a quo correctly held
9 1965 (2) SA 135 (A} at 141C-E. See also Mtshali NO and 'Jthers v Buffalo Conservation 97
(Pty) Ltd [2017] ZASCA 127 (29 September 2017)
10 Aymac CC v Widgerow 2009 (6) SA 433 (W) at 451 D-H
11 Melane v Sanlam Bank Insurance Co. Ltd 1962 (4) SA 531 (A) at 532 B-E
11
that the letter authored by Mr Spotswood amounts t > inadmissible hearsay. It
was not tendered simply to prove that a statement )f fact was made. It was
tendered in an attempt to prove that its contents are t1 ue. The court a qua could
only admit it in terms of the Law of Evidence Amenc ment Act No. 45 of 1988
(Law of Evidence Amendment Act).
[40] Section 3(1 )(a)-(c) of the Law of Evidence Amendmen Act provides that hearsay
evidence shall not be admitted in civil proceedings, L nless the parties agree to
the admission of such evidence; or the person upon whose credibility the
probative value of such evidence depends himself te~.tifies or the court is of the
opinion that such evidence should be admitted in the nterests of justice.
[41] In Giesecke and Devrient South Africa (Pty) Limited\, Tsogo Sun Holdings (Ply)
Limited and Another ( Giesecke }it was stated that
"The general rule is that evidence presented in the c, iurse of proceedings must be
the best available evidence. In trial proceedings, this rule generally entails that the
person upon whose credibility the probative value < f the evidence depends, not
only gives the evidence but is also available for cro~ ;-examination ."12
[42] It should be noted that the court in Giesecke was ali ·e to the fact that there are
exceptions to the general rule that the person u )on whose credibility the
probative value of the evidence depends, not only gi, es the evidence but is also
available for cross-examination. In this regard, the cc urt in Giesecke that:
" .... The principles underlying these exceptions arE usually twofold:
That there must be a good reason why the witness c mnot give evidence in person,
such as death, impracticality or that the witness is l ntraceable .
The evidence is nonetheless reliable (that is the fa ;t that the evidence cannot be
tested by cross-examination does not substant ally undermine its probative
value)."
[43] Equally of relevance, are the provisions of the Civi Proceedings Evidence Act
25 of 1965 (Evidence Act}. Section 34(1 )(b) of the Evidence Act provides that
12 [2010] ZAGPJHC 41 at para 36 (25 May 2010}
12
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where direct oral evidence of a fact would be admis!· ible, any statement made
by a person in a document and tending to establish th it fact shall, on production
of the original document, be admissible as evidence o = that fact provided certain
conditions are met, such as personal knowledge by he person who made the
statement , statement made in the performance of a t uty to record information,
and impossibility for the person to attend as a witness for valid reasons.
[44] Mr Spotswood is a person upon whose credibility t 1e probative value of his
affidavit depends. The appellant had ample time to serve a subpoena on Mr
Spotswood considering that the court proceedings cor lmenced on 25 November
2019 and concluded on 1 October 2020. In my view, the affidavit of Mr
Spotswood therefore falls foul of the provisions of sec:ion 34(1 )(b). No evidence
was tendered before the court a quo to show th lt it was not reasonably
practicable to secure the Mr Spotswood's attenda 1ce at court and that all
reasonable efforts had been made without success. I 1 my view this amounts to
fatal non-com pi iance with section 34( 1 )(b ).
[45] Section 34(2) of the Evidence Act gives the court a discretion to admit a
document if, having regard to all the circumstance~ of the case, the court is
satisfied that undue delay or expense woulc otherwise be caused
notwithstanding that the person who made the state, 1ent is available but is not
called as a witness. In my view no facts were place, 1 before the court a quo in
order to determine whether there would be an undt.e delay or expense if the
affidavit is not admitted.
[46] I am of the view that the court a quo was correct (O conclude that the mere
production of the invoice and Mr Smith's evidence c n it was not conclusive as
the author of the letter was not called upon to testi y. Therefore, there are no
reasonable prospects of success on appeal.
[471 Further, given that the settlement agreement pursu 1nt to which the arbitration
award was made was for a globular amount in full and final settlement of all
claims arising from the JV agreement , there are nc reasonable prospects that
GP Smith Letting would succeed in persuading this ( :ourt that it was fraudulently
13
·······-·-·--"·'··"-··-----
induced to agree to this amount by the respondents ' 11isrepresentation that an
amount of R1 200 000.00 was due and payable to Vik 1a.
[48] In conclusion, it is my considered view that the cumula1 ve effect of lack of diligent
on the part of GP Smith Letting's attorney in prosecutir g the appellant's attorney,
the inadequacy of the explanation for the delay and la< :k of prospects of success
in the appeal mean that granting condonation would not serve the interests of
justice. For these reasons, GP Smith's application for ;ondonation stands to fail.
Its request for the re-instatement of the appeal canno succeed.
Costs
[49) The appellant submits that this court should, by mean~ of a cost order on attorney
and client scale, ensure more effectually than it can I ,y means be out of pocket
in respect of the expenses caused to it by the litigati, ,n. On the other hand, the
respondents argue that the appellant be ordered to pay the costs of the
application on a punitive scale.
[50] The general rule in matters of costs is that the succe ;sful party should be given
his costs, and this rule should not be departed from e <cept where there be good
grounds for doing so, such as misconduct on the pa, t of the successful party or
other exceptional circumstances .
[51] Regarding the punitive cost order sought by the respc ,ndents, it should be stated
that generally courts do not order a litigant to pay the costs of another litigant on
the basis of attorney and client unless some special grounds are present, such
as, for example, that he has been guilty of dishonest ) or fraud or that his motives
have been vexatious, reckless and malicious, or friv ~lous, or that he has acted
unreasonably in his conduct of the litigation or that 1is conduct is in some way
reprehensible .13
[52] It has frequently been emphasised that in award ng costs, the court has a
discretion to be exercised judioially upon a consid )ration of the facts in each
13 See Mahomed & Son v Mahomed 1959 (2) SA 688 (T); R, Ion v Van der Spuy and Partners
2002 (2) SA 121 (C).
14
case, and that in essence the decision is a matter of i3irness to both sides.14 In
giving the court a discretion, the law contemplate~ that it should take into
consideration the circumstances of each case, carefl lly weighing the issues in
the case, the conduct of the parties and any other circL ,mstance which may have
a bearing on the issue of costs and then make such c irder as to costs as would
be fair and just between the parties.
(53] In this matter, GP Smith Letting's attorney failed to pro ,ecute the appeal on time.
The explanation for the delay was also not adequate w 1ich meant that the appeal
lapsed. It is also common cause that the respondents had already incurred legal
costs in opposing the condonation application as well as the lapsed appeal.
[54] Against this background, in the exercise of my dis,:retion and mindful that a
punitive costs order is not awarded easily or readil.', I am of the view that a
punitive costs order is justified and warranted in this natter. A costs order on a
party and party scale will be insufficient to cover all tht: expenses incurred by the
respondents in this matter. An award of punitive cost; on an attorney and client
scale is warranted in the circumstances because it w, 1uld be unfair to expect the
respondents to bear any costs occasioned by the con1. lo nation application as well
as the lapsed appeal.15
(55] Accordingly, the grant of a punitive costs order again ;t the appellant is therefore
necessary and warranted.
Order
[56] In the result, I make the following order:
1. The application for condonation is dismissed wi h costs on the attorney and
own client scale.
2. The appellant is ordered to pay the costs incl rred by the respondents in
opposing the lapsed appeal on the attorney an j own client scale.
14 Mashele v BMW Financial Services (Pty) Ltd 2021 (2) SA 519 (GP) al para 39.
1s Public Protector v South African Reserve Bank 2019 (6) SP. 253 (CC} al para 22.
15
v' MD BOTSI-THULARE
ACTING JUDt ,E OF THE HIGH COURT
GAUTEl JG DIVISION, PRETORIA
I agree and it is so ordered.
I agree.
APPEARANCES
Counsel for the Appellant: Advocate GM Young
Instructed by: Mathee Attorneys LT MODIBA
JUD jE OF THE HIGH COURT
GAUTE NG DIVISION, PRETORIA
JJ STRIJDOM
JUC GE OF THE HIGH COURT
GAUTl :NG DIVISION, PRETORIA
Counsel for the First and Second Respondent: Advocate De Waal Keet Nigrini
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Instructed by: Cremer Attorneys
Date of Hearing: 27 November 2024
Date of Judgment: 10 February 2025
MODE OF DELIVERY: This judgment is handed down ele. :tronically by transmission
to the parties' legal representatives by email, uploading 011 Caselines and release to
SAFLII. The date and time for delivery is deemed to be 10 00am.
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