GAUTENG DIVISION, PRETORIA
( 1) REPORT ABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED. YES
20 March 2025
SIGNATURE
In the matter between:
UZANI ENVIRONMENTAL ADVOCACY CC
And
BP SOUTHERN AFRICA (PTY) LTD
as represented in terms of s332(2)
of Act 51 of 1977 by Mr Odwa Masiza)
SPILG, J:
20 March 2025 JUDGMENT -COSTS
(Uzani (4)) 1
CASE NO: CC 82/2017
Prosecuto r
Accused
INTRODUCTION
1. This judgment concerns the cost orders sought by the private prosecutor, Uzani
Environmental Advocacy CC, pursuant to the successful conviction of BP
Southern Africa (Pty) Ltd ("BP') in relation to contraventions of s 29(4) of the
Environmental Conservation Act 73 of 1989 ("EGA'') for failing to obtain the
required written environmental authorisation required under s 22(1) of that Act.
The judgment is identified as Uzani(1).
Subsequently the court held an enquiry under s 34 (3)(g) of the National
Environmental Management Act 107 of 1998 ("NEMA ") after which it heard the
parties on sentencing and on 6 September 2024 BP was sentenced for the
contraventions under the following penal provisions of NEMA and ECA:
a. In respect of the counts under s 34(3) of NEMA, a fine of R 6 245 424 2
b. In respect of the counts under s 29(4) of EGA, an initial fine of R 6 187 650
c. In respect of the additional fine under s 29(4) of EGA, an amount of
R 47 112 970.
The s 34(3)(g) judgment is noted as Uzani(2) and the judgment on sentence is
Uzani(3).
THE COSTS ISSUE
2. The costs issue relates to whether Uzani;
a. is entitled to an order for costs under s 348 of NEMA
b. is entitled to be covered in advance for the costs of appeal under s 33(3)
of NEMA.
c. is entitled to attorney and client costs and, if not, the applicability of Rule
67 A of the Uniform Rules of Court. This includes whether Uzani should be
deprived of costs in respect of certain respects.
THE SECTION 34B AWARD FOR COSTS UNDER NEMA
3. Section 34B provides that:
"Award of part of fine recovered to informant
(1) A court which imposes a fine for an offence in terms of this Act or a
speqific environmental management Act may order that a sum of
not more than one fourth of the fine be paid to the person whose
evidence led to the conviction or who assisted in bringing the
offender to justice. 3
(2) A person in the service of an organ of State or engaged in the
implementation of this Act or a specific environmental management
Act is not entitled to such an award.
4. Mr Roux representing BP takes the point of retrospectivity in that ss 34A to 34G
only came into effect from 1 May 2005; i.e. only after the offences were
committed. He argues that the amendments are of a substantive law nature and
not procedural which, he submits, means that they cannot apply to the present
case.
He also argues thats 34B (1) only applies to a person whose evidence led to a
conviction and, to the extent that it refers to a person who assisted in bringing an
environmental offender to justice, is to be interpreted as a whistleblower
provision. Counsel contends that this in fact is the Department of Forestry,
Fisheries and the Environment's understanding of the provision as contained in
its draft National Waste Management Strategy document of 2010, which refers to
the provision as a whistleblower provision. This is also consistent with the
Department of Justice's invitation for public comment on proposed reforms to the
whistleblower protection regime in South Africa.
5. A further argument advanced by BP is that the amount cannot constitute an
award for prosecutors since the concept of prosecuting for reward does not form
part of our law. Prosecutors are constitutionally enjoined to perform their
functions without fear, favour or prejudice. In addition the defence argued that
s 348 (2) excludes any person in the service of an organ of State, such as the
National Prosecuting Authority, from receiving such an award. The argument
goes that at best a successful private prosecutor may only be awarded its costs
under either section 33(3) of NEMA ors 15 of the Criminal Procedure Act 51 of
1977 but cannot share in the proceeds of fines. 4
6. The final argument, which is a development of the previous one, is that the
incentive would be a perverse one because it would have the real potential of
bringing prosecutors into conflict with their statutory duties and to incentivise
private prosecutions for reward. This could lead to a flood of speculative litigation.
7. If its arguments are not upheld, then BP submits that under section 348 the court
has a discretion to order payment of a quarter of the fine and that, as a matter of
policy, it should not make a costs order which incentivises private prosecutions
for financial reward rather than to advance the interests of justice.
8. Mr. Erasmus, on the other hand, asks the court to consider s 34 from the
perspective of encouraging civil society institutions to bring environmental
offenders to justice when the prosecutorial authority does not do so.
9. The starting point is the accepted rules of interpretation of statute which hold that
it is a unitary examination 1 which has regard to the ordinary words used in their
context and by reference to the Act as a whole as well as to the admissible
surrounding circumstances informed primarily by constitutional values which may
apply and by the ordinary aides to interpretation such as surplusage is not
intended and that headings (at least in Statutes) are relevant aids.2
10. With these considerations in mind, the heading to s 348 is clear and precise. It
reads:
1 See Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494
(SCA) at para 12.
2 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) (1997 (1) SACR 567;
1997 (6) BCLR 708) at para 12 ftn 13. See also Viking Pony Africa Pumps (Pty) Ltd tla Tricom Africa v Hidro
Tech Systems (Pty) Ltd 201 0 (3) SA 365 (SCA) at para 33 and the cited cases.
5
"Award of part of fine recovered to informanf'
And this is, on an ordinary reading of subsection (1), what the provision in fact
deals with.
11. One cannot wish away the word "informant". It is used in the context of limiting
who is entitled to the award. While the subject matter may be the making of an
award, the recipient remains the informant.
12. If the legislature had intended that persons other than an informant, as that term
is ordinarily understood, should participate in an award then the words "to
informanf' would be unnecessary. This then brings into reckoning the ordinary aid
to interpretation that surplusage is not intended.3
13. Case law reminds us that the court cannot look at words in isolation. I agree with
Mr. Roux that in the context of s 348, the ordinary wording of subsection (1)
would require that the words "whose evidence Jed to the conviction or who
assisted in bringing the offender to justice" be given a strained meaning if the
intention had been to include a private prosecutor. If it was so intended, then it
was simple enough for the legislature to have said so by adding ins 348 (1) the
words "or a person referred to ins 33(1)".
In this regard it will be recalled thats 33 is a self-contained section concerned
with private prosecutions.
14. Taking the interpretational enquiry further to a consideration of the provisions of
the Act as a whole, section 33 appears to deal exhaustively with the costs of
private prosecutions.
3 See Wellworths Bazaars Ltd v Chandlers Ltd and Another 1947 (2) SA 37 (A) at p 43 which approved the
following passage from the Privy Council judgment in Ditcher v Denison (11 Moore P.C. 325, at p. 357) :
'It is a good general rule in jurisprudence that one who reads a legal document whether public or
private, should not be prompt to ascribe -should not, without necessity or some sound reason,
impute -to its language tautology or superfluity, and should be rather at the outset inclined to
suppose every word intended to have some effect or be of some use."
15. Section 33 (3) provides that:
"The court may order a person convicted upon a private prosecution
brought under subsection (1) to pay the costs and expenses of the
prosecution, including the costs of any appeal against such conviction
or any sentence"
16. If the legislature intended that a private prosecutor was entitled to an award
under section 34B, then one would expect to find wording which adds that a
private prosecutor is also entitled to an award under its provisions.
17. Since neither s 33(3) nor s 34B makes express provision for an award under
section 34B to be paid to a private prosecutor but only refers to the costs usually
associated with private prosecutions, then the only caveat to finding that private
prosecutors cannot participate in a s 34(3) award is if it can be shown that the
mischief which the legislature sought to remedy was the prejudice occasioned to
a private prosecutor (by engaging in such litigation for the public benefit where
the prosecuting authority should have done so). 6
But the ordinary meaning of the words taken in the context of ss 33 and 34B must
be given effect and they do not extend that far. I therefore agree with Mr. Roux
that the situation sought to be addressed ins 34 related to encouraging
whistleblowers to come forward.
18. However one engages in the interpretational exercise, I believe the outcome will
remain the same; s 34B is confined to informants and did not extend to private
prosecutors whose costs are dealt with in s 33 (3).
ADVANCE PROVISION FOR COSTS
19. The wording of 33{1) of NEMA has been set out earlier.
20. In my view it is advisable to start by having regard to the subject matter of the
provision. It is "to pay the costs and expenses of the prosecution".
7
21. If the first part of s 33( 1) deals with the costs and expenses incurred by the
prosecution in the court of first instance then it is clear that the private prosecutor
cannot seek a cost order up front and before proceedings have commenced in
that court. The wording of the section in so far as it relates to the costs in the
court of first instance is that they are only claimable on completion of the trial
22. The question then, is whether the second part to section 33(1) extends this
concept and understanding of when costs are claimable in the case of an appeal.
23. In my view the wording is clear. It is couched in explanatory or clarifying terms to
extend the costs that are claimable to include those on appeal. It does not
change the nature of when such costs may be claimed; it simply clar:ifies that the
costs incurred by a private prosecutor will include not only the costs before the
trial court but also the costs of any appeal.
24.1 should add that the wording of s 33(1) was uplifted word for word from the
enabling part of s 15(2) of the CPA. By reason of s 33(2) of NEMA, which
expressly makes ss 9 to 17 of the CPA applicable to it, like provisions in two
statutes dealing with the same subject matter should ordinarily complement one
another save to the extent provided for expressly or by necessary implication 4. It
has never been suggested thats 15(2) of the CPA permits a private prosector
under that Act to obtain costs of appeal in advance. Such a contention would be
problematic considering that private prosecutions can be instituted against
relatively indigent individuals.
25. Once again, if it were otherwise then provision would have to be made with
regard to the court before whom such an application can be competently brought,
bearing in mind that the appeal court has a discretion ("may") to grant or refuse
such costs. I believe Mr. Roux is correct in submitting that the effect of the
4 The opening portion of s 15(2) reads:
"The court may order a person convicted upon a private prosecution to pay the costs and
expenses of the prosecution, including the costs of any appeal against such conviction or any
sentence."
prosecutor's argument would amount to the High Court usurping the jurisdiction
of an appellate court.
This could lead to problematic situations where a High Court order in regard to
costs on appeal has been taxed and paid to the prosecutor before the case
comes before the appellate court but later on appeal that court declines to grant
costs. The costs and disbursements, which would include counsel's fees, would
have been paid out even before the merits of an application for leave to appeal
were considered by the trial court. This would leave the accused having to
recover such costs after they have already been expended. 8
The most that court procedures have allowed is the provision of security for costs
of appeal in civil litigation (where the freedom of the individual does not arise) and
no similar provisions are found in NEMA.5
26.1 am satisfied that section 33(1) is not intended to provide the prosecution with
costs upfront to engage counsel in opposing an application for leave to appeal or
to oppose the appeal itself. If the legislature intended to protect prosecutors by
providing equality of arms through the provision of an upfront costs order then I
am afraid it will have to make its positioned clearer.
While it is understandable that such a provision might prevent overreaching, it
appears that an appeal court, particularly where constitutional issues are raised
in matters of this nature, would be able to ensure that the position of the
prosecution is adequately represented through an amicus if the private
prosecutor was unable to cover the expenses or could not obtain counsel on a
contingency fee basis, all of which possibilities remain open.
27. Accordingly the application to be provided in advance with the costs of opposing
an appeal must fail.
5 Section 33(2) of NEMA provides that ss 9 to 17 of the CPA shall apply.
SCALE OF COSTS
Awarding Attorney and Client Costs
28.1 do not believe that an application of s 33(1) is intended to result in a private
prosecutor ordinarily being out of pocket for a successful prosecution,
irrespective of the conduct of the accused.6
The prosecution should not be out of pocket for a successful prosecution, nor
should it be confined to ordinary party and party costs if regard is had to the
nature and purpose of the legislation and the way in which it enables the prompt
engagement of private prosecutions if the State has failed to fulfill its
responsibilities in that regard. 9
29. Here I refer to the fact that a no/le prosequi is not required, only that the
prosecuting authority has remained silent when notified that a private prosecution
for environmental degradation is intended to be instituted. 7
The right to enjoy an environment that is not harmful to health or well-being is a
constitutional right for the benefit of present and future generations as provided
for ins 24 of the Constitution.8
It is not insignificant that a private prosecution can yield fines for the benefits of
the State. A private prosecutor should not end up doing so on a party and party
scale, particularly where the offender has deep pockets.
6 Sections 33(1 )(a) and (b) are gatekeeper provisions which only permits a private prosecution to be
brought if it is done in the public interest or in the interest of the protection of the environment,
7 Section 34B of NEMA also appears to override the provisions of s 8 of the CPA
8 Section 24 of the Constitution provides:
"Environment-Everyone has the right-
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through
reasonable legislative and other measures that-
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.
10
30. The only way in which the provisions to enable private prosecutions can be given
proper effect when the State remains silent, is to ensure that those taking up the
cudgels are not out of pocket where there is a successful prosecution. Otherwise
those who the Act calls on to protect the environment where the State fails to do
so will be discouraged as philanthropic funding is unlikely to be readily available
for such causes. 9
31.1 would also add that Mr. Erasmus' skill and knowledge were indispensable to the
successful prosecution. This is readily apparent from what he was able to extract
in his cross examination of Mr. R whose answers are unlikely to have been
interrogated further by someone not as immersed and knowledgeable in the
industry as Mr. Erasmus.
32. Mr. R effectively misled the court and if I am wrong about the basis of awarding
attorney and client costs then Mr. R's conduct is enough to warrant such an order
because he was called by BP and dearly sought to protect its interests in
defending the criminal charges brought against it -and BP did not disassociate
itself from his statements at the time. 10
33. The court therefore finds that the prosecution is entitled to attorney and client
costs.
It is agreed between the parties that R67 A of the Uniform Rules of Court does not
apply to an award of attorney and client costs. See Mashavha v Enaex Africa
(Pty) Ltd [2024] ZAGPJHC 387; 2025 (1) SA 466 (GJ) i;it para 5.
Excluded costs
34. BP however contends that there are a number of costs for which it should not be
held liable. Mr. Erasmus has challenged most of these submissions.
9 It is evident that NEMA provides for private prosecutions, with a more streamlined process of putting
the State on terms to itself prosecute. This arises because of the perceived inability, whether from a
resource or other perspective, of the State to itself pursue NEMA offenders despite the offences
infringing the constitutionally protected rights now and for the benefit of future generations.
10 See especially paras 91, 92, 96 to 103 and 138 of Uzani(3). I should also have added that BP failed in its
duty to provide relevant documents despite being required to produce them. This is mentioned in paras
89, 96, 103 and 142 of Uzani(3)
11
35. The first set of costs relates to the postponements occasioned on 20 March 2018,
19 February 2019, 25 March 2019 and 18 March 2022. These postponements
are attributable to the court and BP should not be obliged to bear them.
36. The second set of costs refers to the postponement on 4 September 2017 which
BP contends was occasioned by reason of the prosecutor's failure to put
competent charges to it. While that may have been one of the issues dealt with,
the hearing on that date was the first appearance and would have taken place
irrespective of the competency of the charges. The court therefore declines to
disallow those costs.
37. The third set of costs relates to an application brought by BP to compel the
production of the s 24G reports from the prosecution. These documents were
provided subsequent to BP launching its application. In the circumstances BP
should not be obliged to pay for the costs of its application in November 2017
which it was entitled to bring.
38. The final set of costs which BP argues should be disallowed are all those
associated with the fraud charges, which were among the charges brought by the
prosecution but which Uzani later withdrew. Mr. Erasmus accepted that BP
should not be responsible for these costs.
CONSIDERATIONS IF ATTORNEY AND CLIE:NT COSTS WERE NOT TO BE
AWARDED
•,
39. This court should have dealt with the scale of cost it would have awarded if the
attorney and client costs order is incorrect. I do so now.
40. In Mashavha, Wilson J dealt with the considerations which should weigh with the
court when exercising its discretion in determining the appropriate scale of party
and party costs to award and at para 11 summarised the position as follows:
It seems to me, therefore, that the approach to setting a scale of costs under
Rule 67A (3) should be, first, to identify the appropriate scale ("A", "B" or "C'J
in light of the importance, value and complexity of the case, and then consider
whether, because of inartful or unethical conduct of the nature identified in
Rule 67 A (2), that scale should be reduced, such that the successful party
should not be able to recover counsel's costs to the extent that they would
otherwise have been entitled. 12
41. Save to raise the following concern it is unnecessary to consider whether the test
to be applied is subjective (as was the case pre-the introduction of R67 A) or
objective as determined in Mashavha. 11
Subjective v Objective importance of the case
42. In Khanye v Minister of Police [2024] ZAFSHC 285 at para 11 van Zyl J
considered that the decision in Mashavha was not free from certain difficulties
which are identified in the judgment and referred to issues raised by Erasmus'
Superior Court Practice in the section on R67 A. In this Division, Vivian AJ also
expressed some reservations in Ghubh~labm (Pty) Ltd and Another v R.A. W
Truck Trading CC and Another(B3217/2023) [2024] ZAGPPHC 416 at para 26
43. More recently Prof AC Cilliers' Law of Costs at para 13.19A raised some further
issues. The one of relevance for present purposes is that each scale sets its
maximum limit suggesting that the taxing master retains his or her existing
discretion; it is only that the court sets the upper limit of counsel's fees (including
that of an attorney with a right of appearance) which can be taxed on the party
and party scale.
44. In my respectful view, the new Rule does not appear to change the methodology
to be employed, only the identity of the decision maker in respect of the scale to
be applied (scale A, B or C). If that is so, then pre-existing case law ought to
apply to the nature of the judicial discretion which is exercised at this initial
parameter determining phase.
11 Section 17(2) of the CPA provides that costs in respect of a private prosecution are to be taxed under
the civil tariff. This section is incorporated into NEMA through s 33(2) of that Act
45. Once the scale is determined by the court then the discretion exercised by the
taxing master would appear to be the same as before, since R67 A does not
purport to change the existing law on the function of the taxing master and the
discretion which he or she exercises.12 13
Such discretion has however been based on a subjective consideration of the
importance of the case-not an objective one: This still appears to be so because,
in the case of the taxing master who has until now been obliged to make the
exclusive determination, the exercise of the discretion can only be reviewed if
such determination was "clearly wrong" or was "so materially different from that of
the court as to vitiate the ruling". See President of the Republic of South Africa
and Others v Gauteng Lions Rugby Union and Another 2002 (2) SA 64 (CC);
2002 ( 1) BCLR 1 at para 13 and De Beer Game Lodge CC v Waterbok Bosveld
Plaas CC and Another 2010 (5) BCLR 451 (CC) at para 8 (against the letter (f)).
See more recently Camps Bay Ratepayers' andResidents' Association and
another v Harrison and another2012 (11) BCLR 1143 (CC) at para 4 and Trol/ip
v Taxing Mistress, High Court 2018 (6) SA 292 (ECG) at para 16 where the Full
Bench reaffirmed that the test is subjective and a court must find that the taxing
master was clearly wrong. See also Law of Costs at para 13-03.
46. Had this court found that Uzani is only entitled to party and party costs, it would
have granted the costs on scale C, regard being had to the considerations set out
in R67 A (3)(b) which are the complexity of the matter and the value of the claim
or importance of the relief sought, and subject to the other considerations set out
in R67A (2).
47. The case was complex, required the engagement of senior counsel by both
parties, albeit that the prosecution utilised senior counsel only for the main trial,
required specialised knowledge and expertise in the field of environmental law
(which, as set out earlier, Mr Erasmus possesses), and is the only case so far to
deal with such a prosecution or the appropriate sentence, including penalties, to
be imposed. An additional factor is that the case brought by Uzani advances the
72 This is also an accepted aid to interpret legislation
14
public interest by protecting the rights of all to a healthy environment under s 24
of the Constitution. None of the limiting considerations set out in R67 A(2), and
which have not already been taken lnto account earlier when disallowing some of
the costs, can alter this outcome.
Retrospectivity and R67 A
48. In Mashavha the court considered that because R67 A had substantive effect it
should, on the application of accepted principles, not apply retrospectively. This
part of the judgment has been followed in the Gauteng Division in the case of
Ndarangwa v Marivate Attorneys Incorporated [2024] ZAGPPHC 471 at para 80.
It was also followed by the Western Cape Bench in Prosec Guards CC v
Department of Public Works and infrastructure and Others [2024) ZAWCHC 139
at para 74.
49. The conclusion drawn in Mashavha is that all costs incurred prior to R67 A
coming into.effect, which was on 12"April 2024, are to be taxed under the pre
existing regime; R67 A only becom·1ng effective in respect of costs incurred as
from that date. Cost incurred after that date are however subject to the new
Rule.13
50.An application of Mashavha could therefore result in conflicting determinations by
a taxing master and a judge because the latter would already have decided when
giving judgement on the appropriate scale under Rule 67 in respect post-12 April
2024 fees which can be claimed in a bill of costs, yet this will not bind the taxing
master when deciding on the appropriate scale for the pre-12 April 2024 part of
a bill of costs because he or she is entitled to exercise a subjective discretion
(as per Gauteng Lions and De Beer supra).
This may result in further reviews or appeals, including those on the basis that
the taxing master could not have exercised an independent subjective discretion
since he or she would have been impermissibly influenced by the judge's
13 At paras 12 and 13
decision which, sequentially, had to occur first. It is unlikely that the legislature
intended this having regard to the objective of R67 A.
51. If attorney and client costs had not been awarded in the present case, I would
have had some difficulty in concluding that the issue raised in R67 A is one of
retrospectivity or, if it is, that substantive rights are impugned. 15
52. It would appear that the introduction of R67 A affects the issue of who may make
the initial decision regarding the upper scales of cost to be awarded and the
highest amount that a taxing master is permitted to award.
53. Furthermore, at face value R67A(3)(a) requires the court to make an order
identifying the scale of costs that are to be taxed at the end of the hearing when
an order on the issue placed before it is made (unless costs are reserved or are
made in the cause).
54.0nly once the taxing master is seized·with·-the bill of costs pursuant to a notice of
taxation can effect be given to the costs order made under R67 A. the taxing
master is only entitled to do so after the court has made its R67 A determination
as to the appropriate scale (or has decided that the costs are governed by the
pre-R67 A position). To this extent the Rule only operates prospectively since the
right to claim party and party costs is dependent on the court making a R67 A
order. taxation (or an agreement between the parties). Accordingly a successful
party's right to recover party and party costs from the other vests no earlier than
when the court makes its costs order, while the entitlement to payment will
becomes due, owing and payable later on taxation.14
55. There is therefore no vested right to obtain payment from the losing party of any
amount reflected in a party and party bill of costs until the court makes its costs
order. Indeed the identity of the party who must bear the costs is only known
then.
14 See Kentridge AJ in S v Mhlungu and Others who adopts the term "vested rights". This is deal with more
fully in para 63 infra.
16
56. It would then follow that prior to the order being made by the court there is only a
spes, or at best a legitimate expectation, on the part of a party provided further
that he or she is successful, to recover from the other party the amount which the
attorney anticipates will be awarded, however tenuous that expectation may be.
Similarly, if the party is unsuccessful, in relation to the costs which may have to
be paid to the other party whether it be on the attorney and client or ordinary
party and party scale.
57. In my view the introduction of who now is to determine the scale to be applied
does not affect any accrued right or perceived entitlement. It replaces one
decision maker with another in order to achieve a fairer allocation of the costs
burden incurred by the successful litigant which the unsuccessful party is
required to bear. This is more in the nature of adjectival than substantive law
considerations
Accordingly I do not see this as taking away any right, legitimate advantage or
otherwise which either pa'rty had to ·a fair taxation. The fairness of the taxation
process remains the constant.
58. That leaves the question of whether or nol the upper limit introduced for the
highest scale of a cost award (i.e. scale C) is lower or higher than the limit
provided for under the pre-exiting tariff. If it is no different, then no pre-existing
right or entitlement has been affected.
59. The highest amount which can be taxed on a party and party scale under the new
R67A regime is R4 500 per hour (i.e. R1125 per quarter hour15)
The highest amount which could be taxed for party and party costs under the old
tariff was also R4 500.
60. There is therefore no increase or reduction in the maximum hourly rate which
may be allowed on taxatio_n. Accordingly this part of R67 A (which must be read
15 See R69(7)
with R69) does not alter any substantive law right to a greater or lesser fee than
the maximum allowed under the replaced provision. 17
That being so it seems that the considerations set out in the following paragraphs
ought to apply.
61. Firstly, in Veldman v Director of Public. Prosecutions, Witwatersrand Local
Division 2007 (3) SA 210 (CC); 2007 (9) BCLR 929 (CC) at para 28 Mokgoro JA
consolidated the position as follows:
"The distinction between procedural and substantive provisions cannot always
be decisive in the operation of the presumption against retrospectivity. As
Marais JA recognised in Minister of Public Works v Hafejee NO:
'[l]t does not follow that once an amending statute is characterized as
regulating procedure it will always be interpreted as having
' . . ' ~ . ., ... ' . ' ' •
retrospective effect. It will depend upon its impact upon existing
substantive rights and obligations. If these substantive rights and
obligations remain unimpaired and capable of enforcement by the
invocation of the newly prescribed procedure, there is no reason to
conclude that the new procedure was not intended to apply."
62. Sections 11 and 13 of the Interpretation Act 33 of 1957 requires consideration
because they deal with the amendment of laws and their repeal or re
enactment.16
63. In Nkabinde and another v Judicial Service Commission and others
2014 (12) BCLR 1477 (GJ) at para 84 f0ayat J referred to Veldman and in
addition to the following passage ·in Du Toit v Minister of Safety and Security
2010 (1) SACR 1 (CC):
"The principle against intetference with vested rights is a component of the
presumption against retrospectivity. No statute is to be construed as having
16 Section 1 of the Act itself provides that the provisions shall apply "unless there is something in the
language or context of the law, by-law, rule, regulation or order repugnant to such provisions or unless the
contrary intention appears therein."
18
retrospective operation, which would have the effect of altering rights acquired
and transactions completed under existing laws; unless the legislature clearly
intended the statute to have thai' effect. This stems from the belief that at
some point the state and third parties are entitled to rely on the common
understanding of the nature of rights acquired or transactions completed."
64. These passages appear to be an acceptance of Kentridge AJ's separate
concurring judgment in S v Mhlungu ·and others 1995 (2) SACR 277 (CC); 1995
(7) BCLR 793 (CC) where he said the following at para 66 in relation to
attempting to categorise a changed provision as purely procedural or whether it
also affects substantive right:
"Rather than categorising new provisions in this way, it has been suggested,
one should simply ask whether or not they would affect vested rights if applied
retrospectively"
(Emphasis added)
65. Earlier I concluded that only adjeotival,'law is affected by the change in R67 A
regarding who decides the fairness of the appropriate scale (not the actual tariff
to be allowed within each s.cale) and. that th~ maximum amount that can be
recovered on the highest party and party scale (scale C) has not changed; the
minimum in each case being a disallowance in whole or in part.
66. However this begs the question as to whether the implementation of R67A in fact
has retrospective effect and whether .it is necessary to engage in an enquiry as to
whether substantive or procedural rights are affected.
67. For the reasons set out earlier, it does nof appear that any substantive rights
would have arisen prior to the court order in respect of costs-they only arise
when the costs order is made if the test is determined by reference to vested
rights. albeit only enforceable on taxation.
At best, prior to the court pronouncement there may be a legitimate expectation
which, even if translating into a substantive· right, does not alter the "rights
acquired and transactions completed under existing Jaws" (adopting the phrase
applied in Veidman(supra).
Accordingly, no substantive right app~ars to have been implicated by R67 A 19
68. Turning to the adjectival rights affected by R67 A: Where the change affects
procedural right then Unitrans Passenger (Pty) Ltd tla Greyhound Coach Lines v
Chairman, National Transport Commission and Others 1999 (4) SA 1 (SCA)
·, '
holds that regard must be had to whether the amendment took effect before or
after the procedural steps had already been initiated. It is this crucial moment
(event) which determines the implementation of the amendment or new law to
pending matters. Olivier JA said at paras 16 and 17:
16. Even accepting that the matter under discussion relates to procedure, a
useful and necessary distinction is. that bf)tween the case where a statute . . ' . .
amending. existing proc:edures comes into effect before the procedure has
been initiated, and the case where the amending statute comes into effect
after the procedure has .been it}iti{?i~d and is pen9ing. . ~ ' . ~.
17. In the first type of case, it has usually .been h~ld that the new procedure . . ..
applies to any action instituted or ;application initia{ed after the date on which
the amending statute takes effec(unless a contrary intention appears from the
legislation. The ratio of this rule is u17derstandable. By the time the action is
instituted or the application _initi?ted,. the qld procedure is not part of the law
any more. Even if the old procedur~ existed when the cause of action or it
would be the cause of the application arose, that in itself does not create a . .
right to rely on procedure which no longer exists. Minister of Public Works v
Haffejee NO (supra at 755B-E) makesfhat clear."
Considered in this light, the-relevant step is when the co·urt is asked to determine
the appropriate scale for costs.
20
69. Accordingly, R67 A does not appear to affect any substantive right as understood
by Veldman and other authorities, and its procedural implications in terms of
Unitrans is that the old procedun~I i-egime no longer existed when the new
procedural step took effect. 17
70. Finally, aside from there being no discernible hardship for the reasons already
given, the mischief which R67 A attempts to remedy is the unfairness that has
permeated the application of the taxation rul~s18. It has attempted to do so
without fettering the discretion of the taxing master as to the application of the
tariff within the parameters of the appropriate scale and, conversely, without
judges usurping the taxing master's technical function of determining the correct
tariff within that scale per line item in a bill of costs.
71.1 therefore respectfully believe that the concerns expressed in Mashavha do not
necessarily arise.
In summary; the mischiefwhicli R67A'was'intended to remedy is dealt with more
fairly by leaving it to the trial ·judg&·, who arready has tlie most intimate knowledge
of the matter for purposes of determining the appropriate scale, and who would
be able to cut to the chase more efficiently and expeditiously while leaving it to
the taxing master to engage the cost cons·uItants and apply the tariff within the
scale determined by the judge.·
Moreover, the concern that there would• b~. a. retrqspective revaluing of the legal
services purchased, even if it is under a differ~nt dispensation or structure of
expectations, ought not to arise., Tbe J~qson is that no _rights have either vested
or accrued, while the hope of a: lenient taxing master (from the successful party's
perspective) does not seem to amount to a legitimate expectation, let alone the
higher threshold which the Constifutio'nal C6urt appeared to have set in Veldman
and Du Toit.
17 In Unitrans at para 15 the SCA drew attention to the difficulty of distinguishing substantive matters from
procedural ones and considered that: This distinction c;:annot be decisive, because many amending
statutes may appear to be procedural in nature but in fact impact on substantive rights."
18 See especially Camps Bay Ratepayers and Residents Association v Harrison 2012 (11) BCLR 1143 (CC)
at para 10 and the continued upward spiral of counse.l's costs to which Wilson J makes reference in
Mashavha at paras 25 to 27 ' • •
21
The legal services which have bet::n pu.-cha~t:d are only those by the litigant from
his or her own attorney at the attorney and client rate.
72. It would therefore be necessary to find that both parties have an enforceable
• ·- ~ •, •• I
legitimate expectation, that the arrount likely to .be recovered or paid out on the
>', .,. I !
party and party scale will materi~ily differ under the two regimes if, and this I
• ; : -~. : •..
believe is an essential rider, the scale .is bei~g considered by a person who
possesses full knowledge of the drcumst~nce which must be taken into account.
,•,,
The legislature has seen fit to consider that the presiding judge, who is steeped in
the matter, is in a better position, in the interests of both litigants, to make not
only the fairest call but also do so in the most efficient manner.
73.Accordingly, if the order of attorney client costs is upset, then I would have
ordered that the prosecution is entitled to costs which are to be taxed on scale C
as from the inc~ption of the,cas~L ... ,_ .. ,•·· ... , .. -~ ... , ·,.. ' ..
f. ",.'' .-••," I ., : ,:/''.' • ·,• : -.,
ORDER
74. The prosecution is therefore entitl~d to costs under section 33 (1) of NEMA which
in its terms also implicates section 15 of the CPA. The following order is therefore . . ., ,, '
made:
' '
1. BP shall pay the cost_s of the prosecution including the section 34(3)(g)
enquiry on the attorney and client scale, save t~at it shall not be liable for
the following costs;
a. all costs associated with the application to compel of 10 November
2017
...
b. all costs associated with the fraud charges which were
subsequently withdrawn
c. The postponements occasioned on 20 March 2018, 19 February
2019, 25 March 2019 and 18 March 2022
2. the aforesaid costs payable by BP shall include
a. The qualifying fees of Professor Kobus van der Walt and Mr Karl
Steyn
b. The costs attendant on the engagement of senior council and if
applicable junior counsel as well
DATES OF HEARING AND
PRESENTATION OF SUBMISSIONS:
DATE OF JUDGMENT on COSTS:
REVISED :
FOR PROSECUTION:
FOR ACCUSED :
19 20 March 2025
24 March 2025 SPILG J
Attorney G Erasmus
FVS Attorneys , Pretoria
Adv B Roux SC
Adv AC McKenzie
19Warburton Attorneys 22