REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023 -055949
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
MERRIAM MAKWENA MANAMELA APPLICANT
AND
GRACE MAITE RESPONDENT
LEAVE TO APPEAL JUDG MENT
31 January 2024
2
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail. The date and time for hand -down is deemed
to be 10h00 on the 31st of JANUARY 2024 .
DIPPENAAR J:
[1] The applicant s ought leave to appeal to the Full Court, pursuant to a judgment and
order granted on 6 September 2023 , in terms of which I dismissed the applicant’s
contempt application and granted certain punitive de bonis propriis costs orders against
the applicant’s attorney of record, Mr Seloane . The costs orders granted were:
(i) The costs of the application in [1] above, including the reserved costs in the Urgent Court on 1
August 2023 are to be borne by the applicant’s attorney of record, Mr. Vincent Seloane, de bonis
propriis on the scale as between attorney and client;
(ii) The applicant’s attorney of record, Mr Seloane, is directed not to present a bill, nor to recover
any fees or disbursements from the applicant in respect of any work performed in respect of the
contempt application dated 20 July 2023 .”
[2] Leave to appeal was not sought against the dismissal of the contempt application,
but only against the two costs orders .
[3] In her application for leave to appeal, the applicant raised various grounds for leave
to appeal . Those grounds are based on apparent misdirections in certain findings and the
reasoning supporting the exercise of the discretion pertaining to an appropriate costs
order in the judgment .
3
[4] It was contended that there are reasonable pr ospects of success that another court
would grant a different costs order as envisaged by s 17(1)(a)(i) of the Superior Courts
Act1. (“the Act”).
[5] The central premise of the applicant is that through the second contempt
application, she sought leave to reinstate the first urgent contempt application and to
supplement her grounds based on new facts with a view to having the pending contempt
application determined on an urgent basis, which she was entitled to do.
[6] In the heads of argument, it is contended t hat the applicant “ is unhappy with the
costs orders, which have the effect of deterring her legal representative from representing
her, pro bono, and from discharging his duties without fear ”. It was argued that the
decision to saddle the legal practitione r with costs is not grounded on facts and is a sequel
to a disregard of certain principles, hence that an appeal court would be free to intervene.
[7] The respondent opposed the application and sought a de bonis propriis costs order
against Mr Seloane on the basis that the application is vexatious and a dilatory abuse of
process. It was argued that the applicant was not prejudiced by the costs orders granted
and the application was initiated by Mr Seloane to serve his own interests. It was argued
that, despite being afforded an opportunity to make representations on why he should not
be directed to pay the costs on a de bonis propriis basis, Mr Seloane failed to put forward
any basis to avoid such costs order and that the costs orders granted were justified .
[8] Leave to appeal may only be granted where a court is of the opinion that the appeal
would have a reasonable prospect of success, which prospects are not too remote2. An
applicant for leave to appeal faces a higher threshold3 than under the repealed Supreme
1 10 of 2013
2 Ramakatsa and Others v African National Congre ss and Another (724/2019) [2021] ZASCA 31 (31
March 2021) para [10]
3 S v Notshokovu Unreported SCA case no 157/15 dated 7 September 2016, para [2]
4
Court Act.4 A sound rational basis for the conclusion that there are prospects of success
must be shown to exist5. A reasonable prospect of success requires that:
“The appellant must convince a court on proper grounds that that he has prospects of success on
appeal and that those prospects are not remote but have a realistic chance of succeeding. A mere
possi bility of success, an arguable case or one that is not hopeless is not enough . There must be a
sound, rational basis to conclude that there is a reason able prospect of success on appeal. ”6
[9] I have considered the papers filed of record and the grounds set out in the
application for leave to appeal as well as the parties’ extensive arguments for and against
the granting of leave to appeal. I have further considered the submissions made in the
heads of argument of the parties and the authorities referred to.
[10] My judgment is comprehensive and I stand by the reasons set out therein.
[11] It is trite that an appeal lies against a judgment and not against the reas ons for the
judgment or the expression of an opinion7. The findings which the applicant contends
were erroneous, primarily underpin the order dismissing the contempt application , an
order which is not being appealed against .
[12] It was contended I erred in finding that the applicant launch ed a further contempt
application , rather than seeking to supplement the first contempt application, which had
been struck from the urgent court’s roll by Motha J for lack of urgency .
[13] Even if that proposition were to have been accepted, that does not avail the
applicant . At the time the 20 July 2023 application was launched and again enrolled for
4 59 of 1959
5 Smith v S [2011] ZASCA 15; MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176, para [17]
6 S v Smith 2012 (1) SACR 567 (SCA) para [7]
7 Pretoria Garrison Institutes v Danis h Variety Products(Pty) Ltd 1949 (1) SA 839 (A) at 864; Western
Johannesburg Rent Borad v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355; Manana v King
Sabata Dalinyebo Municipality [2011] 3 All SA 140 (SCA) par [3]; Tecmed Africa (Pty) Ltd v Ministe r of
Health and Another [2012] 4 All SA 149 (SCA) par [17]
5
hearing on 8 August 2023, the first contempt application remained pending and was due
to be determined in due course , together wi th the respondent’s counter applications for a
stay and rescission of the ex parte order granted by Shepstone AJ . The argument that Mr
Seloane h eld the genuine view that the application was urgent for which he may not be
punished , given the cautions by Opp erman J on 1 August 2023, lacks merit .
[14] It is trite that t he award of costs is a discretionary matter and an appellate court will
only inter fere with the exercise of a true discretion, such as costs orders, in circumscribed
circumstances 8. The circumstances in which such interference will be justified are cases
of vitiation by misdirection or irregularity, or the absence of grounds on which a court,
acting reasonably could have made the order in question9. The principles applicable to
the granting of a de bonis propriis costs order are trite10.
[15] In sum, the circumstances of this matter are exceptional and the conduct of Mr
Seloane was egregious . Given the totality of that conduct referred to in my judgment,
exacerbated by the failure to effe ct proper service of the reenrollment of the application
for 8 August 2023 on the respondent, his conduct deviat ed substantially and materially
from the standard expected of a legal practitioner . Such conduct falls within the ambit of
the relevant principl es already referred to and justified the granting of the punitive costs
orders against him.
[16] In applying the relevant principles to the grounds for leave to appeal when
measured against the facts, I conclude that the appeal would not have a reasonable
prospect of success as contemplated in s17(1)(a)(i) of the Act. The applicant did not rely
8 Public Protectorv Commissioner for the South African Revenue Service and Others [2020] ZACC 28
paras [31] -[33]; Biowatch Trust v Registrar Genetic Resources & Others 2009 (6) SA 232 (CC) paras [29] -
[30] with reference to the principle in Attorney - General, Eastern Cape v Blom & Others 1988 (4) SA 645
A at 670D -F
9 Biowatch Trust v Registrar Genetic Resources & Others 2009 (6) SA 232 (CC) paras [29] -[30] with
reference to the principle in Attorney - General, Eastern Cape v Blom & Others 1988 (4) SA 645 A at
670D -F
10 SA Liquor Traders Association and others v Chairperson, Gauteng Liquor Board and Others 2009 (1)
SA 565 (CC) para [54]; Adendorffs Boerderye v Shabalala & Others (997/15) [2017] ZASCA 37 (29 March
2017) para [45] -[46]
6
on any compelling reasons as envisaged in s 17(1)(a)(ii) of the Act. It follows that the
application must fail. There is no basis to deviate from the normal principle th at costs
follow the result.
[17] The respondent sought a costs order against the applicant’s attorney, Mr Seloane
on a de bonis propriis basis. Mr Dlamini, who appeared for the applicant, however assured
me that it was the applicant who was unhappy with the order and that the application was
launched at her instance. In those circumstances, I am not persuaded that a de bonis
propriis costs order i s warranted.
[18] I grant the following order:
The application for leave to appeal is dismissed with costs.
_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE OF HEARING : 26 January 2024
DATE OF JUDGMENT : 31 January 2024
APPLICANT ’S COUNSEL : Adv S Dlamini
APPLICANT’ S ATTORNEYS : Seloane Vincent Attorneys
RESPONDENT’ S COUNSEL : Adv S Lindazwe
RESPONDENT ’S ATTORNEYS : Joubert Scholtz Inc