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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO.: 74/2025
In the matt er between:
O[…] D[…] M[…] APPLICANT
and
Z[…] G[…] RESPONDENT
REASONS /JUDGMNET
Mtshabe AJ
[1] On 21 January 2025 I handed down the following:
“1. By consent the Applicant is granted leave to withdraw the application .
2. It is further ordered that the respondent should pay the costs of the
application on Scale B”.
[2] I informed the parties that I shall give reasons for the granting of the costs on
Scale B in due course. These are my reasons for doing so.
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A. INTRODUCTION
[3] The Applicant and the Respondent were married to each other and on the 7
June 2022 a decree of divorce was granted.
[4] Further to the granting of decree of divorce, there was Deed of Settlement
which was made an order of Court. It is recorded in paragraph 7 of the Deed of
Settlement that the parties had three minor children born of the marriage namely,
S[…] B[…] G[…], a boy born 28 August 2009, N […] A[…] G[…], a boy born on 4 May
2012 and N […] O[…] G[…], a boy born on 20 November 2019. They are all minor
children.
[5] I granted an order that the Respondent must pay costs on Scale B , in terms of
rule 67A read with rule 69 of the Uniform Rules of Court.
[6] The Respondent is legally practitioner (attorney). His practice is in
Johannesburg.
[7] The settlement agreement which was attached to the Court Order of 7 June
2022 was made an order of court. The settlement agreement was signed by the
parties.
[8] Clause 22 of the settlement agreement provides as fol lows:
“22. The parties agree as follow :
22.1 “They are booth liable for financial report responsib ility for bringing up
the minor children and agree that they will take account of the proper needs of
the children .
22.2 Subject to clause 22.1 above, the Defendant shall be responsible for
the minor children’s reasonable education expenses including but not limited
to crèche, primary and secondary school fees, aftercare and all costs
associated with the minor children’s tert iary educational expenses and such
fees shall be paid directly to the said institution, save for the ones that cannot
be paid directly to the institution. In that event such costs shall be paid to the
Plaintiff’s account or the children’s personal account (s).
22.3 Notwithstanding clauses 22.1 and 22.2 above, the parties submit that
they are aware that they both share equal responsibilities with regard to the
maintenance of the minor children (subject to what is provided for this
agreement ) and the Maintena nce Court will be utilised if one party is willing ly
refusing to maintain the minor children despite being gainfully and employed.
22.4 Subject to clause 22.1 above , the Defendant shall pay all the
schoolbooks , textbooks, school bags, school stationery, school medical
lessons, school educational day outings, school and sport s tour, spending
money and school photos.
22.5 Subject to clause 22.1 above, the Defendant shall pay for the minor
children ’s winter and summer clothing.
22.6 In addition to the above financial responsibilit ies, the parties agreed
that the Defendant shall deposit to the Plaintiff’s bank account of choice an
amount in sum total of R4050 -00 for a conservative period of three months
from the date of signature of this agreement by both parties.
22.7 The Plaintiff s hall r etain the minor children in h er medical aid and shall
utilize same for the minor children ’s medical expenses.
22.8 Maintenance contributions of the minor children shall continue until
their self -support ing.
22.9 The Plaintiff shall use the rental income generated from the commercial
flats to maintain the minor children and wa ives her rights to claim
maintenance of any amount from Defendant.”
[9] It is common cause that the defendant failed to pay school fees that have
accumulated to a tune of over R71 000-00, and the Respondent made the last
payment in May 20 24.
B. URGENT APPLICATION
[10] The Applicant approached the Honourable Court on 21 January 2025 for an
order that the Respondent has failed to comply with the orders of 7 June 2022 and
that he must be found to be in co ntempt . She also sought an order that the
respondent should pay arrear s on s chool fees within 7 days of the gr anting of the
order.
[11] The urgent application papers were served at the address of the respondent on
16 January 2025.
[12] On 4th January 2025, the Application sent an email to the respondent which
reads as follows :
“Good day Z[…]. This morning, I received the communication below from the
schools’ attorneys. Could you contact these people and make arrangements .
O[…] D[…] G[…] your outstanding Curro acc of R71 432.35 remains unpaid.
We will now proceed to draft a summons to be served on you shortly. If you
have paid forward the proof to c […]. Regards VVM Attorneys. ”
[13] The response to the above email by the Respondent reads as follows :
“You must be very rich now I want to see how explain to the kids why they are
not going to school what lie are going to feed them…..” This was on 10
January 2025.1
[14] Before the email of the 4th January 2024 from Applicant to Respondent she
wrote an email translat ed in Xhosa to read :
1 Annexure O D2 attached to founding papers
“Hi Z[…]. Abantwana abazukwazi ubuyela esikolweni xa kuvulwa because
you are not paying the school fees, the fees are in arears…
Kindly attend to this and priorities the future yabantwana.”
[15] On 11 January 2025 an email was sent to the Respondent by the attorneys of
the Applicant dealing with non -payment of school fees . The email reads as follows :
“Good day Mr G […]
We have received instruction s from our client that she has been advi sed that
the children’s school account has been handed over to the attorneys for
collection. This is occasioned by the fact that you continue to fail making
acceptable arrangements with the school.
We may mention that we have been reluctant to intervene , on this issue a s we
have encourage d our client to communicate with you directly without our
intervention. This was also as per your previous proposal on this issue of
communication. However, our client is being frustrated and not happy about
how you delay in responding to her regarding the children’s needs. When
ultimately revert to her you not giving any satisfactory response s. The email
communication between the two of you has been provided to us and that i s
reason why we felt the need to intervene as this i ssue is about to get out of
hand because it is likely to result in the kids not being allowed to go back to
school when the schools re -open.
Firstly, we wish to address the issue of garnishing your personal account s.
With respect you seem to confuse the issue of freezing the account and
garnishing the account. The i nstructions were given to the sheriff to attach the
monies that were available in your personal accounts at the time for purposes
of satisfying the debt you have been refusing to settle. This completely
different to the freezing account. Your accounts have never been frozen at
any stage and the banks have confirmed this. We therefore urge you to desist
from creating this smokescreen as a way of avoiding you r responsibilities
imposed by the Court.
Secondly , in any event, even if what you are contending was true, that would
not be the reason for not paying your responsibilities. You know that we are
aware that you are a practising attorney running a successfu l practice in
Johannesburg, where there is nothing stopping you from transacting from
your business accounts in paying for children’s needs. We further do not
believe that you expect anyone to believe that you have not been deriving any
income from your pr actice because the alleged freezing of your accounts .
Therefor e, this opposed excuse does not hold any water.
Now that we have felt the need to intervene because of your apparent
recalcitrance , our intrusions are to call upon you to attend to the settlement of
this account or make acceptable arrangements that will allow the children to
go back to school on opening . After having settled or made acceptable
arrangements as stated above, kindly provide us with a proof of what you
have done.
We are only giving you up to close of business on Monday 13th January 2024
(this should have been 2025) to revert to us failing which an urgent application
will launched for proper redress and costs order will be sought against you on
punitive scale. We hope that this co urse will not be necessary as we are
looking forward to your co-operation .
Please note that we did contact your attorney, Mr Mgxaji who indicated that
he does not have any instruction s from you and further directed us to
communicate with you directly.
Kind regards
Hymie Zilwa
Director.”
[16] The Respondent did not respond to the email of the Applicant’s attorneys.
This was followed by an urgent application. The papers of which I have served upon
the Respondent. The urgent application was not opposed by the Respondent as
directed in the Notice of Motion. However, on 21 January 2025 , in court did Mr
Mgxaji stood up and informed me that he saw the application enrolled in the motion
court roll and phoned Respondent, who informed him that he is going to settle the
debt and request that the application be withdrawn. Mr Mgxaji did not see k
postponement of the matter. He informed me that the Respondent has attended to
the issue of school fees and the application should be withdrawn.
[17] Indeed Mr Zilwa , an Advocate , who appeared for the Applicant informed the
court that the application sh ould be withdrawn by consent as the Respondent has
settled the debt . The only issue that remained was the issue of costs .
C. COSTS
[18] Mr Mgxaji who stood up on behalf of the Respondent, informed me that the
costs should be reserved. Mr Zilwa informed that the Respondent should be ordered
to pay costs on punitive scale attorney or own client scale as it is common cause that
the Respondent has fail ed to comply with the court order granted on 7 June 2022.
[19] The Respondent, should comply with court orders particularly when it comes to
the interest of children. In fact, it is trite that Court Order must be obeyed even if they
are wrong until they a re set aside by a competent Court.
[20] As I have indicated above it is my view that the Respondent by the time of
bringing the urgent application was in contempt of the deed of settlement , which is a
court order . It is also my finding that the Responden t has failed to pay school fees as
he was directed by the court. The fact that the parties agreed that the application be
withdrawn does not suggest to me that the Respondent was not in contempt of the
court order granted on 7 June 2022. I can only add tha t the withdrawal of the
application saved the ski n or the integrity /character of the Respondent. The m ain
reason I granted an order that the Respondent should pay the costs as he was in
contempt of court. Further the Respondent has failed to meet the school
requirement s of his own children, when he ought to have known that such an act
violates the rights of his own children.
[21] Furthermore , section 166(5) of the Constitution of the Republic of South Africa,
1996 provides as follows :
“An order or decision issued by the court binds all persons to whom and organ
of state to which it applies ”.
[22] Where it not for the urgent application, Respondent would have continued to
be in contempt of court order which was taken by consent. His contact is not only
contemptuous that if affects the rights of his own children and infringes them of their
constitutional right to education. This is one of the reasons I found that the
Respondent should pay the costs. Furthermore, the Applicant should not be
confronted with costs this litigation when i t is the Respondent ’s duty to comply with
court orders and to take care of the needs of his own children.
[23] I must also add that costs in civil proceedings are made on two scale, that is,
the party and party scale or the attorney and client scale. Costs awarded on the
party and party scale allows the person in favour of whom it is made to recover the
costs they had to care in bringing the civil suit but to the extent allowed by the set of
tariffs designed to keep recoverable costs with the reasonable limits.
[24] Rule 67A of th e Uniform Rules of Court came into operation on 12 April 20242
provides as follows :
“67A Costs.
(1) Subject to any order of the court awarding costs, the fees and
disbursements as between party and party, which may be included in a bill of
costs submitted for taxation, shall be -
(a) for attorneys, in accordance with the tariff in rule 70;
(b) for attorneys, which have a right to appear in the Superior Courts and
who appear in the matter, in accordance with rules 69 and 70, where
applicable; and
(c) for advocates, in accordance with the tariff in rule 69;
Provided that for services rendered by an advocate referred to in Section
34(2)(a)(ii) of the Legal Practice Act, No. 28 of 2024, for work, which is
2 GNR447 7of 8 March 2024 (GG 502720 of 8 March 2024)
ordinarily performed by an attorney, the fee for such work shall be in terms of
rule 70.”
(2) …
(3) …
(4) …
(5) The taxation of fees as between party and party shall be effected by the
taxing master in accordance with rules 69 and 70 and the applicable tariffs
therein”,
[25] Rule 67A furthers provides that a cost order shall indicate the scale in terms
of rule 69. In awarding an appropriate scale of costs, the Court is required to have
regard to the complexity of the matter, and the value of the claim or the importance
of the relief sought. I can mention that this matter is not a complex matter. The
issues are uncomplicated. However, the relief sought is important.
[26] In the course of his judgment, in paragraphs 16 and 17, Wilson J in the matter
of Mashavsha v Enaex (Pty) Ltd [2014] ZAGPJHC held:
“16. Likewise, the default position set under the rule is that, in the absence
of contrary indication, counsel’s costs will be recovered on scale A. Scale A,
seems to me, is the appropriate scale on which to make an award unless the
application of a higher scale has been justified by careful reference to clearly
identified features of the case that mark it out as an unusua l complex,
important or valuable. Run -of-the mill cases, which must be the vast majority
of cases in the High Court, should not attract an order on the B or C scales.
17. In the case presently before me, the issues were uncomplicated. The
entire case was d etermined on the bases of jurisdiction and standing. The
merits never became relevant. Ther hearing lasted well under an hour. The
case was competently and ethically pursued by all concerned. The scale a is
plainly applicable.”
[26] The case of Mashavsha (supra) was followed by Cajee AJ in the matter of
Buhle Waste v MEC of Health 2025 (2) SA 163 (GLD, Johannesburg), although in
the Buhle case the court awarded Scales C and B or senior and junior Counsel
respectively.
[27] Rule 69 of the Uniform Rules of Court deals with tariff s of fees for legal
practitioners who appear in the Superior Courts. The rule provides that the scale of
fees contemplated in sub rule (3) of rule 67A shall be scale A R37 5.00 per quot er of
an hour or part thereof , scale B R750 per quot er of an hour of part thereof and scale
C R1125.00 per quoter of an hour or part thereof.
[28] In awarding scale B for costs in this matter , my decision was not influenced by
the complexity of the matter but by the conduct of the Legal Practitioner (the
Respondent). Furthermore, it was also influenced by the importance of the case
particularly to the welfare of the children of the Respondent. What also informed me
is the importance of relief sought which I viewed it as protecting rights and interest s
of the children .
[29] Despite the introduction of Rules 67A and 69, the position still remains that
the award of costs is a matter wholly within the discretion of the Court, but this is a
judicial discretion and must be exercised on the grounds upon which a reasonable
person could have come to the conclusion arrived at3.
[30] In Ferreira v Levin NO and others4, Ackermann J, delivered an important
judgment concerning costs, which was concurred by all the members of the Court.
The Court stated: “The Supreme Court has, over the years, developed a flexible
approach to costs which proceeds from two basics principles, the first bei ng 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 general
rule, have his or her costs. Even the second principle is subject to the first. T he
second principle is subject to a large number of exceptions where the successful
party is deprived of his or her costs…. The principles which have been developed in
relation to the award of costs are by their nature sufficiently flexible and adaptable t o
meet new needs which may arise in regard to constitutional litigation. They offer a
3 Jordon New Zealand Insurance C o. LTD 1968 (2) SA 238 (E) at 245 C -D
4 1996 (2) SA 621 (CC) at 624
useful point of the departure. If the need arises the rules may have to be
substantially adapted; this should however be done in case by case. It is
unnecessary, if not impossible at this stage to attempt to formulate comprehensive
rules regarding costs in constitutional litigation.
[31] D. CONCLUSION
These are the reasons for my order dated 21 January 2025.
_________________________
N.R MTSHABE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL FOR THE APPLICANT: ADV N ZILWA
INSTRUTED BY: ZILWA ATTORNEYS
MTHATHA
COUNSEL FOR THE RESPONDENT: MR OLK MGXAJI
INSTRUCTED BY: OLK MGXAJI ATTORNEYS
MTHATHA
DATE HEARD: 21 JANUARY 2025
DATE DELIVERED: 15 JANUARY 2025
MTHATHA