IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
JOHANNES HENDRIK CONRADIE
and
WIETZ JACOBUS CAREL CHRISTIAAN BOTES N.O.
JOHANNES FRANCOIS JACOBS
WESSEL CHRISTIAAN BESTER N.O.
(In their capacities as trustees of the
Wietz Botes Family Trust, IT 1666/2010)
WIETZ JACOBUS CAREL CHRISTIAAN BOTES
THE BREEDE RIVER GOURITZ CATCHMENT
MANAGEMENT AGENCY
THE MINISTER OF WATER & SANITATION
THE MINISTER OF ENVIRONMENTAL AFFAIRS
Date of Hearing: 17 February 2025
Date of Judgment: 25 April 2025
JUDGMENT
PARKERAJ Case No: 3303/2019
Reportable
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
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Introduction
[1] This is an application by the first to fourth respondents (hereinafter referred to
as "the respondents"), for costs in terms of the provisions of rule41 (1)(c) of the Uniform
Rules of Court. The parties shall be referred to as per the appellation in the Urgent
application.
[2] On 28 February 2019 the applicant brought a wide ranging urgent application
against seven respondents set down for hearing on 9 April 2019, and then failed to
proceed with its application after the respondents filed their answering affidavit. More
than four years later, the applicant served his notice of withdrawal of the urgent
application against all respondents , however failed to tender costs in its notice of
withdrawal.
[3] The respondents pursuant to the provisions of Rule 41 (1) (c) pursued its cost
order against the applicants which application is opposed by the applicant.
Issue for determination
[4] The issues for determination are:
4.1 whether the applicant should be ordered to pay the respondents costs
of the withdrawn application.
4.2. whether the issue of costs should be reserved for the determination by
the trial court.
Chronology of events
[5] 28 February 2019 -urgent application.
29 March 2019 -first to fourth respondents delivered opposing affidavits.
9 April 2019 -hearing did not proceed.
15 April 2019 -fifth and sixth respondents filed an explanatory affidavit
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2 May 2019 -a court order obtained by agreement before Honourable Judge
Sher.
8 August 2023 -applicant instituted action and served a summons against the
respondents.
1 September 2023 -applicant filed a notice of withdrawal in respect of the 2019
urgent application.
[6] The 2 May 2019 court order included, inter alia, as summarized are:
6.1 the urgent application was postponed for hearing on the semi urgent roll
on 3 September 2019
6.2 the applicant was ordered to file his replying affidavit by 22 May 2019
6.3 the parties agreed to approach the Judge President for further directions
(as may be agreed to between the parties or failing agreement as may
be determined) on anticipation of the hearing of the matter for final relief
and including directions on the referral of the matter to oral evidence and
on discovery
6.4 the costs incurred as a result of the postponement was to stand over for
later determination.
[7] The applicant however failed to file a replying affidavit in terms of the agreed
timeline for 22 May 2019 or at any time thereafter. Furthermore, the applicant also
failed to take any further steps in respect of the urgent application including obtaining
directions for the potential hearing of oral evidence neither was the application set
down for hearing on the arranged date being 3 September 2019.
[8] More than four years later, on 7 August 2023 the applicant instituted the action
against the respondents that he had indicated in the urgent application that he would
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institute on or before 30 April 2019 and in respect of the finalization of which the praise
in the urgent application would have stood as interim orders.
[9] The applicant is not asking this Honourable Court to dismiss the application for
costs but to rather reserve the issue of costs for later stage. Although the general
principle is that a party withdrawing an application or action should be held liable to
pay the cost of the proceedings the principle is not absolute in that the court contains
a discretion on the issue of costs.
[10] Thus the court should exercise its discretion in applicant's favour on the basis
that the applicant acted reasonably in launching the application proceedings in the first
place, primarily because the applicant sought interim relief pending the action which
relief he could not have sought other than by way of application. Accordingly, the trial
court would be in a better position to decide the issue of costs of the application
because the trial court will be able to decide whether the factual disputes raised by the
respondents are genuine or bona fide or whether those disputes were fictitious or
without merit. In the result the question on the costs of the main application will at this
stage be premature as the trial court will be best placed to decide the issue.
[11] After summons was served respondents ' attorney of record in a
correspondence dated 22nd August 2023 informed the applicant that he had failed to
prosecute the urgent application which has been waiting since March 2019, having
failed to take steps to set the application down for hearing and which in their opinion
was inexcusable causing respondents to be seriously prejudiced. The applicant was
informed that he should withdraw the application and tender respondents ' costs failing
which respondents will reserve their rights to apply for a dismissal of the application
and ask for a punitive cost order against plaintiff alternatively to set the application
down for hearing and seek the legal remedy and punitive cost order.
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Legal rules and principles
[12] Both parties set out the legal principles guiding a withdrawal, settlement
discontinuance, postponement and abandonments. Namely a party withdrawing an
application or action is generally liable for the costs of the proceedings. In the instance
that a litigant withdraws and action "very sound reasons must exist why a defendant
or respondent should not be entitled to the costs"1. The said case also made mention
that an applicant who withdraws his application is in the same position as an
unsuccessful litigant" because, after all, his claim or application is futile and the
defendant, all respondent, is entitled to all costs associated with the withdrawing
plaintiffs or applicants institution of proceedings"2, save in exceptional circumstances
when "a party that has been put to the expense of opposing withdrawn proceedings
will not be entitled to all the costs caused thereby".3
[13] The general principle notwithstanding, a court retains a discretion on the issue
of costs.4 It therefore follows, that the court in exercising its discretion should have
due regard to the question whether objectively viewed the applicant acted reasonably
in launching the main proceedings in the first place, but was later driven to withdraw it
in order to save costs because of facts emerging for the first time from, for instance
the respondents' answering affidavit in the main proceedings or because the relief was
no longer necessary or obtainable because of developments taking place after the
launch of the main proceedings.
Analysis of the urgent application
1 Germlshuys v Douglas Besproeingsraad 1973 (3) SA 299(NC) at 3000-E
2 ibid
3 Reuben Rosenblum Family Investments (Pty) Ltd and Another v Marsubar (Pty) Ltd (Forward Enterprises (Pty)
Ltd and Others Intervening 2003 (3) SA 547 at 550 C; supra Germishuys.
4 Waste Products Utilization at 597-A; Wildlife and Environmental Society of South Africa v MEC for Economic
Affairs, Environment and Tourism, Eastern Cape, 2005 (6) SA 123 (ECD) at 130 C-131C
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[14] The central issue of the application as well as in the action revolves around
water in particular the flow of water and what percentages of the stream flow over a
weir in the Jasonskloof River, the applicant and the respondents were entitled to. The
relief which was sought in the urgent application was supposed to serve as interim
interdicts pending the final determination of the further proceedings, which if granted
the interim interdicts and declaratory orders would have remained in place pending
the final determination of the applicants envisaged action.
[15] The first to fourth respondents' argument would effectively have remained in
place for years to come given the ambit of the applicants envisaged action and as
such it would in essence have had final effect and if granted would have had such a
substantial effect on the respondents' farming activities as such depriving them of a
large part of the farming property's water. This was the reason that the respondents
opposed the urgent application as they had done which caused them to incur
substantial legal costs, only to learn that the applicants effectively abandoned the
urgent application.
(16] In the result the respondents submits that the normal rule as to costs should
apply and that they should be entitled to the legal costs. More so because the applicant
more than four years later after bringing the urgent application was through the
application and therefore is in the same position as an unsuccessful litigant.
[17] The applicant on the other hand deferred to the answering affidavit filed by the
respondents in the main application and specifically stated that they created various
factual disputes which due to the nature of the factual disputes would have meant that
it would not have been possible for court to decide on application whether the
respondents allegations are false and which ones are partially true and which ones
are indeed true. The applicant, relying on advice received chose to withdraw the main
application and to rather issue a summons because of these factual disputes to be
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tested on the basis of oral evidence and cross examination. Furthermore, the applicant
advance that the respondents do not dispute the applicant's version which was
countered by the respondents who stated that this is not correct as this was denied.
[18] Furthermore the applicant's attempt to persuade the court to exercise its
discretion to postpone the issue of costs for later determination by the trial court who
would not only be in a better position but will have to decide which of the applicant's
version or the respondents' versions on each of the factual disputes is the correct and
bona fide version or whether they were merely created in order to avoid the application
being decided on paper.
[19] If the applicant's version of the factual disputes is indeed correct the
respondents will not be deprived of its costs as the trial court will in all probability, then
have to find that the respondents are entitled to the costs in respect of the application.
The applicant reiterated that the applicant's opposition to the current costs is therefore
not to deprive the respondents of the costs but rather to postpone the issue of costs
in order for the court to decide on the issue after the evidence on the factual disputes
have been tested.
[20] The respondents submit that the foregoing reasons raised by the applicant do
not constitute exceptional circumstances or very sound reasons to depart from the
normal rule as to costs when a party withdraws an application.
[21] The relief claimed in the urgent application and the action are basically identical.
However, the two proceedings ought not to be conflated it was separate proceedings
both requiring at the proper time a substantive response from the respondents. For
example, in the urgent application the applicant had to also prove urgency and that
the matter was able to be heard on application. The applicant's contention that the
application and the action are essentially the same and the trial court should decide
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on the issue of costs of the urgent application does not have merit. The nature of the
urgent application was such that it put the respondents through a considerable
defence in defending an application with wide reaching interim relief on short notice
within a restricted time frame as is usually provided in urgent applications.
{22] Importantly that it was only after the respondents filed its answering affidavit
that applicant acting on advice instituted action proceedings. This causes a problem
because the applicant throughout knew or should reasonably have known that there
would be factual disputes.5 This was raised in the respondents answering affidavit
that "there are a host of factual disputes in this matter of which the applicant was well
aware before the bringing of the application, and argument will be raised during the
hearing that this Honourable Court cannot decide the matter on the papers alone." 6
[23] Lastly the applicant did not utilize the avenue made available to him despite the
court order by Honourable Sher J, that the parties could approach the court for
directions regarding oral evidence and discovery and therefore failed to make use
thereof had the applicant utilized this provision the veracity of the respondents
allegedly created factual disputes could have been ventilated in the urgent application.
Instead, applicant failed to set the application down for hearing and allowed it to a
language for more than four years before withdrawing the application subsequent to
instituting the action.
[24] Accordingly there are no exceptional circumstances nor sound reasons to
depart from the normal rule applicable in respect of costs, namely, that the party
withdrawing proceedings must pay the other party's costs in opposing the application.
To have the costs of the urgent application stand over for later determination by a trial
5 the respondents answering affidavit paragraphs 38 t~ 46 applicant knew that multiple factual disputes would
be present.
6 paragraph 8 respondents answering affidavit
9
court would not be reasonable or proper in these circumstances . Accordingly, there is
no reason to deprive the respondents of the relief as set out in its notice of motion.
Costs
[25] It therefore follows that first to fourth respondents ' application in terms of rule
41 ( 1 )( c) is upheld and that applicant is ordered to pay the costs of this application to
be awarded costs in the urgent application .
[26] Accordingly it is ordered:
(a) The applicant is ordered pay the first to fourth respondents' legal costs
of opposing the urgent application such costs be taxed on the High Court
scale and to include the cost of counsel
(b) The applicant is ordered to pay the costs borne by first to fourth
respondents in the respect of the application for costs in terms of Rule
41 (1) (c)
PARKERAJ
Acting Judge of the High Court
Appearances
Counsel for the Applicant:
Instructed by:
Counsel for the Respondents:
Instructed by: Adv Henk Rademeyer
Conradie Inc.
Mr John Erasmus
Adv Dirk Coetsee
Schur Marais Du Plessis Attorneys
Mr Pieter Marais
This judgment was handed down electronically by circulation to the parties'
representatives by email. 10