Reportable:
Circulate to Judges;
YES/ NO
YES/ NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
DANIEL JACOBUS FOURIE
And
JOHAN BOTHA
GREEFSPANIIOM(PTY)LTD
BOIKANYO SOLAR (RF) (PTY) LTD
JOHANNES ANDREAS WIID N.O.
(In his capacity as Trustee of the JA Wiid
Family Trust, IT526/1999)
CHRISTIAAN JACOBUS KIRSTEIN N.O.
(In his capacity as Trustee of the JA Wiid
Family Trust, IT526/1999)
PIETER LODEWIKUS VAN NIEKERK N.O.
(In his capacity as Trustee of the Pieter van Niekerk
Familietrust, IT41/2000)
ANJA VAN DER MERWE N.O.
(In her capacity as Trustee of the P ieter van Niekerk
Familietrust, IT41/2000)
MAR-ELIZE DE JONGH N.O.
CASE NUMBER: 500/2024
Applicant
1 st Respondent
2nd Respondent
3rd Respondent
4th Respondent
5th Respondent
6th Respondent
7th Respondent
ath Respondent
(In her capacity as Trustee of the Pieter van N iekerk
Familietrust, IT41/2000)
2
PETER JOHN TRUTER N.O. 9th Respondent
(In his capacity as Trustee of the Pieter van Niekerk
Familietrust, IT41/2000)
Heard on
Delivered on :
Coram
Summary
25 July 2025
1 August 2025
Olivier AJ
Civil Procedure - Costs - Applicant move s for costs on Attorney
and Client scale - Applicant substantially successful in application
and entitled to costs - Case for punitive costs order not made out in
founding papers - Applicant not entitled to punitive costs order.
ORDER
In the result, the following order is made :
1. The 1 st Respondent is ordered to pay the costs of the application lodged under
case number 500/2024 on 27 February 2024 on a scale as between party and
party, the costs to be determined according to scale "B" as referred to on Rule
69(7) read with Rule 67 A(3) of the Uniform Rules of Court.
2.
JUDGMENT
OLIVIER AJ
1. The Applicant lodged an urgent application on 27 February 2024 in terms whereof
a rule nisi was sought, returnable on 19 April 2024, for the following relief:
1.1 That the 1st to 5th Respondents be prohibited from in any manner
whatsoever denying the Applicant access to the property known as
Greefs Pan Farm, Farm No. 58, Extent 4239.7164 ha, Deeds No. HTQ-
13/1885, Hopetown Regional District, Northern Cape Province ("herein
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after ref erred to as "Greets Pan") and to the sheep on Greefs Pan and
from causing the Applicant to be such access for purposes of the relief
set out in paragraphs 1.4 and 1.5 herein under;
1.2 That, subject to paragraph 1.5 below, the 1st Respondent be prohibited
from selling or disposing of any of the said sheep on Greefs Pan;
1.3 That the Sheriff is authorised and ordered to attach all sheep present on
Greefs Pan;
1.4 That the Applicant and the 1 st Respondent shall be jointly responsible for
the upkeep and care of the sheep and that proper record shall be kept of
any expenses in this regard;
1.5 That the attached sheep may only be sold or disposed of in any manner
whatsoever by agreement between the Applicant and the 1 st Respondent
and that, in such event:
1.5.1 proper record shall be kept by both parties of such sales
and/or disposals;
1.5.2 the proceeds of such sales and/or disposals shall, pending the
finalisation of part B of the application, alternatively pending
the finalisation of the action to be instituted by the Applicant,
be held in trust by the Attorneys for the Applicant; and
1.6 That the relief set out in paragraphs 1.1 to 1.5 above shall have interim
effect.
2. The Applicant further moved for an order to the effect that the 1 st Respondent be
ordered to pay the costs of the application on an attorney and client scale.
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3. Suffice it to simply say, since it is not relevant for purposes hereof, that in terms
of part B of the application the Court was asked to dissolve and liquidate the
partnership between the Applicant and the 1 st Respondent and to grant relief
ancillary thereto.
4. I was informed by Mr. Harmse who appeared for the Applicant, that the relief
sought in terms of part B of the application has in any event become moot since
the Applicant and the 1 st Respondent have managed to resolve the issues
between them and dissolve the partnership amicably and that all that remained
for me to determine, was the issue of the costs of the application that stood over
for later determination.
5. It appears from the papers that served before me that the initial urgent application
was opposed by only the 1 st Respondent.
The application was withdrawn against the 4th and 5th Respondents and the 2nd,
3rd and 6th to 9th Respondents filed notices to abide by the decision of the Court.
6. The initial application consequently proceeded on an opposed basis with the
Applicant and the 1st Respondent being the only parties actively litigating the
matter.
7. The application served before the learned Tyuthuza AJ on 15 March 2024 who,
by agreement between the Applicant and the 1 st Respondent, granted a rule nisi,
returnable on 19 April 2024, in essentially the terms set out herein above with the
following amendments to the relief as set out in the Notice of Motion:
7.1 The description of the property was changed from Greets Pan to the Farm
Kwartelspan, Farm nr 25, Portion 1 (Remaining Extent), Extent
s
1980,9130 ha, Hopetown Regional District, Emthanjeni Municipality,
Northern Cape Province, held under Deed nr T1326/1890;
7 .2 No order was granted authorizing the Sheriff to attach any sheep;
7.3 The responsibility for the upkeep and care of the sheep was afforded to
the 1 st Respondent alone;
7.4 The proceeds of the sale of any sheep pending the finalisation of part B
of the application was to be shared equally between the Applicant and
the 1 st Respondent and was not to be paid into the trust account of the
Applicant's Attorney; and
7 .5 The costs of the application, as mentioned above, stood over for later
adjudication.
8. No Heads of Argument were filed on behalf of the 1 st Respondent and the Court
was also not graced with any appearance on behalf of the 1 st Respondent with
no explanation for the failure to file Heads of Argument and/or for the lack of
appearance on behalf of the 1st Respondent and I will proceed to determining the
issue of costs based on the papers before me as well as on the Heads of
Argument and argument on behalf of the Applicant.
9. Mr. Harmse implored me to consider granting a punitive costs order based
thereon that the Applicant was compelled to lodge the urgent application of 27
February 2024 as a result of the recalcitrant behaviour of the 1st Respondent and
he referred me to correspondence attached to the founding papers in support of
his argument.
10. Mr. Harmse argued that the behaviour of the 1st Respondent in bluntly refusing
the Applicant access to the property in question should be frowned upon and that
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the Court should show its dissatisfaction with the 1 st Respondent's conduct by
ordering the 1st Respondent to pay the costs of the application on a punitive scale.
11. It appears from the correspondence that I was referred to by Mr. Harmse , that the
1 st Respondent did in fact make it difficult for the Applicant to enter upon property
at the time, but given the contents of the 1st Respondent's answering papers, it
appears that the 1 st Respondent, at the very least, believed that he had proper
grounds to do so.
12. I am fortified in the above by the fact that, despite the Applicant initially moving
for an order to the effect that the 1 st Respondent and himself be jointly responsible
for the upkeep and care of the sheep pending the finalisation of part B of the
application, the parties eventually agreed that these tasks would be performed by
the 1 st Respondent alone.
13. It is common cause that the awarding of costs is in the discretion of the Court
which discretion is wide and unfettered1 and it is also common cause that this
discretion should be exercised judicially upon a consideration of all of the facts of
the case in order to be fair towards both parties. 2
14. The general rule in respect of the awarding of costs is that the costs would
normally follow the event and that the successful party would be granted his/her
costs3 and it is trite that "success" also means substantial success.4
15. I had little trouble in finding that, given the relief initially sought by the Applicant
and given the eventual order granted by the Court, the Applicant has had
2
3
4
See, inter alia, Intercontinental EA-ports (Pty) Ltd v Fowles [1999) 2 All SA 304 (A), par 25
Gelb v Hawkins (1960] 3 A ll SA 371 (A) at 376
Union Government v Gass [1959) 4 All SA 392 (A) at399
Golden Lions Rugby U nion and Another v First Na tional Bank of Southern Africa Ltd [ 1999) 2 A ll
SA 294 (A) at 303
7
substantial success with his application and that he should be entitled to a
favourable order as to costs.
16. In respect of the question whether the 1st Respondent in this matter shoutd be
ordered to pay the costs of the Applicant on a scale as between attorney and
client, it is apposite to refer to the dictum of Tindall JA in the matter of Ne/ v
Waterberg Landbouwers Ko-Operatieve Vereeniging5 where it is held as follows6:
"Jn some cases it has been said that the court makes the order to mark its disapproval of
the losing party's conduct ... But the treatment of such an award simply as punishment
does not supply a complete e.xplanation of the grounds on which the practice rests;
something more underlies it than the mere punishment of the losing .party ... The true
explanation of awards of attorney and client costs not eJ..pressly authorised by Statute
seems to be that, by reason of special considerations arising from either the
circumstances which gave rise to the action or.from the conduct of the losing party, the
court in a particular case considers it just, by means of such an order, to ensure more
effectually than it can do by means of a judgment for party and party costs that the
successfi,l party will not be out of pocket in respect of the expense caused to him by the
litigation." (My omissions)
17. In the end it is again a matter of fairness towards both parties.7
18. It is trite that an applicant needs to make out a case for the relief sought by way
of application, in such applicant's founding papers.8
19. In his Founding Affidavit, the Applicant went to great lengths to deal with the
background of the matter as well as with the issues pertaining to the question of
urgency, the requirements for obtaining interim relief and the reasons as to why
5
6
7
8
Nel v Waterberg Landbouwers Ko-Operatieve Vereenigiug 1946 AD 597
Nel v Waterberg Landbouwers Ko-Operatieve Vereeniging, supra at 607
Buthele1l v Poorter and Others [1975] 4 All SA 518 (W) at 529
Buthele1l v Poorter and Others [1975] 4 All SA 518 (W) at 529
Director of Hospital Services v Mistry 1979 ( 1) SA 626 (A) at 635-636
8
he (the Applicant) should be afforded the interim relief that he sought on an urgent
basis.
20. The Applicant however failed to deal with the issue of costs in his Founding
Affidavit and did not provide any reason as to why he should be awarded the
costs of the application on a punitive scale.
The above was also not dealt with by the Applicant in his Replying Affidavit.
21 . I am consequently not convinced that the Applicant has set out circumstances
that would prompt me from deviating from the "normal" party and party costs order
and I am therefore not prepared to do so.
Mr. Harmse, to his credit, conceded that a proper case for a punitive costs order
was not made out in the founding papers.
22. I have also not been addressed on whether costs should be determined on a
scale other than scale "B" as referred to in Rule 69(7) read with Rule 67 A(3) of
the Uniform Rules of Court and I could also not find such reason.
ORDER:
23. On the above premises, the following order is made:
THE 1sr RESPONDENT IS ORDERED TO PAY THE COSTS OF THE
APPLICATION LODGED UNDER CASE NUMBER 500/2024 ON
27 FEBRUARY 2024 ON A SCALE AS BETWEEN PARTY AND PARTY, THE
COSTS TO BE DETERMINED ACCORDING TO SCALE "B" AS REFERRED
TO ON RULE 69(7) READ WITH RULE 67 A(3) OF THE UNIFORM RULES OF
COURT.
A.O. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
REPRESENTATIVES OF PARTIES:
For Applicant:
For Respondents:
ADV J. HARMSE
o.i.o Van Heerden Fourie Attorneys
Douglas
c/o PGMO Attorneys Inc.
Kimberley
NO APPEARANCE
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