IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: Y,P.;/ NO
(2) OF INTEREST TO OT HER JUDGES: ,'M/ NO
(3) REVISED
DATE 28 August 2025
In the matter between:-
KOOPMAN I
THE MINISTER OF POLICE
V
CASE NO: A280/2023
COURT A QUO CASE NO: 72988/2017
Appellant
Respondent
2
Heard on : 7 May 2025
Delivered: 28 August 2025 -This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 11 :00 on 28 August 2025.
S umm ary: 1. Costs de bonis propriis - when appropriate - non-compliance with the
Uniform Rules of Court - conduct of legal practitioner substantially and
materially deviates from the standard expected of a legal practitioner - costs
order de bonis propriis justified.
OR DE R
It is ordered:-
1. Both the instructing attorney and the correspondent attorney are jointly and
severally ordered to pay the wasted costs of the hearing of 7 May 2025 de bonis
propriis on scale B for the costs of two counsel.
JU D GMENT
Strijdom J (D Mlambo DCJ (Formely JP) and Koove rjie J concur ring)
TH E A PPE AL
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[1] This appeal did not proceed on the merits. The respondent contended that the
appellant had failed to comply with the processes set out in Rule 49 of the Uniform
Rules of Court.
[2] The appellant sought condonation for the failure to prosecute the appeal within
the time period set out in Rule 49(6) and 49(7) as well as for reinstatement of the
appeal. In addition the appellant filed an application to be released from security
for costs in terms of Rule 49(13) of the Uniform Rules of Court.
[3] It was common cause that the appeal had lapsed and in order for the litigation to
proceed, an order reinstating the appeal would have to be granted.
[4] Prior to the appeal process being embarked upon, the court a quo dismissed the
action instituted by the appellant. The appellant claimed damages alleging that
her arrest was unlawful. The appellant filed her application for leave to appeal.
This was dismissed by the court a quo. Upon filing her petition, the Supreme
Court of Appeal granted same.
[5] At the commencement of the appeal proceedings this court engaged with the
parties on the preliminary objections which had been raised by the respondent
regarding the competency of the appeal.
[6] The respondent persisted with preliminary objections on the basis that there were
failures to:
6.1 file a power of attorney authorizing the attorney to appeal in terms of
Rule 7(2);
6.2 file a notice of appeal within twenty days after date upon which the
leave was granted in terms of Rule 49(2);
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6.3 timeously file the appeal record (within sixty days after the delivery of
a notice of appeal) in terms of Rule 49(6)(a).
6.4 timeously institute the reinstatement application as soon as the
appeal lapsed in terms of Rule 49(6)(b);
6.5 consult with the respondent on the content of the appeal record in
terms of Rule 49(9); and
6.6 provide security of costs for the respondent's costs of appeal in terms
of Rule 49(13).
[7] These very objections were raised weeks before the hearing that is on 31 March
2025, where the respondent invited the appellant to withdraw the appeal and
remedy the irregularities identified. The appellant was particularly advised that "In
the event that we are constrained to file heads of argument on both the
interlocutory application and the appeal, we will seek punitive and personal costs
order against the legal representatives of the appellant."
[8] However, on 3 April 2025, in response, the appellant's attorney maintained that
the appeal could proceed. The view, in essence, was that certain of the objections
had no merit, and the parties had sufficient time to resolve the rest of the issues.
Consequently, the matter was not removed from the appeal roll.
(9) When the court engaged with the appellant's counsel on the said irregularities
raised by the respondent, they then requested that the matter be removed from
the roll and tendered the wasted costs. Consequently, this court removed the
matter from the roll, but the issue of costs was reserved. The court afforded both
parties an opportunity to provide reasons as to why a punitive cost order against
the appellant or the appellant's attorney should not be made. At all relevant times,
Mr Pearton was the correspondent attorney and Mr lsang Nakale was the
instructing attorney.
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[1 0] To this end, Mr Pearton filed his affidavit on the issue of costs on 27 May 2025
and the respondent filed its submission on 10 June 2025. A reply to the
respondent's representations was further filed in respect of punitive costs on 17
June 2025.
[11] The issues that this court specifically raised with the appellant were:
11.1 Whether a power of attorney was filed as envisaged in Rule 7(2);
and
11.2 Whether the appellant obliged to tender sufficient security for costs
in terms of Rule 49(13).
[12] It is common cause that the appeal had lapsed in February 2023, and the
appellant only sought consent from the respondent for the late filing of the record
on 3 May 2023 (which was three months after the appeal had lapsed).
[13] In his written submissions, Mr Pearton submitted that a valid power of attorney,
duly authorising the appellant's attorney to prosecute the appeal, was indeed filed
with the Registrar and duly placed in the court file when a date for the appeal
hearing was requested. The power of attorney, dated 20 September 2019, was
then attached to the attorney's affidavit as Annexure "A".
[14] The respondent argued that there was no evidence that such power of attorney
had been filed. More particularly it was concluded that:
14.1 no confirmatory affidavit of the messenger from the appellant's
attorney's law firm, or a court stamp ed power of attorney indicating
that such power of attorney was filed in the court file, had been
attached;
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14.2 even though the alleged power of attorney was furnished to the
respondent, the appellant's attorney failed to indicate when the
request was made to the instructing attorney to furnish same;
14.3 it was further pointed out that in terms of the Consolidated Practice
Directive 1 of 2023 (which replaced Consolidated Practice Directive
2 of 2022) legal representatives were required to upload all
documents, including heads of argument and practice notes to the
appeal;
14.4 Rule 7(2) stipulates that the Reg istrar shall not set down any appeal
at the instance of an attorney unless such attorney has filed with the
Registrar a power of attorney authorizing him to appeal and such
power of attorney shall be filed together with the application for a
date of hearing. The only inference that can be drawn is that the date
of the hearing in terms of Rule 49(6)(a) was not properly obtained.
[15] In Smith v Sci Essel Offshore Services Limited' the court expressed:
"On a plain reading of the rule, it is evident that to prosecute an appeal, it is
essential to file the power of attorney when the application is made for a hearing
date. Filing an application for a date of hearing without a power of attorney is
not the proper 'making' of that application within the mean ing of the rules. The
imperative of Rule 7(2) becomes clearer when considered in the light of the fact
that Rule 7(1) does not prescribe the general filing of a power of attorney when
litigation commences ." Hence it is trite that a power of attorney cannot be filed
after the application of a hearing date.
[16] The appellant's attorney made various representations in his regard. More
particularly he submitted that such power of attorney was indeed handed to the
Registrar who was required to place same in the physical court file. A date would
1 (A740/2014) [2024) ZAG PPH C 119 (15 February 2024)
7
not have been allocated without such power of attorney. In my view, even if this
was the case I find no explanation why it was not furnished when requested by
the respondent's weeks before.
SECURITY FOR COSTS
[17] The second issue raised with the appellant was the non-compliance in terms of
Rule 49(13). The correct understanding of the process in terms of Rule 49(13) is
that the appellant was obliged to provide security for the respondent's costs of
appeal before lodging copies of the record with the Registrar unless the
respondent waived its right to security or the court on application releases the
appellant. Rule 49(13)(a) stipulates: "Unless the respondent waives his or her
right to security or the court in granting leave to appeal or subsequently on
application to it, has released the appellant wholly or partially from that obligation,
the appellant shall, before lodging copies of the record on appeal with the
registrar, enter into good and sufficient security for the respondent's costs of
appeal."
[18] In his written response, the appellant's attorney contended that the security for
costs issue was a belated attempt by the respondent to prevent the hearing of
the appeal. He further submitted that since he was dealing with an indigent
litigant, he held a bona fide view that security need not be furnished. He then
went on to explain that: "The failure to bring a timeous application for security for
costs was a bona fide error of judgment in the approach to the bringing of this
appeal by the whole legal team, and not only myself."
[19] In fact, on 3 April 2025, the appellant's attorney requested the respondent to
waive security. It was expressed:
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"We request you to waive security as our client is indigent and your client should
not rely on costs. it should not be the object of the state to block a person's
access to court which is an entrenched constitutional right should the
respondent refuse, please inform us for us to file the necessary application to
be released from security.,,
[20] It appears that the dispute which persists between the parties remain and are the
following:
20.1 Whether the full court had jurisdiction to consider the application to
waive the security for costs; and
20.2 Whether the respondent was required to file a Rule 30 application
on the premises that the appeal record was filed w ithout the
lodgment of the security thus being an irregular step.
[21] On the first issue, in the TR Eagle SA matter, the court settled the jurisdiction
issue. It held that the court that grants leave to appeal is the court that can release
the appellant from putting up security either when granting such leave or when
on application once leave to appeal has been granted.2
[22] It was further affirmed that if the Supreme Court of Appeal granted an appellant
leave to appeal, it is only that court that can release the appellant from the
obligation to provide security for the costs of the appeal and the court hearing the
appeal accordingly does not have jurisdiction to do so .3
2 T R Eagle A ir (Pty) Ltd v RW Thompson unreported GB case no. A206/20 18 dated 13 Novembe r 2012
3 Strouthos v Shear 2003 ( 4) SA 13 T at 14 1
D r Ma ureen A llen v Baard 2022 (3) SA 207 G J at paragraphs 6 1 to 64 where Strouthos v Shear was cited
with approval
9
[23] On the second issue, namely whether the respondent was required to file a Rule
30 application, in order to request for the appeal to be struck off, was also
pronounced upon by the full court in TR Eagle. In the said matter, the respondent
also raised non-compliance with Rule 49(13)(a) in his heads of argument
requesting that the appeal should be struck off the roll. The appellant therein also
contended that the respondent should have initiated the Rule 30 procedure as
there was non-compliance on the security for costs obligation on the part of the
appellant.
[24] The full court was in fact saddled with the same enquiry. At paragraph 17 it was
expressed:
"Then the question will then arise, is it material that the respondent in an appeal
engage a Rule 30 procedure where the appellant has failed to give security, can
it be said that he or she has acquiesced and waived such right and that the appeal
must proceed."
It established at paragraph 18 that:
"Rule 49 (13)(a) is peremptory. The rule does not place anv responsibility on
the Respondent. The rule obliges the appellant to give security. The rule does
not give a court granting leave to appeal the discretion to absolve an appellant
from giving security when the record is filed with the Registrar. The rule
envisages that the respondent shall be satisfied that sufficient security is given
that his costs will be paid in the event of the appeal not succeeding. The rule
entitles the respondent to waive his right to such security. The rule envisages
an instance where the court granting leave to appeal may release the appellant
wholly or partially from giving security on application to it. The latter may occur
when the respondent has not waived his right, and this will oblige the appellant
to place factors to the satisfaction of the court why he or she should be released
wholly or partially from giving security when filing the record of appeal."
10
[25] The full court further by referring to Boland Konstruskie M aatskappy (Edms)
Bpk V Petlen Properties Edms Bp k4 echoed the sentiments that it is
undesirable to allow a matter to proceed in instances that when there is no full
and proper explanation before it. It expressed:
"The court emphasized on the need to file a proper application for condonation,
supported by affidavit allowing the other side to respond. In this matter the
second appellant is a practicing attorney who is expected to have known better
of the importance to provide security for costs in the appeal and the possibility
of prejudice to the respondent should no security be given. When the heads of
argument were served there was knowledge on his part that he had not
compiled, and he was forewarned. This in my view should have triggered prompt
attention to either negotiate security and apply for condonation or alternatively
to have the matter remand to tender wasted costs in order to attend to
compliance and condonation ... "
[26] Similarly, in this matter, the appellants attorneys were forewarned of the non
compliance. The appellant's legal team held differing views by relying on Ma ake5,
a full bench decision of the Limpopo High Court. The respondent was surely
entitled to respond to the application to waive security that was belatedly filed just
before the hearing. There could have been no doubt in the appellant's attorneys
m inds that the security issue would be persisted with and would require proper
ventilation before they could proceed on appeal. It was evident that appearance
4 I 974 (4) SA 291 Cat 293 D -H
5 Maake and others v Chem fit Finechemical Pty Ltd (5772/2016; H CAA 04/2018 [2018) ZALMPPHC 71 {22
ovember 2018 [14-I 8)
II
on the date set down for the appeal would result in wasted costs. The conduct
was clearly irresponsible and negligent.
[27] In Carpe Diem 6, the court again echoed the importance of having the security
issue resolved before proceeding on appeal. At paragraph 14 the court noted
"amongst many others procedural shortcomings plaguing the appeal, there was
listed a failure to provide security and where the appellant sought condonation
for some of its failures and asked the court to inter alia release it from the
obligation to furnish security".
The court further expressed:
"The failure to find security and to obtain a ruling on the failure to find security
before an appeal was due to be heard is of a character different to other non
procedural non-compliances which I have mentioned. It is the right of a
respondent on appeal to go into an appeal secured, at least to the extent provided
by the rules against the inability of the appellant to pay costs of the appeal is
unsuccessful. The failure to provide an explanation as to why security should be
disposed with and the failure to have the issue of security resolved by application
to court before Kasimira incurred expenses in opposing the appeal are in my view
sufficient by themselves to justify the dismissal of the application to dispense with
security".
[28] It should also be noted that any request for a waiver should have been made
before the filing of the appeal record. In instance the appeal record was filed on
13 September 2023, but waiver was only sought on 7 April 2025.
LEGAL PRINCIPLES PERTAINING COSTS DE BON/S PROPR/1S
6 Ca rpe D iem Ex ploratas (Pty) Ltd v Kas imira Tradipg 82 (Pty) Ltd and Others (2016) ZAGPPHC I 099
(A60 1/14)
12
[29) The general principle is that a losing party will be ordered to pay costs of the
winning party who should not be left out of pocket when it is the other party who
either brought or failed to defend a claim against the winning party. The following
factors have been outlined by our courts, when considering de bonis propriis cost
orders, namely:
29.1. The general rule is that legal representatives are entitled to their
costs when representing their clients irrespective of whether their
clients win or lose. There are, however, circumstances when a
court orders a legal practitioner to pay the costs of the matter out
of his/her own pocket7. Granting an order de bonis propriis is
wholly within the court's judicial discretion.8 Such orders are
however only reserved for the most serious of matters and where
a court expresses its displeasure of the conduct of a legal
representative. 9
29.2. Such awards are granted when it becomes apparent that there
has been a material departure from the responsibility of office 10.
The aim of the order is to indemnify a party against an account
for costs from his own representative, namely, to compel the
representative to pay the costs himself.11
29.3. In South African Liquor Traders Association and Others v
Chairperson Gauteng Liquor Board and Others v
Chairperson Gauteng Liquor Board and Others 12 , the
Constitutional Court stated:
7D G Lem bore and others V Minister of H ome Affairs and others 2024 [5] SA 25 1 GS ( 18/2) 2024 paragraph 23
8 Stain bank v South African A partheid M useum at Freedom Park and A nother [2011] ZACC 20: 201 I ( I 0)
B CL R I 058 (CC) at para 52
., Ma thimbane and Another v ormandien Farms (Pcy) Ltd [2013] ZAlCC 4 at para 27
10 B lou v Lampert and Chipkin NNO 1973 (1) SA IA
11 Pieter B ezuidenhout- Larochelle Boe rdery (Edms) B pk v W etorius Boerdery (Edm s)Bpk 1983 (2) SA 233
(0 ) at 236
12 [2006] ZACC 7; 2009 ( 1) SA 565 (CC); 2006 (8) BCLR 90 I (CC)
13
"An order of costs de bonis propriis is made against attorneys
w here a Court is satisfied that there has been negligence in a
serious degree which warrants an order of costs being made as
a mark of the Court's displeasure. An attorney is an officer of the
Court and owes a court an appropriate level of professionalism
and courtesy."
29.4. Legal representatives acting in their representative capacities may
be ordered to pay de bonis propriis if there is a want of bona fides
on their part, or if he/she acted negligently or unreasonably.
Certainly, no order can be made where it is found that he/she has
acted bona fide. A mere error of judgment does not warrant an
order of costs de bonis propriis.
29.5. In judging whether a representative party's conduct is reasonable
or not, the matter must be seen not from the point of view of a
trained lawyer, but from the point of view of a man of ordinary
ability bringing an average intelligence to bear on the question at
issue.13
29.6. In Multi-links Telecommunications Ltd v Africa Prepaid
Services Nigeria Ltd14 the court expressed:
"ft is true that legal representatives sometimes m ake errors of
law, omit comply fully with the rules of the Court or err in other
ways related to the conduct of the proceedings. This is an
everyday occurrence. This does not, however, per se ordinarily
result in the Court showing its displeasure by ordering the
particular legal practitioner to pay the costs from his own pocket.
Such an order is reserved for conduct which substantially and
materially deviates from the standard expected of the legal
practition er. such tha t th eir clie n ts. the actual p arties to the
13 Re: Estate Potgieter 1909 T S 982 at IO 12
14 [2013) ZAG PPHC 261; [2013) 4 ALLSA 346 (G P); 2014 (3) SA 265 (GP) and my emphasis
14
litigation, cannot be expected to bear the costs, or because the
Court feels compelled to mark its profound displeasure at the
conduct of an attorney in any particular context. Examples are
dishonesty, obstructing the interest of justice, irresponsible and
grossly negligent conduct, litigating in a reckless manner.
misleading the Court, and gross incompetent and a Jack of care."
(30] On the facts before me and in applying the said principles, I am of the view that
the appellant's attorneys conduct was one where the court should express its
displeasure. The appellant's appeal was placed at risk. Her attorneys were well
aware of the various objections that the respondent intended to persist with. It
was common cause the appeal was plagued with procedural irregularities.
Despite being forewarned more than a month before the hearing date, the
attorneys and her counsel persisted in proceeding with the appeal. Notably Mr
Pearton submitted that he was not the sole decision maker.
[31] Mr Pearton, in his affidavit, submitted that "his actions was done on the express
instructions of the plaintiff and the instructing attorney". In essence, his case is
that the misunderstanding and misinterpretation of the rules was bona fide, and
the rules were not willfully disregarded.
[32] On the security of costs issue he alleged "the failure to bring a timeous application
for security for costs was a bona fide error of judgment in the approach to bringing
of this appeal by the whole legal team and not only myself'.
[33] As alluded to above, even if the court were to accept that a power of attorney was
presented to the Registrar at the time when the physical file was kept at the
Registrar's office, it was not explained why same was not made available to the
15
respondent when the objection was initially raised. The power of attorney was only
furnished to both the respondent and this court after the hearing on 07 May 2025.
[34] To further exacerbate the appellant's position, the dispute in respect of the Rule
49(9) process remains unresolved. Again, even if the court were to accept that the
appellant's attorneys could not be wholly blamed for the delayed typed transcripts,
no acceptable explanation was furnished as to why the procedure set out in Rule
49(9), particularly the joint comp ilation of the record was not adhered to. The said
rule unequivocally required both parties to consult in this regard.
[35] I reiterate that the appellant's attorneys were sternly warned that a punitive costs
order would be sought if the hearing of the appeal persisted. It was clearly evident
that the appeal on the merits could not proceed until the appellant comp lied with
the processes set out in Rule 49. Instead, a decision was taken to proceed with
the appeal, nevertheless. Such unreasonable conduct deviates from the standard
expected of a legal practitioner. In this instance, the appellant cannot be expected
to bear the wasted cost of the appeal hearing. Punitive costs order against the
appellant's attorneys are justified in the circumstances
[36] In the circumstances, the following order is made:
1. Both the instructing attorney and the corresponding attorney are
jointly and severally ordered to pay the wasted costs of the hearing of
7 May 2025 de bonis propriis on scale B for the costs of two counsel.
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the appellant:
Instructed by:
For the Respondent:
Instructed by:
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Adv TP Kruger SC
Adv H Worthington
Gildenhuys Malatji Inc
Adv S Ogunronbi
Adv NMA Ndaba
State Attorney Pretoria