IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 14817/2024
In the matter between:
WEITZ VILJOEN AND ASSOCIATES
INCORPORATED PLAINTIFF/RESPONDENT
and
RISING DRAGON CONSULTING (PTY) LTD DEFENDANT/APPLICANT
T/A ANTONIE CONSULTING
Neutral citation: Weitz Viljoen and Associates Inc v Rising Dragon Consulting
(Pty) Ltd (Case no 14817/2024) [2025] ZAWCHC … (30-09-2025)
Coram: NUKU J
Heard: 22 September 2025
Delivered: 30-09-2025
Summary: Practice – Application for leave to appeal, in terms of section 17(1)
of the Superior Courts Act, 10 of 2013, against an adverse costs order
without a challenge to the merits of the court’s judgment – an
applicant in such instances faces a formidable hurdle in that the
granting of a costs order involves an exercise of a true discretion and
an appellate court will not interfere with the exercise of that
discretion, unless there was a material misdirection by a lower court –
reasonable prospects of an appeal dependent on the showing of a
material misdirection by the court – no material demonstration has
been shown and as such the appeal has no reasonable prospects of
success.
ORDER
Application for leave to appeal is refused with costs , including costs of
counsel on scale A
JUDGMENT
Nuku J
[1] The applicant in this application for leave to appeal is the defendant in the
main action, was the excipient in the exception proceedings, and was the
respondent in a Rule 30 application brought by the respondent in this application
for leave, who is the p laintiff in the main action. For convenience, I refer to the
parties as they are named in the main action.
[2] The exception proceedings were heard alongside the Rule 30 application,
although they were not consolidated. The plaintiff was successful in bot h the
exception proceedings and the Rule 30 application. All the exceptions raised by the
defendant were dismissed, and the further pleadings the defendant filed after the
exception were dismissed as an irregular step. As a result, the defendant was
ordered to pay the plaintiff’s costs of suit, including counsel fees on scale A.
[3] In this application for leave to appeal, the defendant does not challenge the
order dismissing the exception or the order upholding the Rule 30 application.
Instead, it seeks leave to appeal only the adverse costs order made against it.
[4] The grounds for the defendant's intended appeal are that the court erred and
misdirected itself by improperly exercising its discretion to award costs against the
defendant based on incorrect principles and/or by misinterpreting the facts, failing
to consi der all relevant and unique circumstances of the case, which include
several factors I discuss below.
[5] The main issue here, it was argued, is that the court overlooked important
and unique circumstances that justified departing from the general rule th at costs
follow the result. During the hearing, Mr. Dreyden, the defendant’s sole director
and the representative throughout these proceedings, explained that this ground
mainly contends that the court paid no regard to (a) the provisions of Rule 67A (2)
of the Uniform Rules of Court (the Rule 67 complaint), (b) the provisions of Rule
41A of the Uniform Rules of Court (the Rule 41A complaint), and (c) the
plaintiff’s failure to meet the deadlines for submitting an application under Rule 30
(the delay complaint).
[6] The main point of the Rule 67 complaint is that one factor the court must
consider when deciding on costs is whether the application or action could have
been instituted in another forum where costs are likely to be lower than those of the
High Court. Mr. Dreyden argued that the plaintiff could have brought the main
action in the Magistrates' Court, and its failure to do so, along with other factors,
justifies denying it costs despite its success.
[7] There are, however, several issues with t he defendant’s argument. First,
based on the facts, this court needed to determine the exception raised by the
defendant to proceedings instituted in this Court. Second, the court had to consider
a Rule 30 application triggered by an irregular step taken b y the defendant in
ongoing proceedings before this court. Third, the court did not evaluate the merits
or demerits of the main action. Therefore, it would have been premature to decide
whether initiating proceedings in this court was justified. Considering all of this,
the question of whether the exception proceedings or the Rule 30 application could
be brought in another forum does not arise and is not a factor the court could
reasonably consider.
[8] The main issue of the Rule 41A complaint is that the d efendant, in line with
Rule 41A of the Uniform Rules, showed willingness to submit the dispute in the
main action to mediation, while the plaintiff refused to do so. Mr. Dreyden argued
that the plaintiff's refusal to mediate the main dispute justifies deny ing it an award
for costs.
[9] The defendant’s argument is not sustainable for similar reasons as those in
the Rule 67 complaint. As already stated, the issue for consideration by the court
was interlocutory proceedings in the form of an exception as wel l as a Rule 30
application. Any argument that strays beyond the proceedings that were to be
determined by the court cannot assist the defendant.
[10] Regarding the delay complaint, failing to meet the prescribed timeframes is
a factor that a court must consider when deciding issues of costs. This was one
factor that weighed against awarding costs to the plaintiff, but it was outweighed
by other consider ations, leading to the conclusion that fairness calls for costs to
follow the result. Other factors favouring the plaintiff include the fact that the
defendant raised several unmeritorious exceptions and points in limine, which, in
the court's view, caused the plaintiff to incur costs it should not have had to bear.
[11] None of the grounds for the intended appeal, as discussed above, have any
merit. However, these were not the only grounds the defendant pleaded. The other
grounds, which were not pursued vigorously, included the fact that (a) the plaintiff
is an attorney’s firm that could have represented itself, (b) the fact that the
plaintiff’s attorneys of record are in association with the plaintiff, (c) the fact that
the defendant is a wholly black -owned business, (d) the unfairness of awarding
costs against a self -represented litigant when no such costs may be awarded in its
favour, even if successful , and (e) it would be just and equitable to have ordered
that costs be costs in the cause.
[12] These additional grounds for the intended appeal were not based on the facts
or the law but were simply a plea for mercy by the defendant. As the Supreme
Court of Appeal has stated in Ramakatsa1, ‘the test of reasonable prospects of
success postulates a dispassionate decision based on the facts and the law that a
court of appeal could reasonably arrive at a conclusion different from that of the
1 Ramakatsa & Others v African National Congress & Another [2021] ZASCA 31 (31 March 2021) at para [10]
trial court .’ The defendant has failed to meet the threshold re quirement for the
granting of leave to appeal and for that reason the application for leave to appeal
cannot succeed.
[13] There is also another reason why leave to appeal should be refused, and it is
what the Supreme Court of Appeal stated in Zuma 2, namely that an applicant for
leave to appeal who does not seek to appeal the merits of the judgment faces a
formidable hurdle in that the granting of a costs order involves an exercise of a true
discretion and a n appellate court will not interfere with the exercise of that
discretion, unless there was a material misdirection by a lower court . The
defendant has failed to demonstrate any material misdirection by the court in
awarding the costs to the plaintiff. For all of the above reasons, leave to appeal is
refused and no cogent reasons have been advanced why costs should not follow the
result. Costs of counsel shall be awarded on scale A.
Order
[70] In the result I make the following order:
The application for leave to appeal is refused, and the defendant/applicant is
ordered to pay costs, including the costs of counsel on scale A.
_____________________________
2 Zuma v Office of the Public Protector and Others (1447/2018) [2020] ZASCA 138 (30 October 2020) at para [19]
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For plaintiff/respondent: MM Van Staden
Instructed by: CK Attorneys, Bloubergstrand
C/O: Bisset Boehmke McBlain Attorneys, Cape Town
For defendant/applicant: Mr D D Dreyden, in his capacity as the director of
the defendant