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MUTLANENG, TSHEPO EDWIN First Respondent
SIFISO TWALA Second Respondent
S. TWALA ATTORNEYS Third Respondent
MINISTER OF POLICE Fourth Respondent
MINISTER OF JUSTICE & CORRECTIONAL SERVICES Firth Respondent
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JUDGMENT
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LINDEQUE AJ
1. This is an application by the first and second applicants seeking a costs
order against the respondent in respect of the first hearing of the
application in the urgent court, where costs were reserved on 28
February 2023 . The respondent brought an urgent application on the said
date in an effort to hold the applicants in contempt of court . Furthermore,
the applicants seek that the respondent make s payment of the costs of
the present application , which includes an occasion when costs were
reserved by agreement in the unopposed motion court on 18 September
2024.
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BACKGROUND
2. The respondent launched an urgent application in this court on 14
February 2023 for inter alia an order to hold the applicants in contempt of
an order granted by Regional Court Magistrate Alberts in Randburg
Regional Court and an order that the first applicant as director of the
second applicant be directed to report to the authorities for incarceration
for a period of six months.
3. The urgent application was opposed by the present applicants in this
application as well as the first respondent in the urgent application .
Answering and replying affidavits, heads of argument and supplementary
heads of argument were filed in the urgent application.
4. The urgent application was heard by Wepener, J on 28 February 2023
and it is common cause between the parties that he expressed the view
that the matter was not urgent and afforded the respondent an
opportunity to remove the matter from the urgent roll with costs reserved ,
which was then done as per his court order.
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5. The respondent took no steps to place the matter on the normal opposed
roll after it was removed from the urgent roll, whereupon the applicant s
set the application down on the opposed roll, which was heard by
Crutchfield J on 15 May 2023 , reserving judgment after the hearing.
6. It is common cause between the parties that no one involved in the
argument before Crutchfield, J drew her attention to the order of
Wepener, J, where costs were reserved in respect of the urgent
application heard on 28 February 2023.
7. On 16 May 2023, the day after the hearing before Crutchfield J, the first
applicant addressed an email ostensibly to Crutchfield J, wherein he
requested that the costs order, if she was inclined to make same, should
include the reserved costs for 28 February 2023. The said email was
addressed to Lesego Molose and Tsakani Maluleke, whom I presume
were the secretaries of Crutchfield J. It is common cause that no
response was received as a result of the said email and there is no
evidence that it came to the attention of Crutchfield J.
8. Crutchfield J delivered judgment on 14 February 2024, postponing the
application against the first respondent in the main application, granting
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him and the applicant (respondent in this application) leave to supplement
their papers, both parties to pay their own costs. In respect of the current
applicants in this application, Crutchfield J dismissed the current
respondent’s application with costs on the party and party scale. Her
judgment had no reference to the reserved costs of the urgent
application.
9. The ap plicants contend that such costs remain reserved and should be
dealt with in this application, whilst the respondent contends that the court
is functus officio with its jurisdiction having been fully and finally exercised
and that its authority over the subject matter has seized.
10. Before the respondent brought the urgent application in this court, it
launched an application in the same vein in the Magistrate’s Court,
Randburg, which application she withdrew tendering the applicant s’
wasted costs, whereafter she reinstituted the application on the same
day, namely 22 June 2022 in the Regional Court, Randburg, where the
matter was dismissed on 7 February 2023 on an attorney and client
scale. In both instances (in the District and Regional Court) the
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applications were enrolled on the normal opposed motion roll and not in
the urgent court.
11. The applicants contend that in the circumstances the respondent was
aware or must have been aware that the application for contempt of court
against the applicants was not urgent and did not have any merit. The
applicants ask the court to order that the respondent pays the reserved
costs in the urgent court as well as the costs of the pr esent application.
The applicants do not seek attorney and client costs in the ir notice of
motion or in their founding affidavit.
12. The respondent’s current attorney of record deposed to the answering
affidavit in this application on behalf of the respondent. He contends that
the respondent relied solely upon the legal advice from her previous
attorneys and that she should not be penalised, even in being misguided
to bring a hopeless case as there is no evidence before court that there is
an absence of bona fides on her part.
13. The respondent’s attorney further contends that there are mala fides on
the part of the applicants in that in the answering affidavit to the urgent
application, they only sought an order for costs against the respondent’s
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previous attorneys de bonis propriis . I do not agree that this contention is
a true reflection of the answering affidavit in the urgent application . In
dealing with urgency in the urgent application’s answering affidavit, it was
contended that the urgent application should be dismissed with punitive
costs on an attorney and client scale, de bonis propriis . However, the said
affidavit concluded with a general statement that a punitive costs order in
favour of the current applicants was warranted.
14. In any event and as I have already mentioned, the notice of motion in the
present application does not seek payment of the costs of the urgent
application on a punitive scale.
15. In the applicants’ heads of argument and in the ir contentions as
contained in the joint practice note, the applicants also seek the costs for
the occasion when this application was on the unopposed roll on 18
September 2024 and subsequently removed as a result of the late filing
of the respondent’s answering affidavit. The applicants contend that the
application was removed from the unopposed roll by agreement and that
it was agreed that costs in respect thereof would be reserved. I will deal
with these costs hereunder .
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FUNCTUS OFFICIO ARGUMENT
16. The respondent contend s that the court is functus officio and that the
applicants have no right to seek to re -open a closed case.
17. As in Goldsworthy (born Marshall) v Goldsworthy [2009] JOL 23468
(ECG) at paragraph [13], it is common cause that the aspect of the
reserved costs constituted a bona fide omission of all concerned and was
overlooked by the legal representatives of both parties and as a result
thereof the issue of the reserved costs was not brought to the attention of
Crutchfield J. Sandi J , in Goldsworthy (supra) did not accept the
respondent’s submission that the court was functus officio.
18. In Lynmar Investments (Pty) Ltd v South African Railways and Harbours
1975 (4) SA 445 (D), the plaintiff approached the court, after judgment
had been handed down with the request that the judge allowed the costs
of two expert witnesses in respect of whom no provision had been made
for their costs. The application was opposed on the ground, inter alia ,
that the court was functus officio . In the course of his judgment on page
446, Miller J referred to the matter of West Rand Estates Ltd v New
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Zealand Insurance Co Ltd 192 6 AD 173 at 176 where it was pointed out
that:
“… although the main judgment could not be altered it might be timeously
supplemented in respect of consequential matters, such as the award of
costs, for which no provision has been made. ”
19. I therefore find that the court is not functus officio as no provision and
reference was made to the reserved costs order of 28 February 2023 in
the judgement and order of Crutchfield J as a result of an omission by the
legal representatives to draw her attention to same.
GENERAL PRINCIPLES OF COSTS
20. In Fripp v Gibbon & Co (1913 AD 354) , Lord de Villiers, CJ said at
pages 357-356:
“In appeals upon questions of costs two general principles should be
observed. The first is that the Court of first instance has a judicial
discretion as to costs, and the second is that the successful party should,
as a general rule, have his costs. The discretion of such Court, therefore,
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is not unlimited, and there are numerous cases in which courts of appeal
have set aside judgments as to costs where such judgments have
contravened the general principle that to the successful party should be
awarded his costs.”
21. It follows that in the event where the general rule, namely that a
successful party must be awarded his costs, is departed from, there ha ve
to be grounds for departing from the general rule. This approach was
adopted in Merber v Merber 1948 (1) SA 446 (A) at pages 452 -453 where
Greenberg JA remarked as follows:
“In Ritter v Godfrey (1920, 2.K.B. 47) the Master of the Rolls said: 'The
discretion must be judicially exercised and therefore there must be some
grounds for its exercise, for a discretion exercised on no grounds cannot
be judicial. If however there be any grounds, the question of whether they
are sufficient is entirely for the Judge at the trial and this Court cannot
interfere with his discretion.'
I presume that 'any grounds' mean any grounds on which a reasonable
person could come to the conclusion arrived at. This passage was cited
with approval by the House of Lords in Donald Campbell and Company v
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Pollak (1927, A.C. 732) by the LORD CHANCELLOR (at pp. 809 and
811) and by LORD ATKINSON (at p. 814). In Penny v Walker (supra) this
Court, in laying down what was meant by a judicial discretion referred to
p. 60 of the report of Ritter v Godfrey (supra). What ATKIN, L.J., there
said was:
'In the case of a wholly successful defendant, in my opinion, the Judge
must give the defendant his costs unless there is evidence that the
defendant (1) brought about the litigation or (2) has done something
connected with the institution or the conduct of the suit calculated to
occasion unnecessary litigation and expense or (3) has done some
wrongful act in the course of the transaction of which the plaintiff
complains.' “
22. Costs are generally reserved because there is no ready view about the
liability for them and they will not necessarily follow result of the case. In
the urgent court costs are often reserved to save time in order to enable
the presiding judge to get through the urgent roll on the merits of the
applications.
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23. Reserved costs are separate from the costs of the action or application.
If a judgment is given for a party with costs, an award to it of costs for an
interlocutory proceeding which were reserved d oes not thereby become
attached to or part of the judgment in favour of that party, even though in
granting it the trial judge did have regard to some of the evidence
adduced at the trial. It remains separate from and independent from that
judgment and it does not necessarily follow the result of the action
between the parties .1
APPLICATION OF THE LEGAL PRINCIPLES
24. In the application before me the merits of the application in the urgent
court and the subsequent hearing thereof before Crutchfield J w ere the
same as both applications relied on the same set of papers and for the
same relief. The only difference was that the hearing before Crutchfield J
was not heard on an urgent basis and the respondent does not even
endeavour to contend that the original application was urgent in this
application.
1 AA Mutual Mutal Insurance Association v Gcanga 1980 (1) SA 858 (A) at 869A; Martin N.O. v
Road Accident Fund 2000 (2) SA 1023 (W) at 1026J -1027B.
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25. I therefore approach the matter on the basis that the applicants, as the
successful party, having succeeded to have the respondent’s application
for contempt of court against them dismissed with costs before
Crutchfield J, should also be entitled to their costs in the urgent
application, unless there are good reasons to exercise my discretion and
refuse a costs order against the respondent. I am of the view that there
are no good reasons to exercise my discretion to deprive the applicants
of their costs as the successful party in the application.
26. In as far as the applicants are seeking the costs of this application,
including the reserved costs of 18 September 2024, when th is application
was removed from the unopposed roll, the situation is different.
27. In this instance, I am of the view that there are grounds to depart from the
general rule in respect of awarding costs for this application and the
reserved costs of 18 September 2024 in that the omission of the legal
representatives of both parties to have drawn the attention of Crutchfield
J to the issue of the reserved costs for 28 February 2023 is the root
cause for the origin of th is application, which occasioned unnecessary
litigation and expense and the use of judicial resources, which should
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COUNSEL FOR THE APPLICANT : MR S TWALA
INSTRUCTED BY: S TWALA ATTORNEY INC
COUNSEL FOR THE RESPONDENT : MR I MURERIWA
INSTRUCTED BY: WARFFEMIUS VAN DER MERWE INC
DATE OF HEARING: 1 AUGUST 2025
DATE OF JUDGMENT : 31 OCTOBER 2025