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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 6012/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 11-03-2026
SIGNATURE:
In the matter between:
TEBOGO FRANK MATHIBEDI APPLICANT
And
CAPRICORN TECHNICAL, VOCATIONAL
EDUCATION AND TRAINING COLLEGE 1ST RESPONDENT
LEKAU MAMABOLO N.O 2ND RESPONDENT
LUCKY THEKISHO INC ATTORNEYS 3RD RESPONDENT
In re:
TEBOGO FRANK MATHIBEDI PLAINTIFF
And
CAPRICORN TECHNICAL, VOCATIONAL
EDUCATION AND TRAINING COLLEGE 1ST DEFENDANT
LEKAU MAMABOLO N.O 2ND DEFENDANT
LUCKY THEKISHO INC ATTORNEYS 3RD DEFENDANT
JUDGMENT
MASHAMBA AJ
INTRODUCTION
[1] This is the application for leave to appeal ("the application") against the whole
judgment and orders granted ex tempore on the 08th December 2025.
[2] The court a quo dismissed the Applicant's application for default judgment
with no order as to cost.
[3] The first, and second Respondent opposed the Applicant's application, on the
basis that the appeal does not have a reasonable prospect of success and that no
compelling reasons why the appeal should be heard.
[4] The grounds of appeal are precis ely contained in the application, the briefly
summary of the Applicant's grounds of appeal are as follows;
4.1 that the court a quo erred and /or misdirected itself in the exercise of its
discretion on costs by ignoring fundamental fact that the Applican t, as a
successful party must be awarded costs;
4.2 that the court a quo, in the exercise of its discretion on costs, failed to
exercise same judicially or at all by ignoring, or downplaying, the guidelines
and/ guiding factors on costs;
4.3 that the court a quo erred by approaching the issue of its d iscretion on
costs in a manner that ignored the pleaded facts in the affidavits and went out
of its way to bring facts which are imaginary as if the said discretion is
exercised without following the guideline;
4.4 The court a quo misdirected itself by a ttacking the Applicant who is a
Senior Counsel and his legal representative as a ground of refusing them
costs on allegations of malicious and that they are trying to use court to enrich
themselves;
4.5 The court a quo misdirected itself in the exercise of its discretion on
costs by missing the point that the costs were one of the prayers in the
particulars of claim to the combined summons commencing the main
proceedings and not a stand-alone application or request.
[5] Both parties handed over to the c ourt, heads of arguments and further made
an oral submission. The Judgment was reserved.
PARTIES
[6] The Applicant is Tebogo Frank Mathibedi , an adult male person, working as
an advocate of the High Court of South Africa, practising as a senior counsel at 4th
Floor, SALA House, […] P[…] Place, Sandown, Sandton in the district of
Johannesburg.
[7] The first Respondent is the Capricorn Technical, Vocational, Education
and Training College , an institution of higher learning duly registered in terms of
higher education laws of the Republic of South Africa operating as a college as
defined in terms of the Continuing Education and Training Act 16 of 2006, as
amended, and having its address at 1 […]-1[…] M[…] Street, Polokwane in the
district of Polokwane.
[8] The second Respondent is Lekau Mamabolo N.O, an adult male, duly cited
herein on his official capacity as the Principal or Head of Accounting Officer of the
First Respondent and sharing the same address of operation. (herein after together
referred as "the respondents")
[9] The third Respondent is Lucky Thekisho Inc Attorneys , a duly registered
law firm created in terms of the legal practice laws of the Republic of South Africa
operating as such with its main place of business situated at Suite No 1 […]-1[…],
B[…] House, first floor at 2[…] H[…] J[…] street in Pretoria in the district of Tshwane.
The third Respondent did not participate in this proceeding.
FACTUAL BACKGROUND
[10] On the 12 th June 2024, the Applicant issued the combined summons against
the Respondents for a claim in the amount of R 518 650.00 for a legal fee rendered.
On the receipt of the said summons, the respondents effected payment immediately
into the Applicant's account.
[11] On the 17 th July 2024, the Applicant wrote a correspondent letter to the
Respondents, demanding that since the Respondents have settled their debt, they
should also tender costs. The Respondents did not reply to the said letter. The
Applicant was displeased by the Respondents' failure to tender costs, and as a result
he took further step to claim his costs.
[12] On the 29 th October 2024 the Applicant made an application for default
judgement in terms of Rule 31 (2)(a) and indica ted that the default judgment is,
exclusively for cost, as the debt was fully satisfied. The Applicant argued that he is a
successful party in litigation, therefore, the court should grant default judgment for
costs in his favour.
LEGAL PRINCIPLES
[13] Applications for leave to appeal are governed by the provisions of section 17
of the Superior Courts Act 10 of 2013. Section 17(1) provides as follows:
"(1) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that:
(a) (i) the appeal would have reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) The decision sought to appeal does not fall within the ambit of section
16(2)(a);
and
(c) Where the decision sought to be appealed does not dispose of all the
issues in case, the appeal would lead to a just and prompt resolution of the
real issues between the parties."
[14] The traditional test that was applied by the courts in considering leave to
appeal applications have been whether there is a reasonable prospect that another
court may come to a different conclusion to the one reached by the court a quo as
said in Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890B .
With the enactment of section 17, the test obtained statutory force. In terms of
section 17(1)(a)(i) leave to appeal may now only be granted where the Judge or
Judges concerned is of the vie w that the appeal would have a reasonable prospect
of success, which made it clear that the threshold to grant leave to appeal has been
raised.
[15] In Mont Chevant Trust v Tina Goosen and 18 Others ZALCC/2014/20 , it
was held that:
"It is clear that the threshold or granting leave to appeal against a judgment of
a High Court has been raised in the new Act. The former test whether leave to
appeal should be granted was a reasonable prospect that another Court might
come at a different conclusion, see V an Heerden v Cronwright & others 1985
(2) SA 342 (T) at 342H. The use of the word "would" in the new statute
indicates a measure of certainty that another Court will differ from the Court
whose judgment is sought to be appealed against."
[16] In Notshokuvu v S (2016) ZASCA 112 it was indicated that an Appellant
faces a "higher and stringent" threshold under the Superior Courts Act. Thus, in
relation to the said section 17, the test for leave to appeal is not whether another
Court "may" come to a differ ent conclusion, but "would" indeed come to a different
conclusion.
[17] With regard to the meaning of reasonable prospects of success, it was held in
S v Smith 2012 (1) (SCA) 570, at para 7, as follows:
"What the test of reasonable prospects of succes s postulates is a
dispassionate decision, based on the fact and the law, that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court. In
order to succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless.
There must in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal."
[18] In the decision of Ramakatsa v AN C which it was [(724/2019) [2021] ZASCA
31 it was held that:
"I am mindful of the decision at High Court level debating whether the use of
the word "would" as opposed to "could" possible mean that the threshold or
granting the appeal has been raised. If a reasonable prospect of success is
established, leave to appea l should be granted... The test of reasonable
prospect 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 to that of the trial court’' [at para 10].
SUBMISSIONS
[19] The Applicant submitted that since the Respondents have paid his debt after
the receipt of the summons, he should also pay costs. The Applicant further argued
that since the Respondents did not enter their notice of intention to defend and
further failed to tender costs, therefore, the Applicant had no other option than to
proceed with an application for default judgment, particularly, on the issues of costs.
The Applicant further argued that the general rule is that the successful party is
entitled for costs and it was a misdirection for court a quo to deny costs to a
successful party. The Applicant maintains that he is a successful party because the
Applicant paid his claim only after the receipt of the summons.
[20] The Applicant further submitted that the court misdirected when he denied
costs on the basis that the Applicant supposed to have sent a letter of demand
before taking the matter to court. The Applicant argued that a summons is a demand
and there are no law or rules which binds the Applicant to send a letter of demand
before issuing of the summons and that an issuing of summons against the
Respondents is a demand.
[21] The Applicant submitted that the court misdirected itself when exercising its
discretion because he was infl uenced by the fact that the Applicant is a senior
counsel, and further that the counsel who appeared on behalf of the Applicant is also
a senior counsel who drafted a particular of claim. The Applicant argued that the
court a quo in his comment when he said the senior counsel charges are "exorbitant"
is an attack to a good status of a senior counsels and that the court disrespected the
status of a senior counsel. The Applicant argued that such unfortunate comments
made the court a quo not to exercise his discretion judicially on issues of costs, and
such influenced the court a quo not to grant a successful party with costs which is a
misdirection.
misdirection.
[22] The Applicant's senior counsel submitted that the reasons of judgment which
led to the dismissal of th e application for default judgment are wrong and based in
imaginations, therefore, it should be appealed to avoid a situation where the whole
division of the above honourable court to be undermined. The senior counsel further
indicated that he sometimes se at as an acting judge, so, he loves this honourable
court so much that he wishes that a wrong decision should be corrected by the
appeal court.
[23] The Applicant further argued that considering the above misdirection of the
court a qua, the Applicant's grounds have a reasonable prospect of success in the
appeal and that there are compelling reasons why this application should be granted.
[24] The Respondents submitted that cost order fall within the discretion of the
court and that appellate courts are slow to interfere with such discretion unless it is
shown that the discretion was not exercised judicially or was influenced by
misdirection. In support of this assertion the Respondents referred the court in the
case between Gauteng Gambling Board v Silverstar Development Ltd, 2005(4)
SA 67 (SCA) at 75E -F, where the Supreme Court of Appeal reaffirmed that an
appellate court will not readily interfere with the exercise of a court's discretion
regarding costs.
[25] The Respondents further referred to the matter between Biowatch Trust v
Registrar Genetic Resources and Others, 2009(6) SA 232 (CC) at par 22 , Sachs
J recognised that the determi nation of costs is inherently discretional. The
Respondents submitted that the Applicant has failed to demonstrate any material
misdirection on the part of the court a quo.
[26] The Respondents submitted that they paid the full amount claimed by the
Applicant and the only present dispute concerns only the Applicant's costs
associated with drafting and issuing of the summons. The court exercised its
discretion in declining to grant such costs through default application and warned
that it will not be used to accumulate costs which should have been avoided. The
Respondents submitted that the Applicant failed to established that another court
would come to a different conclusion.
[27] In conclusion, the Respondents submitted that the Applicant has not
[27] In conclusion, the Respondents submitted that the Applicant has not
demonstrated a reasonable prospect of success on appeal and or any compelling
reason why the appeal should be held. The Respondents submitted that the
application should be dismissed with costs.
COURT'S DISCUSSION AND FINDINGS
[28] In the matter of Hooper v De Villiers 1934 TPD 200 at 2002 , it was stated
that a demand is not a prerequisite to the institution of legal proceedings unless it is
required by statute or by agreement between the parties. The essential purpose of a
demand is to inform the defend ant of the claim against him and make him aware of
the repercussion of his failure to settle his debt within specific time. Generally, the
defendant should be allowed a reasonable time to respond to the demand.
[29] In Havenga v Lotter 1912 TPD 395 the appeal court reversed an award for
interest and costs where the plaintiff had sent a demand and the summons had
followed immediately after the demand such that it was impossible for the defendant
to have made a tender in reply to the demand before the issue of summons. The
court awarded the defendant costs incurred through the issue of summons as he had
tendered adequate damages within a reasonable time from receipt of the demand,
but after summons had been issued. The court also expressed the view that the
purpose of a demand is to put the debtor in mora and there should always be a
reasonable time allowed for the debtor to comply with the demand.
[30] The Havenga case referred in supra, reinforce that a plaintiff acts at their own
risk if they rush to issue summons without giving a defendant a reasonable
opportunity to respond to a letter of demand and it helps protect defendants from
unnecessary legal costs.
[31] The court noted that the Applicant is a senior counsel and represented by a
senior counsel in court and the two are legal experts but decided to issue summons
before a letter of demand. The court accept that a letter of demand is not a
prerequisite in this matter and accept that a summons is regarded as a demand. The
prerequisite in this matter and accept that a summons is regarded as a demand. The
court finds that the court a quo was correct when it decided that the Applicant should
not be awarded costs because the Applicant's first legal step was to issue summons
as a method to demand his payment and the Respondents effected payment
immediately. In a situation where the defendant adhered to the payment of his debt,
immediately on demand, the court may decide not to punish him with costs. The
plaintiff should be disc ouraged to proceed with premature litigation in a situation
where accumulation of legal costs should have been avoided. The courts encourage
parties to settle their dispute outside the court, to avoid unnecessary litigation.
[32] Considering the Havenga matter in paragraph 29 in supra, where the plaintiff
used the summons as the first step of demand, the defendant full payment of the
debt extinguishes the claim, therefore, it is unnecessary for the defendant to enter
his appearance to defend. In this cir cumstance, the plaintiff cannot proceed with
default application as it is unnecessary step in litigation. If the plaintiff did not send a
letter of demand but issues the summons as the first step in litigation, especially, in a
situation where the defendan t has within reasonable time, makes full payment to
satisfy his debt. The litigants should in all time discouraged to participate in frivolous
litigation which is done for purposes of earning costs against its rivals.
[33] Rule 41A of the uniform rules of courts as amended, further encourages
parties to participate in mediation as a dispute resolution mechanism to assist parties
in trying to resolve their disputes before court trial. It is clear that rule 41A, brought
an opportunity to a willing party to try their utmost best to try settling issues before
trial to avoid unnecessary further litigation.
[34] I am of the view that the court a quo was correct in deciding not to grant costs
to the Applicant after it has considered the fact that no letter of demand was sent
before issuing of the summons. The court has a discretion on issues of costs and the
discretion should be exercised judicially and considering the circumstances in this
case, the court a quo exercised his discretion judicially on the issues of costs. No
case, the court a quo exercised his discretion judicially on the issues of costs. No
other court which will interfere with the costs order which was granted by another
court in a situation where the discretion on costs was exercised judicially.
[35] The Applicant argued that the court a quo attacked the Applicant who is
senior counsel and who supposed to be respected by the court, because the court a
quo was of the view that the costs in this matter should have been avoided and that
the default proceeding was done for a purpose of costs to enrich the Applicant or his
legal representatives. I did not find any misdirection from the court a quo reasoning
in his judgment.
[36] The Applicant's argument that the senior counsel was attacked does not hold
water and the court aquo comment that in general senior counsels' fees are
exorbitant was not meant to undermine or disrespect senior counsels but it was the
court a quo's view that the Applicant's conduct by failing to send a letter of demand
before issuing summons created exorbitant costs which includes the senior counsel's
fee for drafting the summons and for his appearance which should have been
avoided. In terms of section 14 of the Constitution of the Republic of South Africa,
Act 108 of 1996, everyone is equal before the law and no special treatment can be
given to a senior counsel who is a litigant because of his status.
CONCLUSION
[37] In conclusion, the court heard the submissions from both parties and
concluded that the appeal has no reasonable prospect of success and no compelling
reasons why the appeal should be heard. The court is of the view that, there is no
other court would come to the different conclusion, therefore, the application for
leave to appeal cannot succeed. The general principle is that the costs should follow
the successful party. The court finds that the Applicant should pay the costs incurred
by the Respondents.
ORDER
[38] In the result, I make the following order;
[1] The application for leave to appeal is dismissed with costs.
E MASHAMBA
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR THE APPLICANT: ADV MS SIKHWARI SC
INSTRUCTED BY: MK MULAUDZI ATTORNEYS INC
Email: mkmulaudziattorneys@gmail.com
FOR RESPONDENT: ADV PHEMELO DIRANE
NSTRUCTED BY: MACHABA INC ATTORNEYS
EMAIL: EMAIL: litigation@machabainc.co.za
DATE OF HEARING: 09th March 2026
DATE OF JUDGEMENT: 11th March 2026