IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case no:1679/25
In the matter between:
MEC FOR DEPARTMENT: ECONOMIC
DEVELOPMENT, ENVIRONMENT
CONSERVATION AND TOURISM, NORTH
WEST
FIRST APPLICANT
THE CHIEF EXECUTIVE OFFICER:
NORTH WEST PARKS AND TOURISM
BOARD
SECOND APPLICANT
and
NATIONAL EDUCATION
HEALTH & ALLIED WORKERS
UNION (NEHAWU)
FIRST RESPONDENT
ALL EMPLOYEES OF THE
APPLICANTS WHO ASSOCIATE
SECOND RESPONDENT
THEMSELVES WITH THE
UNLAWFUL CONDUCT OF THE FIRST
RESPONDENT AND ITS MEMBERS
ANY OTHER PERSON / ENTITY /
WORKERS UNION AND OR
ASSOCIATION WHO ASSOCIATE
THEMSELVES WITH THE
UNLAWFUL CONDUCT OF THE FIRST
AND SECOND RESPONDENTS
THIRD RESPONDENT
THE PROVINCIAL COMMISSIONER
OF POLICE NORTH WEST PROVINCE
FOURTH RESPONDENT
Coram: Wessels AJ
Heard: 17 April 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 16h00 on 7 May 2026.
Summary: Labour dispute – return date of rule nisi – applicants failed to appear,
file replying affidavit, or file heads of argument – application abandoned –
whether costs should be awarded on attorney -and-client scale – threshold for
punitive costs order not met – rule nisi discharged, application dismissed with
costs on party-and-party scale
JUDGMENT
Wessels AJ
Introduction
[1] This matter came before me on the return date of a rule nisi granted by
Reid J on 4 April 2025 and subsequently extended by Masike AJ on 24 October
2025. When the matter was postponed for hearing to 24 October 2025, the
applicants were represented. The rule nisi called upon the respondents to show
cause why the applicants’ interim interdictory relief should not be confirmed.
[2] The applicants did not appear before me at the hearing . No replying
affidavit was filed, no heads of argument were delivered, and no communication
was received from their legal representatives. Only the first respondent appeared
before this Court, represented by counsel.
Proceedings before this Court
[3] First respondent’s counsel informed this Court of the following. Counsel
previously briefed by the applicants, Adv Scholtz, informed the Court (through
the first respondent’s counsel) that he had not received instructions to appear .
The applicants’ instructing attorneys had evidently not responded to any
communications from the first respondent’s attorneys regarding whether the
applicants intended to proceed. The matter had previously served on the opposed
roll. A fter the first respondent opposed it, the rule nisi was extended to the
present date as the return date. The first respondent sought an order discharging
the rule nisi, dismissing the application, and granting costs against the applicants
on a punitive scale (attorney and client costs).
[4] The applicants have, in effect, aband oned their application. They filed no
replying affidavit in response to the first respondent’s comprehensive answering
affidavit, which raised numerous points in limine , including defective
identification of the applicants, lack of locus standi of the second applicant, non-
joinder, absence of urgency, res judicata, and the unenforceability of the relief
sought. The applicants furthermore filed no heads of argument and as already
alluded to, did not appear on the return date.
[5] In these circumstances, the applicants have failed to make out any case for
the confirmation of the rule nisi. The rule nisi must accordingly be discharged
and the application dismissed.
Scale of costs
[6] The sole issue requiring elaboration is the first respondent’s prayer for a
costs order on the attorney-and-client scale.
[7] The general rule is that costs follow the result, and a successful litigant is
entitled to costs on the ordinary party -and-party scale. Party-and-party costs are
those costs that appear to the taxing master t o have been necessary or proper for
the attainment of justice or for defending the rights of any party , while attorney-
and-client costs are more punitive. They entitle the successful party to recover
from the unsuccessful party all costs due to its attorne y1. In ABSA Bank Ltd
1 See Herbstein & Van Winsen The Civil Practice of the High Courts and the Supreme Court of Appeal of South
Africa 5th ed Chapter 36 Part II.
(Volkskas Bank Division) v SJ Du Toit & Sons Earthmovers (Pty) Ltd 2, it was
held that such an award is designed to discourage unnecessary or unjustified
litigation. The same principle applies generally in that a punitive costs order is
justified only where a party has acted vexatiously, recklessly, dishonestly, or in
bad faith, or has put the other side to unnecessary trouble and expense that ought
not to be borne by it.
[8] The first respondent submits that such an order is warranted because the
application was defective from the outset, lacked urgency, was brought without
candour, and was effectively abandoned. In any event, I decline to revisit the
question of urgency. That point was dealt with at an earlier stage and cannot be
reopened on the return date. While I accept that the applicants’ conduct has been
unsatisfactory in th at they failed to file a replying affidavit, failed to deliver
heads of argument, and failed to appear , I am not persuaded that the threshold
for a punitive costs order has been reached.
[9] The deficiencies in the applicants’ case are largely procedural and
substantive. There is no indication that the applicants acted with the intention of
harassing or causing unnecessary expense. The underlying labour dispute
between the parties appeared genuine, and previous court orders had been
granted in favour of th e applicants, albeit on an interim basis. Although
ultimately unsuccessful, the present application was not so unfounded as to
constitute an abuse of the court process.
[10] In these circumstances, the appropriate order is costs on the ordinary
party-and-party scale. The first respondent has succeeded and is entitled to its
costs, but not on the punitive scale.
2 ABSA Bank Ltd (Volkskas Bank Division) v SJ Du Toit & Sons Earthmovers (Pty) Ltd 1995 (3) SA 265 (C) 268
A-D.
[11] As the matter is not of an intricate nature and does not raise any novel
legal issues, costs should be awarded on no higher scale than Scale A.
Order
[12] In the result, the following order is made:
1. The rule nisi issued on 4 April 2025 and extended on 24 October 2025
is hereby discharged and the application is dismissed.
2. The applicants shall pay the first respondent’s costs of this application
on the party-and-party scale (Scale A).
3. There is no order as to costs in respect of the second, third and fourth
respondents.
_______________________________
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For the applicants: No appearance
Mosire Tsiane Attorneys
c/o Kgomo Attorneys
Mahikeng
For the first respondent: Adv O Ntsamai
Instructed by: Schöltz Attorneys
p/a Mokhetle Attorneys Inc
Mahikeng