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[2002] ZASCA 102
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Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others (2) (384/2000) [2002] ZASCA 102 (9 September 2002)
REPORTABLE
CASE
NO: 384/2000
In the
matter between
MAX HAMATA
First Appellant
FREEDOM OF EXPRESSION INSTITUTE
Second
Appellant
and
CHAIRPERSON, PENINSULA TECHNIKON
INTERNAL DISCIPLINARY COMMITTEE
First Respondent
CHAIRPERSON, PENINSULA
TECHNIKON
COUNCIL DISCIPLINARY COMMITTEE
Second Respondent
CHAIRPERSON, PENINSULA
TECHNIKON
COUNCIL
Third Respondent
PENINSULA TECHNIKON
Fourth Respondent
CORAM
:
HEFER AP, HOWIE,
MARAIS, NAVSA
et
NUGENT JJA
DATE HEARD
: 28 FEBRUARY 2002
DATE DELIVERED
: 9 SEPTEMBER 2002
________________________________________________________________
JUDGMENT
________________________________________________________________
MARAIS JA/
MARAIS JA: [1] The only parties who have sought to have the
provisional orders as to costs varied are the respondents. In their
submission, each of the parties should be ordered to pay their own
costs, both in the Court
a quo
and on appeal. The contention
is founded upon two propositions: first, that the appellants
succeeded on a point not raised by them
in either court; secondly,
that instead of confining their attack to the point upon which they
succeeded, they traversed unnecessarily
a number of issues which
resulted in the incurring of considerable extra expense in conducting
the litigation.
[2] As to the first proposition, it is not accurate. The failure of
the IDC to exercise a discretion to allow outside legal
representation
was raised pertinently in the founding affidavit at
paragraph 27.3. It also formed the basis of the declaratory order
sought in
the first part of prayer 3 of the notice of motion.
Moreover, in paragraph 30 of the heads of argument in the Court
a
quo
the appellants argued: âThe rule relating to the IDC does
not expressly permit outside legal representation; but nor does it
expressly prohibit it. It is silent on the subject. The IDC,
however, interpreted it as entailing an absolute prohibition on
representation
by an attorney. In construing the provision in this
way, it is submitted that the IDC, and the other committees, again
misconstrued
the nature of the discretion conferred by the
regulation.â The Court
a quo
considered and rejected the
argument. This Court took a different view.
[3] As to the second proposition, the considerations which apply in a
trial action when a timeously taken exception to a pleading
would
have averted the trial cannot be applied indiscriminately to motion
proceedings. In motion proceedings the applicant is obliged
to set
out in its entirety his, her or its case in the notice of motion and
accompanying affidavits. The piecemeal advancing of
contentions in a
series of motion proceedings successively launched as the forerunner
of each fails, is potentially productive of
litigatory tyranny and is
not to be encouraged. In any event, if there is indeed a separable
issue which could be decisive of the
case, it is open to any of the
parties to motion proceedings to apply for the separate adjudication
of the issue. The respondents
made no such application .
[4] Finally, this is not a case in
which all the other grounds of attack raised in the motion
proceedings have been found to be entirely
devoid of merit. In my
view, no good cause for the variation of the existing orders as to
costs has been shown and the orders are
hereby made final.
__________________
R M MARAIS
JUDGE
OF APPEAL
HEFER
AP)
HOWIE
JA)
MARAIS
JA) CONCUR
NAVSA
JA)
NUGENT
AJA)