President of the Republic of South Africa and Others v Quagliani; President of the Republic of South Africa and Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and Constitutional Development (CCT 24/08, CCT 52/08) [2009] ZACC 9; 2009 (8) BCLR 785 (CC) (1 April 2009)

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[2009] ZACC 9
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President of the Republic of South Africa and Others v Quagliani; President of the Republic of South Africa and Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and Constitutional Development (CCT 24/08, CCT 52/08) [2009] ZACC 9; 2009 (8) BCLR 785 (CC) (1 April 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 24/08
[2009] ZACC 9
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
First Applicant
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Second Applicant
DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA HIGH COURT
Third Applicant
versus
NELLO QUAGLIANI
Respondent
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
First Applicant
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Second Applicant
DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA HIGH COURT
Third Applicant
versus
STEPHEN MARK VAN ROOYEN
First Respondent
LAURA VANESSA BROWN
Second Respondent
and
Case CCT 52/08
[2009] ZACC 9
STEVEN WILLIAM GOODWIN
Applicant
versus
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
First Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second Respondent
DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA HIGH COURT
Third Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
Fourth Respondent
together with
SPEAKER OF THE NATIONAL ASSEMBLY
First Intervening Party
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES
Second Intervening Party
Decided
on : 1 April 2009
JUDGMENT
SACHS J:
[1] Should
a punitive costs order be made in connection with wasted costs
occasioned by a last-minute application for postponement
of
delivery of a judgment? The judgment,
1
in case CCT 24/08 and CCT 52/08 delivered on 21 January 2009, dealt
comprehensively with the enforceability of the South Africa-United

States Extradition Agreement, leaving just this one question
undecided. The application for postponement was made by one of
the
parties in the case, Mr Quagliani (the applicant).
[2] The
last-minute application for postponement was made in the following
circumstances:
On 10 December 2008, the Court issued notice that judgment in this
matter would be handed down the next day. On the morning
of 11
December 2008, however, it was decided for technical reasons to
postpone delivery of judgment until 17 December 2008.
On that same morning the Court received an application from Mr
Stratton, who faced extradition from Australia to South Africa.
Mr
Stratton was at that time awaiting a decision in separate
proceedings on whether this Court would grant him direct access
to
get a ruling on the enforceability in South Africa of the South
Africa-Australia Extradition Agreement. In his application
of 11
December 2008 he sought to join the Speakers of the provincial
legislatures in his direct access application.
A short while before judgment in the present applicant’s matter
could be delivered on 17 December 2008, applicant’s legal

representative made a similar, last-minute application to join the
Speakers of the provincial legislatures. He submitted that
Mr
Stratton’s matter was in many respects identical to his, and that
his matter should be postponed until after the question
of mandates
had been fully explored in Mr Stratton’s matter.
On 17 December 2008, further directions were issued by this Court
requiring the applicant to lodge a substantive application
by 5
January 2009 for postponement of delivery of judgment. Any party
wishing to respond was given until 13 January 2009 to
do so.
[3] This
Court finally handed down judgment on this application on 21
January 2009. It dismissed the application for the postponement
of
the delivery of judgment to enable joinder of the Speakers of the
provincial legislatures. In the course of doing so it
made the
following observations:
“
The
application for the postponement of the delivery of judgment as it
was about to be handed down, can only be described as

inappropriate. Legal representatives are entitled, even obliged,
to defend the interests of their clients with vigour and
panache.
Yet there must be limits to their ingenuity. Stretching the bounds
of appropriate forensic procedure beyond breaking-point
is not
permissible. The delays and inconvenience that have been caused in
this matter are unacceptable. In
Metrorail
O’ Regan J
pointed out that—
‘
it has become regrettable
practice in this Court that affidavits are tendered on appeal often
only days before an appeal hearing,
if not on the day of the appeal
itself. This is unacceptable practice which must be discouraged.
The late filings of affidavits
in circumstances which do not meet
the stringent test for admission set out in this judgment will not
be permitted by this
Court. Attorneys should take care to consider
the test for the admission of late affidavits and satisfy
themselves before
filing the affidavits that they do qualify for
admission in terms of the rules of this Court and the principles
elucidated
in this judgment.’
The application for the
postponement of the delivery of the judgment and the joinder of the
Speakers of the provincial legislatures
must accordingly be
dismissed. The question of the wasted costs of 17 December 2008
and the costs occasioned by the application
for the postponements
of the delivery of judgment dated 5 January 2009 are reserved.
The parties, if they so wish,
may lodge affidavits with this Court by no later than 9 February
2009, on the question of what
order, if any, this Court should make
concerning the reserved question of the wasted costs occasioned by
the postponement of
17 December 2008 and the costs of the
application, including the question whether a punitive costs order
is appropriate in
the circumstances.”
2
(Footnotes omitted.)
[4] Affidavits
were in fact filed by the applicant and by the Speaker of the
National Council of Provinces.
[5] Applicant’s
legal representative submits that there is no basis for a punitive
costs order. He contends that he personally
acted on legal advice
from counsel, seeking only to advance as best he could the
interests of his client. Conversely, his
client should not be
penalised because there was no fault on the client’s part.
[6] The
Chairperson of the National Council of Provinces points out in
response that the litigation started as long ago as 2004;
that
proceedings had since then been undertaken in the High Court and
this Court without an application for joinder being made;
and that
an application for postponement on the eve of the judgment being
delivered was unheard of, amounting to an abuse of
the process of
the Court that called for a punitive costs order.
[7] The
application for postponement was undoubtedly inappropriate. Proper
respect for court proceedings always imposes reasonable
limits to a
litigator’s zeal. It is particularly inapposite to bring an
application to postpone delivery of judgment well
after all the
evidence has been looked at and argument completed. There might,
of course, be circumstances where new, substantial
and credible
evidence first comes to light only at a very late stage. In the
present matter, however, it is not even fresh
evidence that was
sought to be tendered. Rather, a procedural application was made
to facilitate the search for new evidence.
And the only
explanation for the extraordinary lateness of the application
boiled down to a fear by the legal representatives
that they might
have paid insufficient attention during the four years of the
litigation to the need to comply with certain
procedural
requirements. If the advantages of hindsight were allowed to
prevail, litigants anticipating defeat would have
second, third,
and even fourth or fifth bites of the cherry. The litigation would
be endless, court planning would be impossible
and legal
representatives would be rewarded for inadequate preparation.
[8] In
the present matter, even though he had failed in all the legal
challenges he had brought to the enforceability in South
Africa of
the country’s extradition agreement with the United States, the
applicant was not ordered to pay any of the state’s
costs. This
was because he had raised important constitutional issues, and the
state and all of our society benefitted from
the ensuing legal
clarifications. The extraordinary application for postponement of
a judgment about to be delivered cannot,
however, be regarded as
part of a legitimate effort to secure constitutional rights. It
was so manifestly out of line with
proper respect for court
processes that a special adverse costs order is called for.
[9] It
appears that at the very last moment in the prolonged litigation,
what had until then been commendable eagerness to serve
the best
interests of his client, transformed itself into excess of zeal.
As I have pointed out, it is quite unacceptable
for a legal
representative to clutch at each and every straw, giving false hope
to a client, even if the motive is to do one’s
best on behalf of
the client. The failure of the attorney to acknowledge the utter
inappropriateness of the application is
most unfortunate. It
evinces a lapse of professional judgment rather than firmness of
purpose.
[10] Yet
looked at in all the circumstances, I do not believe that the
attorney’s conduct was so vexatious, grossly negligent
or in any
other way professionally wayward that he should be ordered to pay
the wasted costs from his own pocket. The applicant
in this matter
had secured his services as his agent and in so doing authorised
the last-minute application, which, if it had
been successful,
would have enured to his benefit. Similarly, the authorisation by
him to launch the last-minute application
also carried with it a
real possibility of the matter being unsuccessful, with the
consequence of a punitive costs order being
made against him. It
must accordingly be accepted that that risk was understood by him
when he authorised his attorney to
bring a highly inappropriate
application for postponement of judgment on his behalf.
[11] It
would, of course, be quite unfair to expect the state to bear any
of the costs occasioned by a totally unmeritorious
application.
Fairness requires that costs in favour of the state resulting from
the postponement of the delivery of the judgment
that was due to be
delivered on 17 December 2008, including the costs occasioned by
the abortive application of 5 January 2009,
be paid by the
applicant on an attorney and client scale.
[12] In the circumstances, the following order is made:
The applicant is ordered to pay on an attorney and client scale the
costs occasioned by the postponement in this matter of the
judgment
due to be delivered on 17 December 2008, as well as the costs
occasioned by the application for postponement.
Langa
CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan J, Skweyiya J, Van
der Westhuizen J and Yacoob J
concur in the
judgment of Sachs J.
Counsel for Mr Quagliani:
Counsel for the Government:
Counsel for the Intervening Parties:
Advocate
D Melunsky and Advocate M du Plessis instructed by Errol Goss
Attorneys.
Advocate PJJ de Jager SC and Advocate MD Mohlamonyane instructed by
the State Attorney, Pretoria.
Advocate
RT Williams SC and Advocate K Pillay instructed by the State
Attorney, Johannesburg.
1
President of the
Republic of South Africa and Others v Quagliani; President of the
Republic of South Africa and Others v Van Rooyen
and Another;
Goodwin v Director-General, Department of Justice and Constitutional
Development and Others
[2009] ZACC 1.
2
Above n 1
at 41-2.