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[2011] ZACC 20
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Stainbank v South African Apartheid Museum at Freedom Park and Another (CCT 70/10) [2011] ZACC 20; 2011 (10) BCLR 1058 (CC) (9 June 2011)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 70/10
[2011]
ZACC 20
In
the matter between:
ARNOLD
MICHAEL
STAINBANK
....................................................................
Applicant
and
SOUTH
AFRICAN APARTHEID MUSEUM
AT
FREEDOM
PARK
...............................................................................
First
Respondent
TAXING
MASTER FOR THE NORTH GAUTENG
HIGH
COURT
.......................................................................................
Second
Respondent
Heard
on : 15 February 2011
Decided
on : 9 June 2011
Judgment
KHAMPEPE
J:
Introduction
The
applicant seeks an order setting aside a judgment of the North
Gauteng High Court, Pretoria (High Court) delivered on 28
May 2009,
by Ebersohn AJ, on the basis that it was tainted by bias or a
reasonable apprehension of bias.
1
It arises from urgent proceedings the applicant brought in the
High Court to stay a taxation of a bill of costs. In the course
of
those proceedings, the applicant sought a postponement of the
application. That was refused. He also brought an application
for
the recusal of the judge. That, too, was refused.
2
The High Court later dismissed with costs the urgent application.
It also refused an application for leave to appeal, as
did the
Supreme Court of Appeal.
Background
The
parties in this matter have a long and sticky litigation history
marked by acrimonious disputes and recriminations over
the
conception, registration and utilisation of the trade mark “The
Apartheid Museum”. It is alleged that Mr Stainbank
conceived
the idea of establishing an apartheid museum to record the history
and effect of colonialism and apartheid for educational
and other
purposes in 1988. To this end, he registered the name “The
Apartheid Museum” as a trade mark first in
1990, and then
again in 1998. The first respondent, a company registered not for
gain, also lays claim to the conception of
a museum by the same
name to record the atrocities and wrongs of apartheid. It is
currently operating a museum which it opened
towards the end of
2001. Shortly after the first respondent started operating the
museum, the applicant applied for an interdict
against the first
respondent’s trading style.
3
The application was based on an alleged trade mark infringement.
In
response, the first respondent brought a counter-application to
expunge the applicant’s Class 41 trade mark.
4
On 17 July 2003, the High Court granted the counter-application as
well as a costs order in favour of the first respondent
against the
applicant (trade mark proceedings). This costs order forms the
basis of the dispute before this Court.
5
The
first respondent did not take any steps towards pursuing the costs
order until some five years later, when the applicant
instituted
fresh proceedings against the first respondent on the basis that it
had infringed his Class 35 registered trade
mark.
6
The applicant also claimed damages for over R350 million. In
response, the first respondent brought an application in the
South
Gauteng High Court, Johannesburg to have those proceedings stayed,
pending taxation and payment of costs awarded in its
favour in
respect of the trade mark proceedings
7
(perpetual silence proceedings).
Thereafter,
the first respondent set in motion the recovery of the costs by
setting it down for taxation before the taxing master,
the second
respondent in the present proceedings. The first respondent avers
that it initially elected not to pursue the costs
awarded in its
favour in the trade mark proceedings pursuant to advice by the
applicant’s former attorney that the applicant
was “a
man of straw”.
The
applicant objected to the drawing and taxing of the bill of costs
in respect of the trade mark proceedings by placing reliance
on an
impugned agreement between the parties.
8
After protracted interaction between the legal representatives of
the parties, on 13 January 2009 the first respondent indicated
that
it intended to proceed with taxation before the taxing master at or
about 10h30 on 6 February 2009. The taxation had
already been
postponed on two previous occasions
9
because of the applicant’s objection. On 5 February
2009, the applicant made an urgent application in the High
Court to
stay the taxation of the bill of costs.
Proceedings
in the High Court
The
urgent application was served on the first respondent at about
12h30 on 5 February 2009 and set down for hearing at
17h00 on
that day. Earlier that day, when the applicant’s attorney
attended court to file the application, the notice
of set-down of
the taxation was not amongst the papers. The acting judge sitting
in the urgent motion court that week, Ebersohn
AJ, directed the
applicant’s attorney to appear in an open court. The
following interchange ensued:
“
COURT
:
Now why on earth, why on earth should this Court be burdened to be
here at five pm today? Why should the matter not be set
down for
ten o’clock tomorrow morning, like all urgent applications
are? If it is, unless it is a question of a murder
being, about to
happen, then you can deviate from the normal rules regarding set
down, but now to set the matter down to five
pm, that means that
lady must miss her bus. Why was it set down for five o’clock?
Mr
Carls:
M’Lord, the primary reason behind the set down for
five o’clock was that there was a concern about the matter
being
called before the taxation has been set down at 10:30
tomorrow. That is primarily the reason. . . [intervenes].
COURT
:
Ja, but, now you see, very conveniently the notice of set down of
the taxation was deleted from the papers.
MR
Carls
: With respect. . . [intervenes].
COURT
:
It is not in the papers.
Mr
carls
: With respect, M’Lord, not a point of convenience.
It might have been an oversight.
COURT
:
No, . . [intervenes].
Mr
CARLS
: Those papers were literally prepared within . . .
[intervenes].
COURT
:
The Court regards it as convenience, because then the Court would
have seen that it was 10:30. Then I could have started becoming
agitated.
MR
CARLS
: As the Court pleases.
COURT
:
I am not here to fight with you. I believe your counsel will be
flying to, I do not know why you get counsel from Durban.”
The
judge refused to hear the matter that afternoon, and ruled that it
should be enrolled for hearing on the following day at
10h00. In
light of the fact that the taxation of the bill of costs was set
down for the following day at 10h30, the judge
directed that
taxation should not proceed until the urgent application was
disposed of. He also requested the applicant’s
attorney to
bring that direction to the attention of the taxing master.
The
application was heard on 6 February 2009, by which time the
applicant’s counsel was available to argue the matter.
When
the proceedings commenced, counsel for the applicant applied for
the postponement of the application. He argued that
the applicant
needed to file a replying affidavit to respond to the first
respondent’s papers.
During
the presentation of argument in respect of the postponement
application, the judge made several remarks that constituted
the
basis of the subsequent application for his recusal. I mention a
few of them. While the applicant’s counsel was
presenting
argument, the judge interjected to remark that:
“
I
take offence that attorneys behind my back elect to approach the
Court and upon my clerk enquiring from your attorney why 17h00,
the
response was that it suited the counsel who comes from Durban.”
Shortly
thereafter, and when the applicant’s counsel informed the
judge that the instructions from his attorney were that
the court
had on the previous day made an “order” that taxation
would not proceed, the judge made this remark:
“
Your
attorney is lying. . . . He is lying about what you now said. I
said to him I refuse to enrol the matter. I said to my
clerk, after
he left my chambers, I said to my clerk he must advise the taxing
master that she is not to proceed with the taxation
until this
application has been heard.”
Counsel
for the applicant then apologised for the error.
The
application for a postponement was refused and the application to
stay the taxation proceeded. The applicant argued firstly
that the
taxation could not proceed because the first respondent had agreed
that it would not proceed to tax its bill of costs.
The first
respondent disputed the existence of the agreement. The applicant
submitted that that very question was pending
determination in the
application for “perpetual silence”.
10
Secondly, he submitted that the taxing master had no jurisdiction
to tax the bill of costs because, in November 2008, the
taxing
master had ruled that taxation would remain adjourned pending the
determination of the “perpetual silence”
application.
The
judge invited the parties to present argument after the lunch
adjournment on whether the court should order costs from the
applicant’s attorney’s own pocket (
de bonis
propriis
). Thereafter, the applicant’s counsel informed
the court that the parties required to see him in chambers to which
the
judge remarked, “[d]id I get misquoted again?” The
High Court adjourned once more. When it resumed, the applicant
applied for the recusal of the judge.
Recusal
application
The
application for the recusal of the judge was on the basis of actual
bias or a reasonable apprehension of bias. Counsel
for the
applicant contended that because the judge had called his attorney,
who was the sole deponent to the founding affidavit
in the
application to stay the taxation, a “liar” in court and
had also invited submissions on costs from the attorney’s
own
pocket in circumstances where costs had not been sought by the
first respondent, he would not be able to impartially adjudicate
the matter. The judge gave an
ex tempore
judgment in which
he dismissed the application for recusal:
“
The
fact that the attorney gave instructions to the applicant’s
counsel . . . which instructions were false . . . caused
the Court
to remark that then he was lying. The counsel . . . then apologised
and that was the end of that matter.
Every
reasonable person in court then realised that it was an unfortunate
misunderstanding between counsel and his instructing
attorney.
If
the attorney is aggrieved, he only has himself to blame.
This
Court has not judged the matter yet and there is no possibility of
bias on the part of this Court against the applicant
and/or his
attorney. The application for recusal is refused.”
11
(Emphasis added.)
At
the commencement of argument on whether costs
de bonis propriis
should be awarded against the applicant’s attorney, the
judge made the following remark:
“
I
have got no grudge against the attorney . . . . But I have got a
grudge against the non-compliance with the rules”.
On
28 May 2009, the High Court handed down judgment in respect of the
urgent application. Its principal finding was that the
applicant’s
attorney had failed to comply with the rules of the court, practice
directions and precedent relating to
the setting down of matters in
the urgent court. The High Court refused to stay the taxation and
made a punitive order for
costs in these terms:
“
2.
The applicant is ordered to pay the costs of this application and
the costs of the failed application for the judge’s
recusal,
on the scale of attorney and own client and in the event of the
deputy sheriff rendering a return of nulla bona with
regard to the
taxed costs of the applications the attorney of the applicant,
Donald Clive Carls, must pay the costs of both applications
de
bonis propriis
on the scale of attorney and own client in his
personal capacity.
3.
Before the applicant, Arnold Michael Stainbank, proceeds with any
further litigation in respect of the recovery by the Apartheid
Museum of South Africa in respect of the costs order made in matter
32237/2002, he must first pay the costs of the two applications
in
this matter in full and append proof of such payment to the papers
in the new matter.”
12
(Emphasis removed.)
On
costs, the court reasoned as follows:
“
Regarding
costs [the applicant’s attorney] did not comply with the rules
of the Division regarding the bringing of an urgent
application, his
instructions to counsel regarding the recusal application was an
open attempt to bully the judge and bordered
on contempt of court.
He, furthermore, delayed in bringing the urgent application until
such time when he knew that there would
not be sufficient time for
the first respondent to file answering papers. He also,
unilaterally and without consulting with
the judge’s clerk,
and seeking the judge’s permission thereto, unilaterally
enrolled the matter for 17h00 which is
not a ‘normal’
time inconveniencing the court, its staff and the first respondent
and their legal team. The attorney
will therefore be mulcted with
costs in the event of his client not paying the taxed costs of the
first respondent.”
13
On
the merits, the court was also displeased with the conduct of the
applicant’s attorney in respect of how he had prepared
the
papers and litigated the matter. It also found that there was no
basis for setting the matter down in the urgent court.
14
Proceedings
in this Court
The
applicant’s principal complaint is that the manner in which
the judge conducted the proceedings, the remarks that
the attorney
was lying as well as the punitive costs order, gave rise to bias or
an apprehension of bias. He asserted that
this conduct violated
his “fundamental right of access to justice.” He
therefore seeks leave to appeal against
the decision and the order
of the High Court.
Before
considering the main issues presented in this case, it is necessary
to deal with three preliminary issues. The first
relates to
whether the application to amend the form of relief sought should
be granted. The second is whether the application
to lead further
evidence should be considered. The third is whether leave to
appeal should be granted.
Application
to amend
The
applicant seeks leave to amend the original order so as to conform
with section 167(6)(b) of the Constitution read with
rule 19 of the
Rules of this Court. This is because the original application was
made in terms of rule 11 of this Court which
made no reference to
an application for leave to appeal. The order sought in that
application required this Court to declare
the entire proceedings
“vitiated as being null, void and of no force and effect
whatsoever.” The applicant seeks
an amendment aimed at
describing the order as an application for leave to appeal and to
read in the relevant part “case
number 5752/09 falls to be
vitiated due to their being tainted by bias
alternatively
a
reasonable apprehension of bias, such leave to appeal having
previously been refused by the courts
a quo
, i.e. the
Supreme Court of Appeal and by the acting Judge.”
15
I
am of the view that the aim to convert an application in the
present circumstances does not require any application to amend.
It would amount to putting form above substance to regard the
application originally launched in terms of rule 11 of this
Court
as anything but an application for leave to appeal. The complaint
is one of bias and the application is to set aside
the order. I
therefore need to consider the application to amend only insofar as
it postulates that a narrower amended order
will be sought.
The
test for determining whether to grant an amendment is whether the
interests of justice permit. The applicant quite clearly
made a
mistake in crafting an order wider than was required. It cannot be
in the interests of justice to penalise the applicant
by refusing
to amend the order sought when the first respondent has suffered no
prejudice pursuant to the amendment. The essence
of the
application remains the same. I am mindful of the fact that the
first respondent has had adequate opportunity to traverse
the
application in its current form. The application to amend the
order must therefore be granted.
Application
to lead further evidence
The
applicant initially applied to lead further evidence of a costs
consultant. This evidence relates to events that occurred
after
the judge had decided the applications for postponement, recusal
and to stay taxation and had refused leave to appeal.
The evidence
sought to be admitted is disputed by the first respondent. At the
hearing of this matter, counsel for the applicant
conceded that
given the disputed facts, he would not persist with the
application. In the circumstances, it will not be necessary
to
determine this application.
Should
the application for leave to appeal be granted?
The
question whether an application for leave to appeal should be
granted depends on whether: (a) it raises a constitutional
matter;
and (b) it is in the interests of justice to grant leave.
Does
this matter raise a constitutional matter?
Two
issues arise in this application. The first relates to whether the
proceedings in the High Court were tainted by bias or
a reasonable
apprehension of bias, thereby depriving the applicant of the right
to a fair hearing. The second relates to whether
or not the costs
order was competent.
It
is now axiomatic that the question whether a judicial officer
should recuse himself or herself is a constitutional matter,
as is
the question whether there was actual or reasonable apprehension of
bias.
16
In this case, the question whether a court made a competent costs
order in respect of the matters it decided is also an issue
connected with the decision on a constitutional matter in terms of
section 167(3)(b) of the Constitution.
17
This is so for three fundamental reasons. Firstly, if the issue
of bias is before us, a costs order arising therefrom would
be
connected with that issue and we would therefore have the requisite
jurisdiction to address it under section 167(3)(b) of
the
Constitution. Secondly, the costs order in this matter is
intricately interwoven with the challenge of bias in that its
peculiar form may have arisen from the judge’s irritation
with the conduct of the applicant’s attorney and may
be
indicative that the judge was influenced by bias. Thirdly, there
may be misdirections in the reasoning of the High Court
leading to
the costs award, which are closely connected to bias. The costs
order in this case is therefore an issue connected
with a decision
on constitutional matters in terms of section 167(3)(b) of the
Constitution.
The
question whether the judge should have recused himself and whether
the applicant had a reasonable apprehension of bias,
therefore,
intrepidly raises a constitutional matter. So too does the
question whether the High Court in this case was competent
to make
the impugned costs order.
Is
it in the interests of justice for this Court to hear the matter?
The
question whether it is in the interests of justice to hear the
matter depends on many factors. These include, but are not
limited
to, the prospects of success, the importance of the issues raised
in the intended appeal, and whether the case will
either benefit
the larger public or achieve legal certainty.
18
The
applicant is alleging bias or its apprehension against a judge.
Whilst this is generally a serious allegation as it impinges
upon
the proper administration of justice, its mere assertion will not,
without more, warrant a hearing by this Court. What
is required
from an applicant who seeks leave to appeal is an arguable
assertion demonstrating that a complaint about the judge’s
alleged bias has reasonable prospects of success. In this case,
the allegation of bias, is in all the circumstances, sufficiently
plausible to warrant further investigation in the appeal. It is,
therefore, in the interests of justice that leave to appeal
should
be granted. I now turn to the merits of the appeal.
Issues
Two
issues arise for consideration. The first is whether the applicant
has made out a case for actual bias or the reasonable
apprehension
of bias. The second is whether the costs order awarded by the High
Court is competent, and if not, whether it
should be set aside.
19
Applicant’s
submissions
The
applicant relied upon two interrelated grounds as giving rise to
bias or a reasonable apprehension of bias. The first ground
relates to the remarks the judge made during the hearing of the
application to postpone the main application, and his conduct
during the proceedings. The second ground relates to his
invitation for submissions on whether costs should be ordered from
the applicant’s attorney’s own pocket. To this end,
the applicant submits that the punitive costs order awarded
on 28
May 2009 was evidence of the fact that the judge was biased and
that the costs order was improperly awarded. The applicant
contends that all these factors taken together give rise to bias,
or a reasonable apprehension thereof.
Counsel
for the applicant argued that the applicant was very concerned with
the word “lying”. This concern was
based on the fact
that the applicant’s attorney was the only deponent to the
founding affidavit in the urgent application
and if he was labelled
a liar, this accusation would bear on the veracity of his affidavit
and it suggested that the judge
had already pre-judged the matter.
In the founding affidavit to the application in this Court, the
applicant used the tag
“liar”, as opposed to “lying”.
Counsel for the applicant conceded that there is a difference
between
being labelled a liar and being accused of lying, and that
being labelled a “liar” was more egregious than being
accused of “lying”. The former is more egregious
because it goes to the character of a person whilst the other
may
be confined to a single occasion. Eventually counsel accepted that
the matter must be approached on the footing that the
judge accused
his attorney of lying.
First
respondent’s submissions
Counsel
for the first respondent submitted that none of the grounds relied
upon by the applicant raised bias or a reasonable
apprehension of
bias, and that the costs order was justified.
Applicable
legal principles: apprehension of bias
Our
jurisprudence in this regard is now well developed. The test for
recusal is whether a reasonable, objective and informed
person
would on the correct facts reasonably apprehend that a judge has
not or will not bring an impartial mind to the adjudication
of the
dispute, that is, a mind open to persuasion by the evidence and the
submissions of counsel.
20
In
SACCAWU
, this Court emphasised that not only is there a
presumption in favour of the impartiality of the court but it is a
presumption
that is not easily dislodged.
21
Cogent and convincing evidence,
that
demonstrates the judicial officer’s conduct gives rise to a
reasonable apprehension of bias,
is necessary in order to do
so.
22
A court considering the issue of bias should be circumspect not to
permit a disgruntled litigant to complain of bias merely
because
the judge had given a ruling against her or him, or because the
judge had been irritated by the manner in which the
case was
conducted. Nevertheless, judges should at all times seek to be
measured and courteous to both litigants and their
lawyers who
appear before them.
23
In
Basson II
, this Court held that in considering whether the
remarks give rise to a reasonable apprehension of bias, a judge
should not
be held to an ideal standard that would be difficult to
attain.
24
Mindful of these legal principles, I now turn to consider the
conduct of the judge.
The
allegation of apprehended bias
The
applicant levelled several accusations against the judge. The
first was the judge’s charge that the applicant’s
attorney was lying. Second, that the judge displayed a set mind by
calling for submissions on punitive costs, and thereafter
ordering
punitive costs. Third, his remarks about getting counsel from
Durban. Lastly, the judge’s anger at the attorney’s
conduct in setting the matter down after hours and disregarding the
rules of court. Added to these was the judge’s displeasure
at the application for recusal, which he considered to be
mala
fide
and an “open attempt to bully” him.
However,
the applicant’s principal contention is that the cumulative
effect of the judge’s conduct engendered an
apprehension of
bias. In considering the question whether the applicant reasonably
entertained an apprehension of bias, regard
must be had to the
judge’s overall conduct of the proceedings in light of the
entire record.
It
must be accepted that, even though the judge was testy from the
beginning of the proceedings, by the end of the proceedings
in the
main application, it appears that a bantering tone seems to have
prevailed. In the circumstances, it is conceivable
that the
judge’s earlier comments about counsel coming from Durban,
and his remarks “hell I am so busy, I do not
have time to
become bias[ed]” and “[d]id I get misquoted again?”,
were perhaps a heavy-handed attempt at
humour.
The
applicant’s complaint that the judge displayed a set mind by
inviting submissions on punitive costs, when these were
not sought
by the first respondent and thereafter ordering costs, is
understandable, given the judge’s obvious irritation
with the
applicant’s attorney.
25
However, it is quite evident as the record shows, that the first
respondent initially sought punitive costs but later withdrew
the
request. In the judgment in respect of the application for leave
to appeal, the judge explained that he had invited argument
from
the parties because he had “understood” that these
costs had been sought by the first respondent. Even if
the judge
was incorrect to suggest that the first respondent had made the
request for punitive costs against the applicant,
it is generally
within the court’s discretion to call upon parties to make
submissions on costs.
It
is plain that the applicant’s attorney was not without
blemish, having breached practice directions regarding the setting
down of matters in the urgent court,
26
attempting to enrol the matter outside of normal court hours and
failing to index and paginate the founding papers that were
seemingly prolix. When attending to cases in short time frames,
one of the purposes of the rules is to ensure efficient and
effective administration of justice. A failure to comply with
court rules acts as a great hindrance to the efficacy with which
the court is able to adjudicate matters and interferes with the
orderly flow of matters in the urgent court. In assessing
the
conduct of the judge, the environment of the urgent court must
inevitably be taken into account.
I
am mindful of the extreme pressures under which High Court judges
have to perform their judicial functions, especially in
busy urgent
courts. These pressures cannot be underestimated and this Court
acknowledges and appreciates the considerable
pressure under which
High Court judges sitting in urgent motion courts work. These
pressures were aptly described by the judge
in this matter as
“horrible”. I am also aware that the North Gauteng
High Court is one of the busiest divisions
in South Africa, a
factor that in itself gives rise to extreme pressures on the part
of the judges sitting in an urgent motion
court to ensure efficient
case management.
However,
even allowing for: (a) the pressures of a busy urgent court like
the North Gauteng High Court, (b) the absurdity of
the set down,
and (c) the inept manner in which the applicant’s attorney
prepared the application given his 22 years’
experience, the
judge’s conduct during the proceedings is unacceptable. The
remark made by the judge that the applicant’s
attorney was
“lying” is most unfortunate. It displays a lack of
courtesy that is required from a judge in the
execution of his
judicial duties, no matter how trying the circumstances are.
There
can be no question that the judge was irritated by the conduct of
the applicant’s attorney. Rightly so, given his
disregard of
the rules. Bearing in mind that there is no suggestion that the
applicant himself was responsible for this, it
is understandable
that he may have formed a subjective impression that the judge was
biased against him. In the end, although
this case comes close to
satisfying the reasonable apprehension of bias test, considering
all the factors, it falls short of
dislodging the presumption of
impartiality. In the circumstances, the appeal founded on bias
cannot succeed.
In
any event, the application to stay the taxation has become moot
since the bill of costs has already been taxed. The taxation
took
place on or about 22 September 2010. Counsel for the applicant
confirmed in oral argument that the execution of the taxed
bill has
not yet taken place. In the circumstances, the applicant will
still have other avenues to pursue in this regard.
In the event
that the taxed bill of costs should be executed, it would be within
his right to launch an application in the
High Court, in order to
stay the execution of the bill of costs.
Competency
of the costs order
The
only remaining issue relates to the unusual costs order the High
Court awarded in this case. As the appropriateness of
the costs
order has been put before this Court by the applicant, it is
apposite to consider whether or not the costs order
was properly
granted.
This
Court will be at large to determine the issue of costs if there are
misdirections in the reasoning leading to the costs
award. In my
view there are two misdirections. The first is connected to bias.
As I have already indicated, the judge in
the High Court took the
view that the application for his recusal was an attempt at
bullying the judge. Nothing in the record
justifies this
conclusion; a conclusion which could well be detrimental to the
achievement of justice because it could have
the chilling effect of
precluding applicants from bringing applications for recusal even
where an application of this kind
would be wholly justified.
The
second misdirection is that, in determining the costs order, the
judge took into account the fact that the attorney for
the
applicant provided legal representation to his client in
circumstances where previous costs orders made against the
applicant had not been paid. There is simply no warrant for this
approach and, as I understand the ethics of the legal profession,
attorneys are ordinarily obliged to provide legal representation to
any client who is prepared to remunerate them regardless
of the
status of the client concerned or the nature of the case to be
presented. It is not acceptable to take into account
against an
attorney something which he or she has done that is wholly in
accord with the oath of practice.
In
these circumstances, this Court is entitled to interfere with the
costs order.
The
basic rule on costs is that all costs, unless otherwise enacted,
are within the discretion of the judge, and the discretion
must be
judicially exercised.
27
Factors that would have a bearing on whether a successful litigant
would be entitled to costs include the following: the conduct
of
the parties, the conduct of the legal representatives, whether a
party has had only technical success and the nature of
the
proceedings.
28
Costs
from the attorney’s own pocket (de bonis propriis)
Although
the courts have the power to award costs from a legal
practitioner’s own pocket, costs will only be awarded on
this
basis where a practioner has acted inappropriately in a reasonably
egregious manner.
29
However, there does not appear to be a set threshold where an
exact standard of conduct will warrant this award of costs.
Generally, it remains within judicial discretion.
30
Conduct seen as unreasonable, wilfully disruptive or negligent may
constitute conduct that may attract an order of costs
de bonis
propriis
.
31
Punitive
costs have been granted when a practioner instituted proceedings in
a haphazard manner;
32
wilfully ignored court procedure or rules;
33
presented a case in a misleading manner;
34
and forwarded an application that was plainly misconceived and
frivolous.
35
The
basic rule relating to the court’s discretion is as relevant
to the award of costs
de bonis propriis
as it is in other
costs awards. Extending from this discretion, it appears the
assessment of the gravity of the attorney’s
conduct is an
objective assessment that lies within the discretion of a court
making the award.
A
costs order
de bonis propriis
as surety for costs ordered on
an attorney and own client scale is undoubtedly a particularly
unusual order. Counsel for either
party was unable to refer us to
any reported authority where these orders have been granted. Nor
have I been able to find
such authority.
The
conduct of the applicant’s attorney justifies an award of
costs from
his own pocket. This includes: the failure to
launch the urgent application expeditiously; the delay in the
service of the
application papers on the first respondent; the
failure to comply with court procedures and rules for moving an
urgent application,
including failing to index and paginate court
papers; and the attempt to enrol the application outside normal
court hours without
complying with the rules.
However,
my difficulty with the costs order the High Court awarded relates
to the paucity of improper conduct ascribed to the
applicant –
as opposed to his attorney – in the judgment, in order to
justify the award of punitive costs on an
attorney and own client
scale. The applicant, although unsuccessful, was entitled to bring
an application to the court, and
litigants should not fear punitive
costs orders when attempting to vindicate their rights.
It
seems it would not be unreasonable that a judge would consider that
the aforestated conduct constitutes egregious misconduct
on the
part of the practitioner. As already alluded to when discussing
the reasons advanced by the judge, it is apparent that
the judge
held an objective view that there were grounds to order the
applicant’s attorney to pay costs out of his pocket,
which
ignited the basic rule and, according to that discretion, it was an
appropriate order to grant.
The
judge did not attribute to the applicant any unbecoming conduct
apart from the numerous cases the applicant had instituted
in the
past against the first respondent. In these circumstances, there
appears to be no basis upon which the court’s
displeasure
with the applicant’s attorney would warrant a punitive costs
order against the applicant.
In
all the circumstances, it would be appropriate to correct the costs
order granted on 28 May 2009. Given the court’s
displeasure
with the remissness on the part of the applicant’s attorney,
I would set aside the costs order, and substitute
it with one that
grants costs from the applicant’s attorney’s own pocket
on a party and party scale.
It
follows that the portion of the order of the High Court
36
directing that the applicant may not proceed with any further
litigation against the first respondent before paying the costs
of
the two applications that had been considered by the High Court
must fall away.
Costs
in this Court
The
applicant has enjoyed partial success. He has succeeded in setting
aside the costs order against him in the High Court.
Although he
was entitled to approach this Court, his appeal founded on bias has
not succeeded. In the circumstances, it is
equitable to require
the parties to pay their own costs in this Court.
Order
The
following order is made:
The
application to amend the form of relief sought is granted.
Leave
to appeal is granted.
The
appeal succeeds to the extent that the order of the North Gauteng
High
Court,
dated 28 May 2009, is set aside and replaced with the following:
“
1.
The application to stay the taxation of the costs order in matter
32237/2002
is dismissed.
2.
The applicant’s attorney is to pay from his own pocket the
costs of
this
application and the costs of the application for the judge’s
recusal,
on the party and party scale.”
There
is no order as to costs in this Court.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Mogoeng J, Mthiyane AJ, Nkabinde J,
Van der Westhuizen J and Yacoob J concur in the
judgment of Khampepe J.
For
the Applicant:
....................
Adv I
Moosa, instructed by Carls
.
Attorneys.
For
the First Respondent:
........
Adv O
Salmon, instructed by Edward
Nathan
Sonnenbergs.
1
Arnold Michael Stainbank v South African Apartheid Museum at
Freedom Park and Another
, North Gauteng High Court, Pretoria,
Case No 5752/09, 28 May 2009, unreported. In this Court, the
applicant originally sought
an order in the following terms:
“
1. THAT it
is declared that the entire proceedings in the North Gauteng High
Court constituted before a single judge, namely Mr
Acting Justice
Ebersohn (‘the acting judge’) in case number 5752 / 09
be and are hereby vitiated as being null, void
and of no force and
effect whatsoever.
2. THAT it is
directed that case number 5752 / 09 in the North Gauteng High Court
be referred to that Court for re-hearing before
a Judge other than
the acting Judge.
3. THAT the costs
of this application be and are hereby included as part of the costs
of the re-hearing referred to in paragraph
2 hereinabove.
4. THAT this Court
grants such further, other and/or alternative directions and/or
relief as to it seems meet.”
2
The recusal application was dismissed in an
ex tempore
(extemporaneously) judgment delivered on 6 February 2009.
3
The trade mark case was launched in September 2002 and registered
under Case No 26295/02 in the North Gauteng High Court, Pretoria.
4
A Class 41 trade mark is a trade mark in respect
of the services of “[e]ducation; providing of training;
entertainment;
sporting and cultural activities” in terms of
Schedule 3 to the Trade Mark Regulations published
in
Government Gazette
16373
GN R578, 21 April 1995, as amended by
Government
Gazette
23116 GN 211, 15 February 2002
and published under the
Trade Marks Act
194 of 1993
.
5
In those proceedings under Case No 32237/02, Southwood J, having
expunged the applicant’s Class 41 registration, granted
the
following order:
“
(i) The
second respondent [the Registrar of Trade Marks] is ordered to
rectify the register of trade marks by deleting therefrom
the trade
mark no. B1990/03560 ‘THE APARTHEID MUSEUM’ in the name
of the first respondent.
(ii) The first
respondent is ordered to pay the costs of the application. These
costs shall include the applicant’s costs
of the postponement
on 14 May 2003 which are to be taxed on the scale as between
attorney and own client.”
6
A
Class 35 trade mark
is a trade mark in respect of
“[a]dvertising; business management; business administration;
office functions; offering for
sale and the sale of goods in the
retail and wholesale trade” in terms of Schedule 3 to the
Trade Mark Regulations published
in
Government Gazette
16373
GN R578, 21 April 1995, as amended by
Government
Gazette
23116 GN 211, 15 February 2002
and published under the
Trade Marks Act
194 of 1993
.
7
Brought under Case No 08/10152.
8
See below.
9
The taxation was initially set down on 5 May 2008
and thereafter on 22 September 2008.
10
The question relating to the existence or otherwise of the agreement
between the parties is indeed part of the “perpetual
silence”
dispute.
11
This
ex tempore
judgment is quoted in full in the judgment
delivered in the application for leave to appeal: See
Arnold
Michael Stainbank v South African Apartheid Museum at Freedom Park
and Another
, North Gauteng High Court, Pretoria, Case No
5752/09, 3 March 2010, unreported at para 35.
12
Above n 1 at para 20
.
13
Id at
para 18.
14
Id. The Court held at para 10:
“
It is clear
that [the applicant’s attorney], over a number of days,
contemplated and was preparing the application and he
deposed to his
supporting affidavit on the 4th February 2009 and apparently
deliberately delayed the serving of the papers on
the first
respondent until 12:30 on the 5
th
February 2009,
virtually giving the first respondent no time to file answering
papers. The urgent roll is also planned by the
presiding judge so
as to take into consideration the personal circumstances of the
court staff, many of whom are dependent on
bus transport.
Inexperience was advanced as reason for [the applicant’s
attorney’s] conduct but when taxed on this
he disclosed that
he has been practising for 22 years.”
15
The order currently prayed for by the applicant reads:
“
Delete
paragraphs 1, 2, 3 and 4 of the ‘Order Prayed’
in
toto
and substitute the following therefore:
THAT this
Applicant be and is hereby granted leave to appeal to this Court on
the constitutional matter raised by him, to wit
that the entire
proceedings including but not limited to the whole of the judgment
and the orders pursuant thereto handed down
on or about the 28
th
day of March 2009 and the 3
rd
day of March 2010
respectively by the North Gauteng High Court constituted before a
single judge, namely Mr Acting Justice
Ebersohn (‘the acting
judge’) in case number 5752/09 falls to be vitiated due to
their being tainted by bias
alternatively
a reasonable
apprehension of bias, such leave to appeal having previously been
refused by the court
a quo
, i.e. the Supreme Court of Appeal
and by the acting Judge.
THAT the costs of
this application be and are hereby included as part of the costs of
the appeal.
THAT this Court
grants such further, other and/or alternative directions and/or
relief as to it seems meet.”
16
Brian Patrick De Lacy and Another v South African Post Office
[2011]
ZACC 17
; Case No CCT 24/10, 24 May 2011, as yet unreported (
De
Lacy
) at paras 47-9;
Bernert v Absa Bank
Ltd
[2010] ZACC 28
;
2011 (3) SA
92
(CC);
2011 (4) BCLR 329
(CC)
(
Bernert
)
at para
18;
S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) (
Basson
I
) at paras 21-2; and
S v Basson
[2005] ZACC 10
;
2007 (3)
SA 582
(CC);
2005 (12) BCLR 1192
(CC) (
Basson II)
at paras
24-5.
See also
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[1998] ZACC 21
;
1999
(2) SA 14
(CC);
1999 (2) BCLR 175
(CC) (
SARFU
II
).
17
Section 167(3)(b) of the Constitution states:
“
(3) The
Constitutional Court—
. . .
(b) may decide only
constitutional matters, and issues connected with decisions on
constitutional matters”.
18
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4)
BCLR 442
(CC) at para 29;
Fourie and Another v Minister of Home
Affairs and Another
[2003] ZACC 11
;
2003 (5) SA 301
(CC);
2003
(10) BCLR 1092
(CC) at paras 10-2;
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at
para 14; and
Fraser v Naude and Another
[1998] ZACC 13
;
1999
(1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7.
19
The Chief Justice issued Directions on 6 September 2010 in order to
help clarify the issues before the Court:
“
Written
argument must also deal with the merits of both the application for
direct access and the application for leave to appeal
so that the
merits could be determined by this Court in the event of either
application being granted and must deal with the
following issues—
(a) whether this
case raises a constitutional matter;
(b) whether it is
in the interests of justice for this Court to grant leave to appeal;
(c) whether the
applicant has made out a case for the reasonable apprehension of
bias;
(d) the competency
of the costs order awarded by the High Court; and
(e) costs in this
Court.”
20
South African Commercial Catering and Allied Workers Union and
Others v Irvin & Johnson Ltd
(
Seafoods Division Fish
Processing
)
(
SACCAWU
)
[2000] ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC)
at paras 13-4.
21
Id at para 12.
22
Id. See also
Bernert
above n 16 at para 33.
23
Bernert
above
n
16
at para 87 and
Basson
II
above
n 16
at
para 36.
24
Basson II
above n 16 at para 42.
25
See below.
26
See “North Gauteng: Practice Directions” in Erasmus et
al (eds)
Superior Court Practice
(Juta, Cape Town 2009) at
D5-25 — D5-28.
27
Kruger Bros. & Wasserman v. Ruskin
1918 AD 63
at 69—
“
the rule of
our law is that all costs — unless expressly otherwise enacted
— are in the discretion of the Judge.
His discretion must be
judicially exercised; but it cannot be challenged, taken alone and
apart from the main order, without
his permission.”
I
should note that at present our understanding of judicious behaviour
revolves around whether a judge brought an unbiased mind
to the
proceedings. I am not prepared to stray from the arguments of the
parties to consider whether there may be other forms
of injudicious
behaviour within the wording conceived by
Kruger.
It may be,
in future, something that will be considered by this Court.
28
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR
441
(CC) at para 3.
29
De Lacy
above n 16 at paras 115-8;
Baphalane
Ba Ramokoka Community v Mphela Family and Others, In re: Mphela
Family and Others v Haakdoornbult Boerdery CC and Others
[2011] ZACC 15
; Case No CCT 75/10, 21 April 2011, as yet unreported
at para 42;
South African Liquor Traders’
Association and Others v Chairperson, Gauteng Liquor Board and
Others
[2006] ZACC 7
;
2009 (1) SA 565
(CC);
2006 (8) BCLR 901
(CC)
at paras 47-9; and
Thunder Cats
Investments 49 (Pty) Ltd and Others v Fenton and Others
2009 (4)
SA 138
(C) at paras 25 and 34.
30
Above n 27.
31
See
Vermaak’s Executor v. Vermaak’s Heirs.
1909
TS 679
at 691.
32
Khan v Mzovuyo Investments (Pty) Ltd
1991 (3) SA 47
(Tk) at
48G-I.
33
Makuwa v Poslson
2007 (3) SA 84
(TPD) at para 14 and
Darries
v Sheriff, Magistrates’ Court, Wynberg, and Another
1998
(3) SA 34
(SCA) at 44D-45B.
34
Washaya v Washaya
1990 (4) SA 41
(ZH) at 45G-46B.
35
Road Accident Fund v Le Roux
2002 (1) SA 751
(WLD) at 754H-755A.
36
See above.