AGRICOM Co-op Ltd v ME Cilliers (2126/2019) [2021] ZAFSHC 63 (17 March 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE

STATE PROVINCIAL DIVISION

Case No.: 2126/2019

In the matter between:

AGRI-COM CO-OPERATIVE LIMITED

Applicant[1]

and

MARIA

ELIZABETH CILLIERS

Respondent[2]

IN RE

MARIA

ELIZABETH

CILLIERS

Plaintiff

AGRI-COM CO-OPERATIVE LIMITED

1st Defendant

JAN

ADRIAAN

DAVEL

2nd Defendant

Coram: Opperman, J

Date of hearing: 12 March 2021

Delivered: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and released to SAFLII on 17 March 2021. The date and time for hand-down is deemed to be 17 March 2021 at 15h00.

Summary: Leave to appeal – costs order

JUDGMENT

INTRODUCTION

[1] Agri-Com takes issue with the Costs Order in that the scale of the Regional Court was ordered to be applied. I ordered that the costs be costs in the cause meaning that the unsuccessful party; Cilliers, has to carry the costs.[3] I quote: “I therefore order that the Plaintiff shall carry the costs for the litigation and that it be calculated on the scale as per the Regional Court.”

[2] The matter was a trial for the determination of the terms of an oral contract. The case turned on a factual dispute. An Application for Summary Judgement against Agri-Com[4] became opposed in the motion court on Thursday, 4 July 2019. Leave was granted to Agri-Com to defend the action and costs of the application for the summary judgment was ordered to be costs in the cause. The application was for:

1. Payment of the amount of R213 545.58;

2. Interest on R213 545.58 calculated at 10,25% per year from 30 June 2017 up to date; both days included; and

3. Costs.

[3] I found as follows:

IV Conclusion; What may be included in the contract.

The case of the Plaintiff lacks credibility and reliability. The probabilities do not support her case. Numerous core contradictions with the proven reality trips her case. The calibre of her evidence is poor and vague. The documentary evidence that was placed before the court supports the case of the 1st Defendant in some instances and is of no use whatsoever in other instances. In the assessment of the case as a whole; in its totality, the Plaintiff, burdened with the onus of proof, has failed. As was eloquently put in Body Corporate of Dumbarton Oaks v Faiga [1998] ZASCA 101; 1999 (1) SA 975 (SCA) at 979J:

“The Judge's failure to decide the case without regard to the wider probabilities is a clear misdirection and entitle us to

reassess Mrs Shiloane's evidence. It was also wrong of the Judge to consider that a non-acceptance of her evidence of necessity requires a finding that she is a deliberate liar and perjurer (at 661B--C). That is an emotional approach. In a civil trial the question is whether her evidence is, on the probabilities, correct. Few witnesses whose evidence is not accepted can be described as deliberate liars and perjurers.”

The probabilities when all the factors were equipoised, cause but one ruling and that is the failure of the Plaintiff’s case.

V Costs

This brings me to the aspect of costs. There was not any reason placed before this court as to why a High Court had to be seized with this case. It could have been resolved with due expediency and expertise in the Regional Court. I therefore order that the Plaintiff shall carry the costs for the litigation and that it be calculated on the scale as per the Regional Court.

THE

APPLICATION FOR LEAVE TO APPEAL

[4] The right to appeal is, among others, managed by the application for leave to appeal. It may not be abused but the hurdle of an application for leave to appeal may never become an obstacle to justice in the post-constitutional era. The Superior Courts Act 10 of 2013 regulates the adjudication for leave to appeal specifically. The interpretation of the legislative test evolved in case law.

[5] Historically the rule was: “In that reasonable prospects exists that another Court, sitting as the Court of Appeal, would come to different findings and conclusions on the facts and the law.” It is being worded differently in The Superior Courts Act 10 of 2013 per section 17(1) to read:

(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 a 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 on 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 the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

(2) (a) Leave to appeal may be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or judges of the same court or Division.

[6] In Shinga v The State & Another (Society of Advocates (Pietermaritzburg Bar intervening as Amicus Curiae); S v O’Connell & Others 2007 (2) SACR 28 (CC) at [53] it was held that applications for leave to appeal is a judicial task of some delicacy and expertise. This task requires a careful analysis of both the facts and the law that provided the basis for the judgement. Presiding officers should approach the question whether another court may reach a different conclusion with “intellectual humility and integrity, neither over-zealously endorsing the ineluctable correctness of the decision that has been reached, nor overanxiously referring decisions that are indubitably correct to an appellate Court.”

[7] In S v Smith 2012 (1) SACR 567 (SCA) the court laid down the approach to an application for leave to appeal as follows:

What the test of reasonable prospects of success postulates is 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. 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. (Accentuation added)

[8] With reference to the Smith-case Schippers AJA in MEC Health, Eastern Cape v Mkhitha (2016) ZASCA 176 (25 November 2016); JDR 2214 SCA noted that:

“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.” (Accentuation added)

[9] The Supreme Court of Appeal in Four Wheel Drive CC v Leshni Rattan NO (1048/17) [2018] ZASCA 124 (26 September 2018) at paragraph [34] reiterated that the Court a quo must be sure that the outcome of the case will be different on appeal; not that the Court sitting on appeal will have a different opinion or would have handled or reasoned the case differently. Not all mistakes or irregularities will end in a different outcome. The parties must not be put through the inconvenience and expense of an appeal if the outcome will be no different. (Accentuation added)

THE ISSUE OF A COSTS

ORDER

[10] That the Application is against the Costs Order also brings another dimension to the case when evaluating the Application for Leave to Appeal.

[11] The order in casu is clear; “Costs to be costs in the cause and to be calculated on the scale as legislatively prescribed in the Regional Court.”

Meaning that the unsuccessful party must pay the costs. This was clearly stated in: “I therefore order that the Plaintiff shall carry the costs for the litigation and that it be calculated on the scale as per the Regional Court.” There can be no misunderstanding.

[12] It is trite that the Supreme Court of Appeal does not entertain costs-appeals as a rule. Cilliers[5] lamented with reference to the Shembe-case[6] that the Supreme Court of Appeal could see no reason why the discretion of the trial court in regard to no Costs Order warranted

interference on appeal. The trial court did not fully motivate why it came to the decision not to make any Costs Orders. The effect of this was that each party had to pay its own costs. However, it seemed clear from the approach of the trial court as a whole that it felt that the appellants prevailed in some applications and the respondent in others. (Accentuation added)

[13] In casu, both parties caused the litigation. I made my dissatisfaction clear during the judgment a quo in the sense that if they acted more responsible when they negotiated the agreement the litigation would not have happened. To add insult to injury they dragged the case to the High Court for R213 545.58 and the issues are straightforward. The Plaintiff issued summons here and the Defendant simply went along with it. It is trite that the High Court rolls are unnecessary burdened with cases that belong in the Lower Courts. All legal practitioners must be vigilant to the fact that access to justice is tripped because cases end up in unsuitable forums with severe financial implications for their clients. Section 34 of the Constitution of the Republic of South Africa, 1996 that guarantees access to courts, is affected because court rolls are burdened with cases that belongs in other, more financially and logistically suitable courts.

[14] The parties agreed for the matter to be finally adjudicated on the Heads of Argument. This I did. With the luxury of hindsight, I should have observed the audi alteram partem rule and gave the parties the opportunity to make submissions on costs. I acknowledge this as an oversight but one that is not fatal to the extent that the matter must be send on appeal; the fact remains that both parties litigated the case in the High Court for R213 545.58 and the issues are straightforward; no argument would have changed the outcome.

[15] Counsel for Agri-Com held that in four instances it might be considered that a Court of first instance did not exercise her power on costs judicially. These are when the decision was capriciously exercised, it was exercised on the wrong principle, when she did not bring an unbiased judgment to bear on the question and she did not act for substantial reasons. The court ruled in favour of Agri-Com on the merits and without bias, but pondered their undisputed conduct that led to the quarrel and noted that:

[17] The sloppy and haphazard manner in which Agri-Com conducted their business reflects in the documents that were handed in by the Plaintiff. The standard of the documents that were produced is most disturbing. These are a slapdash number of illegible handwritten notes that can be open to many interpretations that must now be interpreted in search for the truth. It purports to be the contracts that entails hundreds of thousands of Rands. If my interpretation of the business is correct, Agri-Com handled Landbank-monies to the sums that at least deserves a properly drafted contract. They now want for the justice system to solve their issues whereas they, as established experienced and highly educated business women and men could have done it with the application of basic professionalism and work ethic. They will now have to bear the consequences of their deeds and may not blame the justice system if the outcome does not suit them. (Accentuation added)

[16] The above shows that the matter has been extensively pondered and justified, the principle is sound and for substantial reasons. Courts should be more vigilant to castigate parties that uses a forum that is not suited to the case. The burden on the justice system is mammoth. Officers of the court must carry their duty to serve the administration of justice with more diligence and ensure that the more appropriate courts are used.

[17] Counsel for Cilliers correctly pointed out that it is trite that costs resorts in the discretion of the Court and there are more and more decisions granting costs on a Lower Court scale where the amount sued upon in the High Court is within the jurisdiction of such Lower Court. It is common knowledge among Counsel that litigate regularly in this Division.

[18] Cilliers[7], summarized what is understood to be the guiding principles with reference to case law:

(a) The court’s overriding objective in considering costs is, as in everything else, to do justice between the parties;

(b) In many cases, that objective will be fulfilled by making an award of costs in favour of the “winning” party, where a “winner” is readily apparent. In any event, the “follow the event” rule can still be a useful starting point.

(c) It is a mistake, however, to strain overmuch to try to label one party as the “winner” and one the “loser” when the complexity or other circumstances of the litigation do not readily lend themselves to analysis in these terms.

(d) The discretion should be exercised judicially and broadly in accordance with the guiding principles.

(e) It is, accordingly, open to the court to have regard to any and all considerations that may have any bearing on the overriding objective of doing justice. Its task is to take an overview of the case as a whole.

(f) Even though a party would otherwise be regarded as having been “successful”, justice may require that costs should not automatically follow the event. (Accentuation added)

[19] The above proves that there are exceptions to the general rules and that in the post-constitutional era, where more emphasis is placed on case-flow management and access to courts, there is serious doubt as to the value as a general rule that the “winner takes it all”. Moreover, the adherence to outdated norms might result in “a tendency to resort to the general rule almost as a rule of thumb, in spite of the equities of the particular case.”[8] Costs is not just there for the taking; costs serve a purpose as was outlined above. After pondering the facts of the case as a whole and to serve justice I had to ensure healthier constitutional litigation that serves justice in all its facets.

CONCLUSION

[20] I adjudicated the Application for Leave to Appeal on the basis that there must truly (MEC Health, Eastern Cape v Mkhitha (2016) ZASCA 176 supra) be a sound, rational basis for the conclusion that there are prospects of success on appeal and another court would come to another conclusion and must deny the Application.

[21]

ORDER

The Application for Leave to Appeal against the Costs Order is dismissed with costs.

_____

M OPPERMAN, J

APPEARANCES

Counsel for the Applicant

Advocate

Henri Benade

Chambers, Bloemfontein

Instructed by L Strating

Symington & De Kok

Attorney for 1st Defendant

169B Nelson Mandela Drive

Bloemfontein

Ref: FKA0019

Counsel for Respondent

Advocate P.J. Heymans

Instructed by Etienne Visser Attorneys

Attorney for Plaintiff

Langebaan Building

Barnes Street

Westdene

Email:evisser@bloemlaw.co.za

Ref: EC/JG/BC2197

[1] “Agri-Com”.

[2] “Cilliers”.

[3] Beverly Shiells, The impasse of reserved costs – the winning party does not take it all, De Rebus 2018 (March) DR 31.

[4] The application for Summary Judgment was not against Davel; only against Agri-Com.

[5] Law of Costs, Last Updated: October 2020 - SI 42, https://www.mylexisnexis.co.za/Index.aspx on 12 March 2021 at Chapter 14: 14.04.

[6] [2019] JOL 46387 (SCA) at paragraph [37].

[7] Discussed in Cilliers supra at “1.03 What is the purpose of an award of costs?”.

[8] Cilliers supra.