Bailey and Others v Botshelo Water Board and Another (2554/2009) [2011] ZANWHC 59 (22 September 2011)

Bailey and Others v Botshelo Water Board and Another (2554/2009) [2011] ZANWHC 59 (22 September 2011)

The court found that the applicants had made out a good case for condonation, as their attorney's advice was based on an existing decision of the division at the time, and the relevant judgment had not yet been delivered. However, the applicants' conduct in pursuing abortive proceedings and their delay in bringing the application for condonation warranted a costs order against them. The applicants were successful in obtaining condonation, but their dilatoriness and the attempt to bypass the appeal route justified an adverse costs order, including the costs of two counsels for the main prayer and costs on condonation.

Citation
[2011] ZANWHC 59
Parties
Applicant: Malcolm Desmond Bailey; Applicant: Simon Monnapula Gaborone; Applicant: Gift Mpatlisang Lobelo; Applicant: Samuel Otla Manganyi; Applicant: Gwendoline Mosetsana Mothiba; Applicant: Joseph Mosiapitso Kotlhai; Applicant: Raymundo Laureles; Respondent: Botshelo Water Board; Respondent: Minister of Water Affairs & Environmental Affairs
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
22 September 2011
Case Number
2554/2009
Procedural Posture
Civil Application / Application for Condonation and Costs Following Special Plea and Exception
Outcome
Condonation granted; applicants ordered to pay costs on both the main prayer and condonation, including costs of two counsels.
Judges
GURA
Legal Topics
Condonation, Institution of Legal Proceedings Against Organs of State Act, Special Plea, Costs Award, Res Judicata
Civil Procedure Administrative Law Condonation Institution of Legal Proceedings Against Organs of State Act Special Plea Costs Award Res Judicata

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Parties

Malcolm Desmond Bailey

Applicant

Simon Monnapula Gaborone

Applicant

Gift Mpatlisang Lobelo

Applicant

Samuel Otla Manganyi

Applicant

Gwendoline Mosetsana Mothiba

Applicant

Joseph Mosiapitso Kotlhai

Applicant

Raymundo Laureles

Applicant

Botshelo Water Board

Respondent

Minister of Water Affairs & Environmental Affairs

Respondent

Procedural Posture

Civil Application / Application for Condonation and Costs Following Special Plea and Exception

Legal Issues

  1. 1 Whether the applicants are entitled to condonation for failure to serve notice in terms of section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act.
  2. 2 Who should bear the costs of the application.

Ratio Decidendi

The court found that the applicants had made out a good case for condonation, as their attorney's advice was based on an existing decision of the division at the time, and the relevant judgment had not yet been delivered. However, the applicants' conduct in pursuing abortive proceedings and their delay in bringing the application for condonation warranted a costs order against them. The applicants were successful in obtaining condonation, but their dilatoriness and the attempt to bypass the appeal route justified an adverse costs order, including the costs of two counsels for the main prayer and costs on condonation.

Court Disposition

Condonation granted; applicants ordered to pay costs on both the main prayer and condonation, including costs of two counsels.

Orders

  • Condonation is granted in line with paragraph 2.1 of the Notice of Motion.
  • The applicants are ordered to pay costs on the scale as between party and party, jointly and severally; such costs to include the costs of two counsels for the main prayer.