Bongo Safaris (Pty) Ltd and Others v Minister of Rural Development and Land Reform and Others (LCC 250/2009) [2010] ZALCC 11 (5 May 2010)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

IN RANDBURG

Case Number: LCC250/2009

DECIDED: 5 May 2010

In the matter between:

BONGO SAFARIS (PTY) LTD First Applicant

THABANA SAFARIS (PTY) LTD Second Applicant

ENGELZAKIS & SWART FARMS PTY LTD Third Applicant

and

MINISTER

OF RURAL DEVELOPMENT AND

LAND REFORM First Respondent

THE DIRECTOR-GENERAL OF THE DEPARTMENT

OF

RURAL DEVELOPMENT AND LAND REFORM Second Respondent

THE CHIEF LAND CLAIMS COMMISSIONER Third Respondent

THE REGIONAL LAND CLAIMS COMMISSIONER:

GAUTENG & NORTH WEST PROVINCE Fourth Respondent

THE DEPUTY DIRECTOR: FINANCE,

DEPARTMENT

OF RURAL DEVELOPMENT

AND LAND REFORM Fifth Respondent

THE MINISTER OF FINANCE Sixth Respondent

THE REGISTRAR OF DEEDS, PRETORIA Seventh Respondent

TSHWANE

COMMUNAL PROPERTY ASSOCIATION Eighth Respondent

(REGISTRATION NUMBER CPA/07/1050A)

JUDGEMENT

MIA AJ:

[1] An application for a final date in the present matter was brought to this Court. The application indicated that the dates for notice of appearance by the respondents had expired and the respondents had failed to file a notice of appearance. The 30 April 2010 was allocated to this matter. The registrar was informed on the eve of the above date that the matter was settled with regard to prayers 1-5 and the parties only wished to address the Court on the question of costs.

[2] Mr. Havenga appeared for the applicant herein. He informed the Court that this matter was in the process of settlement negotiations of which he had just become aware and that the respondents had complied with prayers 1 and 2 of the relief requested in the notice of motion. He informed the Court further that the respondents had also agreed to prayers 3, 4, 5 but not to costs. Mr. Havenga submitted that the applicant was forced to approach this court for the relief requested in light of the respondents’ correspondence that there were no funds available and the indications by the State that it would pay once there was a court order. He submitted that the applicants were entitled to approach this Court for relief in the light of the respondent’s default and submitted that the applicants ought not to be out of pocket as a result of such default. Mr. Havenga requested costs on a punitive scale. The agreement did not make provision for costs on an attorney client scale.

[3] Mr. Ncongwane for the respondent submits that the money which covers the costs orders comes from public funds which should used efficiently. He submitted that the fourth respondents had indicated early on after the signing of the contract was completed that there were no funds to satisfy the respondent’s obligations in terms of the agreement. Further that the respondents were not able to indicate when funds would become available. He submitted that the respondents had already agreed to the order with regard to interest which served as a punitive measure and that an order as to costs on an attorney client scale or a part and party scale would serve as an extra punitive measure. He requested the court to weigh this up against the limited State resources.

[4] Mr. Ncongwane confirmed that the respondents had no difficulty with the Court noting that prayers 1 and 2 were complied with and an order per prayers 3, 4, 5. The result is that the applicant’s application is unopposed except with regard to costs.

[5] The respondent’s inability to pay and the silence about the matter other than to indicate that there are no funds causes unnecessary apprehension and anxiety to owners of land who have concluded enforceable contracts.

[6] In matters such as the present the conclusion of sale agreements creates expectations and obligations between the parties. The delay due to lack of funds or for any other reason must be addressed timeously and appropriately without prejudicing any of the parties to the contract. No explanation has been given to date why contracts such as the one which is the subject of the present matter are concluded without ensuring that there are funds to satisfy such agreements. In the event of a default the applicants are entitled to seek relief. In the present matter there is no opposition to the relief requested except with regard to costs.

[7] The two general rules with regard to costs are that the court has a discretion with regard to costs and that costs generally follow the event. The purpose of the award of costs is to indemnify the applicant. Innes CJ stated the reasoning as follows;1

“costs are awarded to a successful party in order to indemnify him for the expense to which he has been put through having been unjustly compelled either to initiate or to defend litigation, as the case may be. Owing to the necessary operation of taxation, such an award is seldom a complete indemnity; but that does not affect the principle on which it is based”

[8] The respondent’s default on the sale agreement and the failure to respond to the correspondence sent by the applicant’s attorney herein has resulted in the launch of the application to ensure compliance with the agreement. In Trustees for the Time Being of the Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14, the learned Judge said

“particularly powerful reasons must exist for a court not to award costs against the state in favour of a private litigant who achieves substantial success in proceedings brought against it”.2

[7] The delays in the fourth respondent accessing the funds required to meet their obligations resulted in the applicants being forced to approach this Court to enforce the agreement concluded. The fourth respondent’s conduct has attracted a costs order. The applicants requested a costs order on an attorney client scale. This court has heard in a number of matters that funds allocated for the purchase of land to satisfy land claims has been exhausted. No further explanations are given in this regard. However I can find no malicious or vexatious conduct on the part of the respondents which would justify a punitive costs order and I am not convinced that the present matter merits such a punitive costs order.

___

SC Mia

Acting Judge

Land Claims Court

APPEARANCES

For the Applicant

Advocate H Havenga SC

Instructed by Stan Fanaroff & Associates (Rosebank)

For the Respondents

Advocate T Ncongwane

Instructed by State Attorney (Pretoria)

1 Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488

2 Paragraph 24 .

2 Paragraph 24

.

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