Commission on Restitution of Land Rights and Others v Koedesrivier Boedery (Pty) Ltd and Others; In re: Koedesrivier Boedery (Pty) Ltd and Others v Commission on Restitution of Land Rights and Others (123A/2014) [2015] ZALCC 5 (26 May 2015)
The court found that the applicants attended court on 10 April 2015 not because they were legally obliged to do so, but out of an abundance of caution and on instruction from their attorneys. There was no formal notice of set down delivered by the respondent, and the applicants' attendance was based on a perceived...
Source-derived case information.
- Citation
- [2015] ZALCC 5
- Parties
- Applicant: Commission on Restitution of Land Rights, and Two Others; Respondent: Koedoesrivier Boerdery (Pty) Ltd
- Court
- Land Claims Court
- Jurisdiction
- South Africa
- Case Number
- 123A/2014
- Procedural Posture
- Costs Application / Application for Wasted Costs Following Non Appearance at Scheduled Hearing
- Outcome
- Application for payment of wasted costs is dismissed. No order as to costs.
- Judges
- M J Mpshe
- Legal Topics
- Costs Award, Notice of Set Down, Wasted Costs, Court Attendance, Risk of Nonappearance
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commission on Restitution of Land Rights, and Two Others
Applicant
Koedoesrivier Boerdery (Pty) Ltd
Respondent
Procedural Posture
Costs Application / Application for Wasted Costs Following Non Appearance at Scheduled Hearing
Legal Issues
- 1 Whether the applicant is entitled to wasted costs for attending court when the matter was not formally set down.
- 2 Whether attendance ex abundanti cautela justifies a costs award in the absence of a legal obligation to appear.
- 3 Whether the failure to deliver a notice of set down by the opposing party constitutes grounds for a costs order.
Ratio Decidendi
The court found that the applicants attended court on 10 April 2015 not because they were legally obliged to do so, but out of an abundance of caution and on instruction from their attorneys. There was no formal notice of set down delivered by the respondent, and the applicants' attendance was based on a perceived risk rather than a procedural requirement. The court held that costs are intended to indemnify parties for expenses incurred due to unjust litigation, not for voluntary actions taken to avoid risk. Since the applicants were not compelled by law or procedure to attend, and their attendance was not necessitated by any default of the respondent, the application for wasted costs...
Court Disposition
Application for payment of wasted costs is dismissed. No order as to costs.
Orders
- Application for payment of wasted costs is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
54 paragraphs
IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE NO: 123A/2014
Before: The Honourable Mpshe AJ
Heard on: …22.04.15…………
Delivered on: …26.05.15……
In the matter between:
THE COMMISSION ON RESTITUTION
OF LAND RIGHTS, AND TWO OTHERS
First Applicant
and
KOEDESRIVIER BOERDERY (PTY) LTD
First Respondent
[Registration No: 19961015253/07]
AND SIX OTHERS
In re:
KOEDERSRIVIER BOERDERY (PTY) LTD
First Applicant
[Registration No: 19961015353/07]
AND TWO OTHERS
OF LAND RIGHTS, AND SIX OTHERS
First Respondent
JUDGEMENT
INTRODUCTION
1. This is an application for costs allegedly incurred on 10 April 2015.
BACKGROUND
2. The applicant is Koedoesrivier Boerdery (Pty) Ltd, a company duly registered in accordance with the company laws of the Republic of South Africa with registration numbers 1996/015352/07 and with principal place of business at Boekenhoutbult, Mooketsi.
3. The respondent is the Regional Land Claims Commissioner: Limpopo whose principal place of business is Kagiso House, cnr. Rissik and Schoeman Streets, Polokwane.
4. On 3 December 2014 the respondent initiated an application for leave to appeal against the whole of the judgement of this Court delivered on 24 November 2014.
5. The parties, after consultation between them agreed that the application be heard on 10 April 2015, and that respondent (applicant in the appeal application) would set the matter down. This was never done.
6. Applicant (respondent in the appeal application) attended court ex abundanti cautela. Respondent did not appear on 10 April 2015. It is the wasted costs of 10 April 2015 that applicant seeks.
7. This application was argued jointly with the application for leave to appeal. Respondents’ submission is that applicants came to court knowing fully well that the matter was not set down. Applicants on the other hand contend that they were not sure as to what may happen in their absence.
8. Applicant filed a founding affidavit. The salient parts thereof read as follows:
“3.7 There was no certainty at our office whether the matter will be set down for 09 April or 10 April 2015 and we therefore requested both Adv. Seneke and also the State Attorney (via this letter) to serve a notice of set down as soon as the date has been confirmed.
3.9 The only confirmation we did receive was an informal notice via e-mail from Adv. Seneke. As stated earlier it was agreed with the opposition that they will file a notice of set down for 10 April 2015. 3.10 No notice of set down was however received from the opposition.
3.15 Our instructing attorneys requested both Adv. Havenga SC and myself to attend to Court on 10 April 2015 ex abundanti cautela since the applicants’ counsel were adamant that the matter would proceed.
5.2 The operative action to make sure that all parties are aware that the matter is continuing is therefore the notice of set down and the applicants failed to deliver same, but still insisted that the matter is to be heard on 10 April 2015. We had no option but to attend in order to protect our client’s rights if the Presiding Judge should decide to hear the matter even though there was no notice of set down.”
9. It is clear from the above that applicants attended court not because they were legally bound to do so but ex abundanti cautela and upon instruction by the applicants’ instructing attorney.
10. Innes C. J. summed up the purpose of costs as follows:[1]
“ … costs are rewarded 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”.
11. Rule 55(4) to rules of this Court states:
“55(4) A notice of set down containing the time, date and venue or venues of any hearing, must be delivered by the applicant or plaintiff within ten days of being informed (at a conference or by the Registrar) of the date.”
12. Satchwell J states the following:[2]
“A cost order is not intended to be compensation for a risk to which one has been exposed but a refund of expenses actually incurred”.
13. In cause, applicants attended court to avoid the risk of the matter being argued in their absence. However, nothing, legally speaking, compelled them to attend court.
14. I find it difficult to award costs in this regard.
15. I order:
(a) Application for payment of wasted costs is dismissed.
(b) I make no order as to costs.
___________________________
M. J. MPSHE
Acting Judge in the Land Claims Court
[1] Texas Co. (S.A.) Ltd v Cape Town Municipality 1926 AD 467 at 488
[2] Payem Components South Africa Ltd v Bovic Gaskets CC and Others 1999 (2) S. A. 409 at 417 D