Fipro Investments v Chief Executive Officer (SANRAL) and Others (2023-015484) [2024] ZAGPPHC 1357 (27 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 2023-015484 DATE : 27-12-2024 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. DATE : 27 December 2024 SIGNATURE In the matter between: FIPRO INVESTMENTS Applicant and CHIEF EXECUTIVE OFFICER (SANRAL) First Respondent CHIEF FINANCIAL OFFICER (SANRAL) Second Respondent SOUTH AFRICAN NATIONAL ROADS Third Respondent AGENCY (SOC) LIMITED SANKOFA INSURANCE BROKERS Fourth Respondent In re FIPRO INVESTMENTS Applicant and SOUTH AFRICAN NATIONAL ROADS First Respondent AGENCY (SOC) LIMITED SANFOKA INSURANCE BROKERS Second Respondent REQUEST FOR REASONS IN TERMS OF RULE 49(1)(c) PIENAAR AJ: 1. The matter came before me on the 19th of December 2024 on an urgent basis at the Urgent Court. This is an opposed urgent application. 2. The urgent application was struck off the roll due to a lack of urgency on 19th December 2024, with an order that the applicant pay the respondents costs on a party and party scale including the costs of senior counsel [Scale C] and a junior Counsel [Scale B]. 3. The general rule in matters of costs is that the successful party should be awarded costs. 4. Accordingly, I am of the view that the relief sought by applicant does not necessitates this court’s urgent attention. 5. As for costs, the First to Third Respondent Counsel, Adv Baloyi SC argued that this application is not urgent - Please see - Caselines 10: item 1, pg 10-20 [Heads of Argument]. 6. I note that the First to Third Respondent’s Heads of Argument (last page) Ms Baloyi is a Senior Counsel. I also asked Ms Baloyi on the day of the hearing, if she is a Senior Counsel, and she confirmed that she is indeed a Senior Counsel. Normally counsel in this category would charge out their services closer to the upper limit of Scale C, irrespective of the complexity of the matter. 7. Rule 67A addresses itself only to awards of costs as between party and party. Its purpose is to permit a court to exercise control over the maximum rate at which counsel’s fees can be recovered under such an award. “Counsel” in this context should be understood to mean any legal practitioner, whether a referral advocate, a trust account advocate or an attorney with higher appearance rights, who actually does the work of counsel. The focus is accordingly on assigning a maximum value that may be recovered in respect of the work done in the presentation of the case before court. Rule 67A (3) provides that a court “shall”, when making a party and party costs order, “indicate the scale in terms of rule 69, under which costs have been granted”. Those scales have been inserted into rule 69 (7) under the amendment that created rule 67A. They are scales “A”, “B”, and “C”. They set the maximum rate at which counsel’s fees may be recovered on a party and party bill. Scale “A” provides a maximum tariff of R375 per quarter hour; scale “B” sets a maximum tariff of R750 per quarter hour; and scale “C” sets a maximum tariff of R1125 per quarter hour. 8. Following the introduction of Rule 67A and the amendment to Rule 69 of the Uniform Rules of this court, a court is given a direction as to how to exercise its discretion in awarding costs. The effect of these changes to the Rules is that a court must determine on what scale costs, in that particular matter should be allowed, A, B or C. The changes came into effect on 12 April 2024. This applies to a party and party bill of costs in the High Court. 9. Attorney and client costs orders, on the other hand, allow the party to whom they are awarded to recover an amount much closer to the actual costs of the legal services they purchased to participate in the suit. 10. I consider the matter to be one of considerable complexity. 11. This Court has a wide discretion in respect of costs, considering the requirements of law and fairness. A Judge generally approaches a case on the assumption that it has been competently litigated, that counsel has done what is within their power to ensure substantial compliance with the applicable rules, and that argument and evidence has taken as long as it needs to take. 12. Therefore, First to Third Respondent Counsel, Ms Baloyi SC; qualifies for Scale C (party and party scale) and Fourth Respondent, Mr Mabaso qualifies for Scale B on party and party scale. PIENAAR, ACTING JUDGE OF THE HIGH COURT DATE: 27 December 2024 Appearances:

Attorney with right of appearance : Lindelwa Mbanjwa Applicant’s Attorney Firm : L Mbankwa Incorporated Counsel for First to Third Respondent’s: Adv Baloyi (Senior Counsel) Adv F Thema (Junior counsel) Respondent’s First to Third Attorneys : Madiba Motsai Masitenyane and Githiri Counsel for Fourth Respondent : Adv S R Mabaso (Junior counsel) Fourth Respondent Attorneys : Mota Africa Inc Attorneys Date of hearing : 19 December 2024 Date of request for reasons in terms of Rule 49 (1)(c ): 27 December 2024

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2023-015484

DATE : 27-12-2024

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE : 27 December 2024

SIGNATURE

In the matter between:

FIPRO INVESTMENTS Applicant

and

CHIEF EXECUTIVE OFFICER (SANRAL) First Respondent

CHIEF FINANCIAL OFFICER (SANRAL) Second Respondent

SOUTH AFRICAN NATIONAL ROADS Third Respondent

AGENCY (SOC) LIMITED

SANKOFA INSURANCE BROKERS Fourth Respondent

In re

FIPRO INVESTMENTS Applicant

SOUTH AFRICAN NATIONAL ROADS First Respondent

AGENCY (SOC) LIMITED

SANFOKA INSURANCE BROKERS Second Respondent

REQUEST FOR REASONS IN TERMS OF RULE 49(1)(c)

PIENAAR AJ:

1. The matter came before me on the 19th of December 2024 on an urgent basis at the Urgent Court. This is an opposed urgent application.

2. The urgent application was struck off the roll due to a lack of urgency on 19th December 2024, with an order that the applicant pay the respondents costs on a party and party scale including the costs of senior counsel [Scale C] and a junior Counsel [Scale B].

3. The general rule in matters of costs is that the successful party should be awarded costs.

4. Accordingly, I am of the view that the relief sought by applicant does not necessitates this court’s urgent attention.

5. As for costs, the First to Third Respondent Counsel, Adv Baloyi SC argued that this application is not urgent - Please see - Caselines 10: item 1, pg 10-20 [Heads of Argument].

6. I note that the First to Third Respondent’s Heads of Argument (last page) Ms Baloyi is a Senior Counsel. I also asked Ms Baloyi on the day of the hearing, if she is a Senior Counsel, and she confirmed that she is indeed a Senior Counsel. Normally counsel in this category would charge out their services closer to the upper limit of Scale C, irrespective of the complexity of the matter.

7. Rule 67A addresses itself only to awards of costs as between party and party. Its purpose is to permit a court to exercise control over the maximum rate at which counsel’s fees can be recovered under such an award. “Counsel” in this context should be understood to mean any legal practitioner, whether a referral advocate, a trust account advocate or an attorney with higher appearance rights, who actually does the work of counsel. The focus is accordingly on assigning a maximum value that may be recovered in respect of the work done in the presentation of the case before court. Rule 67A (3) provides that a court “shall”, when making a party and party costs order, “indicate the scale in terms of rule 69, under which costs have been granted”. Those scales have been inserted into rule 69 (7) under the amendment that created rule 67A. They are scales “A”, “B”, and “C”. They set the maximum rate at which counsel’s fees may be recovered on a party and party bill. Scale “A” provides a maximum tariff of R375 per quarter hour; scale “B” sets a maximum tariff of R750 per quarter hour; and scale “C” sets a maximum tariff of R1125 per quarter hour.

8. Following the introduction of Rule 67A and the amendment to Rule 69 of the Uniform Rules of this court, a court is given a direction as to how to exercise its discretion in awarding costs. The effect of these changes to the Rules is that a court must determine on what scale costs, in that particular matter should be allowed, A, B or C. The changes came into effect on 12 April 2024. This applies to a party and party bill of costs in the High Court.

9. Attorney and client costs orders, on the other hand, allow the party to whom they are awarded to recover an amount much closer to the actual costs of the legal services they purchased to participate in the suit.

10. I consider the matter to be one of considerable complexity.

11. This Court has a wide discretion in respect of costs, considering the requirements of law and fairness. A Judge generally approaches a case on the assumption that it has been competently litigated, that counsel has done what is within their power to ensure substantial compliance with the applicable rules, and that argument and evidence has taken as long as it needs to take.

12. Therefore, First to Third Respondent Counsel, Ms Baloyi SC; qualifies for Scale C (party and party scale) and Fourth Respondent, Mr Mabaso qualifies for Scale B on party and party scale.

PIENAAR,

ACTING JUDGE OF THE HIGH COURT

DATE: 27 December 2024

Appearances:

Attorney with right of appearance : Lindelwa Mbanjwa

Applicant’s Attorney Firm : L Mbankwa Incorporated

Counsel for First to Third Respondent’s: Adv Baloyi (Senior Counsel)

Adv F Thema (Junior counsel)

Respondent’s First to Third Attorneys : Madiba Motsai Masitenyane and Githiri

Counsel for Fourth Respondent : Adv S R Mabaso (Junior counsel)

Fourth Respondent Attorneys : Mota Africa Inc Attorneys

Date of hearing : 19 December 2024

Date of request for reasons in terms of Rule 49 (1)(c ): 27 December 2024