High Dune House (Pty) Ltd v Lester and Another (ECJ 2004/009) [2004] ZAECHC 10 (2 April 2004)

11

FORM

A

FILING

SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 009/2004

PARTIES: HIGH DUNE HOUSE (PTY) LTD APPELLANT

AND

MATTHEW LESTER 1ST RESPONDENT

NDLAMBE MUNICIPALITY 2ND RESPONDENT

Registrar: 133/02 Magistrate: Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 2 APRIL 2004

JUDGE(S):

PICKERING J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): TJM PATERSON for the accused/respondent(s): SH COLE

Instructing attorneys:

Applicant(s)/Appellant(s):

WHITESIDES Respondent(s):

NETTELTONS

CASE INFORMATION -

Nature of proceedings : CIVIL APPEAL

Topic: PROPERTY

RIGHTS

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 1233/02

In the matter between

HIGH DUNE HOUSE (PTY) LTD APPLICANT

and

MATTHEW

ROBERT MICHAEL LESTER FIRST RESPONDENT

NDLAMBE

MUNICIPALITY SECOND RESPONDENT

JUDGMENT

PICKERING J:

On 7 November 2002 I granted an order in the following terms:

“1. First respondent is interdicted from continuing with the erection of the dwelling on erf 20, Kenton-on-Sea, in accordance with the plans approved by the second respondent on 3 May 2002.

2. Such interdict shall remain in force until the finalisation of an application/action to be brought by the applicant against the first respondent within 10 days of this order for the enforcement of the conditions in his Title Deed.

3. If, on the finalisation of the hearing, it is found that such interdict should not have been granted then the applicant shall be liable to first respondent in such damages as first respondent may prove he has suffered as a result of the interdict.

The costs of this application, including those costs previously reserved, are reserved for decision at the application/action.”

The application/action envisaged in paragraph 2 thereof did not materialise and the applicant has now applied for an order directing the first respondent to pay the costs of the application including those costs which were previously reserved. Applicant further seeks an order that first respondent pay the costs of the present application.

The detailed history of the matter is set out in my judgment of 7 November 2002 and I do not intend to repeat it here. Of importance for the present application is the following. When the initial application was brought during October 2002 the relief sought in its amended form was in the following terms:

“1. …

2. Interdicting first respondent from continuing with the erection of the dwelling on Erf 20, Kenton-on-Sea, in accordance with the plans approved by the second respondent on 3 May 2002.

Such interdict to remain in force until the finalisation of;

(a) the review application to be brought by applicant against the second respondent within 30 days of this order for the setting aside of the decision of second respondent approving the said plans; and

(b) the application/action to be brought by the applicant against the first respondent within 30 days of this order for the enforcement of the conditions in his Title Deed.”

In my judgment I described applicant’s cause of action as being premised, inter alia, “upon a concern that the proposed new building on erf 20 would interfere with the view presently enjoyed by the occupants of erf 18 or would probably be dangerous to life or property or would contravene the provisions of the Kenton-on-Sea Town Planning Scheme in that the existing building, in which first respondent resides, could never be an outbuilding as defined therein because it consisted of two storeys. Applicant has, however, in its replying papers confined itself, as regards the relief sought against first respondent, to a cause of action based only upon first respondent’s alleged contravention of the restrictive condition contained in the Title Deed of erf 20 and has disavowed any reliance on the other grounds raised by it in its founding affidavit.”

It was applicant’s contention that if first respondent developed erf 20 in accordance with the approved plans he would be in contravention of a restrictive condition registered against the erf in its Title Deed in terms whereof the erection of only one dwelling, together with such outbuildings that are ordinarily required to be used therewith, was permitted.

It was my finding that although applicant had jettisoned much of the arguments initially relied upon by it, it had established that first respondent’s plan did indeed offend against the restrictive condition contained in the Title Deed of Erf 20 inasmuch as the existing building in which first respondent was living was a dwelling as envisaged in the restrictive condition and, such being the case, the erection of a further dwelling on the erf was prohibited. In this regard I stated further as follows:

“I am also of the view that first respondent’s assertions as to his future intended use of the present dwelling are irrelevant to the determination of this application. The fact remains that it is at present a dwelling and that, despite this, he is erecting another dwelling on the erf. This, with nothing more, clearly offends against the restrictive condition. It is, in my view, no answer to applicant’s concerns to state, as first respondent does, that in the event of the action against him succeeding he will either subdivide his property or will demolish such of the existing structure as may then be found to offend against the restrictive condition. If the structures on first respondent’s erf presently prima facie offend against the restrictive condition applicant is entitled at this stage to complain.”

It is common cause that subsequent to the granting of the order on 7 November 2002 the first respondent amended his plans to indicate that the dwelling then upon the erf would, upon construction of the proposed new dwelling, be converted to outbuildings and that these alterations would be done contemporaneously with the erection of the new dwelling. In the light of this amendment of the plans the necessity for the application/action referred to in paragraph 2 of my order fell away.

Two sets of costs are now at issue, these being the costs of the application when it was postponed on 17 October 2002, such costs having been reserved on that date for later decision, and the remaining costs of the application including the costs of the hearing on 31 October 2002.

COSTS OF 17 OCTOBER 2002

It is common cause that the papers were served on first respondent during the afternoon of Friday 11 October 2002. In the Notice of Motion first respondent was afforded until noon of Wednesday 16 October to file opposing papers and the matter was set down for hearing on Thursday 17 October 2002.

It is common cause that because of certain developments, including the fact that the applicant’s founding papers were not in the Court file when it was placed before me because of a delay in receiving them from the Sheriff, agreement was reached between the parties on 16 October that the matter would be postponed on 17 October with the wasted costs of that latter day being reserved for later decision. That such agreement was reached on 16 October will be a matter for the Taxing Master to take into account in due course.

Mr. Paterson, who appeared for applicant, has submitted that applicant was justified in selecting the time periods set out in the Notice of Motion because of the urgency of the matter, with the ground on erf 20 having been cleared and building operations having commenced. He submitted that it was only when first respondent filed his answering affidavit stating that only the foundations of the buildings were being prepared and that above ground construction would only commence in January 2003 that, as he put it, the sting was taken out of the urgency.

Mr. Cole, who appeared for first respondent, took issue herewith and submitted that, whether or not the matter was inherently urgent, as indeed I found to be the case, the fact remained that the applicant must have been aware in the light of the complexity of the issues involved and the relative degree of urgency that the time frames selected by it for the hearing of the application were inappropriately truncated and that the application would of necessity have to be postponed on the 17 October to enable proper argument to be prepared by counsel.

In my view there is merit in this submission. Urgent as the matter was it was not, in my view, of such urgency as to require that first respondent be afforded only two and a half court days within which to file answering affidavits with the application to be heard the following day. There could, in my view, not have been any material prejudice occasioned to applicant were the matter to have been set down for hearing the following week, thus enabling counsel to prepare heads of argument and to afford the matter the consideration which it deserved.

I am aware of and appreciate the difficulties often confronting legal representatives faced with the task of selecting appropriate time periods for the hearing of an urgent application. In this regard the benefit afforded by hindsight is often considerable. Be that as it may, however, I am of the view that in the present matter it was largely the selection of inappropriate time periods that necessitated the postponement of the application on 17 October 2002.

In my view therefore applicant should be ordered to pay the wasted costs occasioned by the postponement of the application on 17 October 2002.

REMAINING COSTS OF THE APPLICATION

It is trite that the award of costs is in the discretion of the Court, such discretion to be exercised judicially on a consideration of all the facts of the case; and as between the parties, in essence it is a matter of fairness to both sides.

Kruger Bros and Wasserman v Ruskin 1918 AD 63 at 69; Ward v Sulzer 1973 (3) SA 701 (A) at 706 G.

It is clear also that whenever a decision in regard to costs is separated from a decision on the “merits”, because an order on the merits is no longer applied for, it does not mean that the decision on costs must be reached in total isolation from considerations regarding the merits. In Jenkins v SA Boiler Makers, Iron and Steel Workers and Ship Builders Society 1946 WLD 15 it was held that where a disputed application is settled on a basis which disposes of the merits except insofar as costs are concerned, the Court should not have to hear evidence to decide the disputed facts in order to decide who is liable for costs but the Court has, with the material at its disposal, to make a proper allocation as to costs. (See too: Erasmus v Grunow en ‘n Ander 1980 (2) SA 793 (O); Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996 (3) SA 692 (C); Nxumalo and Another v Mavundla and Another 2000 (4) SA 349 (D).)

It is also clear from the authorities that a successful party may in appropriate circumstances be mulcted in such costs as were unnecessarily incurred through his failure to take proper steps or through his taking wholly unnecessary steps.

(Fripp v Gibbon and Co 1913 AD 354 at 363; De Villiers v Union Government (Minister of Agriculture) 1931 AD 206 at 214;.)

With these principles in mind I turn to consider the issues in the present matter.

In my view there is, in the present matter, sufficient material upon which a proper determination of costs can be made. It should, hopefully, be clear from a reading of my judgment that my decision was reached upon a consideration of the meaning of the word “dwelling” as contained in the Township Regulations and the Title Deed of erf 20. It was my prima facie view that, upon a proper interpretation of that word, the structure erected by first respondent was indeed a dwelling and that the plans approved by second respondent accordingly offended against the restrictive condition contained in the Title Deed.

The present is therefore not a matter where, in any prospective action or application, questions of fact or credibility would have been in issue. The question to have been decided would have been a legal one. I have given careful reconsideration to my judgment but I am not in my way persuaded that my prima facie views which led me to come to the conclusion which I did were wrong. In the circumstances, so it seems to me, applicant would have had substantial prospects of success in the envisaged action or application had it proceeded. Mr. Paterson who appeared for applicant submitted accordingly, with reference, inter alia, to Letsitele Stores (Pty) Ltd v Roets 1959 (4) SA 579 (T) and Jonker v Schultz 2002 (2) SA 360 (O) that applicant should be awarded the entire remaining costs of the application, there being no grounds for departure from the general rule that the successful party should have its costs.

Mr. Cole, however, referred to the fact that applicant’s application had initially been founded on a number of grounds other than that of the contravention of the restrictive condition in the Title Deed of Erf 20. He referred in particular in this regard to those averments made by applicant in the founding affidavit by Haslam concerning the alleged dangerous instability of the dune. These averments, he submitted, of necessity involved first respondent and his legal representative in considerable research and expense on an issue quite unrelated to that on which the application for an interdict pendente lite eventually succeeded and which was, in the event, abandoned by applicant in its replying affidavit filed on 16 October 2002.

In my view there is merit in these submissions. The averments concerning the alleged dangerous instability of the dune in my view caused costs which were quite unnecessary to be incurred by first respondent.

In my view it would in the circumstances be unfair to order first respondent to pay all the remaining costs of the application. The difficult question, however, is how those costs should be apportioned. Both counsel requested me to apportion the costs on a percentage basis for the future assistance of the Taxing Master. Having regard in particular to the fact that the issue concerning the instability of the dune was abandoned on the same day that first respondent’s answering affidavit was filed and that the remaining issues which were jettisoned at the commencement of the hearing of the application on 31 October 2002 did not overly burden the papers, I am of the view that applicant should be deprived of no more than 10% of its costs.

I am also of the view, having regard to the complexity of the matter and the importance of the issues involved that applicant’s employment of two counsel was justified.

I should add, finally, that in opposing the costs order sought first respondent averred that it had come to his attention that applicant itself has two dwellings upon its property and that applicant has therefore come to Court with dirty hands, leveling accusations against the first respondent of which it itself was guilty without having disclosed this to the Court and that applicant should therefore be disallowed the costs of the application Mr. Cole, correctly in my view, did not pursue this point. The allegations made by first respondent were disputed by applicant and, even if those allegations were relevant to the issue of costs (which I am not persuaded they are), it is impossible to resolve this dispute on the papers before me.

That leaves the question of the costs of the present application.

Although applicant has been unsuccessful in respect of the wasted costs of 17 October 2002 and has been awarded only 90% of the remaining costs it has nevertheless achieved substantial success in this application. Furthermore, as was submitted by Mr. Paterson, it was obliged to launch this application in order to recover those costs to which it is entitled.

It is accordingly ordered as follows:

Applicant is ordered to pay the wasted costs occasioned by the postponement of the application on 17 October 2002. First respondent is ordered to pay 90% of the remaining costs of the application, such costs to include the costs of two counsel. First respondent is ordered to pay the costs of this application.

___

J.D. PICKERING

JUDGE OF THE HIGH

COURT