Khumalo and Another v Twin City Developers (Pty) Ltd and Others (328/2017) [2017] ZASCA 143 (2 October 2017)

Khumalo and Another v Twin City Developers (Pty) Ltd and Others (328/2017) [2017] ZASCA 143 (2 October 2017)

The Supreme Court of Appeal held that the Land Claims Court failed to exercise its discretion judicially in awarding adverse costs, including costs for two counsel, against the appellants, who are vulnerable farm dwellers litigating under ESTA. The court found that the Land Claims Court did not provide reasons for the costs order nor consider the established practice of not awarding costs in social interest litigation except in exceptional circumstances. The court emphasised that adverse costs orders in such cases have a chilling effect on access to justice and contradict the purpose of protective legislation like ESTA. The circumstances were found to be markedly unusual and justified the...

Citation
[2017] ZASCA 143
Parties
Appellant: Gweje Khumalo; Appellant: July Joseph Magubane; Respondent: Twin City Developers (Pty) Ltd; Respondent: Wetlands Country Retreat (Pty) Ltd; Respondent: Director: Animal Health in the Department of Agriculture, Forestry and Fisheries; Respondent: Minister of Agriculture, Forestry and Fisheries
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 October 2017
Case Number
328/2017
Procedural Posture
Civil Appeal / Appeal Against Costs Order From Land Claims Court
Outcome
Appeal upheld; costs order set aside.
Judges
Tshiqi, Saldulker, Swain, Mathopo, Molemela
Legal Topics
Extension of Security of Tenure Act, Costs Awards, Constructive Eviction, Judicial Discretion, Public Interest Litigation, Constitutional Rights
Land and Property Civil Procedure Constitutional Law Extension of Security of Tenure Act Costs Awards Constructive Eviction Judicial Discretion Public Interest Litigation +1 more

Case Brief

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Parties

Gweje Khumalo

Appellant

July Joseph Magubane

Appellant

Twin City Developers (Pty) Ltd

Respondent

Wetlands Country Retreat (Pty) Ltd

Respondent

Director: Animal Health in the Department of Agriculture, Forestry and Fisheries

Respondent

Minister of Agriculture, Forestry and Fisheries

Respondent

Procedural Posture

Civil Appeal / Appeal Against Costs Order From Land Claims Court

Legal Issues

  1. 1 Whether an appeal directed solely at a costs order is permissible when the merits are not challenged.
  2. 2 Whether exceptional circumstances exist to justify hearing an appeal on costs only under s 16(2)(a) of the Superior Courts Act.
  3. 3 Whether the Land Claims Court properly exercised its discretion in awarding adverse costs, including costs for two counsel, against vulnerable farm occupiers.

Ratio Decidendi

The Supreme Court of Appeal held that the Land Claims Court failed to exercise its discretion judicially in awarding adverse costs, including costs for two counsel, against the appellants, who are vulnerable farm dwellers litigating under ESTA. The court found that the Land Claims Court did not provide reasons for the costs order nor consider the established practice of not awarding costs in social interest litigation except in exceptional circumstances. The court emphasised that adverse costs orders in such cases have a chilling effect on access to justice and contradict the purpose of protective legislation like ESTA. The circumstances were found to be markedly unusual and justified the...

Court Disposition

Appeal upheld; costs order set aside.

Orders

  • The appeal is upheld.
  • The costs order made by the Land Claims Court, including costs for two counsel, is set aside.