MEC, Department of Public Works & Roads, North-West v Nagappen and Another (632/2002) [2003] ZANWHC 17 (28 March 2003)

CASE NO. 632/2002

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF ROADS AND PUBLIC

WORKS, NORTH WEST APPLICANT

and

PREGASEN NAGAPPEN 1ST RESPONDENT

NIRESHNI NAGAPPEN 2ND RESPONDENT

______________________________________________________________________

JUDGMENT

MOGOENG JP.

[1] This is an application in terms of s 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998. The issues to be decided are whether or not the order prayed for is to be granted and whether costs should of necessity follow the result.

[2] The merits will be disposed of briefly. Both parties are in agreement that on the strength of the dictum in Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) at paras (14) and (15), the above application was launched prematurely and should for that reason be dismissed. This submission by Mr Maree, for the Respondents, and the concession by Mrs Zwiegelaar, for the Applicant, is correct. I am satisfied that this application should indeed be dismissed and it will accordingly be dismissed. I turn now to the question of costs in respect of which there is no agreement between the parties. [3] This application was never served on the Respondents. The reason advanced by the Applicant therefor, is that no relief is sought against the Respondents. In other words, the application was meant to protect the Respondents by making double-sure that the

Respondents were notified of the application for their eviction. There is, therefore, no way in which the Respondents could have suffered prejudice as a result of the order prayed for in this application. I am also of the view that, properly advised, the best option open to the Respondents would have been not to oppose the application. There is, however, nothing in law to forbid the Respondents from opposing the application if they hold the view that there is a need to do so or that there is something irregular about the application. What further provides some justification for the Respondents’ opposition is the order of Pistor AJ postponing the matter for argument to be heard ‘whether the application herein was properly brought or not.’ (See para 38 of Lenka Kruger’s Affidavit). Besides, the only basis on which the Applicant challenged the Respondents’ opposition was that they did not file a notice of intention to oppose. The issue whether the Respondents should have opposed was actually raised by the Court and it was then that the Applicant sought to take advantage of the issue.

[2] The merits will be disposed of briefly. Both parties are in agreement that on the strength of the dictum in Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) at paras (14) and (15), the above application was launched prematurely and should for that reason be dismissed. This submission by Mr Maree, for the Respondents, and the concession by Mrs Zwiegelaar, for the Applicant, is correct. I am satisfied that this application should indeed be dismissed and it will accordingly be dismissed. I turn now to the question of costs in respect of which there is no agreement between the parties.

[3] This application was never served on the Respondents. The reason advanced by the Applicant therefor, is that no relief is sought against the Respondents. In other words, the application was meant to protect the Respondents by making double-sure that the

Respondents were notified of the application for their eviction. There is, therefore, no way in which the Respondents could have suffered prejudice as a result of the order prayed for in this application. I am also of the view that, properly advised, the best option open to the Respondents would have been not to oppose the application. There is, however, nothing in law to forbid the Respondents from opposing the application if they hold the view that there is a need to do so or that there is something irregular about the application. What further provides some justification for the Respondents’ opposition is the order of Pistor AJ postponing the matter for argument to be heard ‘whether the application herein was properly brought or not.’ (See para 38 of Lenka Kruger’s Affidavit). Besides, the only basis on which the Applicant challenged the Respondents’ opposition was that they did not file a notice of intention to oppose. The issue whether the Respondents should have opposed was actually raised by the Court and it was then that the Applicant sought to take advantage of the issue.

[4] In this matter, the Respondents successfully opposed the application. In line with Pistor AJ’s directive, so to speak, the Respondents argued successfully that the application was not properly brought. In determining the question of costs, it must be borne in mind that: “The general rule is that costs follow the event, in other words the successful party should be awarded his costs. This rule should be departed from only where good grounds for doing so exist. If there are no such grounds, then ordinarily the court, in an appeal, will interfere. In the absence of special circumstances, therefore, a successful litigant is entitled to his costs.” LAWSA Joubert vol. 3 part 2 “Civil Procedure and Costs” at para 293. Departure from this basic rule of practice is only justified if good grounds for doing so exist. Our Courts have over the years identified the following exceptions to the above general rule: i). Application for grant of indulgence; ii) Unconscious or excessive demands; iii) Failure to limit or curtail proceedings; iv) Misconduct of parties; Vexatious claims or defence; vi) Unnecessary litigation; vii) Reasonable conduct of unsuccessful litigant; viii) Negligence of successful party; ix) Moral considerations; x) Conduct of legal practitioners; xi) Point raised by court; xii) Achieving technical success only; xiii) Particular types of proceedings. See LAWSA supra at paras 302 to 314.

[4] In this matter, the Respondents successfully opposed the application. In line with Pistor AJ’s directive, so to speak, the Respondents argued successfully that the application was not properly brought. In determining the question of costs, it must be borne in mind that:

“The general rule is that costs follow the event, in other words the successful party should be awarded his costs. This rule should be departed from only where good grounds for doing so exist. If there are no such grounds, then ordinarily the court, in an appeal, will interfere. In the absence of special circumstances, therefore, a successful litigant is entitled to his costs.”

LAWSA Joubert vol. 3 part 2 “Civil Procedure and Costs” at para 293.

Departure from this basic rule of practice is only justified if good grounds for doing so exist. Our Courts have over the years identified the following exceptions to the above general rule:

i). Application for grant of indulgence;

ii) Unconscious or excessive demands;

iii) Failure to limit or curtail proceedings;

iv) Misconduct of parties;

Vexatious claims or defence;

vi) Unnecessary litigation;

vii) Reasonable conduct of unsuccessful litigant;

viii) Negligence of successful party;

ix) Moral considerations;

x) Conduct of legal practitioners;

xi) Point raised by court;

xii) Achieving technical success only;

xiii) Particular types of proceedings.

See LAWSA supra at paras 302 to 314.

None of the above grounds is applicable to this case to justify the departure contended for by the Applicant. The unnecessary litigation referred to in (vi) above is not the same thing as what is thought to be or appears to be an unnecessary opposition by the Respondents in this matter. Having said that, I am not bound by the non-applicability of the above exceptions. I still have the discretion to decide whether or not the Respondents should have opposed. [5] I have had regard to the totality of the facts of this matter as well as the relevant legal principles. I am satisfied that regard being had to the circumstances of this matter, law and justice dictate that costs should follow the result. [6] In the result, I make the following order: The ex parte application is dismissed; and The Applicant is to pay costs to the Respondents. M.T.R. MOGOENG JUDGE PRESIDENT OF THE HIGH COURT

None of the above grounds is applicable to this case to justify the departure contended for by the Applicant. The unnecessary litigation referred to in (vi) above is not the same thing as what is thought to be or appears to be an unnecessary opposition by the Respondents in this matter. Having said that, I am not bound by the non-applicability of the above exceptions. I still have the discretion to decide whether or not the Respondents should have opposed.

[5] I have had regard to the totality of the facts of this matter as well as the relevant legal principles. I am satisfied that regard being had to the circumstances of this matter, law and justice dictate that costs should follow the result.

[6] In the result, I make the following order:

The ex parte application is dismissed; and The Applicant is to pay costs to the Respondents.

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES DATE OF HEARING : 13 MARCH 2003 DATE OF JUDGMENT : 28 MARCH 2003 COUNSEL FOR APPLICANT : ADV C. ZWIEGELAAR COUNSEL FOR RESPONDENTS : ADV L.C.J MAREE SC ATTORNEYS FOR APPLICANT : THE STATE ATTORNEY ATTORNEYS FOR RESPONDENTS : NIENABER & WISSING

APPEARANCES

DATE OF HEARING : 13 MARCH 2003

DATE OF JUDGMENT : 28 MARCH 2003

COUNSEL FOR APPLICANT : ADV C. ZWIEGELAAR

COUNSEL FOR RESPONDENTS : ADV L.C.J MAREE SC

ATTORNEYS FOR APPLICANT : THE STATE ATTORNEY

ATTORNEYS FOR RESPONDENTS : NIENABER & WISSING