Natonal Director of public Prosecutions v Seoposengwe and Others (42/2002) [2003] ZANWHC 6 (20 February 2003)

CASE NO. 424/2002

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

NATIONAL

DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

and

POPOTA SEOPOSENGWE 1ST

RESPONDENT

DANIEL NICOLAAS PRETORIUS 2ND

RESPONDENT

PALETI SEOPOSENGWE 3RD

RESPONDENT

PETROBOU CONSTRUCTION CC 4TH

RESPONDENT

SESARAH JOHANNA PRETORIUS 5TH

RESPONDENT

HED CONSTRUCTION CC 6TH

RESPONDENT

WINNIE MALEBOGENG SEOPOSENGWE 7TH

RESPONDENT

M.M. SEOPOSENGWE 8TH

RESPONDENT

______________

JUDGMENT

MOGOENG JP.

[1] Judgment in this matter was handed down on 05 December 2002. The eighth Respondent was successful. However, the Court did not make an order as to costs pertinent thereto. A notice in terms of Rule 42(1)(b) was then filed of record on 13 December 2002. The notice alleges that the Respondents have attained substantial success which justifies the correction of the above judgment so as to state that the Respondents and/or the eighth Respondent be granted an order for costs. [2] The Applicant opposes the variation contended for by the Respondents. The basis for the opposition is that at best costs could be awarded to the eighth Respondent but not all the Respondents. However, the Applicant contends that since the argument presented on behalf of the eighth Respondent is the same argument presented on behalf of the other seven Respondents, such costs as would have been incurred on behalf of the eighth Respondent would in any event, be offset by the costs due to be paid by the other seven unsuccessful Respondents jointly and severally. Finally, he asks that an order as to costs be granted jointly and severally against the first to seventh Respondents. I turn to deal briefly with all of the above issues below. [3] There can be no justification for the first to seventh Respondents, against whom the provisional restraint order has been confirmed subject to the reduction of the value

of the assets to be restrained, to seek to have an order for costs made in their favour. The substance of the application before me was whether or not the restraint order should be confirmed. It was confirmed against the first to seventh Respondents including the order for costs which was prayed for. The mere reduction of the value of the assets to be restrained is, in my view, a far cry from what should constitute substantial success in this matter. Their claim for costs is, therefore, without merit. I find it convenient at this stage to turn to the costs which the Applicant is asking for in his memorandum.

[1] Judgment in this matter was handed down on 05 December 2002. The eighth Respondent was successful. However, the Court did not make an order as to costs pertinent thereto. A notice in terms of Rule 42(1)(b) was then filed of record on 13 December 2002. The notice alleges that the Respondents have attained substantial success which justifies the correction of the above judgment so as to state that the Respondents and/or the eighth Respondent be granted an order for costs.

[2] The Applicant opposes the variation contended for by the Respondents. The basis for the opposition is that at best costs could be awarded to the eighth Respondent but not all the Respondents. However, the Applicant contends that since the argument presented on behalf of the eighth Respondent is the same argument presented on behalf of the other seven Respondents, such costs as would have been incurred on behalf of the eighth Respondent would in any event, be offset by the costs due to be paid by the other seven unsuccessful Respondents jointly and severally. Finally, he asks that an order as to costs be granted jointly and severally against the first to seventh Respondents. I turn to deal briefly with all of the above issues below.

[3] There can be no justification for the first to seventh Respondents, against whom the provisional restraint order has been confirmed subject to the reduction of the value of the assets to be restrained, to seek to have an order for costs made in their favour. The substance of the application before me was whether or not the restraint order should be confirmed. It was confirmed against the first to seventh Respondents including the order for costs which was prayed for. The mere reduction of the value of the assets to be restrained is, in my view, a far cry from what should constitute substantial success in this matter. Their claim for costs is, therefore, without merit. I find it convenient at this stage to turn to the costs which the Applicant is asking for in his memorandum.

[4] The Applicant had prayed for an order for costs jointly and severally against the Respondents in paragraph 12.2 of the Notice of Motion. It follows that the confirmation of the rule nisi or the provisional restraint order as per the judgment handed down on 05 December 2002 included the abovementioned paragraph 12.2. I, therefore, do not understand why the Applicant is still asking, in paragraph 9 of his memorandum on costs, for an order as to costs against the first to seventh Respondents jointly and severally. The issue which warrants some attention is whether the eighth Respondent should be awarded costs. It is dealt with below.

[5] The provisional restraint order was, however, set aside against the eighth Respondent. The Court inadvertently omitted to deal with the question of costs in her case as it should have. It must be said that this Court would have dealt with the omission mero motu had it become aware of it prior to being notified of it by the Respondents. The eighth Respondent did not merely achieve substantial success. She attained overall success. In the exercise of my discretion I am satisfied that hers is the classical case where costs should follow the result. Unlike the other seven Respondents, the Applicant was not successful against her. The Applicant cannot, therefore, be heard to be seeking to offset the costs payable to the Applicant, by those who have lost their bid to have the provisional restraint order set aside, against the costs due to the eighth Respondent who has got nothing to do with the loss of the other seven Respondents. It does not matter, for the purpose of deciding on costs, that the first to seventh Respondents and the eighth Respondent relied on the same argument in support of their case. What matters is that the eighth Respondent should not have had to raise any argument whatsoever since she should not have been joined as a party to the proceedings in the first place. Her entitlement to costs is, therefore, beyond question. The authorities cited by the Applicant in this regard do not support his aforementioned contention on the issue of costs. [6] In the result, I vary the order in paragraph [32] of the main judgment by adding the following words at the end of the paragraph: “The Applicant is to pay costs to the eighth Respondent.” M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT DATED: 20 FEBRUARY 2003

[5] The provisional restraint order was, however, set aside against the eighth Respondent. The Court inadvertently omitted to deal with the question of costs in her case as it should have. It must be said that this Court would have dealt with the omission mero motu had it become aware of it prior to being notified of it by the Respondents. The eighth Respondent did not merely achieve substantial success. She attained overall success. In the exercise of my discretion I am satisfied that hers is the classical case where costs should follow the result. Unlike the other seven Respondents, the Applicant was not successful against her. The Applicant cannot, therefore, be heard to be seeking to offset the costs payable to the Applicant, by those who have lost their bid to have the provisional restraint order set aside, against the costs due to the eighth Respondent who has got nothing to do with the loss of the other seven Respondents. It does not matter, for the purpose of deciding on costs, that the first to seventh Respondents and the eighth Respondent relied on the same argument in support of their case. What matters is that the eighth Respondent should not have had to raise any argument whatsoever since she should not have been joined as a party to the proceedings in the first place. Her entitlement to costs is, therefore, beyond question. The authorities cited by the Applicant in this regard do not support his aforementioned contention on the issue of costs.

[6] In the result, I vary the order in paragraph [32] of the main judgment by adding the following words at the end of the paragraph: “The Applicant is to pay costs to the eighth Respondent.”

M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

DATED: 20 FEBRUARY 2003