Star Internet Cafe v Vukani Gaming Northern Cape (Pty) Ltd (254/2018) [2020] ZANCHC 23 (5 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.

Reportable/Not reportable

Case No: 254/2018

In the matter between:

STAR INTERNET CAFÉ

APPELLANT

And

VUKANI GAMING NORTHERN CAPE (PTY) LTD

RESPONDENT

Heard: 16 March 2020

Delivered: 05 June 2020

Coram: Phatshoane J, Mamosebo J and Stanton AJ

Judgment

Phatshoane J

[1] This is an appeal against the whole of the judgment and order of the Court a quo, per Sieberhagen AJ, dated 12 October 2018, dismissing with costs on a punitive scale the Rule 30A interlocutory application brought by Star Internet Café, the appellant, to compel Vukani Gaming Northern Cape (Pty) Ltd, the respondent, to discover certain

documents referred to in the appellant’s Discovery Notice filed on 05 March 2018 in terms of sub-rule 35(12) read with 35(1)(13) of the Uniform Rules of this Court. The appeal is with leave of the Court a quo.

[2] The common understanding between the parties is that the outcome of this appeal would apply to two other interlocutory applications which concerned the same respondent but different applicants viz: Cosmic Gold Trading 257 CC and Another v Vukani Gaming Northern Cape (Pty) Ltd filed under case no 253/18 and Internet Café 1 Acacia Street, Kuruman v Vukani Gaming Northern Cape (Pty) Ltd filed under Case No: 510/18.

[3] The background pertinent to this appeal is as follows. Vukani Gaming Northern Cape (Pty) Ltd brought an application (the main application) in terms of which it sought the following orders against a certain Panino Properties CC and Star Internet Café:

3.1 As against Panino Properties, that it, inter alia, be interdicted and restrained from permitting the use of its property situated at Star internet Café, Craven Street,

Kimberley (“premises”), for purposes of restricted and unlawful gambling activities prohibited by the National Gambling Act, 7 of 2004, and the Northern Cape Gambling Act, 3 of 2008; that Panino Properties be directed to take all necessary measures to ensure that

restricted gambling activities are not conducted on the premises including terminating the tenancy of Star Internet Café and ejecting it from its premises; and that Panino Properties report to this Court on its execution and/or compliance with the order.

3.2 As against Star Internet Café, the appellant, that it be interdicted and restrained from conducting any restricted or unlawful gambling activity and engaging in any other conduct connected with unlawful gambling activities as prohibited in terms of the National Gambling Act, 7 of 2004, and the Northern Cape Gambling Act, 3 of 2008, and permitting or allowing gambling as defined in these two statutes.

[4] The respondent holds a route operator license which permits it to offer 500 Limited Pay-out Machines (“LPM”) in the Northern Cape Province at sites approved and licensed by the Northern Cape Gambling Board. The LPMs may only be offered for play by the holders of a route operator license or an independent site operator license on sites which had been approved by the Gambling Board. According to the information the respondent obtained from the Northern Cape Gambling Board only two route operator licenses were issued in the Northern Cape, one of which is that of the respondent. Neither Panino Properties nor the appellant holds this type of a license.

[5] The respondent avers that the appellant’s premises purport to be conducting an internet café whereas in truth it is used for purposes of illegal gambling activities. The style of gambling, which is on an on-line platform, is similar to that offered on LPMs. This impelled the respondent to enlist the services of two investigators, Mr Ettienne Louis Hennop, an operation manager, Africa Division of the respondent, and Mr Alfred Robyn Lowings, a consultant of the respondent, to conduct an investigation into the legality of business conducted by the appellant and the services rendered by it.

[6] In a nutshell, Messrs Hennop and Lowings attended the premises of the appellant on 23 August 2017. They gave a detailed description of the services rendered by the appellant that it does not operate an internet café or lounge. They further participated in gambling offered at the premises; and provided details of the type of computers, gambling programmes offered for play, payments made by customers for the purposes of obtaining credits to enable them to gamble, as well as pay-outs made if there was a credit to the customer, and the LPM’s used. Furthermore, they recorded video footages of their visits and concluded that illegal gambling was taking place at the alleged unlicensed premises.

[7] The respondent submits that not only is the appellant’s conduct unlawful but it is also unregulated and uncontrolled by the gambling authorities. It deprives the fiscus of a significant source of revenue and exposes the general public to illicit gambling activities.

[8] The above allegations and more such related accusations, as set out in the founding papers and supplementary affidavits by Messrs Hennop and Lowings, required a rebuttal from the appellant which it failed to do. Instead, it resorted to a technical approach to which this appeal draws its origin. On 05 March 2018 the appellant served and filed a sub-rule 35(12) Notice in terms of which it required the respondent to produce a number of documents and video material purportedly referred to in the founding papers. The relevant parts of Messrs Hennop and Lowings affidavits which have a bearing, in part, on the filing of the said Notice are repeated as follows. Mr Hennop declares:

“1.1 I am an operation manager, Africa for Vukani Gaming, whose address, for purposes of this application, is that of the applicants [the respondent’s] attorneys of record….

2.1 I was requested by Vukani Gaming Northern Cape (Pty) Limited to investigate if illegal gambling is taking place at the premises situated with entrance between Curry and George Streets, in Graven Street (below Loans RU), Kimberley, Northern Cape, hereinafter referred to as the “premises”.

2.2 My brief was to determine if the premises is operating by entering the premises with or without associates and to investigate whether it is possible to engage and participate in illegal gambling at the premises.”

Mr Lowings states:

“1.1. I am a consultant at Vukani Gaming.”

[9] As already alluded to, the appellant’s Discovery Notice sets out several documents which the respondent is required to produce but relevant, for present purposes, are paras 3-6 of the Discovery Notice which enumerates the following documents:

“3. The employment contract entered into between the Applicant [respondent] and Mr EL Hennop, as per para 1.1 of the supplementary affidavit of EL Hennop;

4. The mandate entered into between the applicant [respondent] and Mr EL Hennop, as per paragraph 2.1-2.3 of the supplementary affidavit: EL Hennop;

5. The employment contract entered into between the applicant [respondent] and Mr AR Lowings, as per para 1.1 of the confirmatory affidavit: AR Lowings;

6. The mandate entered into between the applicant [respondent] and Mr AR Lowings as per paragraph 2 of the confirmatory affidavit: AR Lowings..”

[10] The respondent furnished to the appellant a DVD-R disc with full video material and still photographs recorded by Messrs Hennop and Lowings but declined to produce the employment contracts and the mandates of these employees because, it contended, no reference was made to these in the founding papers; they were irrelevant to the consideration of the main application; and the request for their production amounted to no more than an abuse of sub-rule 35(12).

[11] Displeased by what it termed selective discovery on the part of the respondent the appellant filed a Rule 30A application to compel the respondents to furnish the documents sought in paras 3-6 of its sub-rule 35(12) Discovery Notice. Mr Vasilios Vardakos, the appellant’s attorney, deposed to the Rule 30A affidavit. He intimates, inter alia, that it was necessary to determine whether Mr Hennop was in the employ of the respondent and if so to establish what his terms

and conditions of employment entailed including the full details of his brief. He further states that Mr Hennop’s brief will

disclose its terms and scope including whether he was paid any remuneration to conduct the investigation. By parity of reasoning, this also applied to Mr Lowings.

[12] In its reply the respondent reiterated its earlier response that the documents were not referred to in the papers and were irrelevant. In any event, it argued, the “mandates” or “briefs” given to Messrs Hennop and Lowings were oral and not in writing.

[13] Sub-rule 35(12) provides a mechanism for a party to obtain production and inspection of documents prior to making out its case where these documents have been referred to by its opponent in the pleadings but not annexed thereto. The Court a quo did not find the words “employed” and “brief” as captured in the supporting affidavits as an indirect reference to the employment contract and the mandates given to Messrs Hennop and Lowings. The Court was further of the view that the documents sought were irrelevant. It held that what was apposite, in relation to the investigations by Messrs Hennop and Lowings, was their factual evidence in respect of what transpired during their visit to the appellant’s premises.

[14] The Court a quo further reasoned that the appellant had already been provided with the video footage and photographs taken by Messrs Hennop and Lowings in the course of their investigation. As already alluded to, the Court dismissed the appellant’s Rule 30A application with costs on a punitive scale because the appellants persisted with the application albeit it was in receipt of the Judgment of the Free State High Court per Jordaan J in Vukani Gaming Free State v Purple Dot Investment 34 (Pty) Limited and another[1] where a similar application, which had been lodged in that Court against the respondent’s counterpart, requesting the same employment contracts of Messrs Hennop and Lowings as sought in the present application, was dismissed with costs on a punitive scale.

[15] The appellant’s grounds of appeal are that the Court a quo erred in not following the dicta, although obiter, in Centre for Child Law v Governing Body of Hoёrskool Fochville and another[2] where it was held that there was a burden to adduce evidence on the part of the respondent to show that the documents sought to be produced were privileged or irrelevant or did not exist. It was contended that in this case the respondent failed to discharge its burden. The Court ought to have found, so it was argued, that references to the employment status of Hennop and Lowings in their respective affidavits was an indirect reference to the documents requested. Insofar as the Court a quo agreed with the reasoning of Jordaan J in Vukani Gaming Free State v Purple Dot Investment, it was contended, the Court a quo ought to have considered that Jordaan J was prepared, “for argument sake”, to accept that the documents were in existence and sufficiently referred to in the papers. The appellant further contends that the Court a quo erred in its award of costs on a punitive scale on the basis that Vukani Gaming Free State v Purple Dot Investment matter was dispositive of the relief sought in the present application.

[16] Adv. Ellis SC, for the respondent, raised two preliminary points. First, he contended, belatedly, in his heads of argument that the appeal has lapsed because the power of attorney filed with the Court is fatally defective in that it was signed by Mr Vasilios Vardakos, the appellant’s attorney, as opposed to the appellant itself. The attack is primarily on the authority of the appellant’s attorneys to bring this appeal.

[17] The purpose of a power of attorney is to establish the mandate of an attorney and to prevent a person whose name is being used from repudiating the process altogether by claiming that he had given no authority and to prevent persons bringing an action in the name of a person who never authorised it.[3] In Eskom v Soweto City Council [4] the Court made the following seminal pronouncement:

‘The care displayed in the past about proof of authority was rational. It was inspired by the fear that a person may deny that he was party to litigation carried on in his name. His signature to the process, or when that does not eventuate, formal proof of authority would avoid undue risk to the opposite party, to the administration of justice and sometimes even to his own attorney. (Compare Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) at 752D-F and the authorities there quoted.)

The developed view, adopted in Court Rule 7(1), is that the risk is adequately managed on a different level. If the attorney is

authorised to bring the application on behalf of the applicant, the application necessarily is that of the applicant. There is no need that any other person, whether he be a witness or someone who becomes involved especially in the context of authority, should additionally be authorised. It is therefore sufficient to know whether or not the attorney acts with authority.’

At 706B - C the Court held:

‘If the applicant had qualms about whether the 'interlocutory application' is authorised by the respondent, that authority had to

be challenged on the level of whether [the respondent's attorney] held empowerment. Apart from informal requests for enquiries,

applicant's remedy was to use Court Rule 7(1). It was not to hand up heads of argument, apply textual analysis and make submissions about the adequacy of the words used by the deponent about his own authority.’

[18] The power of attorney was served and filed with the Court on 03 April 2019, almost a year ago. In terms of Rule 7(4) every power of attorney filed by an attorney shall be signed by or on behalf of the party giving it, and shall otherwise be duly executed according to law; provided that where a power of attorney is signed on behalf of the party giving it, proof of authority to sign on behalf of such party shall be produced to the registrar who shall note that fact on the said power. It does not appear, ex facie the power of attorney handed to us from the bar, that proof to sign on behalf of the appellant was produced to the registrar. Needless to say, on a proper construction of Rule 7(4),

there is nothing untoward with Mr Vasilios Vardakos, the appellant’s attorney, having signed the power of attorney on behalf of the appellant. It is important to mention that Mr Vardakos authorised a different firm of attorneys to prosecute the appeal on behalf of the appellant.

[19] The belated challenge to the authority of the appellant’s attorney to bring this appeal cannot withstand scrutiny, simply because the principle enunciated in Eskom v Soweto City Council (supra) is that once an attorney is authorised to bring the application on behalf of the applicant the application is that of the applicant and there is no need for any other person to be additionally authorised. It is also disquieting that the respondent did nothing in a period of almost a year to avail itself of the procedure set out in Rule 7(1) to challenge the authority of the appellant’s attorney. Accordingly, the point taken must fail.

[20] The second point in limine concerns the question whether the order of the Court a quo is appealable. Relying on Zweni v Minister of Law and Order [5] it was argued for the respondent that a ruling does not constitute a decision unless it has three attributes: it must be final in effect; it must be definitive of the rights of the parties; and it must have the effect of disposing at least a substantial part of the relief claimed. The order of the Court a quo, so it was argued, is devoid of any of these characteristics and thus not appealable.

[21] The appellant’s contention, through Mr Jagga, is that the order of the Court a quo is final in effect in the sense that the issue of discovery cannot be raised again in the course of the proceedings. Further, that in view of the fact that there was no uniformity in the decisions of the High Courts with regard to the question where the onus reposed, to show that the documents sought under discovery were irrelevant or not existent, this merited the attention of this Court. Counsel further argued that it was in the interest of justice that this matter be considered as appealable.

[22] The approach that has been taken by the Courts in considering whether a judgment or order is appealable, in more recent times, has been increasingly flexible and pragmatic. It has been directed more to doing what is appropriate in the particular circumstances than elevating the distinction between orders that are appealable and those that are not to one of principle.[6] The 'interests of justice' has also been found to be a paramount consideration in deciding whether a judgment is appealable.[7]

[23] Therefore, not all orders refusing or compelling discovery are necessarily appealable. Each case ought to be judged on its own facts.[8] In my view, to determine whether the order of the Court a quo is imbued with the three attributes laid down in Zweni v Minister of Law and Order (supra) and whether the interest of justice would be best served if it is found that the judgment and order of the Court a quo is appealable would require that the merits of the appeal be fully ventilated, to which I now turn.

[24] Sub-rules 35(11) and 35(12) provides:

“(11) The court may, during the course of any proceeding, order the production by any party thereto under oath of such documents or tape recordings in his power or control relating to any matter in question in such proceeding as the court may think meet, and the court may deal with such documents or tape recordings, when produced, as it thinks meet.

(12) Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcription thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding provided that any other party may use such document or tape recording.” (My own emphasis)

[25] The wording of sub-rules 35(11) and (12) is clear and unambiguous. Any document or tape recording required to be produced must relate to any matter in question in such proceeding and reference must have been made to the document or tape recording in issue in the pleadings or affidavits. The entitlement to the production of a document or tape recording under sub-rule 35(12) arises as soon as reference is made in the pleading or affidavit to a document or tape recording. A detailed or descriptive reference to the document is not required, but in the absence of any direct or indirect reference thereto, a document will not have to be produced under this sub-rule merely because its existence may be deduced by inferential reasoning.[9] A litigant cannot ordinarily be told to draft and file his own pleadings or affidavits before he is given an opportunity to inspect

and copy, or transcribe, a document or tape recording referred to in its adversary’s pleading or affidavits.[10]

[26] Mr Jagga argued that inasmuch as Mr Hennop said that he was the operation manager of the respondent this would entail the existence of an employment relationship between Hennop and the respondent. The same applied to Mr Lowings. Insofar as Lowings said he was a consultant of the respondent that would entail the existence of a legal relationship between Lowings and the respondent in a form of a consultancy agreement. Mr Jagga contended that no complex inferential reasoning is required to deduce that reference is made to an employment contract and a consultancy agreement of Mr Hennop and Mr Lowings, respectively, in their supporting affidavits. Mr Jagga further argued that Mr Hennop referred to a brief or instruction that was given to him to conduct the investigation and therefore the appellant was entitled to seek the discovery of the mandate in issue.

[27] Mr Jagga correctly conceded that there was no direct reference to the employment contract and consultancy agreement of Messrs Hennop and Lowings ex facie the founding papers. The argument by the appellant that Jordaan J in Vukani Gaming Free State (Pty) Ltd v Purple Dot Investment 34 (Pty)[11], in a similar application seeking the exact same relief as in the present application, was prepared “for argument sake” to accept that the employment contracts, including the briefs of Messrs Hennop and Lowings were in existence and sufficiently referred in the papers is simply misconstrued and taken out of context. The views expressed by the learned Judge were obiter. In any event, the Judge held that it was not necessary to decide the question whether the purported documents were directly, indirectly or inferentially

referred or whether they were in existence.

[28] I am unpersuaded that the statement by Mr Hennop to the effect that he was an operation manager and by Lowings that he was a consultant of the respondent constituted an indirect reference, for purposes of sub-rule 35(12), to their employment contracts. It amounts to mere conjuncture that Messrs Hennop and Lowings’ employment status presupposes the existence of some written contract of employment or consultancy agreement. The corollary of this is that it is only through the process of inferential reasoning that it could be gathered that the contracts of employment sought may be extant between these employees

and the respondent. This is a far cry from the requirements laid down anent sub-rule 35(12).

[29] It is also remarkable that the appellant still persists with its request that the respondent produces the mandate and brief given to Messrs Hennop and Lowings when it had been informed that those documents do not exist. Mr Jacobus Johannes Strauss, an attorney for the respondent, who attested to the answering affidavit in the Rule 30A application, was informed that the so-called “mandate” and “brief” were made orally and not in writing. It would be a brutum fulmen to compel the respondent to produce a document it simply does not have.

[30] More pertinently, on the question whether the order of the Court a quo is definitive of the parties’ rights and have the effect of disposing at least a substantial part of the relief claimed is the residual issue whether the documents relates to the matter in question in the proceedings. The test to determine whether the document relates to any matter in question in the proceedings as laid down in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, has often been accepted and applied in our Courts. The principle is as follows:

"It seems to me that every document relates to the matter in question in the action which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry which may have either of these two consequences."[12]

[31] It is implicit in sub-rule 35(12) that a document sought to be produced must be relevant to the issues in the case.[13] It must also be reasonably required by the opposing party before it can be said to be hit by the provision of the sub-rule.[14]

[32] The appellant argued strenuously that the onus rested on the respondent to show that the documents the appellant had sought production of were irrelevant or did not exist and had failed to discharge that onus. In Centre for Child Law v Hoërskool, Fochville[15] the SCA considered various decisions of the High Court which are not unanimous on the question of the onus in a Rule 30A application to compel production of documents.[16] The SCA deemed it unnecessary to attempt to resolve the disharmony. However, Ponnan JA entertained serious reservations as to whether an application such as this should be approached on the basis of an onus and was of the view that approaching the matter on the basis of an onus may well be to misconceive the nature of the enquiry. He then pronounced:

‘That notwithstanding, it is important to point out that the term onus is not to be confused with the burden to adduce evidence (for example, that a document is privileged or irrelevant or does not exist). In my view the court has a general discretion in terms of which it is required to try to strike a balance between the conflicting interests of the parties to the case. Implicit in that is that it should not fetter its own discretion in any manner and particularly not by adopting a predisposition either in favour of or against granting production. And, in the exercise of that discretion, it is obvious, I think, that a court will not make an order against a party to produce a document that cannot be produced or is privileged or irrelevant.’

[33] On the view I take of this matter it is not necessary for the question of the onus of proof in the Rule 30A applications to be finally determined by this Court in this appeal. From the views expressed in Centre for Child Law v Hoërskool, Fochville (supra), to do so, may well be to misconstrue the true nature of the enquiry. However, it behoves the Court to strike a balance between the competing interests of the parties when evaluating whether the documents ought to be produced. Whether an onus in the traditional sense (be it an onus of proof or an evidentiary burden) exists it is imperative for the appellant to demonstrate that the documents relate to a matter in issue in the proceedings. In other words, that the documents are infused with information which may either directly or indirectly enable it either to advance its own case or to damage the case of its rival.

[34] The following dictum in The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others[17] serves as an important reminder that:

‘..(I)t is only when exceptional circumstances are present that discovery will be ordered in motion proceedings, especially before the

respondent has delivered his opposing affidavits: see Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 146 (T) at 149A - C. Indeed, in Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA F 457 (W) Botha J, as he then was, expressed himself in this regard in the following strong terms at 470D - E:

'In application proceedings we know that discovery is a very, very rare and unusual procedure to be used and I have no doubt that that is a sound practice and it is only in exceptional circumstances, in my view, that discovery should be ordered in application proceedings.'

I respectfully agree. Discovery has been said to rank with cross-examination as one of the two mightiest engines for the exposure of the truth ever to have been devised in the Anglo-Saxon family of legal systems. Properly employed where its use is called for it can be, and often is, a devastating tool. But it must not be abused or called in aid lightly in situations for which it was not

designed or it will lose its edge and become debased. It seems to me that, generally speaking, its employment should be confined to cases where parties are properly before the Court and are litigating at full stretch, so to speak. It is not intended to be used as a sniping weapon in preliminary skirmishes, such as the main application in this matter is, unless there are exceptional circumstances present.’

[35] Mr Jagga submitted that the documents “may very well advance the appellant’s case” as it may lend credence to its suspicion of bias on the part of the investigators. He further submitted that the brief or mandate would serve to establish whether the investigators acted on their own initiative when they took part in unlawful gambling activities or whether their brief was purely to observe the alleged activities.

[36] The evidence relied on by the respondents in the supporting affidavits of Messrs Hennop and Lowings, as summarised earlier, pertain to their factual observation during the inspection that they conducted at the appellant’s premises. Whether these employees were paid by the respondent and thus failed to bring their impartial minds to bear in the course of their investigation is an issue that has a bearing on their credibility as witnesses. It is for the Court to determine, at a hearing in due course, having evaluated all the evidence, whether there was any manifestation of bias on their part.

[37] There can be no question that an issue that is germane in the main proceedings is whether illegal gambling activities are being carried out by the appellant at the alleged unlicensed premises. The employment status and the mandate given to Messrs Hennop and Lowings, apart from the fact that the respondent does not place any reliance on them, are far removed and totally irrelevant to the enquiry into that main question. The least that the employment contract/consultancy agreement could show is the confirmation of the employment relationship between the respondent and these employees, an aspect which has no bearing whatsoever on the facts they deposed to.

[38] More importantly, the information is not decisive of the issues in the main application and would not bring finality to the impending dispute. In any event, it would be quite absurd to require of the respondent to adduce evidence that the contracts of employment or consultancy agreement were irrelevant when these documents were not even remotely mentioned in their papers. As for the mandate and the brief, they were not in any written form. Mr Hennop mentioned what his brief entailed: “To determine if the premises is operating by entering the premises with or without associates and to investigate whether it is possible to engage and participate in illegal gambling at the premises.” Even assuming that the mandate was in writing that document can only demonstrate that the employees were factually mandated to conduct the investigation.

[39] The Court a quo had a discretion whether to order discovery which this Court can only interfere with if it is shown that the discretion had not been exercised judicially, or had been exercised based on a wrong appreciation of the facts or wrong principle of law.[18] On a conspectus of the aforegoing analysis it cannot be said that the Court a quo exercised its discretion injudiciously or capriciously.

[40] To sum up, I am of the view that the appellant failed to bring itself within the ambit of sub-rules 35(11) and (12). No basis has been established to upset the order of the Court a quo because the documents were not referred to in the founding affidavit, they are irrelevant and has no bearing on any matter in question in the proceeding. It follows that the appeal must fail.

[41] It now remains to deal with the question of costs. I have had the benefit of perusing the judgments of North West Division of the High Court per Hendricks J in Royal Entertainment Internet Hotel v Vukani Gaming North West (Pty) Ltd[19] and that of the Free Division of the High Court per Jordaan J in Vukani Gaming Free State (Pty) Ltd v Purple Dot Investment 34 (Pty).[20] The same counsel representing the appellant in this case moved for orders to compel discovery of, amongst others, the contracts of employment and mandates or briefs of Messrs Hennop and Lowings in almost identical terms and circumstances as the present. In both those decisions the information sought was found to be irrelevant to the consideration of the issues in the main application. What was relevant, the Courts concluded in the same way as the Court a quo in the present application, were Messrs Hennop and Lowings factual observation during their visit at the appellant’s premises which formed the basis of the main application and begged an answer from the appellant. In the end, the appellant was ordered to pay costs on a punitive scale for its relentless pursuit of an ill-fated course which conduct amounted to an abuse of the court process.

[42] It did not end there. When Hendricks J refused Royal Entertainment Internet Hotel leave to appeal his decision it approached the SCA for further leave. When this matter was argued before us on 16 March 2020, unbeknown to the parties the SCA had dismissed the application by Royal Entertainment Internet Hotel with costs on 13 March 2020 on the grounds that there were no reasonable prospects of success and no compelling reason why the appeal should be heard.

[43] I am not swayed that there is any basis for an attack on the punitive costs order made by the Court a quo. An award of costs is a matter within the discretion of the Court. No cogent argument was advanced that the Court a quo did not exercise its discretion judiciously to merit this Court’s interference.

[44] As for the costs of this appeal Mr Ellis contended that they be on a punitive scale because the appellant persisted with a patently unmeritorious appeal in the face of punitive costs made against it in the Court a quo including in both North West and the Free State High Court. I am unpersuaded that this should be the yardstick upon which to evaluate the scale of costs to be awarded. In my view, no compelling argument was made why the costs of this appeal should not follow the results on the normal party and party scale. I make the following order.

Order

1. The appeal is dismissed;

2. The appellant is ordered to pay the costs of the appeal on party and party scale, which costs are to include the costs consequent upon the employment of two counsel;

3. The order in this appeal is binding on Cosmic Gold Trading 257 CC and Another v Vukani Gaming Northern Cape (Pty) Ltd filed under Case No: 253/18 and Internet Café 1 Acacia Street, Kuruman v Vukani Gaming Northern Cape (Pty) Ltd file under Case No: 510/18.

MV Phatshoane J

I concur

Mamosebo J

Stanton AJ

APPEARANCES:

FOR THE APPELLANT: Adv N Jagga

Instructed by Van De Wall Incorporated

FOR THE RESPONDENT: Adv P Ellies SC assisted by Adv AP Ellies

Instructed by Haarhofs Inc Attorneys

[1] Case No: 1064/2018 handed down on 28 June 2018.

[2] 2015 (4) ALL SA 571 (SCA) para 17-18.

[3] See Erasmus `Superior Court Practice, second Edition, Van Loggerenberg` at D1-93 [Service 5, 2017] and authorities cited therein.

[4] 1992 (2) SA 703 (W) at 705E-F; see also Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at 206-207 paras 14-16 where the dictum by Flemming DJP in Eskom v Sowetan City Council 1992 (2) SA 703 (W) was quoted with approval, and Ganes and Another v Telkom Namibia Ltd 2004 (3) SA 615 (SCA) at 624I - 625A.

[5] Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J – 533A.

[6] National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) (2010 (7) BCLR 656; [2010] 3 All SA 304) paras 50 – 51; See also Phillips v SA Reserve Bank and Others [2012] 2 All SA 532 (SCA) para 26.

[7] Nova Property Group Holdings Limited v Cobbett and Others 2016 (4) SA 317 (SCA) at 323 para 8; See also Philani-Ma-Afrika and Others v Mailula and Others 2010 (2) SA 573 (SCA) para 20.

[8] Santam Ltd and Others v Segal 2010 (2) SA 160 (N) at 164G para 7.

[9] Contango Trading SA v Central Energy Fund Soc Limited 2019 JDR 2511 (SCA) at para 9 and authorities cited therein.

[10] Protea Assurance Co Ltd and Another v Waverley Agencies CC and Others 1994 (3) SA 247 (C) at 249B-D.

[11] Case No 1064/2018 handed down on 28 June 2018 referred to in fn1.

[12] See Rellams (Pty) Ltd v James Brown & Hamer Ltd 1983 (1) SA 556 (N) at 564A-B where dictum was quoted with approval.

[13] Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C) at 774.

[14] Universal City Studios v Movie Time 1983 (4) SA 736 (D) at 747B-C.

[15] 2016 (2) SA 121 (SCA).

[16] Universal City Studios v Movie Time 1983 (4) SA 736 (D); Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C); and Unilever plc and Another v Polagric (Pty) Ltd 2001 (2) SA 329 (C).

[17] 1999 (3) SA 500 (C) at 513E-I.

[18] Giddey NO v J C Barnard and Partners [2006] ZACC 13; 2007 (5) SA 525 (CC) at 533H-534A para 9.

[19] Case No: M544/2017 handed down on 21 February 2019.

[20] Case No 1064/2018 handed down on 28 June 2018.