Tarentaal v Member of the Executive Council the Department of Social Development Eastern Cape Division (2024/06) [2007] ZAECHC 78 (15 November 2007)

FORM

A

FILING

SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

GODFREY

TARENTAAL APPLICANT

AND

MEC FOR SOCIAL DEV. ECP RESPONDENT

Case Number: 2042/06

High Court: SOUTH

EASTERN CAPE LOCAL DIVISION

DATE HEARD: 25/10/07

DATE DELIVERED: 15/11/07

JUDGE(S): H.J.

LIEBENBERG

LEGAL REPRESENTATIVES -

Appearances:

for the Applicant(s): ADV

HARTLE for the Respondent(s): Adv. Gqamana

Instructing attorneys:

Applicant(s):

MCWILLIAMS & ELLIOT INC. Respondent(s): M. NOKWE & PARTNERS

CASE INFORMATION -

Nature of proceedings : SOCIAL

GRANT

IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: 2024/06

DATE DELIVERED:

IN THE MATTER BETWEEN:

THE MEMBER OF THE

EXECUTIVE RESPONDENT

COUNCIL THE

DEPARTMENT OF SOCIAL

DEVELOPMENT EASTERN CAPE DIVISION

JUDGMENT:

LIEBENBERG, J:

1. This is an application brought by the applicant for an order compelling the respondent to inform the applicant of the outcome of an appeal brought by him in terms Section 10 of the Social Assistance Act No 59 of 1992 and certain other relief which is no longer relevant.

2. The application was brought on the 18th April 2006 and the papers were served on the respondent on the 20th April 2006. It appears from the papers that by letter dated the 2nd May 2006, which was received by the applicant’s attorneys on 12 May 2006, the respondent informed the applicant of the fact that his appeal was not successful. A further similar letter was addressed to the applicant’s attorneys on the 2nd June 2006 and received by them on the 6th June 2006. From the aforementioned it appears that the applicant became aware of the outcome of his appeal 24 days after this application was brought.

3. On behalf of the respondent two notices to oppose this application were filed. The first one was filed by the State Attorney on the 5th May 2006 and the second one by his present attorneys on the12th May 2006, the latter being the day on which the applicant’s attorneys received the first letter in which he was informed of the outcome of the appeal.

4. The respondent filed answering affidavits on the 16th March 2007 where after the applicant filed a replying affidavit on the 22nd August 2007.

5. In the replying affidavit, attested to by the applicant’s attorney, it is alleged that the applicant only became aware of the fact that the notice informing him of the outcome of the appeal had been given by the respondent when the respondent’s answering affidavit was filed. This clearly cannot be correct as it is admitted in the replying affidavit that the first letter informing him of the outcome was received by the attorney on the 12th May 2006.

6. In view of the fact that the respondent did inform him of the outcome of the appeal, albeit after the date on which the first notice of opposition had been filed, the only relief now asked for by the applicant is an order for the costs of the application. The respondent opposes such an order.

7. For his opposition to the granting of the costs order in favour of the applicant Mr. Gqamana, for the respondent, relied on two grounds. The first ground is that the applicant, in bringing the present application, did not comply with Eastern Cape Practice Rule 14A published in Court Notice No 1 of 2006. This practice rule requires that, in addition to any other legal demand that may be required, proof of delivery of written demand for the relief sought to the local office where the original application was made, must be contained in all social grant applications. It was argued by Mr.Gqamana that this provision not only applies to applications in respect of original applications for a social grant, but that it applies equally to applications made in respect of appeals lodged against a decision to refuse a social grant. In view of what follows I do not find it necessary to decide this issue now.

8. Mr. Gqamana also relied on the principle that has been applied by our Courts that an applicant, who brings an application without sending a letter of demand to the respondent before doing so, is not entitled to a costs order if the respondent tenders the relief claimed in his answering affidavit, but should, in that event, be ordered to pay the respondent’s costs.

9. For purposes of this judgment I shall accept that the applicant had a right to the relief claimed at the time of bringing this application. The principle relied upon by Mr Gqamana was stated by Wessels J in Havenga v. Lotter 1912 (TPD) 395 as follows:

“It is perfectly true that a person who feels aggrieved may take out

A summons immediately. He need send no letter of demand; but if

he omits to send a demand, and a tender is made upon the summons,

then he is not entitled to the costs of the summons.”

10. This principle was applied by a full bench of the Eastern Cape Division to application proceedings in Bester v. van Niekerk 1960 (2) E.C.D.

363. In that case the applicant obtained a judgment against the respondent. The latter appealed against the judgment. After the appeal was lodged and while it was still pending, the respondent sold his farm and advertised a dispersal sale of his cattle and farm implements. The applicant brought an urgent application for an order granting him leave to execute upon the judgment and an interdict to prevent the respondent from giving transfer of the farm and selling his cattle and implements. A rule nisi was issued and served on the respondent. After service of the rule nisi the respondent filed an affidavit in which he admitted the allegations and tendered to pay the proceeds of the sale into a building society savings account under the control of the Deputy-Sheriff to secure satisfaction of the judgment debt if the appeal failed. The matter was resolved along the lines tendered by the respondent. The respondent, however, alleged that the applicant’s application was premature and that if the applicant’s fears had been communicated to him the respondent would have been quite willing to make reasonable arrangements to protect the applicant’s interests. The court a quo made an order that the costs of the application be costs in the appeal. After quoting the above quoted dictum of Wessels J, O’Hagan J, who delivered the judgment of the full court, continued to say the following:

“I think this is a principle which can be applied to the particular circumstances of the present case. The essence of the plaintiff’s claim was conceded by the defendant as soon as the rule had been served on him. The haste of the plaintiff was wholly responsible for legal proceedings which would have been unnecessary had a measure of prudence been employed. On this ground I think the plaintiff should have been ordered to pay the costs of the proceedings.”

In the aforegoing quotation the learned judge referred to the applicant as the plaintiff and the respondent as the defendant. The costs order of the court a quo was reversed on appeal and the applicant was ordered to pay the respondent’s costs.

11. In the present matter Ms Hartle did not argue that the principle does not apply to the present matter. Her argument was that the applicant complied with the principle. For her argument she relied on the following paragraph appearing after the grounds of appeal have been stated in the letter in terms whereof the appeal was lodged:

“You are hereby requested to furnish us with the outcome of our client’s

Appeal within 90 days of date of this letter failing which an application

will be made, with no further notice to you, for an order compelling you to

make a decision in regard to our client’s Appeal and furnish reasons

for your decision.”

12. To accept such a notice in the notice of appeal as compliance with the principle would, in my view, defeat the whole purpose thereof, which is to prevent unnecessary litigation and the costs occasioned thereby. If, in the present matter, the applicant, instead of rushing into court, made a further demand on the respondent to fulfil his obligations, the indications are that this application would have been unnecessary. Before the respondent even filed his answering affidavit he complied with the applicant’s claims. Despite the fact that the respondent complied with his obligations at that stage, the applicant continued to pursue the application. The answering affidavit was filed by the respondent and subsequently also a replying affidavit on behalf of the applicant. Why the matter was proceeded with after the respondent satisfied the claims made in the application is uncertain, but it appears that the purpose could only have related to the matter of the costs of the application.

13. In the present matter, though the applicant had the right to bring the application without a further demand, he did so at his own peril. In the words of O’Hagan J in Bester’s case (supra), the haste of the applicant was wholly responsible for these legal proceedings which would have been unnecessary had a measure of prudence been employed. In my view the applicant should be ordered to pay the costs of the proceedings.

I therefore make the following order:

The applicant is ordered to pay the costs of the application.

_____

H.J. LIEBENBERG

JUDGE OF THE HIGH COURT