Total South Africa (Pty) Ltd v Plank Teesen (Pty) Ltd and Another (679/2021) [2022] ZANWHC 44 (22 April 2022)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE NO: 679/2021

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

TOTAL SOUTH AFRICA (PTY) LTD

APPLICANT

AND

PLANK TEESEN (PTY) LTD

1ST RESPONDENT

EDUARDO JACOBUS TEESEN

2ND RESPONDENT

IN RE:

TOTAL SOUTH AFRICA (PTY) LTD

APPLICANT

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 22 April 2022.

REASONS FOR JUDGMENT

DJAJE J

[1] This matter appeared on the unopposed roll of 24 March 2022. In the court file there was a practice note filed that the matter will be postponed. At the hearing the only issue that the parties

were not in agreement on was that of costs. An order was made as follows after submissions by both counsel on behalf of the applicant

and the respondent:

“1. THAT: The matter be and is hereby postponed to the 09th day of September 2022 to the opposed Roll to be argued.

2. THAT: Respondents are ordered to pay costs.”

[2] The applicant field a request for reasons of the order of 24 March 2022 on 13 April 2022. I now furnish the reasons as requested.

[3] The reason for the postponement of the matter was that it had become opposed and should be enrolled on the opposed roll. The applicant argued that the respondent had filed their answering affidavit late and hence the matter had to be postponed on 24 March 2022. The reason why the applicant sought that the cost order be granted against the respondents was that they had filed their answering

affidavit late and as a result the applicant had already prepared its heads of argument for the matter to be heard on the unopposed roll of 24 March 2022. The respondents conceded that their answering affidavit was indeed filed late but however argued that the applicant had also filed a supplementary affidavit instead of a replying affidavit and that the parties had agreed on the postponement. The respondents submitted that costs should be reserved and be determined when the matter is argued.

[4] The basic rule in civil litigation in South Africa is that costs are in the discretion of the judicial officer. See Ferreira v Levin, Vryenhoek v Powell [1996] ZACC 27; 1996 (2) SA 621 (CC) at 624 with the general rule being that costs follow the event. That is, the successful party should be awarded his or her costs. See: Pelser v Levy 1905 TS 466 at 469.

[5] The matter came to court on the unopposed roll and was to be postponed to the opposed roll as the respondents had filed their answering affidavit. However, at the time the answering affidavit was filed the matter had already been set down on the unopposed roll. The applicant had the matter on the unopposed roll as there was no indication from the respondents that they will oppose. The late filing of the answering affidavit was the result of the matter being postponed. The delay was caused by the respondents’ conduct and as such should be responsible for the costs that had been incurred by

the applicant. It was for that reason that the order was made that the respondents should pay costs.

J.T. DJAJE

JUDGE OF THE HIGH COUR

NORTH WEST DIVISION, MAHIKENG