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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)         REPORTABLE: YES/NO

(2)         OF INTEREST TO OTHER JUDGES: YES/NO

(3)         REVISED

 

Case Number: 62802/2014

26/2/2020

 

RAINBOW FARMS (PTY) LTD                                                                                 Applicant

 

and

THE MINISTER OF WATER AND

ENVIRONMENTAL AFFAIRS                                                                                 1^st Respondent

THE CHIEF DIRECTOR: INTEGRATOR

ENVIRONMENTAL AUTHISATIONS,

DEPARTMENT OF ENVIRONMENTAL AFFAIRS                                             2^nd Respondent

ESKOM HOLDINGS LTD                                                                                        3^rd Respondent

JUDGMENT

 

DE BEER, AJ

1.         On 22 August 2014 the Applicant launched a review application in terms of Uniform Rule 53 read with Uniform Rule 6 and the provisions of the Promotion of Administrative Justice Act, Act 3 of 2000 ("PAJA"). The Applicant, inter alia, sought to declare and set aside the First Respondent's appeal dismissal on 23 February 2014. The aforesaid appeal was lodged by the Applicant against the decision of the Second Respondent authorising the Third Respondent to construct transmission power lines between the Delta and Epsilon substations, Limpopo and the North West provinces, insofar as authorisation was granted for the transmission power lines to traverse Portions 8, 15 and 17 of the Farm Roodewal 332 JQ situated within the area of the Rustenburg Local Municipality, North West Province ("Roodewal Site”), The entire relief sought by the Applicant is set out in more detail in the Notice of Motion.

2.         It is common cause that all three Respondents filed a notice of intention to oppose the said Application. By agreement, the filling of answering affidavits were in abeyance.

3.         The Applicant filed a supplementary founding affidavit on 5 June 2015 with additional documentation in support of the review application.

4.         On 18 August 2015 the Third Respondent's Attorneys addressed a letter to the Applicant's Attorneys from which it appears that the matter is resolved. The First and Second Respondents were copied in on this letter. In fact, it is common cause between the parties that an agreement was reached on 18 August 2015. Therefore, only the question of costs of the application remains to be decided.

5.         Subsequently the Applicant continued and filed a further affidavit on 21 November 2018, for the purpose to inform the court of the developments after the present application was launched.

6.         The Applicant procured a hearing date and a notice of set down was served on the Respondents on 18 December 2018 and 9 January 2019 respectively.

7.         On 11 February 2018 the First and Second Respondents' representative addressed a letter wherein it is indicated that their answering affidavit will be filed by no later than 14 February 2019. The First and Second Respondents filed a formal condonation application and answering affidavit on 14 February 2019.

8.         The Third Respondent similarly served and filed a condonation application and an answering affidavit. No date stamp appears on the notice of motion, however, same is dated 22 February 2019.

9.         The Applicant filed a replying affidavit dated 4 June 2019 (which was due on 28 February 2019).

10.        The Applicant is not opposing the said condonation applications.

11.      The First and Second Respondent raised an issue pertaining to the late filling of the replying affidavit and the absence of a condonation application therefor.

12.        There are no allegations of prejudice that were raised by the First and Second Respondents, nor have they availed themselves to the remedies contained in Rule 30 to have the irregular filling of the replying affidavit set aside.

13.      In Trans-Africa Insurance Co Ltd v Maluleka 1956 (2) SA 273 at 278F-G Schreiner JA remarked:

"…technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits."

 

14.        In Khunou and Others v M Fihrer and Son (Pty) Ltd and Others 1982 (3) SA 353 (W) at 355-356 Slomowitz AJ said:

"Of course the Rules of Court, like any set of rules, cannot in their very nature provide for every procedural situation that arises. They are not exhaustive and moreover are sometimes not appropriate to specific cases. Accordingly, the Superior Courts retain an inherent power exercisable within certain limits to regulate their own procedure and adapt it, and, if needs be, the Rules of Court, according to the circumstances. This power is enshrined in s 43 of the Supreme Court Ad 59 of 1959."

 

15.        The Rules of Court are, after all, designed to facilitate the expeditious ventilation and hearing of disputes as little cost as possible (SOS Kinderhof International v Effie Lentin Architects 1993 (2) SA 481 (Nm) at 491E; Wolf v Zenex Oil (Pty) Ltd 1999 (1) SA 652 (W) at 654F). The Rules exist for the court, not the court for the Rules (Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 783).

16.        Regard being had to the findings of Wepener J in PANGBOURNE PROPERTIES LTD v PULSE MOVING CC AND ANOTHER 2013 (3) SA 140 (GSJ) at paragraphs 10-19, specifically pertaining to the late filling of affidavits and objections raised thereto etc, it is in the interests of justice that the replying affidavit be taken into account and that this matter be finalised and unnecessary additional costs be avoided.

17.        Insofar as it may be necessary and within my discretion to allow the late filing of the replying affidavit, I do so in order to decide the dispute pertaining to costs unfettered by technicalities. Condonation is similarly granted for the late filling of the Respondent's answering affidavits.

18.        The real dispute between the parties pertains to the question of costs, more specifically the cost aspect of this review application.

19.        It is common cause that the parties resolved what a suitable route for the transmission power lines of the Third Respondent would be. This agreement was reached on 18 August 2015. Resultant, the differences between the parties have been resolved except for the question of costs.

20.        It was contended on behalf of the Applicant that:

20.1.    The Applicant was entitled to commence and institute review proceedings i.e. this application;

20.2.    The Applicant had substantial success, regard being had to the settlement reached; and

20.3.    Therefore, it is entitled to costs.

 

21.        On behalf the Respondents it was contended that:

21.1.    The agreement reached was as a result of the First and Second Respondents' insistence on 5 August 2015 to fulfil conditions that was imposed and being referred to as conditions 45 to 48 of the EA;

21.2.    The First Respondent's dismissal of the Applicant's appeal is in force and valid. Consequently, the Applicant had no success;

21.3.    The Applicant had no success as contemplated or at all.

 

22.        Before deciding the issue of costs, the principles enunciated in the following case law need to be considered.

23.        When the merits of a matter of being disposed of, for example, by an offer which concedes the claim, and only costs of the whole case remain to be decided, issue of costs must be decided on broad general lines and not on lines that would necessitate a full hearing on the merits. See Meyer v Meyer 1945 TPD 118; Stone v SA Railways & Harbours 1933 TPD 265 at 271; RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk1981 (2) SA 141 (O). This being the basis of the rule, it is immaterial that the applicant had been barred from pleading in the second action (Cooper v Van Ryn Gold Mines Estates Ltd 1909 TS 547). Although vexatiousness is also the basis of a successful defence of lis pendens, the two defences are entirely different from each other in essence and from the point of view of procedure, and are based on separate and different factual situations (RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O) at 145A).

24.        In Pretoria Garrison Institutes v Danish Variety Productions (Pty) Limited1948 (1) SA 839 (A) at 863 Watermeyer CJ held:

“A litigant's right to recover the costs of an opposed application from his opponent will, in general. depend upon whether he was in the right either in making the application or in opposing it as the case may be (provided always there are no grounds for exercising a judicial discretion to deprive him of these costs). The form in which this rule is usually stated is that the successful party is entitled to his costs unless the Court for good reason in the exercise of its discretion deprives him of those costs. Now, discarding for the moment the idea of discretion, in an appeal against an order for costs the Court of appeal does not judge a party's right to his costs in the Court a quo by asking the question was he the successful party in that Court. It asks ought he to have been the successful party in the Court and decides the question of costs accordingly. It may or may not be necessary in such cases to deal with the order which was actually made on the merits; it may even be that no order on the merits was made in the Court a quo because by the time the matter came before that Court the necessity for an order was gone and the sole question was one of costs. This shows that the merits of the dispute in the Court below must be investigated in order to decide whether the order as to costs made in that dispute was properly made or not. In deciding whether or not the Court below made the correct order as to costs the reasons which prompted that Court to make its order must be examined and those reasons must be the actual reasons and no others." (Own Emphasis)

 

25.        In Thusi v Minister of Home Affairs and Another and 71 Other Cases 2011 (2) Sa 561 (KZP) Wallis J held at par 64:

''In accordance with that principle, where a decision on the merits of an application is no longer necessary or permissible, for whatever reason, the question of costs is not determined in isolation from the merits. (See Erasmus v Grunow en 'n Ander 1980 (2) SA 793 (O) at 789 C-H) In order to assess the claims for costs orders in these applications, it is accordingly necessary to consider whether the applicants were justified in commencing the proceedings. "(Own Emphasis)

 

26.        In Wholesale Provision Supplies CC v Exim International CC and Another 1995 (1) SA 150 (T) at 159 Mahomed J held:

"The trial would therefore at best become relevant simply to determine the proper liability for costs. A costly trial, simply to determine who shall pay the costs of proceedings which have been rendered academic when the trial is set down, must be avoided. The Court must simply make a proper allocation of costs on the material at its disposal. (Own emphasis), (See Jenkins v South African Boilermakers, Iron & Steel Workers' & Ship Builders' Society 1946 WLD 15; Gans v Society for the Prevention of Cruelty to Animals 1962 (4) SA 543 ('W.)"(Own Emphasis)

 

27.        In Gamlan Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd and Another 1996 (3) SA 692 (C) Van Niekerk J at 700-701:

''It Is trite law that an award of costs is a matter wholIv within the discretion of the trial Court and it must be exercised judicially on a consideration of the facts of each case: see Graham v Odendaal 1972 (2) SA 611 (A) at 616A. (Own Emphasis)

 

In Randalia Assurance Corporation of SA Ltd v Page and Others 1975 (1) SA 708 (A) at 720C, Holmes JA added that:

‘... (A)nd in essence it is a matter of fairness to both sides. The power of Interference on appeal is therefore limited to cases of vitiation by misdirection or irregularity, or the absence of grounds on which a court, acting reasonably, could have made the order in question; see Blou v Lampert and Chipkin NNO and Others 1973 (1) SA 1 (A) at 15E-H.'

 

As a general rule, the successful party is entitled to his costs and this rule should not be departed from except upon good grounds; see Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa 3rd ed at 477-8 and the authorities cited.

 

An issue which arose pertinently during the course of argument before us was whether the lengthy evidence led on the question of costs only, which, as stated, was the only issue in dispute, should have been placed before the Court at all having regard to the content of the letter of 19 March 1991 and the tender subsequently made in terms of Rule 34(4) and (5) of the Rules of Court.

 

In Jenkins v SA Boiler Makers, Iron & Steel Workers & Ship Builders Society 1946 WLD 15, the Court held that where a disputed application is settled on a basis

which disposes of the merits except insofar as the costs are concerned, the Court should not have to hear evidence to decide the disputed facts in order to decide who is liable for costs, but the Court must, with the material at its disposal, make a proper a/location as to costs.

 

I would respectfully associate myself with the conclusion to which the Court came, and more particularly with the approach adopted by Price J at 17 where he states that:

 

'It seems to me to be against all principle for the Court's time to be taken up for several days in the hearing of a case in respect of which the merits have been disposed of by the acceptance of an offer, in order to decide questions of costs only. '

 

The teamed Judge goes on to state:

 

'I cannot imagine a more futile form of procedure than one which would require Courts of law to sit for hours, days, or perhaps even for weeks, trying dead issues to discover who would have won in order to determine questions of costs, where cases have been settled by the main claims being conceded.'

 

The learned Judge adds at 18 that:

 

When a case has been disposed of by an offer which concedes the main claim and the costs of the whole case have still to be decided, I think the Court must do its best with the material at its disposal to make a fair allocation of costs, employing such legal principles as are applicable to the situation. This is much to be preferred to laying down a principle which requires courts to investigate dead issues to see who would have won on such issues. In most such cases the litigants would be required to incur far greater costs than those at stake. '

 

Costs, the learned Judge went on to point out, must be decided on broad general lines and not on lines that would necessitate a full hearing on the merits of a case that has already been settled. This approach is certainly to be commended. Costs, particularly at present, play a very important role in litigation and the presiding Judicial officer should, in my view, discourage the incurring of unnecessary costs by making an appropriate order in this respect A party must pay such costs as have been unnecessarily incurred through his failure to take proper steps or through his taking wholly unnecessary steps: see Herbstein and Van Winsen (op cit at 483); De Villiers v Union Government (Minister of Agriculture) 1931 AD 206 at 214.

 

In Fripp v Gibbon & Co 1913 AD 354, an appeal only on costs, De Villiers JP at 363 dealt with the matter as follows:

 

'I agree that as a rule it is fair and just that the costs should follow the event, whether of claim or of counterclaim. But I cannot agree with the view that the unsuccessful party should bear the burden of all the costs simply on the ground that in the final result he Is the unsuccessful party. To me it seems more in accordance with the principles of equity and justice that costs incurred in the course of litigation which Judged by the event or events, prove to have been unnecessarily or ineffectively incurred should, as a rule, be borne by the party responsible for such costs. '

 

Even where the decision in respect of costs is 'separate' from the merits, as is the case where a decision on the merits is no longer sought this does not mean that the decision on costs must of necessity be totally isolated from the merits. (Own emphasis). Indeed, in an appeal against a costs order, the Court's decision, in the absence of other relevant factors, would in the normal course be largely based on whether or not the appellant would have been successful on the merits: see Erasmus v Grunow en 'n Ander 1980 (2) SA 793 (O) at 7978-H and 798D-H.”

 

28.        The matter ought to be decided on broad general lines without going into a full­ scale adjudication of the merits. The court must consider whether the Applicant was in the right, in making the application, in other words, consider whether the Applicant was justified in commencing the proceedings. Toe Court should not have to hear evidence to decide the disputed facts in order to decide who is liable for costs, but the Court must, with the material at its disposal, make a proper allocation as to costs. Where the decision in respect of costs is 'separate' from the merits, as is this case where a decision on the merits is no longer sought, this does not mean that the decision on costs must, of necessity, be totally isolated from the merits.

29.        In casu the Applicant instituted this application and substantially dealt with the requisites of a review application, more specifically, has fully set out the grounds for its review and to have the Minister's decision set aside. These allegations remain unanswered at the point of deciding the question of costs. As a general rule Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 E-G, to be:

 

“ . . where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondent together with the admitted facts in the applicant's affidavits justify such an order... Where it is clear that facts, though not formally admit it, cannot be denied, they must be regarded as admitted. ''

 

30.        The answering affidavits filed by the Respondents raise various issues pertaining to costs and meticulously deals with answers to the supplementary affidavit filed by the Applicant (21 November 2018). However, the affidavits fail to gainsay and rebut what is set out in the Applicants founding affidavit, more specifically fail to deal with the aspect of the grounds of review at the stage where costs are considered.

31.        It is prima facie evident from the founding affidavit that the Applicant was in the right to bring this application and that there were prospects of success.

32.        In addition, there are a series of events that must be taken into consideration. Environmental Authorisation was given on 16 November 2012. Conditions were attached to the authorisation. Condition 44 reads: ''Eskom must complete the determination of the final alignment of the transmission lines at the Rainbow Chickens property... " Condition 46 reads: ''Eskom in consultation with Rainbow Chickens must develop tightly quarantine and movement access/ control measures to avoid bio-diversity risks due to human activities during construction phases...': Condition 47 reads: "This development is authorised on condition that Eskom acquires the necessary servitude for both corridors of the transmission lines. Eskom must negotiate with all affected landowners within the preferred corridors prior to the commencing with construction. Proof of negotiation with the affected landowners must be available on request of the DEA (Department of Environmental Affairs).': Condition 48 reads: “Any route adjustment outside the corridor necessitated by the local circumstances must be reported to the DEA in writing. Construction of the transmission lines shall only commence once such re-alignment has been accepted by the DEA. "

32.1.       On 14 January 2013 the Applicant lodged an appeal to the First Respondent against the decision of the Second Respondent. On 23 February 2014 the First Respondent dismissed the appeal of which a copy was forwarded on 24 February 2014, more than one year later. It is important to mention that, up until this point in time, there is no evidence that the Third Respondent acted in fulfilment of the imposed conditions, nor did the Second Respondent issued any enquiries about compliance of the said conditions.

32.2.       The Applicant issued this application on 22 August 2014. It is common cause that all the Respondents opposed the said application. The filling of answering affidavits were kept in abeyance.

32.3.       Negotiations between the Applicant and Third Respondent ensued. It is important to note that, at all relevant times, although not actively involved in the negotiations, the First and Second Respondents were copied in on the correspondence. In my view, the Third Respondent commenced fulfilment of the conditions after the filling of this application.

32.4.       On 5 August 2015 the Second Respondent, represented by Wayne Hector, for the first time since approval on 16 November 2012 albeit almost three years later, enquires about compliance with the abovementioned conditions. In response hereto the Third Respondent levelled allegations of non-cooperative behaviour on the part of the Applicant, however, these allegations are denied.

32.5.       On 18 August 2015 the Third Respondent addressed a letter wherefrom it is evident that it was agreed to re-route the Third Respondent's transmission lines. Regard being had to condition 48 in the absence of any evidence to the contrary, it is accepted that the re-alignment has been accepted by the Second Respondent.

 

33.        From the various correspondence attached to the affidavits, inter alia, Annexure "JM7'' dated 18 August 2015, it is also evident, and one may infer that the negotiations at hand related to the review application and the issues brought about by it. The aforesaid inference is further supported by Annexure "51", dated 19 August 2015 wherein Mr. Meier on behalf of the First and Second Respondents recorded "It seems that the parties want to settle the review application." The Applicant's correspondence, more specifically Annexure "53", makes specific reference to the review application: "The only outstanding issue is our clients review application...' I could find no reply wherein this reference Is denied. Mr. Donavan Avenant, in his replying affidavit, stated that he was present and they specifically dealt with settlement of the review application.

34.        The review proceedings jolt the Respondents into action. In my view, the Applicant was entitled to commence the proceedings and its application had potential to success. Where Applicant succeed in demonstrating that it would have been successful in the intended application, the costs would have to follow the event and Applicant, as the potentially successful party, would be entitled to its costs. In addition, and regard being had to the above, it is evident this application triggered the resolution of the disputes between the parties. It is therefor, in my view, clear that the discussions/negotiations related to this application. I can find no grounds as to deprive the Applicant of its costs.

35.        As a result, and having regard to the available material before me, it appears that the Applicant was entitled to enforce its rights. Put differently, the Applicant was in the right to make this application. The Applicant was justified in commencing the proceedings. Following Pretoria Garrison Institutes supra at p 863 and Thusi v Minister of Home Affairs supra at par 64, the Applicant is entitled to recover his costs.

36.        It becomes irrelevant whether the First Applicant's decision is still in force. The Applicant was in the right in commencing the proceedings which had potential to success, which entitled it to costs and, regard being had to what transpired subsequent to the issuing of the review application, it is evident that this application attributed to the successful negotiations.

37.        As an additional reason, the application, in my view, goes further as to just set aside the First Respondent's appeal dismissal. The Applicant, on review, applies to have the First Respondent's appeal dismissal be set aside, coupled with certain directions for reconsideration. The end result being that alternatives are found which would constitute a suitable route for the transmission power lines of the Third Respondent. The settlement reached on 18 August 2015 accomplished just this. The powerlines were rerouted to no longer traverse the Applicant's biosecurity zone. By finding an alternative route, as originally contemplated, the question of setting aside the First Respondent's appeal dismissal becomes superfluous. The Applicant, in my view, is being substantially successful. There are no grounds upon which I should depart from the general rule that a successful party is entitled to his costs.

38.        The last aspect that ought to be determined is the question of the wasted costs incurred on 4 March 2019. The Applicant procured a date, 4 March 2019.

38.1.    The set down was served on the Respondents on 18 December 2018 and 9 January 2019 respectively.

38.2.    The First and Second Respondents filed a formal condonation application and answering affidavit on 14 February 2019. On 11 February 2018 the First and Second Respondents' representative addressed a letter wherein it indicated that their answering affidavit will be filed by no later than 14 February 2019. It was suggested that the matter be postponed and costs were tendered.

38.3.    However, at this point in time, it is uncertain what the Third Respondent's stance was, except that, the papers before me indicates that an answering affidavit dated 22 February 2019 was subsequently filed albeit late.

38.4.    A notice of removal was filed on 1 March 2019 and costs were reserved.

 

39.        Had the Respondents served and filed their answering affidavits timeously, the matter, in all probability, would have continued on 4 March 2019. Notwithstanding the latter, the First and Second Respondent tendered the wasted costs for the late delivery of their affidavits. It was suggested by the Counsel for the First and Second Respondent that costs of this event should, alternatively be costs in the cause. I am in agreement with this suggestion. I, therefor, find that the wasted costs occasioned by the postponement be costs in the cause of this application.

40.        It is also important to be reminded of the fact that the Applicant specifically provided in its notice of motion, paragraph 3 thereof that it will seek costs in the event of opposition.

41.        Having regard to the abovementioned principles enunciated in the above quoted authorities, and having regard to the arguments on costs, including the facts relating thereto, I make an allocation of costs premised on the material at my disposal.

42.        For the abovementioned reasons, I make the following order:

42.1.    Condonation is granted for the late filing of affidavits.

42.2.    The costs occasioned by the postponement of 4 March 2019 to be costs in the cause.

42.3.    The Respondents to pay the costs of this application, jointly and severally, the one paying the other to be absolved.

 

 

 

R.J DE BEER

ACTING JUDGE OF THE GAUTENG

DIVISION, PRETORIA

 

 

APPEARANCES:

 

For the Applicant: Adv. C. Woodrow

Instructed by: Eversheds Attorneys

 

For the First and Second Respondents: Adv. I. Ellis SC

Instructed by: The State Attorney

 

For the Third Respondent: Adv. J. Bhima

Instructed by: Bhika Inc.

 

Date of Hearing: 24 February 2020

Date of Judgment: 26 February 2020

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