South Africa: North Gauteng High Court, Pretoria

[9.3] Two, costs orders are seldom appealable. The Supreme Court of Appeal found that with regard to an appeal against a costs order, the appellant has to establish exceptional circumstances (Khumalo v Twin City Developers (328/2017) [2017] ZASCA 143 (2 October 2017) para 14-17 with reference inter alia to section 16(2)(a) of the Superior Courts Act. Section 16(2)(a) reads (underlining added):

'(i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

(ii) Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.'

[9.4] At this stage I reflect that Erasmus, Superior Court Practice, Volume 1, page A2-56 to A2-57 argues that in the normal cause the following principles should continue to apply (footnotes omitted and underlining added):

'It is submitted that in applications for leave to appeal where the only issue remaining is one of costs, the principles as set out in Tsosane v Minister of Prisons[1] will continue to apply in the context of the question whether compelling reasons why the appeal should be heard exist. Briefly stated, these are:

(i) Such leave is not lightly given-first, because costs are ordinarily a matter of judicial discretion; and secondly, because it is desirable that finality should be reached where the merits of a matter have been determined.

(ii) The court will not ordinarily grant leave to appeal in respect of what has become a dead issue merely for the purpose of determining the appropriate order as to costs.

(iii) Leave will more readily be granted where a matter of principle is involved.

(iv) The amount of costs involved should not be insubstantial.

(v) The applicant for leave to appeal should have a reasonable prospect of success on appeal.

[10] Save for the last mentioned factor (now overtaken by the higher current test), these principles remain true.

[11] I exercised a so-called narrow discretion in granting the costs order (The Wilds Home Owners Association and Others v Van Eeden and Others (780/11) [2012] ZASCA 113 (13 September 2012) para 17) which in the ordinary course would require a misdirection to be set aside. I apply the question of a misdirection as part of determining if in my view exceptional circumstances exist for granting leave to appeal.

[12] The grounds for seeking leave to appeal are the following:

'1. The learned Judge erred in fact and in law in granting a costs order against the Applicants on a punitive scale as between attorney and client.

2. The learned Judge erred in fact and in law in ordering that the costs be paid jointly and severally with attorney, Nalini Maharaj (the Fifth Applicant), from 8 March 2016 which amounts, de facto, to a cost order de bonis propriis against attorney Nalini Maharaj.

3. The learned Judge erred in fact and in law when he ordered the attorney, Nalini Maharaj, to pay the cost of the application jointly and severally with the Applicants on an attorney and client scale (de bonis propriis) without first affording the attorney an opportunity to show cause why she should not be ordered to pay the costs.

4. The learned judge erred in failing to accept and consider an affidavit deposed to by attorney Nalini Maharaj explaining why a costs order de bonis propriis should not be granted against her after the learned judge instructed the attorney, on 21 November 2016, to depose to the said affidavit and in spite of the fact that the said affidavit was tendered to the learned judge by counsel representing the said attorney at the hearing of the matter on 24 November 2016.'

[13] The first two grounds do not constitute exceptional circumstances for granting leave to appeal. I did not err in fact or in law. The third ground is factually wrong, as will appear below. The remaining question is if the grounds set out as the fourth ground constitutes exceptional circumstances for granting leave to appeal.

[14] The fourth ground, with respect, does not correctly reflect what had transpired in the matter:

[14.1.] On 8 March 2016 the respondents' attorneys warned Ms Maharaj that costs de bonis propriis would be sought should she persist with the Rule 30 proceedings then already commenced;

[14.2.] The answering affidavit dated 14 March 2016 reflected that the respondents would seek a punitive costs order against the attorney;

[14.3.] The respondents' heads of argument dated 3 May 2016 reflected that the respondents would seek a punitive costs order against the attorney;

[14.4.] When the matter came before me, I stood the matter down and advised the counsel that the attorney probably should get her own legal representation and I stood the matter down from Monday till Thursday for this to happen;

[14.5.] I asked for an affidavit from the attorney when I stood the matter down to address if it is public funding that funds the litigation. If so, I said that I wanted to know (a) who funds it and (b) if such funding is controlled by someone to whom the matter could be referred. I also invited her to give reasons why she should not be personally held liable for the costs of the matter. I requested to be provided with the affidavit by 09H00 on the Thursday, for me to consider before hearing the matter. I confirmed with counsel that this would be adequate notice;

[14.6.] I did not receive the affidavit as requested, and it has never been served ;

[14.7.] When the hearing commenced on the Thursday, the attorney had separate representation. I refused the handing up of an affidavit by the attorney. Reading the transcript, I see that I conveyed that I had required the affidavit on the funding of the litigation, but that public funding is common cause. I do not convey any other purpose with the affidavit, and counsel did not refer me to any such purpose. As I read the transcript, he was contend with my decision not to have regard to the affidavit.

[15] I take into account:

[15.1.] It is an appeal only against my costs order;

[15.2.] The applicants state that I erred in granting the relief that I did, but do not state what costs order I should have granted. It seems inarguable that their appeal could only be against the penalising part of the costs order made granted against them;

[15.3.] The substantial delay in bringing the matter before me and the desirability that finality should be reached in matters;

[15.4.] An appeal will contribute nothing to dispose of all the issues in the case, or to a just and prompt resolution of the real issues between the parties;

[15.5.] The amount of costs involved is insubstantial in as far as litigation is concerned. It was a short, opposed application of a limited nature;

[15.6.] I had a discretion to order costs against attorney Maharaj in a matter that had not even a remote constitutional import. The proceedings were frivolous and vexatious (Limpopo Legal Solutions and Another v Eskom Holdings Soc Limited [2017] ZACC 34 para 22-44);

[15.7.] The attorney had many opportunities to place her version before the court and failed to do so;

[15.8.] The attorney had notice of the relief sought against her, and was separately represented at my suggestion.

[16] In my view there are no exceptional circumstances present and I grant the following order:

1. The application for leave to appeal is dismissed;

2. The costs of the application for leave to appeal are to be paid jointly and severally by the four applicants and attorney Maharaj

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DP de Villiers AJ

On behalf of the Applicants: Adv G R Egan

Instructed by: N Maharaj Attorneys

On behalf of the 1^st to 5^th Respondents : Adv D E van Loggerenberg SC

Adv J H Roelofse

Instructed by: S Roux Inc

On behalf of Ms N Maharaj: Adv B van der Merwe