IN THE LAND CLAIMS COURT OF SOUTH AFRICA

                                            HELD IN RANDBURG    

                                                                                      CASE NUMBER: LCC 07R/2010

 In Chambers                            MAGISTRATES COURT CASE NUMBER: 92/2010

Decided on: 9 June 2010

In the matter between:

RICA PIGGERY AND ABATTOIR (PTY) LTD                 APPLICANT

and

PHATSOANE MOSES DIRELLO                                        RESPONDENT

                                                         JUDGEMENT

SABA AJ

[1]    This matter came by way of automatic review in terms of section 19(3) of the
    Extension of Security of Tenure Act 62 0f 1997, as amended ( “ESTA”) 
         The Magistrate, Koster granted an eviction order against the respondent on 8
         February 2010 as requested by the applicant in his notice of motion.  The order
         requested was as follows:
        “1  …………….
         2………………
3	the respondents to pay the costs of this application, and
4	further and/or alternative relief”.

[2]    After perusal of the record I am satisfied that the provisions of section 9(2)(a), 
        9(2)(b), 9(2)(c), 9(2)(d),  9(3) as well as sections 10 and 12 of ESTA were complied
        with, but I am not able to support the magistrates order for costs against the  
        respondent for reasons that will follow hereunder.

[3]    On 16 April 2010 a query by Conjwa AJ, asking why a cost order was granted
         against the respondent, having regard to the practice of this Court that such
         an order should be granted when there are compelling reasons to do so, was
         forwarded to the Magistrate. In his response on 30 April 2010, the magistrate
         stated the following:
         “ The general rule is that the successful party is entitled to his costs. Jones and
              Buckle in commentary of rule 33 indicates that this general rule should 
              not be departed from except where there are good grounds for doing so. There
              were no good grounds to depart from this general rule. The Magistrate also 
              referred to the following cases:
-	Haakdoornbuilt Boerdery CC and others v Mphelo and others 2007(5) SA 596
                    (SCA),
-	Hurenco Boerdery (PTY) LTD and others v Regional Claims Commissioner, Northern Province and another 2003(4) SA 280 (LCC)
-	Germishuys v Douglas Besproeiingraad 1973(3) SA 299 NC
-	Hlatshwayo and other v Hein 1999(2) SA 834 CC…………..                                                                                   and lastly stated that the respondent was illegally occupying the property after he was dismissed from employment”.
             
         I had an opportunity of looking at these cases and I found them to be relevant to the
         present case in that they do not change the practice of this court that costs orders
         should only be granted when compelling circumstances demand so.

[4]    Rule 61(1) of the Land Claim Court Rules provides as follows:
          “The Court may make orders in relation to costs which it considers just, and it may,
              in  exercising that discretion-
(1)	elect not to award costs against an unsuccessful party- who has put a case or made submissions to the Court in good faith in order to protect or advance his or her legitimate interest; or
(2)	for any other sufficient reason”.

 [5]   In Hlatshwayo and Others v Hein, this Court, per Dodson J (As he then was) then
        developed a practice not to make costs orders in social interest litigation. The
        learned Judge stated the following on the question of costs:
                “[32]    I am of view that this Court must adapt its approach on costs orders to  take into account 
                            certain factors which are peculiar to it. I am reinforced in my view by the decision of 
                            Ackerman J in Ferreira v Levin NO and Others; Vrykenhoed and Others v Powell  NO
                            and Others (No.2),  He refers to the basic rules regarding costs developed by the
                            Supreme Court, including the exceptions to the rules, and goes on to say-

                         ‘ I mention these examples to indicate that the principles which have been developed in 
                           relation to the awards of costs are by their nature sufficiently flexible and adaptable to
                           meet new needs which may arise in regard to constitutional litigation. They offer a 
                           useful point of departure. If the need arises the rules may have to be substantially
                           adapted’  
                                                                                                      
                   Although this was said in the context of constitutional litigation, this case can in my view be
                  described as falling under a new area of public interest litigation. This tends to set it apart from
                  conventional litigation”.

          He continues at paragraph 35 and states the following:

            “The court can in my view take judicial notice of the fact that most rural black people have, by
                 reason of a barrage of discriminatory laws applied to them over the years, in most instances been
                 prevented from accumulating any substantial wealth. Given the current costs of litigation, 
                 potential applicants will always be faced with the risk of losing what few capital assets they 
                 might have managed to accumulate when approaching the court if the “costs follow the result”
                 rule is generally applied………..In my view, this is a case where the general rule must yield to
                 considerations of equity and fairness”.  (See also National Union of Mineworkers v 
              East Rand Gold and Uranium Co Ltd and Mahlangu v De Jager).
       
           .

[6]    Harms ADP, in Haakdoornbuilt  Boerdery CC and others v Mphela and others 
        (a Supreme Court of Appeal case), had this to say about the practice of this Court
        on cost orders:     
             “[75]     The LCC ordered the participating owners to pay the costs of the proceedings. For this
                               the LCC relied on what it perceived to be a new principle laid down by the
                               Constitutional Court in Alexkor LTD v The Richtersveld Community and it
                               decided to disregard its own practice of not ordering costs in land claim 
                               cases in the absence of special circumstances. The Constitutional Court did
                               in my view not purport to lay down any rule and any such rule would in 
                               any event have been contrary to its general approach to costs in
                               Constitutional Court matters…..

                [76]        ….This Court has not yet laid down any fixed rule and there are 
                               judgements that have ordered costs to follow the result and others that 
                               have made no cost orders. I believe that the time has come to be
                               consistent and to hold that in cases such as this there should not be any
                               costs orders on appeal absent special circumstances”. 

[7]    In Affordable Medicines Trust and Others v Minister of Health and
        Another, Ngcobo J set down the general approach to the award of costs in
        Constitutional litigation as follows:
                     “The award of costs is a matter which is within the discretion of the Court 
                          considering the issue of costs. It is a discretion that must be exercised judicially having
                          regard to all the relevant considerations. One such consideration is the general rule in
                          constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs.
                          The rationale for this rule is that an award of costs might have a chilling effect on the
                          litigants who might wish to vindicate their constitutional rights. But this is not an inflexible
                          rule. There may be circumstances that justify the departure from this rule such as where the 
                          litigation is frivolous or vexatious. There may be conduct on the part of the litigant that
                          deserves censure by the Court which may influence the Court to order an unsuccessful 
                          litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts
                          and circumstances of the case”.

[8]    In a recent Constitutional Court judgment, Biowatch Trust v Registrar, Genetic
        Resources and Others, 2009 (6) SA 232 (CC), Sachs J dealing with the issue of costs
        said the following: 

            “[9]    During the thirteen years that have passed since Ferreira v Levin ( mentioned supra) was
               decided we have indeed gained considerable experience of costs awards made on a case-by-case
               basis. A  number of signposts have emerged. Without departing from the principle that a Court’s
              discretion should not be straitjacketed by inflexible rules, it is now both possible and necessary to
              develop some general points of departure with regard to costs in Constitutional litigation……….
                [20]    ….. What matters is not the  nature of parties or the causes they 
              advance but the character of the litigation and their conduct in pursuit of it. This means paying due 
              regard to whether it has been undertaken to assert constitutional rights and whether there has been
              impropriety in the manner in which the litigation has been undertaken. 

              He referred to section 9(1) of the Constitution which provides that everyone is
           equal before the law and has the right to equal protection and benefit of the law
           and then said the following: 

               “No party to Court proceedings should be endowed with either an enhanced or a diminished 
                  status compared to any other. It is true that our Constitution is a transformative one based on the 
                  understanding that there is a great deal of systemic unfairness in our society. This could be an 
                  important, even decisive factor to be taken into account in determining the actual substantive
                  merits of the litigation. It has no bearing, however, on the entitlement of all litigants to be 
                  accorded equal status when asserting their rights in a Court of law. Courts are obligated to be
                  impartial with regards to litigants who appear before them. Thus, litigants should not be treated 
                  disadvantageously in making costs and related awards simply because they are pursuing 
                  commercial interests and have deep pockets. Nor should they be looked upon with favour 
                  because they are fighting for the poor and lack funds themselves. What matters is whether rich
                  or poor, advantaged or disadvantaged, they are asserting rights protected by the Constitution.

 [9]    Section 5 of ESTA provides: 
             “ Fundamental rights. - Subject to limitations which are reasonable and justifiable in an open and
                 democratic society based on human dignity, equality and freedom, an occupier, an owner and 
                 person in charge shall have the right to-
(a)	human dignity;
(b)	freedom and security of the person;
(c)	privacy;
(d)	freedom of religion, belief and opinion and of expression;
(e)	freedom of association; and
(f)	freedom of movement,
                with due regard to the objects of the Constitution and this Act”. 
        This means that when an occupier and/or owner or person in charge of property
        assert their rights in a Court of law, they should be afforded equal treatment and
        benefit of the law even on the question of costs, depending on the circumstances of 
        each case. 

 [10]      The general rule laid down in Affordable Medicine (supra) and the point of
             departure raised by Sachs J in Biowatch Trust regarding costs orders in
              Constitutional litigation is still in line with Rule 61(1) as well as the practice
              of this Court, that costs should only be awarded when there has been an 
              impropriety in the manner in which the litigation has been undertaken or where
             the conduct of one of the parties has been vexatious or frivolous. The discretion
            of the Court to award or not to award costs is not taken away either.

[11]      I am of view that the respondent in this particular case resisted the application
             for his eviction in good faith, to protect what he believed to be  his right or
             interest. One will bear in mind that he stayed on the farm for a period of 16 years.
             The respondent was legally represented throughout the proceedings. It would
             therefore not be fair and just to punish him with a cost order based on the ill-
             advice of his legal representative. The record on the other hand reveals that the
             respondent currently works part time on neighbouring farm.  One can only
            assume that he does not earn much to be able to afford costs.
 
[12]    In the circumstances, I am not satisfied that the considerations of equity and
           fairness justify the granting of a cost order against the respondent.
  
[13]    In terms of the Magistrate’s order, the respondent had to vacate the farm 30 days 
          after the granting of the eviction order. The eviction order was granted on 8
          February 2010, 30 days have elapsed. That necessitates the substitution of the
         dates. 

[14]    The eviction order is confirmed, save for the substitution of dates and the order for 
          costs which is as follows:
14.1   The date on which the respondent is to vacate the premises in terms of 
           section 12(1)(a) of ESTA ( if he has not yet done so) is to be 12 July 2010.
14.2   The date on which the eviction order may be carried out if the respondent
           has not vacated on 12 July 2010, is the 19 July 2010 (section 12(1)(b).
14.3    No order as to cost. 

ACTING JUDGE N SABA                                                                                       LAND CLAIMS COURT

 

    																																																																																																																																																																																			10(1) (c ) 

           

[8]    In the circumstances, I am not satisfied that considerations of equity and fairness 
        justify the granting of a cost order against the respondent. 

[9]    In terms of the Magistrate’s order,  the respondent had to vacate the farm 30 days 
        after the granting of the order. The order was granted on 8 February 2010. 30 days 
        have elapsed. That means dates have to be substituted.

[10}    The eviction order is confirmed, save for the substitution of the dates and order for
           costs which is as follows:
           10.1   The date on which the respondent is to vacate the land in terms of section
                     12(1)(a) of ESTA (if he has not yet done so) is to be 12 July 2010
  10.2   The date on which the eviction order may be carried out if the occupier has
             not vacated  on 12 July 2010, is the 19 July 2010.(section 12(1)(b))
10.3	no cost order is made.

Given this Monday 7 June 2010

REGISTRAR:  LAND CLAIMS COURT 

1)	BY REGISTERED POST TO:
The Magistrate Private Bag X22 Koster 0348                   Fax no.: 0865072647