South Africa: North West High Court, Mafikeng

Swart t/a ST Dominic\'s Private School and Others v Superintended- General (Head of Department) Department of Education, North-West Province and Others (22/2003) [2003] ZANWHC 7 (3 March 2003)

APPLICATION FOR LEAVE TO APPEAL

MAFIKENG

PISTOR AJ

DATE OF HEARING 28 March 2003

DATE OF JUDGMENT 03 March 2003

COUNSEL FOR APPLICANTS Adv. Da Silva

COUNSEL FOR RESPONDENTS Adv. Sceales SC

JUDGMENT

PISTOR AJ:

This is an application for leave to appeal against a cost order granted by me on 29^th January 2003.

The matter started off in January this year when the owner of a private school in the North-West province, Carol N Swart filed an application which was divided into two parts (A and B). Part A of the application was an urgent application for interim relief, pending the outcome of the relief sought in Part B of the application. Part B of the application contained an application for review (in terms of Rule 53 of rules of court). For the setting aside of a directive of the Head of the Department of Education in the North -West Province (First Respondent in the main application) in terms of which the applicants’ private school was closed.

Having read the paper and having head argument on the interim relief, I grant interim relief in terms of Part A of the application with costs. The effect of that relief was that the school of the first applicant would have remained opened pending the finalisation of the application contemplated in Part B of the notice of motion. The present application for leave to appeal is aimed at the said cost order. The applicants in the present are the first and second Respondents in the main application namely The Head of

Department of Education in the North-West Province and the Member of the Executive Council for Education the Government of the North West Province. The Respondent in the present application is the first applicant in the main application, namely the owner of the private school. I refer to the parties in this application as they have been referred to in the main application.

Mr Sceales, who appeared before me with Mr Motlhe on behalf of first and second respondents submitted that I should have reserved the costs in respect of the interim relief that I had granted for consideration of the court that would eventually hear Part B of the main application.

Mr Da Silva, who appeared on behalf of the applicant in the main application submitted that there are no prospects of success in respect of the proposed appeal and that the present application should be dismissed.

The basis of the application for leave to appeal, advanced by Mr Sceales, is that ordinarily the cost in respect of interim relief are reserved unless exceptional circumstances are present and that I should have followed that practice. He referred to LAWSA (3) 401. He also invited my attention to the judgments in Coetzee vs Coetzee 1982 (1) SA 933 (C) and Durandt vs Durandts 1995 (1) SA 401 (O).

There are, in my view a few principles that are applicable in applications such as this that have to be stated:

1. There should be reasonable prospects of success on appeal otherwise leave should be refused. This principle is tried its existence was common cause between the parties before me and no authority for it needs to be stated.

2. I believe I should not consider the present application with the object of “defending my own judgment” but I should consider it objectively and thoroughly attempt as whether there are reasonable prospects that another court may come to a different conclusion.

3. A court of first instance has a wide discretion regarding the question of costs. (Airoade Express Pty Limited vs Chairman, Local Road Transportation Board, Durban and other [1986] ZASCA 6; 1986 (2) SA 663 (a) at 677 E.

4. A court of appeal will not likely interfere with the exercise of another court’s discretion on a question of costs. In this regard it was remarked by Corbett JA in Attorney General, Eastern Cape vs Blom and Others 1988 (4) SA 645 (a) at 670 E:

“In awarding costs the court of first instance exercise a judicial discretion.......

5. Such leave (being leave to appeal on costs only, will not lightly be given and will not ordinarily be granted in respect of a matter that has become a “dead issue”. (Tsosane & Others vs The Minister of Prisons and Others 1982 (3) SA 1075 (c) at 1076 f-h and W vs S & Others (2) 1988 (1) SA 499 (n) at 501 F- 502 B.

In the case of EMS Belting Company of South Africa Pty Limited and Others vs Lloid 1983 (1) SA 641 (E) the court of three judges agreed with Mullins, AJ (as he then was) who remarked at 644 H as follows:

“There are sound reasons for not granting the costs of an interdict .... to a successful applicant in the absence of exceptional circumstances”.

The afore-said words of Mullins, AJ in the EMS Belting case is, with respect, a summary of what Mr Sceales has referred to as the ........ rule with regard to cost orders in interim application.

However, in my view each case has to be considered on its own facts. I do not believe that it was intended by Mullins AJ to lay down a principle that will restrict the exercise of judicial discretion in cases of this nature. In any event, in my view the facts of the EMS Belting case distinguish that case from the present on the basis that in that case there was a substantial dispute of facts which could only have been clarified and resolved by the institution of an action. That appears also to have been the position in the case referred to by Mullins AJ at 644 E of the report. In such circumstance one can readily understand that the granting of a cost order on facts in respect of which there are substantial disputes, would prima facie, be unjustifiable. Although the principle stated in the EMS Belting case might in some instances be properly applied in motion proceedings, the application thereof in the present case would not in my view have been in the interest of justice. My reasons are briefly as follows:

I granted interim relief on

1. An interpretation of a statute and

2. on the basis that the response have given unreasonably short notice before the school was closed. There was no factual disputes about any of these aspects before me.

If another court would reach a different conclusion it would be exactly on the same facts. There is therefore no basis for saying that another court might be in a better position to consider the question of costs.

The applicant applied for interim relief. The application was opposed. On the basis referred to above the applicant was successful, despite the opposition of the respondents. In these circumstances there is in my view no reason as to why the applicant cannot be awarded its costs where it was substantially successful, even if it was on an interim basis.

I indeed duly considered the question as to whether the costs should not be reserved. In his initial address on the question of costs, Mr Sceales (who then also appeared on behalf of the respondents) submitted that in the event of the application for interim relief being successful it aught to be successful with costs and in the event of it being unsuccessful, it aught to be unsuccessful with costs. I then indicated to council as to whether it would not be proper for me to reserve the question of costs for consideration by the court finally hearing Part B of the notice of motion. Council then submitted that that would also be a proper approach. However, having considered the facts referred above I was of the view that council’s initial submission was correct and that the applicant should in the circumstances be awarded her costs.

Bearing in mind the principles set out above with regard to application for leave to appeal in respect of costs orders only, I am of the view that another court will not interfere with my decision on the question of costs and in my view for the reasons stated above the application for leave to appeal aught to be dismissed.

A further aspect has, however, now been to my attention. The main application, that is the review application (referred to in Part B of the notice of motion) has now been withdrawn. Mr Da Silva has indicated to me that the applicant has attended the wasted cost of that application within the notice of withdrawal. He has also indicated to me that the reason for the withdrawal for the main application is that, as a result of the interference of the respondents in the activities of the school, the applicant has, for practical purposes, has lost all support and cannot proceed with the conducting of the school. Although Mr Da Silva has given the reasons for the withdrawal, I believe that I should ignore the reasons for the withdrawal for present purposes. However, the fact of the matter is the main application has been withdrawn, the costs thereof have been tended. There will therefore be no further hearing of the main application and for all practical purposes the matter has become a “dead issue” as stated in the Tsosane case supra. That being the case, I believe that, whatever prospects of success on appeal there might have been, they have now effectively being eliminated. In the result the application for leave is dismissed with costs.

JHF PISTOR

ACTING JUDGE OF THE HIGH COURT

DATED: 03 APRIL 2003