---

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

                                                                               CASE NO:  2080/2009

 

In the matter between:

P SMIT                                                                                                                          Applicant

and

CHRISNA VENTER                                                                                                 Respondent

DATE OF HEARING                                      :         30 JANUARY 2014

DATE OF JUDGMENT                                  :         20 FEBRUARY 2014

         

COUNSEL FOR THE PLAINTIFF                 :         ADV AUCAMP

COUNSEL FOR THE DEFENDANT             :         ADV NEL

 

CIVIL MATTER

 

JUDGMENT

 

HENDRICKS J

Introduction:-

[1] Respondent (Plaintiff in the main action) instituted an action for damages against the Applicant (Defendant in the main action) under case number 2080/2009 alleging that she suffered damages as a result of the fact that the Applicant’s dog bit her. (the main action”).  The main action was enrolled for trial on 19 March 2012.

[2] On the 19^th day of March 2012 this Court granted an order in the following terms:-

“IT IS ORDERED

THAT:     The matter be and is hereby removed from the roll.

THAT:     The Plaintiff pay the wasted costs occasioned by the removal.

THAT:     This matter may only be reinstated for trial as against the production of a letter from the Plaintiff’s attorney that the matter is ready for trial.”

The Respondent sought a postponement of the trial proceedings because she was not ready to proceed with the trial, but instead, the Court ordered that the matter be removed from the roll with a rider that it “may only be reinstated (on the roll) for trial as against the production of a letter from the Plaintiff’s attorney that the matter is ready for trial.”

[3] Subsequent thereto the Applicant caused for a bill of costs to be prepared and presented same to the attorneys acting on behalf of the Respondent for its consideration. Notwithstanding various efforts by the Applicant to secure payment, no such payment was forthcoming from the Respondent and instead the Respondent persisted to proceed with the trial.

[4] This prompted the Applicant (Defendant in the main action) to launch an application praying for an order in the following terms:-

“1.1 Compelling the Respondent to pay the unpaid taxed costs of the Applicant (“the unpaid costs”) within a period to be specified by this Court;

1.2 in terms whereof the proceedings instituted by the Respondent against the Applicant (the main proceedings) in this honourable court under the abovementioned case number is stayed pending payment of the unpaid costs; and

1.3 granting the Respondent leave on such terms as the court may deem fit to launch an application on the papers filed in respect of this application, duly supplemented, striking out the Respondents claim in the main action in the event of the Respondent failing to pay the unpaid costs in terms of the order granted by the court.

2. The Respondent is ordered to pay the costs of this application; and

3. Granting the Applicant such further and / or alternative relief necessary.”

[5] The Respondent in opposing the present application has advanced a number of points in limine which are:-

· “that the relief claimed by the Applicant constitutes substantial relief and not interlocutory relief and as such that the application should have been launched under a separate case number from the main action;

· the authorities on this aspect is clear in that it can be interlocutory or substantive depending on the circumstances. It is clear that the stay in this regard is temporary pending payment of the costs;

· that the application is irregular by virtue of the fact that it allegedly does not comply with Uniform Rules 6 of the High Court Rules;

· that the court previously ordered the Respondent to pay the wasted costs occasioned by the postponement and as such that the relief sought in the present application is bad in law by virtue of the fact that the Applicant should have exhausted its internal remedies by having executed against the Respondent;

· the Respondent is mala fide in this regard in that she claims that the Applicant should have exhausted its remedies by having executed yet she tells the court that she is in the process of surrendering her estate;

· that the relief sought violates the Respondent’s constitutional right to have her action finally adjudicated and disposed of by court of law. This is an aspect over which the court has an overriding discretion. The Respondent fails to submit that granting a stay of the proceedings will render her action void.”

[6] At the inception of the hearing of this application, Adv Aucamp on behalf of the Applicant, informed this Court that he is not proceeding with the relief claimed in par 1.1 supra, namely that the Respondent be ordered to, within a specific period as directed by the court, effect payment of the costs awarded previously by this Court against the Respondent.  However, the Applicant persists with the application praying for a stay of the proceedings in the main action until such time that the Respondent has affected payment of the taxed costs.

[7] On the other hand Adv Nel on behalf of the Respondent, effectively abandoned most of the in limine points raised, specifically the issue of lack of authority to depose to the affidavit and confined his submissions to the fact that the Applicant is not entitled to a stay of the proceedings for the following reasons:-

· It offends the Respondent’s Constitutional right of access to court in terms of section 34 of the Constitution of the Republic of South Africa, Act 108 of 1996.  It was submitted that in the spirit of the Constitution, Respondent’s inability to pay an order of costs, cannot deny her the constitutional right of having her action tried and disposed of in court.  It was further submitted that all the authorities relied upon by the Applicant pre-dates the new dispensation based on the Constitution.

· The submission is further that even if it is decided that proceedings could be stayed until wasted costs of a postponement is paid under our Constitutional dispensation, it was exercised very sparingly prior to the implementation of our Constitution.  In the matter of Van Dyk v Conradie & Another 1963 (2) SA 413 (C) Corbett AJ (as he then was) stated that an Applicant in an application for the stay of proceedings pending payment of costs resulting from a postponement of a trial must prove negligence, blameworthiness, or utter indifference of a high degree.  A court in the exercise of its discretion should always be slow to place a clog upon a litigant’s free access to the Courts.  

The Law:-

[8] The principles which underlies the intervention of the courts where the cost of the previous proceedings have remained unpaid is the court’s inherent right to prevent vexatious litigation. The basis of the stay of proceedings in such circumstances has also been stated to be prevention of abuse of the process of the court.

[9] The court has a discretion in deciding whether or not a stay of proceedings should be granted because of unpaid cost. Three criteria have been enunciated in this regard:-

[9.1]   whether that party has been ordered to pay costs incurred then by reason of some abuse of the process of the court;

[9.2]   whether that party has either deliberate or through carelessness occasioned unnecessary costs;

and

[9.3]   whether that party has contumaciously refuse to pay the cost awarded against him/her or is efficaciously withholding payment.

See:-

·        Argus Printing & Publishing Co Ltd v Rutland 1953 (3) SA 446 (C);

·        Howff (PDT) Ltd v Prompts Engineering (Bpk) Ltd 1977 (2) SA 267 (A);

·        Rheeder v Sperns 1978 (1) SA 1041 (A).

[10] There is no hard and fast rule as to when costs incurred in earlier proceedings in a case must be paid before the litigant will be allowed to proceed further. The matter is entirely in the discretion of the court. However, it is only in exceptional cases that the court will depart from the general rule requiring payment of costs before the continuation of litigation.

REQUISITES:-

[11] The requisites for a stay of proceedings on the basis of non-payment of cost previously incurred are as follows:-

· the further proceedings must cover substantially the same grounds as the former proceedings and must be brought veraciously;

· a further requisite for a stay of proceedings is a previous judgment in the applicant’s favour. Moreover the costs must have been taxed and demand made for the payment coupled with proof of a willful refusal by the debtor to make such payment.

[12] Although a court is always slow to place a clog upon a litigant’s free access to the court, it may, depending on the circumstances, attached to an order for a postponement the condition that cost wasted by a party should be paid before such party be permitted to continue with the litigation.

[13] In Trevor B Giddey NO v J C Barnard and Partners [2006] ZACC 13; 2007 (5) SA 525 (CC), the Constitutional Court held as follows:-

“[15]         Section 34 of the Constitution provides that everyone has the right to have a dispute that can be resolved by the application of law decided by a court or tribunal in a fair public hearing.  This important right finds its normative base in the rule of law.  As Mokgoro J stated in Chief Lesapo v North West Agricultural Bank and Another [1999] ZACC 16; 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420 at para 22.

“The right of access to court is indeed foundational to the stability of an orderly society.  It ensures the peaceful, regulated and institutionalized mechanisms to resolve disputes, without resorting to self help.  The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes.  Construed in this context of the rule of law and the principle against self help in particular, access to court is indeed of cardinal importance.”

See also:-      President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others as Amici Curiae) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) at para 40. 

[16]      But for courts to function fairly, they must have rules that regulate their proceedings.  Those rules will often require parties to take certain steps on pain of being prevented from proceeding with a claim or defence.  A common example is the rule regulating the notice of bar in terms of which defendants may be called upon to lodge their plea within a certain time failing which they will lose the right to raise their defence.  Many of the Rules of Court require compliance with fixed time limits, and a failure to observe those time limits may result, in the absence of good cause shown, in a plaintiff or defendant being prevented from pursuing their claim or defence.  Of course, all these Rules must be compliant with the Constitution.  To the extent that they do constitute a limitation on a right of access to court, that limitation must be justifiable in terms of s 36 of the Constitution.  If the limitation caused by the Rule is justifiable, then as long as the Rules are properly applied, there can be no cause for constitutional complaint.  The Rules may well contemplate that at times the right of access to court will be limited.  A challenge to the legitimacy of that effect, however, would require a challenge to the Rule itself.  In the absence of such a challenge, a litigant’s only complaint can be that the Rule was not properly applied by the court.  Very often the interpretation and application of the Rule will require consideration of the provisions of the Constitution, as s 39 (2) of the Constitution instructs.  A court that fails to adequately consider the relevant constitutional provisions will not have properly applied the Rules at all.”

Section 39 (2) of the Constitution provides as follows:-

“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

[17]      The applicant argued that any material bar or impediment to a litigant’s access to court constitutes a limitation of the right protected under s 34.  He relied on the following dictum in Beinash and Another v Ernst and Young and Others 1999 (2) SA 116 (CC); (1999 (2) BCLR 125) at para [16]:-

“The effect of s 2(1)(b) of the [Vexatious Proceedings] Act is to impose a procedural barrier to litigation on persons who are found to be vexatious litigants.  That is its very purpose.  In so doing, it is inconsistent with section 34 of the Constitution, which protects the right of access for everyone and does not contain any internal limitation of the right.  The barrier which may be imposed under s 2(1)(b) therefore does limit the right of access to court protection in s 34 of the Constitution.  But, in my view, such a limitation is reasonable and justifiable.”

He argued that on the facts of this case, the order of security for costs constituted such a barrier and that therefore it must be justified as a limitation in terms of s 36 of the Constitution. 

[18]     This argument is misconceived………”

I find the aforementioned dictum quite apposite in this case.

Conclusion:-

[14] The Respondent does not deny that she tendered and that she was ordered to pay the wasted costs.  In an attempt to evade the responsibility to effect payment however she advances the defence that she is in the process of making an application for the voluntary surrender of her estate and as such that she is incapable alternatively that it would be contrary to law, for her to effect payment of the said cost order. 

[15] I am of the view that the order that the Applicant seek is not final in nature or effect, but is temporary with the proviso that if the costs are paid, the Respondent may proceed with the main action.  It can hardly be said that the granting of the order to stay the proceedings in the main action, pending the payment of the previous costs order is unconstitutional.  There must be a balance of rights.  On the one hand the Respondent wants to proceed with her action despite the costs already incurred.  On the other hand the Applicant, already armed with a costs order in his favour and which the Respondent is unable to pay, have the right not to be dragged to court by a litigant who may not be in a position to pay as a result of her estate been surrendered or even sequestrated.  It will not be unfair to stay the proceedings in the main action pending payment of the previous costs order.

Order:-

[15]   Consequently, the following order is made:-

[i]       The proceedings in the main trial under case number 2080/2009 is stayed pending payment of all the unpaid costs.

[ii]      Such costs to include the costs of this application.

 

R D  HENDRICKS

JUDGE OF THE HIGH COURT

 

ATTORNEYS FOR THE APPLICANT:-  SMIT STANTON ATTORNEYS

 

---