IN THE HIGH COURT OF SOUTH AFRICA
(NORTH WEST DIVISION, MAHIKENG)
	
CASE NO.: M22/16
In the matter between:

DUMINY JAN HENDRIK						APPLICANT

And

WILLEM ANDREAS GOOSEN					1ST RESPONDENT
MARIA CORNELIA GOOSEN					2ND RESPONDENT

AND
CASE NO.: M23/16
In the matter between:

SWART KAREL JOHANNES					APPLICANT

And

WILLEM ANDREAS GOOSEN					1ST RESPONDENT
MARIA CORNELIA GOOSEN					2ND RESPONDENT

JUDGMENT

Landman J:

[1]	This judgment concerns two matters under case numbers M22\2016 and M23\2016, in which relief is sought by the applicants, in each matter, to file a replication to the respondents’ special plea and plea.

[2]	After the respondents’ special plea and pleas had been delivered the applicants each decided that it was necessary to file a replication as regards their pleadings. The replications were served on the respondent’s attorneys during June 2015. But these were filed out of time and were in response to Rule 30 Notices delivered by the respondents’ attorney.

[3]	It is unnecessary to set out in any detail precisely why the replications were delivered late, save to say that this was because the papers had been mislaid in the applicants’ counsel’s chambers (who is not the counsel who appeared before me in this application). This is something which happens to the best of practitioners. The application for upliftment of the bar imposed by Rule 26 was delivered 192 days after service of the Rule 30 Notice. 

[4]	Although the explanation for the tardiness as regards the delivery of this application is of concern, it has not been seriously argued that the replications will prejudice the respondents. It may, on the contrary, be useful to the court at the trial. I am satisfied that good cause has been shown and that the orders sought should be granted.

Costs

[5]	This brings me to the issue of costs. The costs of the respondents, on an unopposed basis, have been tendered by the applicants’ counsel who mislaid the papers. The respondents, however, have seen fit to oppose the applications. Are the respondents entitled to their costs? In deciding this issue I am inclined to follow the broad approach advocated in Umzali Civils (Pty) Ltd v Etana Insurance Company Ltd and Others (2079/2014) [2015] ZAECPEHC 43 (2 June 2015) where at para 22 Roberson J said:

‘It seems to me, when it comes to deciding in any particular case whether the party to whom an indulgence is granted is to pay the costs of opposition, that the recognition of a single criterion for liability (such as the reasonableness of the opposition) tends to hamper the exercise of the unfettered judicial discretion which a court has in its awards of costs. The exercise of that discretion is, after all, essentially a matter of fairness to both sides (Gelb v Hawkins 1960 (3) SA 687 (A) at 694; Ward v Sulzer 1973 (3) SA 701 (A) at 706), and a criterion which may be useful in one case may in other cases not have the desired fair effect.”’

[6]	In my view the fact that it was not a foregone conclusion that the orders would be granted, the weakness of the explanation for the delay coupled with the assistance derived from the answering affidavits, are sufficient to persuade me that the costs of opposition should be paid by the party seeking the indulgence. But I qualify this. First it would not be fair to saddle the parties themselves with the costs. These costs are for the account of their legal representatives. Secondly as this concerns practitioners (amongst whom a measure of collegiality is both desirable and essential) and there has been a duplication of material and services, I shall only award costs in matter M22/2016.

Order

[7]	In the result I make the following order:

A.	in matter M22\2016:

1.	The time period for filing of the plaintiff’s replication to the first and second defendants’ pleas is extended for a period of 10 days commencing on the day after delivery of this judgment.
2.	The plaintiff is ordered to file his replication within the abovementioned period.
3.	The applicant’s legal representatives are ordered to pay the costs of this application, jointly and severally, the one paying the other to be absolved.

B.	In matter M23\2016:

1.	The time period for filing of the plaintiff’s replication to the first and second defendants’ pleas is extended for a period of 10 days commencing on the day after delivery of this judgment.
2.	The plaintiff is ordered to file his replication within the abovementioned period.
3.	I make no order as to costs.

AA Landman
Judge of the high Court

APPEARANCES:

Date of hearing:			 		26 May 2016

Date of Judgment:			 		2 June 2016
	
Counsel for the Applicant:                                Adv Maree instructed by Maree & Maree Attorneys

Counsel for the Respondents:      	Adv Hitge instructed by Van Rooyen Tlhapi Wessels Inc