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Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the application between:

Case no: A 603/2007

ANTHONY DAVID SILBERBERG ..................................................................................................Appellant

ROGER BARRY SILBERBERG .................................................................................................Respondent

AND

In the matter between:

Case no; 4581/2008

ANTHONY DAVID SILBERBERG ..................................................................................................Applicant

ROGER BARRY SILBERBERG ..........................................................................................First Respondent

THE MAGISTRATE OF TULBAGH, WESTERN CAPE .................................................Second Respondent

Court: Judge E D Baartman et Acting Judge J I Cloete

Heard: 7 December 2012

Delivered: 29 January 2013

JUDGMENT

CLOETE AJ:

INTRODUCTION

[1] There are two matters before us that arise out of the same proceedings in the court a quo at Tulbagh. The first is an appeal against its judgment and the second is an application to review the proceedings in that court. Both matters are opposed by the respondent in the appeal who is also the first respondent in the review proceedings. The magistrate who presided in the court a quo, and who is cited as the second respondent in the review application, abides the decision of the court. For sake of convenience I will refer to the appellant/applicant as ‘the appellant’, to the respondent/first respondent as ‘the respondent’, and to the second respondent as ‘the magistrate’.

[2] The case relates to the discharge on the return date of an interim protection order obtained ex parte by the appellant against the respondent (who is his brother) on 2 April 2007 in terms of s 5(2) of the Domestic Violence Act No 116 of 1998 (‘the Act). The respondent had opposed the granting of a final order on the return date and had also sought a punitive costs order against the appellant.

[3] The magistrate handed down judgment on the return date of 31 May 2007. The appellant filed his notice of appeal on 27 August 2007 and the appeal was enrolled for hearing in this court on 14 March 2008. On 13 March 2008, i.e. the day before the appeal was due to be heard, the appellant instituted the review proceedings which resulted in the appeal being postponed sine die pending the outcome of the review.

[4] The review was enrolled for hearing on 7 December 2012. Given that the grounds of appeal and review overlap we informed counsel that we would hear both the appeal and the review on that date and the two matters were then dealt with accordingly. In this judgment I will deal first with the appeal and thereafter with the review.

THE APPEAL

[5] The appellant appeals against the refusal by the magistrate to grant him a final protection order in terms of s 6(4) of the Act; as well as the punitive costs order made against him in terms of s 15 thereof.

[6] It is common cause that in seeking the interim protection order the appellant relied on three acts of domestic violence, namely an alleged assault on an unspecified date in June or July 2005, alleged assaults and damage to his property on 6 and 7 December 2005 and an alleged threatening telephone call made by the respondent to him on 16 March 2007. Also relied upon was the service on the appellant of a protection order obtained against him by the respondent in the Randburg magistrates court. I will return to this aspect later.

[7] The first two acts complained of had previously formed the substance of an interim protection order, again obtained by the appellant ex parte, in the Wynberg magistrates court during 2006 under case no 1718/2006. The respondent had similarly opposed the granting of a final protection order and the interim order was discharged with costs on 14 August 2006. The appellant appealed to this court under case no A16/2007 and on 16 March 2007 Fourie J and Le Grange AJ (as he then was) dismissed the appeal on the merits and amended the costs order to the effect that the appellant and respondent would each bear their own costs.

[8] In dismissing the appeal on the merits the learned judges found that when the appellant had launched his application for an interim protection order there was no proof of a current invasion of his rights; and that the appellant had also failed to show on a balance of probabilities (as provided in s 6(4) of the Act) that he had a reasonable apprehension of harm. The appellant had relied wholly upon the alleged past infringement of his rights during June/July 2005 and December 2005 as evidence that there was an intention on the part of the respondent to continue with his alleged acts of aggression when he again visited Cape Town during June/July 2006.

[9] The learned judges reached this conclusion on two bases. First, the respondent had vigorously denied the existence of the acts complained of which the full bench was satisfied had given rise to a bona fide dispute of fact. Applying the Plascon-Evans rule (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H- 635B) final interdictory relief could not be granted. Second, the appellant had failed on his own version to show on a balance of probabilities the objective existence of a reasonable apprehension of harm.

[10] However in advancing his case for an interim protection order in the court a quo the appellant relied on the same incidents of June/July 2005 and December 2005 in an attempt to show a pattern of domestic violence at the hands of the respondent which gave rise to a reasonable apprehension of harm. In addition he claimed that the respondent had telephoned him on 16 March 2007 (i.e. the date upon which judgment was handed down in the appeal before Fourie J and Le Grange AJ) and threatened that ‘he will come to Tulbagh and assault me again’. Despite the fear that this telephone call was alleged to have induced in the appellant he took no steps to secure himself protection against the respondent until over two weeks later when the respondent’s own protection order was served on him; and it was only on the following day, i.e. 2 April 2007 that he approached the court a quo and obtained the interim protection order.

[11] The relevant portion of the respondent’s protection order read that the appellant was prohibited from being within a radius of 100 metres of him. During argument the appellant’s counsel sought to persuade us that it had been necessary for the appellant to have obtained a similar order (which had been granted on an interim basis as part of other relief) in order to ‘neutralise’ the effect of the respondent’s protection order against him. It was contended that the 100 metre prohibition, coupled with the alleged threatening telephone call of 16 March 2007 (which was again vigorously denied by the respondent in papers filed in support of his opposition on the return date) constituted new facts which had given rise to a reasonable apprehension of harm on the part of the appellant, apparently because the respondent would be able to orchestrate a breach of the order obtained in his favour by himself coming within 100 metres of the appellant.

[12] Leaving aside for the moment the alleged telephone call of 16 March 2007, I cannot see on what basis any orchestration by the respondent of the appellant’s breach of the protection order could in itself constitute an act of domestic violence as defined in the Act; nor that there could be any reasonable apprehension that an orchestrated breach could constitute such an act. There is a distinction between an act of domestic violence or the reasonable apprehension thereof on the one hand and an alleged breach of a protection order on the other. In this regard I refer to the definitions of domestic violence, emotional, verbal and psychological abuse, harassment, intimidation, physical abuse and stalking as set out in the Act:

‘ “domestic violence” means-

(a) physical abuse;

(b) sexual abuse;

(c) emotional, verbal and psychological abuse;

(d) economic abuse;

(e) intimidation;

(f) harassment;

(g) stalking;

(h) damage to property;

(i) entry into the complainant's residence without consent where the parties do not share the same residence; or

(j) any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant; ’

‘ “emotional, verbal and psychological abuse"

means a pattern of degrading or humiliating conduct towards a complainant, including-

(a) repeated insults, ridicule or name calling;

(b) repeated threats to cause emotional pain; or

(c) the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant's privacy, liberty, integrity or security;

"harassment" means engaging in a pattern of conduct that induces the fear of harm to a complainant including-

(a) repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

(b) repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues;

(c) repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant;

"intimidation" means uttering or conveying a threat, or causing a complainant to receive a

threat, which induces fear;

...........

"physical abuse"

means any act or threatened act of physical violence towards a complainant;

.................

"stalking" means repeatedly following, pursuing, or accosting the complainant;....’ [emphasis supplied]

[13] Section 8 of the Act deals with the issuing of a warrant of arrest simultaneously with a protection order. Of particular relevance are s 8(4) and (5) which read as follows:

‘(4) (a) A complainant may hand the warrant of arrest together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Sen/ice.

(b) If it appears to the member concerned that, subject to subsection (5), there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must forthwith arrest the respondent for allegedly committing the offence referred to in section 17(a).

(c) If the member concerned is of the opinion that there are insufficient grounds for arresting the respondent in terms of paragraph (b), he or she must forthwith hand a written notice to the respondent which-

(i) specifies the name, the residential address and the occupation or status of the respondent;

(ii) calls upon the respondent to appear before a court, and on the date and at the time, specified in the notice, on a charge of committing the offence referred to in section 17(a); and

(iii) contains a certificate signed by the member concerned to the effect that he or she handed the original notice to the respondent and that he or she explained the import thereof to the respondent.

(d) The member must forthwith forward a duplicate original of a notice referred to in paragraph (c) to the clerk of the court concerned, and the mere production in the court of such a duplicate original shall be prima facie proof that the original thereof was handed to the respondent specified therein.

5. In considering whether or not the complainant may suffer imminent harm, as contemplated in subsection (4)(b), the member of the South African Police Service must take into account-

(a) the risk to the safety, health or wellbeing of the complainant;

(b) the seriousness of the conduct comprising an alleged breach of the protection order; and

(c) the length of time since the alleged breach occurred. ’

[emphasis supplied. S 17(a) of the Act refers to a contravention of the terms of a protection order which constitutes an offence.]

[14] It will immediately be apparent from the aforegoing that the execution of a warrant of arrest lies not with the complainant (in the present case, the respondent) but with the South African Police. Section 8(4)(b) stipulates that it is the police officer concerned who must be satisfied that there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach and in so doing must take into account (a) the risk to the safety, health or well-being of the complainant; (b) the seriousness of the conduct comprising an alleged breach; and (c) the length of time since the alleged breach occurred.

[15] Accordingly, even if the respondent were to orchestrate a breach, all that he could do would be to report the matter to the police in accordance with s 8(4)(a) who would then exercise an entirely independent discretion based on certain mandatory considerations as to whether or not to arrest the appellant. There can accordingly be no substance in this part of the argument advanced on behalf of the appellant.

[16] That leaves the alleged threatening telephone call of 16 March 2007. As previously indicated the appellant obtained the interim protection order in the court a quo on an ex parte basis. The record shows that he did not disclose at the time of obtaining that order the history relating to the proceedings in the Wynberg magistrates court or the appeal proceedings arising therefrom. Had he made a full and proper disclosure as it was incumbent upon him to do, the magistrate granting that order may have come to a different conclusion. It was only after the respondent filed his opposing papers and the matter was fully argued before the magistrate on the return date that the true picture emerged. In any event, on the appellant’s own version, he did not regard the alleged threatening telephone cal! as sufficiently serious to prompt him to take steps to protect his rights. He in fact took no steps whatsoever until over two weeks later and then only after the respondent’s protection order had been served on him.

[17] On the return date of 31 May 2007 the appellant represented himself and the respondent was represented by an attorney and counsel. The only new facts that were placed before the magistrate by the appellant related to an incident that was alleged to have occurred on 6 May 2007. i.e. after the granting of the interim protection order in his favour. He described it as follows:

I have (sic) just finished lunch and I was in the street just outside my house and my sort of business, maybe 20 metres away. What then happened, as I was walking there a silver car with a CA registration came driving up the street. This car stopped about 15 metres away from me and a man got out of this car carrying a camera. I did not recognise him immediately. This man then walked very quickly towards me and started taking photographs of me. I raised my hands, I do not want photographs taken of me, this man happen (sic) to be my brother. I said do not take photographs from (sic) me without my permission. He nevertheless then persisted. I tried to walk away from him and he punched me and he kicked me. I then walked into my house in a state of shock because I was feeling very, very bad here. ’

[18] In support of his averments the appellant produced an affidavit by one Aletta Kotze which confirmed that an unknown man had attempted to photograph the appellant. However she did not support the appellant’s allegations of being punched and kicked but stated that ‘Die onbekende man het toe na Anthony (i.e. the appellant) geslaan met sy regter hand. Anthony het by sy woning ingegaan...’.

[19] It was on the basis of the aforegoing that the appellant submitted in the court a quo that It is essential that this interim order can be made final as I am in fear of my life. I am in fear of being assaulted...’

[20] However the appellant also informed the court a quo that as a result of the same incident he had laid both charges of assault and breach of the interim protection order against the respondent; that the police had informed him that the respondent himself had laid similar charges against the appellant; and that the police had declined to act on the appellant’s complaints. Further, what was placed before the court a quo regarding the incident of 6 May 2007 did not constitute evidence under oath. The appellant simply informed the court of the alleged circumstances of the incident during the course of his argument. As such the respondent was not only deprived of notice of these allegations so that he could file further opposing papers if needs be; he was also deprived of the opportunity to cross-examine the appellant and to testify himself. Accordingly, and save for the affidavit of Kotze, there was no evidence before the court a quo on which it could make a finding with regard to that incident and the affidavit of Kotze falls far short of the submissions made by the appellant himself during the course of argument regarding the incident.

[21] Section 6(2) of the Act specifically provides that:

‘If the respondent appears on the return date in order to oppose the issuing of a protection

order, the court must proceed to hear the matter and-

(a) consider any evidence previously received in terms of section 5(1); and

(b) consider such further affidavits or oral evidence as it may direct, which shall form part of the record of the proceedings. ’

[22] Section 6(4) of the Act provides that a court must, after a hearing as contemplated in s 6(2), issue a protection order if it finds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence.

[23] In his judgment on the merits the magistrate found that the appellant had based his application on exactly the same facts that had been before the Wynberg magistrates court and thus the full bench in the previous appeal. Strictly speaking, this is not correct. However, that is not the end of the matter. The appellant had withheld material facts from the court a quo when obtaining the interim protection order; a full bench of this division had already found that the alleged acts of domestic violence during June/July 2005 and December 2005 could not objectively have given rise to a reasonable apprehension of harm when the appellant had launched his previous application during 2006; on the appellant’s own version the alleged threatening telephone call of 16 March 2007 was not sufficiently serious for him to form a reasonable apprehension of harm; the grounds advanced by him to secure protection under the Act in order to neutralise the respondent’s protection order against him are without merit; and other than the sketchy contents of the affidavit of Kotze there was no evidence before the court on which it could make a finding in relation to the alleged incident of 6 May 2007.

[24] A reasonable apprehension of harm is one which a reasonable person might entertain on being faced with the facts which the court finds to exist on a balance of probabilities: see Prest: The Law and Practice of Interdicts at p45. The author goes on to

say:

The test for apprehension is an objective one. The applicant must therefore show objectively that his apprehensions are well grounded. Mere assertions of his fears are insufficient. The facts grounding his apprehension must be set out in the application to enable the court to judge for itself whether the fears are indeed well grounded. ’

[25] For the reasons set out above it is my view that there is insufficient evidence upon which a court could have concluded that the appellant had met the aforementioned test. He failed to show on a balance of probabilities that he was entitled to the final relief sought by him in the court a quo. In the circumstances the appeal on the merits must fail.

[26] As regards the punitive costs order made by the court a quo, s 15 of the Act provides that the court may only make an order as to costs against a party if it is satisfied that such party acted frivolously, vexatiously or unreasonably.

[27] It is trite that in awarding costs a court of first instance exercises a discretion and a court of appeal will not readily interfere with the exercise of that discretion. In the particular circumstances of this matter I am satisfied that the magistrate did not misdirect himself in any manner in making the costs order that he did. He was in any event empowered to award costs on any scale higher than that on which the costs would otherwise be taxable in terms of rule 33(8) of the magistrates court rules. Accordingly the appeal in respect of costs also fails.

THE REVIEW:

[28] The appellant’s grounds of review are essentially that:

28.1. in reaching his decision the magistrate had regard to the contents of the respondent’s answering affidavit filed in opposition to the final relief sought despite the appellant not having had sight thereof;

28.2. the magistrate conducted himself improperly by allegedly having met with the respondent’s attorney and counsel in the absence of the appellant before the commencement of proceedings on 31 May 2007; and as a result thereof the magistrate exhibited bias against the appellant during the proceedings;

28.3. the magistrate refused to admit Kotze’s affidavit in evidence; and

28.4. the magistrate accepted a submission made by the respondent’s counsel during argument as to when exactly the full bench had handed down judgment on 16 March 2007 and thus permitted counsel to give evidence from the bar.

[Another ground relating to the alleged irregularity on the part of the magistrate in not affording the appellant a postponement appears to have not been pursued by his counsel during argument.]

[29] The respondent submits that there are three bases upon which the review application ought to be dismissed, namely that:

29.1. the applicant failed to launch the proceedings within a reasonable time;

29.2. the proceedings amount to an abuse of the process of court; and

29.3. the grounds for review are without merit.

[30] Although there is no prescribed time limit for the institution of review proceedings of this nature, it is dear that they must be instituted within a reasonable time: see Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 39A- B.

[31] In the event that the proceedings are not instituted within a reasonable time the issue of condonation arises and the court will consider whether or not to condone the unreasonable delay by taking all relevant circumstances into account: see Wolgroeiers Afslaers (supra).

[32] The first stage of the enquiry, namely whether or not there has been an unreasonable delay, does not involve the exercise of any discretion, but rather an analysis of the underlying relevant facts and the making of a value judgment as to whether or not, on the basis of such facts, the delay is unreasonable: see Oudekraal Estates (Pty) Ltd v City of Cape Town 2010 (1) SA 333 (SCA) at para 51. The second stage of the enquiry, namely whether condonation should be granted, does however involve the exercise of a discretion and one of the factors that the court will take into account is that of prejudice although that factor is not of itself decisive of the matter: see Wolgroeiers Afslaers and Oudekraal Estates (Pty Ltd (supra)] Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and Others 2002 (1) SA 478 (C) at 484C-D.

[33] On 18 October 2007 the appellant had signed a power of attorney appointing attorneys to prosecute the appeal on his behalf. Paragraph 2 of the notice of appeal itself records that one of the grounds of appeal is that the magistrate erred and/or misdirected himself -

‘In admitting an answering affidavit from the Respondent as evidence before the Honourable Court, notwithstanding that it had not been served on, nor sighted (sic) by the Applicant prior to the return day of the Application 31 May 2007, thereby denying the opportunity to file a replying affidavit. ’

[34] As previously indicated the appeal was initially set down for hearing on 14 March 2008. The appellant’s heads of argument in the appeal were signed by his counsel on 19 February 2008 and filed on 22 February 2008. However it was only on 13 March 2008 (i.e. 3 weeks after the appellant’s heads of argument in the appeal were filed and the day before the appeal) that the review proceedings were instituted.

[35] The appellant’s terse explanation for only instituting the review proceedings at that stage was that -

'I have been advised that the procedural irregularities of which I complain [i.e. in the appeal] relating to 2nd Respondent’s hearing of Application No: 92/2007 on the Return day of 31.05.2007 and the conduct of 1st Respondent’s legal representatives in regard thereto fall to be addressed in a Review Application (which is my present one) and not in an Appeal hearing. ’

[36] This is the only explanation proffered by the appellant for the delay in instituting the review and it cannot be regarded as even approximating one that is satisfactory. But the matter does not end there. After the respondent had filed his notice of opposition on 19 March 2008 there was a delay of 10 months before he filed his answering affidavit on 19 January 2009. The appellant sat back and took no steps to compel the respondent to deliver that affidavit despite the provisions of rule 53(5)(b) of the uniform rules of court which required the respondent to deliver his answering affidavit within 30 days of delivery of his notice of opposition. In addition in his answering affidavit the respondent pertinently drew attention to the appellant’s delay in instituting the review proceedings and pointed out that ‘No explanation is provided for this delay nor is condonation in respect thereof sought’: and that in the circumstances and on that ground alone the review application should be dismissed with costs. This notwithstanding it was literally at the eleventh hour, namely 6 December 2012 (being the day before the appeal and review were heard) that the appellant delivered his replying affidavit. That affidavit was thus delivered almost 4 years after the respondent's answering affidavit had been filed. It was not accompanied by an application for condonation for late filing; on the contrary the replying affidavit also sought to introduce new matter, and we refused its introduction on these grounds. In addition the appellant failed to make any formal application for condonation relating to the delay in instituting the review proceedings themselves despite having known for almost 4 years that the respondent’s attitude was that there had been an unreasonable delay in instituting the proceedings.

[37] In these circumstances condonation cannot be warranted. The irresistible conclusion is rather that the appellant, in the knowledge that he could stave off satisfaction of the punitive costs order made against him, orchestrated an indefinite postponement of an appeal that was without merit by instituting review proceedings on the day before the appeal was due to be heard; and then deliberately dragged his heels in the prosecution of the review, knowing full well that if - eventually - the review was heard and failed, he would have a second bite at the cherry under the guise of an appeal which in turn would continue to delay satisfaction of the costs order. This is borne out by the undisputed submission of the respondent’s counsel during argument that the appellant had in fact failed to take any further steps to prosecute the review to hearing stage after delivery of the respondent’s answering affidavit; and that it was in fact the respondent’s legal representatives who themselves had taken steps to enrol the matter for hearing. There thus also appears to be merit in the submission by the respondent’s counsel that the review proceedings themselves constitute an abuse of the process of court.

[38] In any event there is no merit in any of the grounds advanced in the review, which must be decided on the basis of the Plascon-Evans rule (supra) namely that ‘where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order ... may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order ... [unless] the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers'.

[39] As to the first ground of review, namely that relating to the respondent’s answering affidavit, the record reflects that the aforementioned affidavit was indeed served on the appellant’s attorney by agreement and by telefax on 25 May 2007 as appears from the transmission report. On receipt of a telefax from the appellant’s attorney to the effect that he had not received the answering affidavit, the respondent’s attorney addressed an email to him advising that the answering affidavit had indeed been served by telefax and provided him with a copy of the transmission report. No reply to this emai! was forthcoming. The appellant’s attorney did not deny receipt of the answering affidavit; he only confirmed under oath that he had sent the email stating that he had not received it.

[40] At the commencement of proceedings on 31 May 2007 the appellant confirmed that the aforementioned attorney had withdrawn but that he was ‘quite happy to proceed on matters of fact’. He addressed the magistrate at some length, including on the merits. In his argument the respondent’s counsel rather focused on the appellant’s failure to make a full disclosure of the previous proceedings in both the Wynberg magistrates court and the appeal relating thereto (both matters of public record as opposed to any version put up by the respondent in isolation in his answering affidavit) as well as the appellant’s own assertions as contained in his founding affidavit. The appellant was afforded a full opportunity to address the magistrate in reply thereto. In these circumstances it cannot be said that there was an irregularity as claimed by the appellant.

[41] As to the second ground relating to the magistrate’s alleged improper conduct and bias towards the appellant, not only has the respondent’s attorney denied under oath that any meeting (save for a brief introduction) took place; but the record itself reflects that the magistrate went to considerable lengths to afford both the appellant and the respondent a fair hearing. There is no evidence whatsoever of bias on the magistrate’s part.

[42] As to the third ground, namely that the magistrate had refused to admit Kotze’s affidavit in evidence, there is simply no indication that this was the case. On the contrary, the record shows that the magistrate was aware of the existence of that affidavit; that it had not been provided to the respondent prior to the return date; that the magistrate adjourned the proceedings in order to allow the respondent’s counsel to peruse Kotze’s affidavit; and that the appellant was permitted to address the magistrate in relation to the contents of that affidavit.

[43] As to the fourth ground, namely that the magistrate had accepted evidence by the respondent’s counsel relating to when the full bench delivered judgment in the appeal on 16 March 2007, it is apparent that the magistrate had no regard at all to that submission in reaching the conclusion that he did for the simple reason that he found that the appellant had obtained the interim protection order based on the same set of facts with which the Wynberg magistrates court and the full bench had previously been faced. This is thus nothing other than a red herring.

[44] It follows that the review application falls to be dismissed as well.

COSTS

[45] As regards the appeal there is no reason why costs should not follow the result and the respondent asks only for costs on the party and party scale.

[46] Insofar as the review is concerned there is similarly no reason why costs should not follow the result. The respondent asks for costs on the attorney and client scale ‘in the light of unfounded and untrue allegations of irregularity’. In my view a punitive costs order is indeed justified, not only because of the entirely unmeritorious grounds of review, but also because of the appellant’s conduct relating to the review proceedings themselves. As was stated by the court in Net v Waterberg Landbouers Ko-operatiewe Vereniging 1946 AD 597 at 607:

‘The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which gave rise to the action or from the conduct of the losing party, the Court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation. ’

CONCLUSION

[47] I accordingly propose the following order:

1. The appeal is dismissed with costs on the scale as between party and party;

2. The review application is dismissed with costs on the scale as between attorney and client.

J I CLOETE

BAARTMAN J

I agree and it is so ordered.

E D. BAARTMAN

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