HIGH COURT OF SWAZILAND
the matter between:
CITY COUNCIL Defendant
: MASUKU J.
the Applicant : Mr J.N. Hlophe
the Respondent : Mr E.M. Simelane
15th June 2004
Court is, in this matter, called upon to determine the issue of
costs. For such a determination to be made, it is necessary that a
brief history of the material facts and events is undertaken, for
purposes of putting the matter in its proper perspective.
suffices to mention that this is a matter which is accompanied by a
degree of acrimony and as a result of which reason, in some of the
events which unfolded, played second fiddle or was totally excluded.
The acrimony is evident in the correspondence and papers,
particularly those of the Respondent. This is a poor example that
does not need to be emulated for it goes against all the best held
and respected values and traditions which are expected to be observed
by legal practitioners even in cases where divergent and
irreconcilable views of a matter are strongly held. Attorneys should
be above the emotions of their clients as they are
to act professionally, exhibiting an element of detachedness which
will augment the performance of their duty to the Court.
a nutshell, the Respondent issued a Summons against the Applicant for
the delivery of certain property that was confiscated by the
Applicant's law enforcers, alternatively, the payment of an amount of
E35, 000.00 and costs. No claim for interest was made. It would
"appear that the Combined Summons was served on the Acting Town
Clerk, who states that on receipt of the Summons, he requested the
Director of Finance to liase with Applicant's insurers for purposes
of defending the matter.
long and short of it is that the matter was never defended,
culminating in a judgement by default, granted on the 2nd December,
2004. The execution procedure ensued and this resulted in the
Applicant becoming aware that judgement had been entered against it
as aforesaid. An application for rescission of the judgement was
granted by consent on the 14th May, 2004. In terms of that Order, the
parties agreed that the matter be referred for trial. Two issues
relating to costs were reserved for future determination i.e. the
costs of the default judgement and the Deputy Sheriff's fees relating
to an attachment of a motor vehicle. I shall deal with both aspects
of the matter, which were argued before me ad seriatim, beginning
with the costs of the application for judgement by default.
in respect of application for judgement by default.
ordinary and fundamental principle regarding costs was stated as
follows by Herbstein & Van Winsen et al, "The Practice of
the Supreme Court of South Africa", Juta, 4th Edition, 1997 at
a general rule, the party who succeeds should be awarded his costs,
and this rule should not be departed from except on good grounds. "
should also be borne in mind that the question of the award of costs
is a matter wholly within the discretion of the court and it is done
in exercise of a judicial discretion. In this case, it is clear that
the rescission was granted by consent and the issue of the successful
party does not arise.
THERON VS ROSE-INNES & CO. 1927 CPD 123 at 124, Lourens J. stated
the position regarding costs in matters such as the present one in
the following terms; -
there are any wasted costs then the person who is responsible for
such costs should be made to pay them, and the innocent person should
not be made to pay them, and the innocent person should not be made
to suffer. In this matter, it is not disputed that the applicant
would have to pay the wasted costs, that is to say all the costs
necessarily incurred by reason of his having been in default,"
in general is the principle that should apply, unless the Applicant
states cogent reasons why this principle should be departed from in
casu. The Applicant's contention in this regard is that: -
was no compliance by the Respondent with the provisions of Section
116 of the Urban Government Act, 1969, regarding limitation of
proceedings overlooked the Applicant's power and duty to maintain
order and good governance as conferred by Section 5 and 55 of the
Urban Government Act;
do not share the view that the above contentions should tilt the
scales in the Applicant's favour, thus causing a shift from the
applicable general principle enunciated above. Regarding the alleged
non-compliance with the provisions of Section 116, the Respondent
furnished the Court with the copy of a letter of demand, dated 4th
October, 2003, which in my view provides a full answer to the
Applicant's contention as this letter appears to be in compliance
with the requirements of the aforesaid provisions.
the balance of the contentions, I am of the view that the Summons was
served on the Applicant and it is the Applicant that neglected to
deal properly therewith by not filing the notice to defend. It would
be presumptuous for the Court, at this juncture and on the papers, to
venture an opinion on the propriety or otherwise of the Respondent
launching the action proceedings or on the sustainability of the
action or hopelessness thereof. As the matter has been referred to
trial, an appropriate application can be made by the Applicant to
trial Court at the appropriate time if the Applicant's present
complaint is confirmed and shared by the trial Court.
the cases of THE AFRICAN ECHO (PTY) LTD t/a THE TIMES OF SWAZILAND
THULANI MAU MAU DLAMINI H. COURT CASE NO.3562/00 and HANS C. WEINARD
VS MICHELLE SHEILLA CASE NO. 3022/00, I expressed the view that a
party who seeks rescission as a result of his default craves an
indulgence and should pay the wasted costs of the Application for
judgement by default I reaffirm that view.
the present case, I am of the considered opinion that there is no
reason why the Applicant should not pay the wasted costs of the
judgement by default, which were in any event occasioned by its
default. In this aspect, I find for the Respondent.
Sheriff's costs, which are the bone of contention arose in the
following manner. The Applicant, it will be seen, applied for the
following relief in its urgent application dated 4th May, 2004: -
with the normal provisions of the rules of this Honourable Court as
relate to form, service and time limits and hearing this matter as
an urgent one.
execution of the writ of execution in the above matter.
the motor vehicle of the Applicant (Defendant) attached and removed
by the 2nd Respondent in view of the security covering the judgement
debt paid by the Applicant to its attorneys.
that such security be kept by the Applicant's attorneys in its Trust
Account pending the outcome of legal proceedings relating to this
varying and or setting aside the Default Judgement granted by the
above Honourable Court in favour of the 1st Respondent on the 5th
day of December, (sic) 2004.
that prayers 2,3,4 and 5 operate as a rule nisi with immediate and
interim effect pending the outcome of this application.
the Applicant the costs of this application.
is common cause that on the 4th May, 2004, the matter served before
Maphalala J., who ordered release of the vehicles in question against
the Applicant forthwith depositing an amount of E35,000.00 with its
attorneys of record. The said amount was ordered to be kept pending
the outcome of the matter. The Respondents were ordered to file their
papers, which they did and to which the Applicant replied. The
vehicles were apparently released.
the 14th May, 2004, the Consent Order was then granted and which is
in the following terms: -
are to return the motor vehicle to wit, SD 590 HG to the Applicant
upon payment of the sum of E2 400.00 to the Trust Account of
attorneys Mbuso E. Simelane & Associates being the agreed value
of the goods mentioned in paragraph 13.4 of Felix Matsebula's
Founding Affidavit to the Rescission of Judgement application or
alternatively upon return of the said goods by the Applicant to the
Respondent. It is agreed that such payment or return goods is not an
admission of liability by the Applicant but a settlement measure.
Rescission of the Judgement granted by default on the 5th December
2004, be and is hereby granted and the matter is referred to trial
to deal with all relevant issues concerning the items mentioned in
paragraph 13.6 of Felix Matsebula's Founding Affidavit annexed to
the Application for Rescission.
determination of the question costs in respect of the Default
Judgement which is hereby rescinded be reserved for determination on
the 4th June 2004.
Deputy Sheriffs fees regarding the attachment of the above mentioned
motor vehicle are to be determined on the 4th June 2004.
Applicant is to file and serve its Plea before 16h00 on the 4th June
contempt proceedings against the 2nd and 3rd Respondents is hereby
the 10th May, 2004, the 2nd Respondent laid under attachment a
further vehicle belonging to the Applicant bearing registration
number SD 590 HG. This vehicle was subsequently released by virtue of
the Consent Order of the 14th May, 2004.
Respondent's contention is that it was entitled to cause further
property of the Applicant to be laid under attachment because the
Order granted by Mr Justice Maphalala on the 4th May, 2004, did not
have the effect of staying the Writ of Execution which had already
argument is clearly untenable and amounts to a flagrant abuse of the
execution process in the sense that Mr Justice Maphalala ordered the
Applicant, to deposit with its attorneys an amount sufficient to
cover the Respondent's claim as security. These is a receipt which
was issued by the Applicant's attorneys indicating that the said
amount was indeed paid as per the Court Order and this was done on
the same day the Order was granted.
was in the circumstances no need or justifiable reason for further
attachment in light of the security already furnished. In my view
this further attachment amounted to no more than harassment of the
Applicant. It would be anomalous, indeed unjust and wrong for this
Court, in the circumstances, to order the Applicant to bear the
Second Respondent's costs. In this case, the Applicant, on whose
instructions the 2nd Respondent must have proceeded should bear these
costs. If there was sufficient evidence that it was the Applicant's
attorneys who issued the instruction for the Second attachment, then
this would be an ideal case for issuing costs de bonis propriis
against the Respondents' attorneys.
order, in view of the partial success and partial failure of each of
the parties that in relation to the argument on costs, that each
party is to bear its own costs.