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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION PRETORIA)

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED.

 

CASE NO: A162/17

19/6/2020

 

In the matter of:-

 

THE GAUTENG PROVINCIAL REGULATORY ENTITY                     APPELLANT

 

And

 

PRETORIA LONG DISTANCE TAXI ASSOCIATION                           1^ST RESPONDENT

MAROTHONG TAXI ASSOCIATION                                                       2^ND RESPONDENT

THE MEC FOR COMMUNITY SAFETY, SECURITY

AND LIASONN - LIMPOPO PROVINCE                                                 3^RD RESPONDENT

JUDGMENT

AVVAKOUMIDES AJ

[1]        The applicant has brought this appeal against the cost order granted against it by Janse van Niewenhuizen Jon 18 August 2016. It appears that the court a quo was motivated to order costs against the appellant because of an alleged contempt of Its order on 24 February 2016.

[2]        The first respondent brought an application against the appellant and other parties for interdictory relief. In the notice of motion of that application the first respondent sought costs only against the parties who oppose the application. It is clear that the appellant did not oppose the application.

[3]        On 24 February 2016 the court a quo granted an order against the appellant, who had filed a notice to abide. The order Included that the appellant be directed to file an affidavit explaining details of the taxi rank in issue vis a vis the licence granted. Such affidavit was to be filed by no later than 11 March 2016. This order was served on the appellant on 3 March 2016.

[4]        The appellant sought, and was granted, an extension to 30 March 2016 to file the affidavit. The appellant only flied this affidavit on 10 August 2016. An explanation for the delay was proffered in the affidavit. On 16 August 2016 the court granted relief to the applicant therein and on the basis that the appellant had not filed the affidavit timeously and, as displeasure for the delay, ordered the appellant to pay the costs of the application.

[5]          The appeal before us was not opposed by any party thereto. The appellant submitted the following:

5.1       The court a quo erred in ordering costs against the appellant where no party had asked for an order of costs;

5 2       The court a quo erred in finding that the appellant was in contempt of court.

 

[6]          The appellant contended that a court. whilst enjoying a discretion when deciding on costs, must exercise that discretion judicially. An appeal court would be loathe to interfere with the discretion of the trial court unless the discretion was not exercised judicially. The appellant relied on Ferreira v Levine N.O and Others[1] for such submissions.

[7]          The court a quo, so the appellant submitted. misdirected itself in holding that the appellant was in contempt of the order despite the affidavit having been delivered to the judge's desk on 10 August 2016. The court a quo thus erred on the facts In Its decision

[8]        The court erred in ordering costs against the appellant under circumstances where no party asked for costs against the appellant. The appellant submitted that the court a quo should not have done so, with reference to Mqoqi v City of Cape Town and Another[2]

[9]        Lastly. the appellant was not afforded an opportunity to be heard on the awarding of costs against it. The requirements for contempt have thus not been met and there was no compliance With the tenets outlined ln Matjhabeng local Municipality v Scham Holdings Ltd and Others, Mkhonto and Others v Compensation Solutions (Pty) Limited 2018 (1) SA 1 (CC) at par 48[3].

[10]     It is unnecessary to labour the point outlined ln Matjhabeng save to emphasize that the Constitution enjoins the courts to can out an offender to appear before court and to show cause why he should not be punished similarly for the contempt of court. See too R v Keysar[4]

[11]     For all these reasons I propose the following order.

11.1      The appeal Is upheld and the cost order against the appellant on 16 August 2016 is set aside.

11.2      The appellant did not seek any cost order and no such order is granted.

 

 

 

G.T. AVVAKOUMIDES

ACTING JUDGE OF THE HIGH

COURT

 

 

 

D.M. LEATHERN

ACTING JUDGE OF THE HIGH

COURT

 

 

I Agree

 

 

 

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

 

 

I Agree. and it is so ordered.

 

 

 

 

 

For The Appellants             :           Adv. D. Mtsweni

Instructed By                      :           State Attorney Pretoria

 

For The Respondent           :           No Appearance

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