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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

 

                                                                                     Case No.: M342/2021

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

                                                                                                      

In the matter between:

UNITING REFORMED CHURCH IN SOUTHERN AFRICA: WOLMARANSTAD CONGREGATION	1st Applicant
REVEREND KENNETH MOHAKABE	2nd Applicant
and
KAKANYO SERAME SEWEDI	Respondent
In re:
KAKANYO SERAME SEWEDI	Applicant
and
UNITING REFORMED CHURCH IN SOUTHERN AFRICA: WOLMARANSTAD CONGREGATION	1st Respondent
REVEREND KENNETH MOHAKABE	2nd Respondent

 JUDGMENT

 

DIBETSO-BODIBE AJ

 

Introduction

 

[1]        The rules of court are not for gambling nor are they supposed to be utilised through guesswork when navigating through the litigation process. The rules of court are a rhythm that harmonises the how, when and where of the administration of court processes and any discord in the rhythm comes at a great expense to the detriment of litigants. The rules of court my not be utilised to play litigatory games that delay justice and cause procedural misery. The scrupulous conduct of litigation rest squarely on the shoulders of the legal practitioners entrusted by litigants with the belief that they are officers of court who are au fait with the administration of court processes including the procedural implementation of the rules of court. The rules set the parameters within which the course of litigation has to proceed and are used as tools to facilitate access to court rather than hindering it.

 

[2]        This is an application for an order for costs against the Respondent for removal of a contempt of court application from the urgent roll without tendering cost thereto.

 

[3]        The Applicants, Uniting Reformed Church in Southern Africa: Wolmaranstad Congregation and Reverend Mohakabe, were the Respondents in the contempt application instituted by Ms Sewedi, the Respondent in this matter. For the sake of convenience, the Parties will be referenced as in this application for costs.

 

BACKGROUND

 

[4]        This application is as a result of the alleged non-compliance with an order of 21 July 2022 by DJP Djaje in the main application between the Parties. The issues in the main application have not been canvassed in the papers before this Court safe to state that the contempt of court application was instituted against the Applicants as a result of the alleged non-compliance with the order of court of 21 July 2022. This Court is, therefore, seized with the determination of the application for costs against the Respondent for removal of the contempt of court application (contempt application) from the urgent roll without tendering costs for such removal.

 

THE NOTICE OF MOTION FOR THE CONTEMPT APPLICATION

 

[5]        In terms of the Notice of Motion instituted on 05 September 2022, the application is heard as one of urgency in accordance with Rule 6(12)(a). The Applicants were to deliver their Notice of Intention to Oppose the application same day (05 September 2022), as well as Answering Affidavit(s), if any and the Respondent would deliver her Replying Affidavit, if any, on 08 September 2022 (three days after the Answering Affidavit has been filed). The Notice of Motion attached to the founding papers does not bear a court stamp as proof of the date of receipt and filing with the Registrar’s Office.

 

THE PLEADINGS AND CONTENTIONS OF THE PARTIES

 

[6]        According to the Applicants’ Supporting Affidavit:-

 

[6.1]     The Respondent served a Notice in terms of Rule 6(12)(a) on 08 September 2022 as per annexure “A”. Annexure “A: is the Notice of Motion bearing no court stamp. However, it is apparent from the face of the Notice that the Applicants’ Attorneys received the Notice on 05 September 2022. It is also acknowledged in the Replying Affidavit and the Applicants heads of argument that the founding papers were received by their Attorneys on 05 September 2022.

 

[6.2]     The Notice of Intention to Oppose dated 06 September 2022 is annexure “B” to the founding papers, does not bear any court stamp nor acknowledgement of receipt by the Respondent’s Attorneys. The Applicants averred that the Notice to Oppose was served and filed on 09 September 2022. The Respondent vehemently denied that the Notice to Oppose was at any time served or filed up until the time when the Respondent removed the matter from the roll on 14 September 2022. Under reply the Applicants produced annexure “I” an email from the Applicants’ Attorneys addressed to the Respondent’s Attorneys. The email dated 09 September 2022 states “Subject: NOTICE TO OPPOSE CASE NO: M342/21, NP WILLIAMS/DC KRUGER, 1. Herein is the Notice to Oppose and relevant documents required. 2. Please acknowledge receipt hereof by return of email.”

 

[6.3]     It is therefore, clear from the said email that the Notice to Oppose and other relevant documents were sent to the Respondent’s attorneys. However, the Applicants failed to produce proof that the Notice to oppose was ever filed with the Office of the Registrar. The Respondent’s Practice Note similarly states that the Notice to Oppose was served and filed on 06 September 2022 although as alluded to no proof that the Notice to Oppose had been duly filed.

 

[6.4]     From the Court papers it is clear that the Answering Affidavit was duly filed and served on 13 September 2022, the Respondent unilaterally removed the matter from the urgent roll without tendering any costs.

 

[6.5]     It is common cause that the Respondent removed the contempt application from the urgent roll on 14 September 2022, a day before the hearing of the said application. The Notice of Removal which does not bear the court stamp was received by the Applicants’ Attorneys on 14 September 2022 at 10:03. It reads: “NOTICE OF REMOVAL, TAKE NOTICE that the above application is hereby removed from the roll of 15 September 2022 with the matter having become opposed.”

 

[6.6]     The following extracts from the Respondent’s Answering Affidavit are relevant as to the reasons for the removal of the contempt application. The Respondent averred that neither the Notice of Intention to Oppose nor the answering affidavit were served and filed by 5 September 2022. It was on that basis that the matter remained on the roll for 15 September 2022. It was only on 13 September 2022 that the answering affidavit was filed and served, Thus the matter became opposed at the very last moment. It was on this basis that the matter was removed from the roll.

 

[6.7]     On 18 September 2022 Mr Mataka (Applicants’ Attorney) launched a highly puzzling application to compel the Respondent and myself to pay wasted costs of 15 September 2022, apparently blissfully unaware that the removal was caused by the late filing (13 September 2022) of the Applicant’s answering affidavit which was already due on 05 September 2022.

 

[6.8]     Mr Mataka then chose 26 January 2023 as the day on which he resuscitated the ill-advised application to compel the Respondent to pay costs for a removal occasioned wholly by the dilatoriness of the Applicants, I confirm that it was only after the late filing of the answering affidavit that we became aware of the matter having being opposed and therefore we could not continue with the matter on the unopposed roll. Mr Mataka is apparently not aware that the matter can be removed from the roll under the circumstances which he has forced upon the Respondent and that the removal from the roll as soon as it became clear that the matter has become opposed was the most prudent under the circumstances.

 

[6.9]     Further, the Respondent contended that the Applicants while filing a notice of intention to oppose on 09 September 2022, only filed the answering affidavit on 13 September 2022, while a mere filing of a notice of intention to oppose does not make the application fully opposed, an answering affidavit certainly does so, it would therefore be foolhardy to persist with keeping the matter on the unopposed roll. It is for this reason that the matter was only removed from the urgent roll after receipt of the answering affidavit. In addition the Respondent was entitled to file a replying affidavit and a hearing date on the opposed roll would be sought in due course.

 

[6.10]  On the other hand, the Applicants contended that the contempt application constituted an abuse of the court process in that the Applicants were required to file their notice of intention and answering affidavit on the same day that the founding papers were served on their attorneys.

 

[7]        The Respondent’s Attorneys knew without doubt that it would be impossible for the Applicants to file their answering papers on 05 September 2022. Mr Williams (Attorney for the Respondent) claims that the reason for the purported removal of the urgent application from the roll was the late filing of the answering affidavit.

 

[7.1]     An application does not become opposed when an answering affidavit is filed but when a notice of intention to oppose is filed. This is clear from Rule 6(5)(d)(i) of the Uniform Rules of Court. That is why, in this Division, if a matter was set on the unopposed roll and the other party files a notice of intention to oppose, albeit late, it is postponed to the opposed roll. Therefore the matter became opposed on 09 September 2022 and not on 13 September 2022.

 

[7.2]     The Respondent’s Attorneys did not remove the matter from the roll despite their knowledge that a notice of intention to oppose had been filed and therefore that the matter had become opposed. Instead, they waited for the filing of the answering affidavit. Only then did they purportedly remove the matter from the roll. It was only through the answering affidavit that they realised that their client had not made out a case for contempt of court and that they realised that they had not satisfied the requirements of rule 6(12). The purported withdrawal of the application did not make sense at all. If Mr Williams was genuinely concerned about the late filing of the answering affidavit, then his remedy was not to remove the application but to seek a short postponement to allow his client to file a replying affidavit.

 

[7.3]     The urgent application was not brought in the ordinary course. Only an application brought in the ordinary course many be removed from the roll once it becomes opposed. Since the matter had already been set down and it was opposed, the Respondent’s Attorney were not entitled to unilaterally remove it from the roll but could only do so with the consent of the Applicants’ Attorneys or with leave of the Court (Rule 41(1)(a).

 

ANALYSIS

 

[8]        On 05 September 2022 the Respondent issued an urgent application against the Applicants for contempt of an order of court of 21 July 2021, 10 months later. The Applicants were to file their Notice of Intention to Oppose together with the Answering Affidavit same day on the date on which the founding papers were issued. The Respondent gave herself plenty three days to file the Replying Affidavit if any which would fall on 08 September 2022. The application had been set down for hearing on 15 September 2022, eight days, from the date of issue of the application. The Applicants failed to file their Notice of Intention to Oppose with the Office of the Registrar, however the Notice was served on the Respondent’s Attorneys per email of 09 September 2022 instead of 05 September 2022 in accordance with the Notice of Motion. The Answering Affidavit was only filed on 13 September 2022. On 14 September 2022, the Respondent unilaterally removed the matter from the roll without tendering costs. This is the essence of the issues underlying the application for costs.

 

[9]        This Court need not be seized with the merits of the main application wherein the order of 21 July 2021 was issued for it to come to a conclusion that the purported contempt application did not warrant urgency and that the conduct of the Respondent was a flagrant disregard of the rules of court.

 

[10]      The abridgement of the time periods from those ordinarily prescribed by the Rules must be commensurate with the urgency with which the redress is required. The time table set by the Respondent was unreasonable if not impossible in the circumstances to direct the Applicants to file their answering papers within hours of the issue of the application.

 

[11]      According to the Notice of Removal, the Respondent removed the matter from the urgent roll because the application had become opposed. This reasoning is amplified in the heads of argument thus: “While a mere filing of a notice of intention to oppose does not make the application fully opposed, an answering affidavit certainly does so and it would therefore be foolhardy to persist with keeping the matter on the unopposed roll.”

 

[12]      It is a fallacy for the Respondent in an urgent application to unilaterally remove the application from the urgent roll on the eleventh hour on the basis that since the Answering Affidavit has been filed, the matter has become opposed and thus qualifies to be re-enrolled on the opposed motion roll without justifying this line of reasoning with the Practice Directives of this Division and/or the Rules of Court.

 

[13]      Urgent applications, given their peculiar nature, are an exception to the general application of the Rules of Court which regulate the procedure of the court process. The litigant in an urgent application is afforded an opportunity to bridge the time periods prescribed by the Rules of Court including, where possible, approaching the court without any court papers, hence its peculiarity.

 

[14]      It is for this reason that Rule 6(12)(a)[1] was invoked in the Uniform Rules of Court with respect to abridgement of the time periods prescribed by the Rules, whilst in terms of Rule 6(12)(b)[2] the Applicant must first convince the court that he or she will not be afforded substantial redress at a hearing in due course.

 

[15]      In the circumstances, the reasoning of the Respondent that she removed the matter from the urgent roll because it became opposed is a misunderstanding of the Rules. As at the time of removing the matter from the urgent roll, the matter seized to be urgent meaning that the opponent is left on the ledge with serious financial implications as far as payment of legal fees are concerned.

 

UNILATERAL REMOVAL OF THE MATTER FROM THE ROLL WITHOUT TENDERING COSTS

 

[16]      The application for costs is as a result of refusal by the Respondent to tender costs for the removal of the matter from the urgent roll without the consent of the Applicants.

 

[17]      Whilst there is logic in the fact that whatever the reason behind a removal or withdrawal of the matter, the Court is not in a position to force a party to proceed with the matter, at best the court’s duty will, under the circumstances be to ensure that administration of justice is done and that the interests of the party affected are protected through an appropriate order as to costs.

 

[18]      It is a well-established rule of practice that after a matter is enrolled for hearing, the matter may only be removed from the roll by agreement of the parties or with leave of the court.

 

[19]      The removal of the matter from the roll is in all practical respects akin to a postponement of a matter sine die. Indeed this is what the Respondent sought without asking. Once a matter is enrolled for hearing as in the present case and in the absence of agreement of the parties, an enrolled matter will only be removed from the roll with leave of the court. A suggestion otherwise would encourage careless litigation with the knowledge that, without any consideration for prejudice to the opposing party and in total disregard of the efficient and proper administration of the court process, a party will simply and unilaterally remove the matter from the roll.

 

[20]      In distinguishing between removal and withdrawal of the matter from the roll after the filing of the Answering Affidavit, the Respondent contended that “In addition the applicant was entitled to file a replying affidavit and a hearing date on the opposed roll would be sought in due course. It is abundantly clear therefore that the removal was not a withdrawal of the contempt of court application but a removal from the urgent, unopposed roll and there was no basis for consenting to costs as envisaged in Uniform Rule 4(1)(a)”. Suffice it to say that the perpetuated quagmire concerning the application of the rules of court have already been dealt with by the court in the preceeding paragraphs, the Respondent’s contention is simply that since the matter was removed (to be re-enrolled on the unopposed motion roll) and not withdrawn, she is not entitled to pay costs for such removal.

 

[21]      “… sometimes circumstances arise which are not provided for in the rules. The proper course in these circumstances is to approach the Court itself for guidance. After all in terms of Section 173[3] each superior court is the master of its process[4].”

 

[22]      There is no express provision in the Rules for “removal” of matters already set down for trial or hearing. Rule 41 deals with withdrawal, Settlement, Discontinuance, Postponement and Abandonment. The word withdrawal is not defined in the Rules. The following guidance by the Supreme Court of Appeal on interpretation of statutes is apposite: “the method of attributing meaning to the words used in legislation involves, as a point of departure, examining the language of the provision at issue, the language and design of the statute as a whole and its statutory purpose. So when the lawmaker uses particular words to achieve its purpose they must be given effect. In so doing the court will apply ordinary rules of grammar and syntax. It is not permissible to ignore or distort the meaning of the words to achieve its purpose. For in so doing a court will be substituting its own words for those of Parliament. But if the words used are reasonably capable of bearing more than one meaning, the consequences of the divergent interpretations must be examined so that a meaning that is likely to further rather than hinder its purpose is adopted. In this regard a meaning that is more sensible and business like is to be preferred over one that has a contrary effect[5].”

 

[23]      Rule 41 provides:

 

[23.1]  (a) A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the other parties or leave of the court withdraw such proceedings, in any of which events he shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs, and the taxing master shall tax such costs on the request of the other party.

 

[23.2]  (b) A consent to pay costs referred to in paragraph (a) shall have the effect of an order of court for such costs.

 

[23.3]  (c) If no such consent to pay costs is embodied in the notice of withdrawal, the other party may apply to court on notice for an order for costs.

 

[24]      The word “withdraw” the proceedings is not defined in the rules. The ordinary grammatical meaning of the word withdraw from the oxford dictionary means to remove or take away (something) from a particular place or position and includes remove, and withdrawal means withdrawing or taking away something and it includes removal.

 

[25]      Since the word remove or removal does not find its expression in the Rules and the meaning of the word withdraw or withdrawal includes removal and the word removal is not specifically provided for in the Rules it will be apt under the circumstances to infer that the draftsmen of the Rules intended that the word removal should be accorded a similar meaning as withdrawal for the purposes of interpreting Rule 41. Otherwise it will be an abortion of the administration of justice that the word removal whilst popularly used cannot find expression in the Rules. In fact it is trite as can be attested to by a plethora of legal authorities that a party cannot unilaterally remove the matter that has been set down for trial or hearing without the consent of the other party or by leave of court.

 

[26]      In the circumstances, I am satisfied that the words removal or withdrawal may be used interchangeably to mean withdrawal of the matter in terms of Rule 41.

 

[27]      Rule 41 is specific that a party may not withdraw the matter after it has been set down for hearing without the consent of the other party and without tendering costs thereto failing which the affected party may apply to court for an order for such costs. The issue of tendering costs is at the centre of administration of justice to curb the apparent prejudice that the affected party may suffer in the form of legal costs after having been dragged to court by the applicant as dominis litis in the proceedings.

 

COSTS

 

[28]      “Where a litigant withdraws an action or application or in effect withdraws it, very sound reasons must exist why the defendant or respondent should not be entitled to costs. A plaintiff or applicant who withdraws his or her action or application is in the same position as an unsuccessful litigant because, after all, such claim or application is futile, and the defendant or respondent is entitled to all costs caused by the institution of proceedings as the withdrawing party[6].”

 

[29]      “Ordinarily, the withdrawal of the matter is viewed as a concession on the merits, a recognition that the merits have become academic or that the relief sought is for whatever reason futile. Whatever the reason for the withdrawal of the matter, the court retains a discretion to award costs, with the general rule being, that the respondent is entitled to all costs caused by the institution of the proceedings, a rule which is not to be departed from without good grounds[7].”

 

[30]      In the circumstances, the Respondent is liable for the payment of costs in favour of the Applicants for the removal of the matter from the urgent application enrolled for 15 September 2021 together with the costs of this application. The Applicants have further prayed for the payment of costs de bonis propriis. I am unable to grant such personal punitive costs based on the unsubstantiated allegations by the Applicants.

 

ORDER

 

[31]      I make the following order:

 

Subsequent to her withdrawal of the contempt application on 14 September 2022, the Respondent is ordered to pay the Applicants taxed costs on an attorney and client scale.

 

 

O.Y DIBETSO-BODIBE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

Delivered: This judgment is prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties or their legal representatives by email and by release to SAFLII

 

 

DATE OF HEARING:                                             08 September 2023                       

 

DATE OF JUDGMENT:                                         24 January 2025                

                                   

APPEARANCES

 

FOR THE APPLICANTS:              Adv O.I Monnahela                      

 

INSTRUCTED BY:                          Morathi & Mataka Inc                                     

 

FOR THE RESPONDENT:            Adv C.A Kilowan                                  

 

INSTRUCTED BY:                          NP Williams Attorneys               

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