COSTS

Facts: The parties are embroiled in litigation during the course of which the appellants instituted a Rule 30 application due to the delivery of a replication by the respondent which was out of time. The Rule 30 application was enrolled in the unopposed court, however the respondent delivered a notice to defend. The application was then removed from the unopposed roll to enable the respondent to deliver the necessary opposing affidavits. The respondent failed to do so and the matter was again enrolled on the unopposed roll. When the matter was called, the legal representatives appeared on behalf of both the respondent and the appellants. After submissions were made by them, the judge postponed the matter sine die, made provision for the respondents to file an answering affidavit and ordered that the respondent pay the wasted costs on the party and party scale. The bill of costs issued by the appellants included only one item, the particulars of which are described as: "Attendance at court -- matter postponed sine die, (day fee in terms of Rule 69): 1 day R20,000."

Appeal: The Taxing Master allowed an amount of R5,400 as well as an amount of R594 for attending the taxation and affixed an allocator in the amount of R5,994. This appeal, with leave of the court a quo, emanates from an order granted in a review of the determination made by the Taxing Master, in terms of Rule 48. The judge found that the fee allowed for attendance at the unopposed motion court is R292 per quarter of an hour – 1,5 hours was allowed. This came to R1,752 with an attendance fee at taxation of R192.72.

Discussion: Rule 70 (Item A10 of the Tariff of Fees of Attorneys) provides that the tariff under Rule 69 is applicable to attorneys who appear in the High Court. Rule 69 is silent in respect of a tariff applicable to attorneys with right of appearance in the High Court, and who appear in the High Court. The appellants rely on the provisions of Item A10 as justification for the day fee charged on the basis that the rule does not prescribe a tariff and does not differentiate between opposed and unopposed applications. The appellants in their heads of argument persisted with the view that the attorney was entitled to a day fee of R20,000 as wasted costs.

Findings: The judge erred in her determination that a tariff of R292.50 per 15 minutes applies, which tariff was neither prescribed by Rule 69 nor by the provisions of Item A10. Such determination placed an attorney, for doing the same work, in a different and subservient category to an advocate who is entitled to charge a reasonable fee, without reference to any tariff for time spent in court. This court, however, shares the view of the judge a quo that the fee of R20,000 is egregious overreaching. A Taxing Master bears the responsibility in unopposed matters, where applicable, to determine the reasonableness of the fees charged by legal representatives. Taxing Masters are at the coalface. The time has come to make it obligatory for a Taxing Master to report such legal representatives to the Registrar who must report them to the Legal Practice Council to take further steps, if it is deemed necessary.

Order: The appeal is upheld. The allocator of the Taxing Master is amended such that R3,500 is substituted for R5,400 and R385 is substituted for R594 in respect of the attendance of the taxation: Grand Total R3,885. A copy of this judgment is to be forwarded to the Legal Practice Council for consideration and appropriate steps, if deemed necessary.

MULLER J (NGOBENI J and MAKOTI AJ concurring)

Facts and issue: This application is for an order for costs against the respondent for removal of a contempt of court application from the urgent roll without tendering cost thereto. The respondent issued an urgent application against the applicants for contempt of an order of court. 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. 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.

Discussion: According to the Notice of Removal, the respondent removed the matter from the urgent roll because the application had become opposed. 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. 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.

Findings: The words removal or withdrawal may be used interchangeably to mean withdrawal of the matter in terms of Rule 41. 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.

Order: The respondent is ordered to pay the applicants' taxed costs on an attorney and client scale.

Facts: Section 26 of the Sheriff’s Act 90 of 1986 established a fidelity fund for sheriffs, which is largely aimed at indemnifying the public for claims against sheriffs. A sheriff is obliged to have a Fidelity Fund Certificate (FFC) by virtue of the provisions of section 30(1)(a) of the Act. The applicant alleges that he is a sheriff appointed for the district of Sasolburg. The applicant says that he applied for a FFC in July 2024 and again in October 2024. The respondent, Board for Sheriffs, acknowledged his application, and advised that if he were not to hear from it, he could infer that the application was in order, and that he would in due course receive his FFC. He says: “To date I have not heard from them, nor was there any query raised.”

Application: The applicant launched this application on an urgent basis, seeking an order that the respondent be directed to issue him with an FFC for the year ending 31 December 2025. He also seeks a costs order against the respondent. The applicant attached his application of October 2024 to his papers. He was required to answer two questions: The first was whether he had ever been dismissed from a position of trust by reason of improper former conduct involving a breach of such trust. The second was whether he had ever been convicted of any offence involving dishonesty. In respect of both questions the applicant replied in the negative.

Discussion: The picture one gets from reading the founding affidavit is of an innocent applicant who is at the mercy of the respondent, and who has no idea why his FFC had not been issued. But it emerged that the respondent had instituted disciplinary action against the applicant in 2017, as a result of numerous complaints, which resulted in his conviction on all charges. The findings included that the applicant showed no respect for trust monies and good accounting practices and that he was not fit and proper to hold the office of a sheriff. He was removed as sheriff for the districts of Mkobola, Mdutjana and Mbibana, but not for Sasolburg. There was an opinion that the decision of the respondent not to execute the disciplinary sanction of removal as sheriff for all areas was unlawful, and that the respondent was obliged to cancel the applicant’s existing FFC.

Findings: When this application was brought, both the applicant and his attorney knew that there was an ongoing process relating to the cancellation of his FFC. The allegation that the applicant has never had a FFC cancelled is false. The court makes the finding that the applicant was dishonest in the founding affidavit, as well as having lied in the FFC application. The court is dismayed by the conduct of Mr Motaung. He deliberately attempted to mislead the court. It was submitted, on his behalf, that an attorney acts on the instructions of his client, and that that is all he did. That may be so, but an attorney is foremost an officer of court, and when an instruction from a client is in conflict with his duty to the court, an attorney must advise the client that he cannot execute that particular instruction. An attorney must not perpetuate his client’s dishonesty, but must be scrupulously honest with the court. He must not allow false or misleading facts to be placed before a court. In this case the applicant and his attorney are equally to blame for attempting to mislead the court and should be equally liable for the costs.

Order: The application is dismissed. The applicant shall be liable for 50% of the costs of the application on an attorney-client scale. The applicant’s attorney, Mr Thapelo Motaung shall be liable for 50% of the costs on the attorney-client scale, de bonis propriis. The costs shall be calculated on Scale C.

SWANEPOEL J

Facts and issue: The applicant, Glencore, a Swiss company, seeks security for costs from the respondent, Atakas, a Turkish company and a plaintiff in an action for delictual damages against Glencore, second respondent and third respondent, as defendants. The application is brought in terms of s 5(2)(b) of the Admiralty Jurisdiction Regulation Act 105 of 1983, read with Uniform rule 47. Glencore issued a notice in terms of rule 47 calling for security for its costs in an amount of R1,2 million. The notice was premised on the ground that Atakas is a peregrinus of the court with no known assets of value within the Republic of South Africa, and secondly, that Glencoe has a genuine and reasonable need for security for its costs.

Discussion: The essence of Glencore’s contention is that it would be extremely expensive and time consuming for it to enforce its costs order in a foreign jurisdiction. It is common cause that, Atakas is a peregrinus of the court and is not possessed of assets within the Republic. It was not disputed that Atakas is in a sound financial position and that it conducts considerable trade with Glencore. It is however crucial that Glencore’s contention that it will suffer financial hardships and long delays in executing its costs order in a foreign jurisdiction be given due consideration and weight. In considering factors adduced by Atakas, it is noted that even though it disputes its liability to provide security, upon receiving the notice in terms of rule 47, it did not contest its liability or allege that it cannot afford the amount demanded. Instead, it offered an amount up to USD75,000 which is more than R1,2 million demanded by Glencore as security. Its averment that the impediment to providing security is Glencore’s insistence on a bank guarantee from a South African Bank, is evidence that it merely contests the form of security to be provided, not affordability.

Findings: Glencore has made out a case that it may, in due course, be entitled to an order for costs and that it has a genuine and reasonable need for security. Atakas is a peregrinus of the court and does not have assets within South Africa. The probabilities are that Glencore will incur further legal costs, and long delays should it have to execute its costs orders in Turkey or a foreign jurisdiction whereas Atakas, as evidenced by its financial statements can afford to provide security for Glencore’s costs as demanded without experiencing any hardships. The merits of the disputes in the action or the bona fides of the parties are irrelevant to the current application for security.

Order: The first respondent is directed to provide security for the applicant’s costs in the amount of R1,2 million.

Facts: Ms Voigt is the plaintiff in the main action and was employed as an Executive Personal Assistant by Motswako Office Solutions. Mr Austin was employed as Chief Operations Officer by Motswako. Ms Voigt is an incola who resides in South Africa and has a South African identity document. She instituted action against Mr Austin and Motswako for damages allegedly suffered as a result of Mr Austin’s alleged sexual harassment of Ms Voigt from March to July 2021. She contends that Motswako is vicariously liable to her for the alleged damages she suffered, alternatively, she alleges that Motswako is directly liable to her for damages suffered due to a breach of its statutory duty of care.

Application: This is an opposed interlocutory application for security for costs in terms of Uniform Rule 47. The applicant (Motswako) served a Rule 47(1) notice to provide security for costs in the amount of R150,000. The applicant argues that the respondent (Ms Voigt) has failed to demonstrate that she will be in a position to pay the costs of the applicant, if she is ultimately ordered to pay same. The applicant reiterates that the respondent’s claim against the applicant is unsustainable and it has been brought for purposes other than to facilitate the pursuit of the truth.

Discussion: The applicant is of the view that an action is vexatious if it is obviously unsustainable. A finding of vexatiousness need not be made “as a matter of certainty” but must be made on a preponderance of probability. The applicant is also of the view that the term “abuse of process” connotes that the legal machinery is employed for some ulterior purpose. The respondent has indicated that she is employed and she is earning R25,000 per month. She also co-owns an immovable property worth R1,600,000. The respondent is of the view that the applicant has gone out of its way to make the process as difficult and cumbersome for the respondent as possible, before she can proceed with her claim.

Findings: The test for requiring an incola respondent to provide security for an applicant’s costs is a difficult one to overcome. Such orders are only made in rare cases where the conduct of the respondent meets the high threshold of vexatiousness, recklessness or an abuse of process. The financial considerations are not dispositive of the right to security, particularly where the respondent is an incola. Courts are anxious not to close their doors to incola of South Africa merely on the grounds of impecuniosity, for this would be to limit access to justice based on wealth. The court is persuaded by the respondent’s argument that this Rule 47 application is without merit and must fail. The applicant has failed to establish that the respondent will be unable to satisfy a potential cost order. The applicant has also failed to establish that the action instituted by the respondent is vexatious or reckless or otherwise amounts to an abuse of this court’s process.

Order: The applicant’s interlocutory application in terms of Uniform Rule 47 is dismissed with costs on a party and party scale.

JOYINI J

Facts and issue: This is an interlocutory application wherein the Applicant, Tayob, a business rescue practitioner, seeks an order in terms of Rule 47 that the respondent, Lifestyle, pays an amount of R500,000 as security for his costs in an action Lifestyle has instituted against him to recover the total debt of Lifestyle in the amount of R82,618,765 for which Lifestyle seeks to hold Tayob liable in terms of section 64 of the Close Corporation Act 69 of 1984. Lifestyle’s claim is predicated on the allegation that Tayob had been grossly negligent in his conduct of the business rescue process resulting in the placement of Lifestyle in liquidation.

Discussion: According to Tayob, the report of the investigations directed by the Master pertaining to the circumstances leading to the liquidation of Lifestyle was of paramount significance and worth waiting for if established facts were to be placed before the court. As it turned out, the report contains two facts that are in the heart of the issue for determination, being whether Lifestyle / its liquidators will be able to honour an adverse order for costs should the action be successful defended. Tayob had no option, but to take the unusual step of filing a supplementary founding affidavit to introduce the report in these proceedings. On the face of it, the filing of the supplementary founding affidavit is undeniably an irregular step. However, the importance of the contents of the Kets report to this case makes it imperative that this court exercises its inherent powers in the interests of justice to allow the introduction of this report in the manner that has been done and to admit its contents, to the extent necessary, in evidence by virtue of the nature of the process by which the investigations concerned are conducted. The impact of the factual findings in the Kets report ought to inform the decision whether to admit the report in evidence as sought by Tayob.

Findings: The Kets report confirms, firstly, that Lifestyle is impecunious and will be unable to honour a costs order against it and, secondly, that Lifestyle is financed by its creditor in this litigation; a circumstance that offends the provisions of section 13 of the old Companies Act, 1973 or section 8 of the CC Act, 1984. The fact that Lifestyle is in liquidation and the confirmation of its impecuniosity by the Kets report entitle Tayob to the order he seeks in this application. The Kets report to the Master is an important document without which the court would most likely not have been aware of facts that go to the heart not only of the liquidation of Lifestyle, but also those relevant in the determination of this interlocutory application. For this reason, it is in the interests of justice in both in the present hearing and for the hearing of the main case that the supplementary affidavit to the founding affidavit to which the Kets report attached be accepted in evidence.

Order: The first respondent is ordered to provide security for the costs of the applicant in the action instituted by the respondent and others against the applicant in an amount to be determined by the registrar.

Facts and issue: This is a review of taxation contemplated in Rule 48(1) of the Uniform Rules of Court. Having been dissatisfied with the ruling of the taxing master for allowing several items on the taxed bill of costs presented by Joubert, Kramer Weihmann initiated proceedings in accordance with the aforesaid rule. In response to the taxing master’s stated case, Kramer Weihmann filed its submissions in terms of rule 48(5)(a). Joubert did likewise. The taxing master filed the required report in accordance with the provisions of rule 48(5)(b), whereupon the parties filed their further submissions in terms of rule 48(5)(c). The court is now called upon to adjudicate the review in accordance with rule 48(6)(a).

Discussion: The first and most crucial aspect to be considered in this review application is the taxing master’s conclusion that the additional 7 000 pages of documents were relevant in the exception proceedings and that all fees and expenses relating thereto should be allowed on taxation. An excipient who alleges that the plaintiff’s particulars of claim does not disclose a cause of action must establish that upon any construction of the particulars of claim no cause of action is disclosed. No further documents, not attached to the particulars of claim and no extraneous facts, should be considered. Items 5 to 14 of the bill of costs deal exclusively with discovery which has absolutely nothing to do with the exception process. To decide whether any of the exceptions should succeed, the learned judge was bound to accept the allegations of fact pleaded by Kramer Weihmann as true and correct and could not have regard to any other extraneous facts or documents. She complied with the trite principles.

Findings: The taxing master made a material mistake in submitting that Rantho AJ stated, with reference to paragraph 55 of the judgment, that a reading of these extra papers were necessary. The learned judge did not state that it was necessary to obtain the further documents, i.e. the additional 7 000 pages. The reliance on paragraph 55 of the judgment is totally wrong. Unfortunately, the taxing master did not properly consider the judgment in context. The additional 7 000 pages were not required in order to consider and/or adjudicate the applications for striking out. The fees and expenses referred to in Items 5 to 14 of the bill of costs were not reasonably incurred by Joubert in relation to the specific matter. The taxing master must properly consider and assess all relevant facts and circumstances relating to a particular item in the bill of costs. The taxing master was wrong. Interference is therefore required in respect of items 5 to 14.

Order: Items 5 to 14 of the bill of costs are disallowed and shall be taxed off.

Facts and issue: For those who litigate the law in the name of others without their approval and those who break the law and enter its citadels with unclean hands, expect not its generosity nor look to it for reward. Should a court award costs against a person not a party to the proceedings, and should a court award costs to any party who comes to it with unclean hands? These are the issues that this application morphed into determining. The applicant sought an order declaring that the property transfer from the first respondent to the second respondent was unlawful and invalid. The application was initiated by Pather. He alleged that he was authorised to represent the applicant. He does not allege that he was authorised to initiate the application nor to litigate it.

Discussion: The party concerned need not authorise the deponent to an affidavit in motion proceedings. It is the institution and prosecution of the proceedings that must be authorised. The limitation imposed on litigation on behalf of corporate bodies is to protect them from unmeritorious proceedings. The authority to initiate proceedings concerning community schemes like the applicant is restricted to owners who can show that they suffered loss or damage. Pather's resolutions did not comply with the STSMA's requirements. For the resolution to be valid, Pather required the owners' signatures of units 1 and 2. The scheme did not have a managing agent who could have approved litigation with the owner of Unit 2 against the first respondent. The owner of Unit 2, Panjo Investments, remains as illusory as Pather’s authority to institute the application. The court is satisfied that Pather had no authority to institute the application on behalf of the applicant.

Findings: Costs can be awarded against persons who do not hold authority to litigate. A case has been made out to mulct Pather with the costs of this application. The fifth respondent raised the common law principle of unclean hands in the context of Pather’s conduct. The fifth respondent relied on applying the rule in the context of Pather’s conduct. Pather, in turn, referred to the first respondent’s conduct in producing a certificate alleged to be that of the applicant. The first respondent submitted that Pather should pay their party and party costs with counsel’s taxed or agreed costs on the B scale. The third and fifth respondents supported the submission. The court finds favour with the submission except that in exercising its discretion and as a token slap on the wrist, the first and third respondents will be deprived of a percentage of their costs.

Order: The application is dismissed. Pather shall pay the costs arising from this application. The fifth respondent is entitled to its costs, which include the taxed or agreed cost of Counsel on the B scale. The first respondent is entitled to 60 percent of her costs. The third respondent is entitled to 80 percent of her costs.

Facts: Mashele, the applicant, approached the court on an urgent basis seeking an order for the release of funds amounting to R1,973,403.79 held in trust by either the first or third respondent, paid by the Road Accident Fund as compensation for a claim. Alternatively, she sought an order requiring the second and fourth respondents to provide written explanations regarding the disbursement of the funds. The applicant’s attorneys had previously sent a demand letter to the first and second respondents, but due to an incorrect email address, the response was not received. The Legal Practice Council (LPC) had already found in July 2023 that the third and fourth respondents were guilty of misconduct regarding the handling of the funds. Despite this, the applicant proceeded with the urgent application, severely truncating the timelines for the respondents to respond.

Issue: The primary issue was whether the application met the requirements for urgency, particularly whether the applicant had demonstrated that she would not obtain substantial redress if the matter were heard in due course. Additionally, the court had to consider whether the truncated timelines for the respondents to file opposing papers were justified.

Discussion: The application was brought on the basis of extreme urgency. The periods allowing the respondents to answer the application were severely truncated. The notice of motion is dated 15 October 2024. The respondents were instructed to file notices of their intention to oppose by 18 October 2024 and answering affidavits by 21 October 2024. The application was served on the respondents on 17 October 2024. Urgency requires an applicant to explicitly explain why the matter cannot wait for the ordinary court process and why the timelines for responding were shortened. The applicant had been aware of the issues since 2023, when the LPC communicated its findings, and there was no ongoing violation of rights that necessitated immediate judicial intervention. The applicant’s attorneys could have resolved the matter without litigation by following up on the unanswered demand letter.

Findings: It was found that the application did not meet the requirements for urgency. The applicant had not demonstrated why substantial redress could not be obtained in due course, nor had she justified the severely truncated timelines for the respondents to respond. The applicant’s attorneys had acted unreasonably in pursuing litigation without ensuring proper communication with the respondents. However, it was acknowledged that the applicant herself was a victim of misconduct and should not bear the costs of the application.

Order: The application was struck from the urgent court roll. The first and second respondents’ costs incurred after the delivery of their answering affidavit were to be paid de bonis propriis by the applicant’s attorneys, KS Ntuli Attorneys. The remainder of the first and second respondents’ costs were to be carried by themselves. The third and fourth respondents were to bear their own costs.

Facts: The George branch of the Cape Organisation for the Democratic Taxi Association (CODETA George) brought an application on behalf of its members whose vehicles were seized by the George Municipality between December 2021 and August 2023. The vehicles were impounded due to violations of a court interdict prohibiting unlicensed taxi operations. The applicant sought declaratory relief, the return of the vehicles, and costs. However, by the time of the hearing, most vehicles had been released, rendering the substantive relief moot. The applicant persisted solely to recover costs, arguing that the litigation had prompted the release of the vehicles.

Issue: The primary issue was whether the applicant was entitled to recover costs, given that the substantive relief sought had become moot. The court also had to determine whether the respondents' conduct in retaining the vehicles was lawful and whether the applicant had pursued appropriate remedies.

Discussion: The court noted that the applicant's members had alternative remedies, such as paying impoundment fines or applying for information under the Promotion of Access to Information Act 2 of 2000 (PAIA), which they failed to utilize. The court emphasized that the litigation was unnecessary, as the applicant could have resolved the matter through lower courts or by engaging with the relevant authorities. The court also rejected the applicant's argument that the continuous retention of vehicles was retaliatory or unlawful, finding that the impoundments were justified under the Criminal Procedure Act (CPA) and the National Land Transport Act (NLTA). The applicant’s persistence with the application was a breach of the duty upon the legal representatives to contribute to the efficient use of judicial resources by making sensible proposals so that the court’s intervention was not needed. The matter did not engage constitutional issues for the court’s decision. An issue does not become a constitutional matter merely because an applicant calls it one.

Findings: The court found that the applicant's case was ill-considered and unnecessary, as the vehicles were released independently of the litigation. The court also found that the applicant had failed to exhaust alternative remedies and had not provided sufficient evidence to support its claims. The court concluded that the applicant's persistence with the application, despite the mootness of the substantive relief, was an inefficient use of judicial resources. The applicant’s insistence upon and persistence in using the resources of court merited the court’s disapprobation with a punitive costs order.

Order: The court dismissed the application and ordered the applicant to pay the costs of the first, second, third, fourth, and fifth respondents on an attorney and client scale, including costs related to postponements and reserved costs. The court imposed a punitive costs order due to the applicant's unreasonable conduct in pursuing the litigation.

Facts and issue: The applicants made application that the taxation award, the allocatur, made by the taxing master in respect of Symington and De Kok Attorneys fees and disbursements, be rescinded and set aside. The applicants could file their notice to oppose together with a list of all the items to which they object, without them having filed the required Notice. They only filed their notice together with the list of objections and the reasons therefore, on the morning when the taxation was about to begin.

Discussion: The taxing master indicated that a postponement would be granted if the attorneys for the respondents would agree to the postponement. The attorneys for the respondents refused to agree to a postponement. The taxation proceedings then commenced on an unopposed basis with the attorney of the applicants still in attendance. The taxing master resolved that, since the notice of opposition was filed late, the attorney for applicants would not participate in the proceedings, which would be considered to have been held in the applicants’ absentia. The applicants now seek the rescission and the setting aside of the allocatur eventually issued by the taxing master. The application is made on the basis that the late filing of the notice was not willful, and that a number of items in the allocatur were erroneously sought and erroneously granted. The relief sought by the applicants ought not to be for a rescission and a setting aside in terms of Rule 42, but rather for a review and a setting aside of the taxing master’s decision not to postpone and for a review of certain items allowed in the allocatur.

Findings: While it may be so that the applicants found themselves in a predicament from 26 March 2024 to 18 April 2024, there is no explanation offered for the period 18 March 2024 to 26 March 2024. In addition, there is no explanation whatsoever why their attorney in Bloemfontein could not have attended to the preparation and filing of the notice of opposition during the period they were unable to do so. On their own version, he only became ill during the week of 18 April 2024. That was after the notice of opposition became due on 18 April 2024. The applicants have not provided a reasonable and acceptable explanation for their default. They have therefore not shown good cause for a rescission and the setting aside of the allocatur.

Order: The application for rescission and setting aside of the allocatur made by the Taxing Master is dismissed.

Withdrawal: The applicant, uMkhonto weSizwe Political Party (MK Party) cried foul after the elections, alleged irregularities, and approached the courts seeking to set aside the elections. It has been unsuccessful and now seeks leave to withdraw its application before this court, in terms of Uniform Rule 41(1). The application relates to alleged election irregularities against the first and second respondents, the Electoral Commission of South Africa (Commission) and the Chief Electoral Officer of the Commission (CEO). The MK Party's initial withdrawal attempt followed the Commission’s filing of answering affidavits. Shortly thereafter, and subsequent to the matter being set down for hearing, the MK Party filed a notice of withdrawal stating: “Kindly take notice that the Applicant hereby withdraws their application against the Respondents.”

Discussion: The MK Party's purported withdrawal was not effected with the consent of the other parties. Suffice to say that the attempted withdrawal was procedurally defective and failed to comply with the requirements of Rule 41. Not only was the unilateral withdrawal impermissible, but the MK Party also neglected to tender costs to the other litigants, a necessary element of a proper withdrawal. During the negotiations between the parties, the Commission proposed a draft order which seeks to curtail the MK Party’s ability to reinstitute these proceedings, a proposition not without factual underpinning. Central to this stance is the MK Party's litigious history vis-à-vis the Commission. What the Commission puts forth is that this application marks another attempt at litigation concerning similar allegations, notwithstanding prior judicial dismissals. The Commission’s case is that this pattern of repeated filings, despite earlier rejections, necessitates a safeguard against future actions of a similar nature.

Vexatious litigation: The Commission, in its proposed draft order, effectively seeks to limit the MK Party's ability to reinstitute similar applications without leave of this court. This raises concern about potentially limiting the MK Party's right to access to justice. The relief sought by the respondents is self-evidently drastic. They want this court to prevent the MK Party from launching any other proceedings of a similar nature unless they first seek leave from this court to launch such proceedings, as regulated by the Vexatious Proceedings Act 3 of 1956. However, the respondents have not instituted proceedings in terms of the Act to bar the applicants from pursuing the application they seek to withdraw. Moreover, as is the case when an application is launched in terms of those proceedings, barring them in these proceedings would be a limitation of the applicant's right of access to justice which is guaranteed in section 34 of the Constitution.

Findings: MK Party should be granted leave to withdraw its application. However, this withdrawal should not be conditional as proposed by the first and second respondents. The court is not persuaded that the withdrawal constitutes an abuse of process yet. Indeed, the MK Party's conduct throughout these proceedings has been marked by several irregularities. These factors constitute a significant departure from normative litigation conduct and do warrant consideration of a punitive costs order. A punitive costs order is appropriate to dissuade litigants from instituting proceedings and then abruptly abandoning them when unsubstantiated. Given these circumstances, a costs order on an attorney and client scale is warranted for the first and second respondents, who have been drawn into these proceedings for a second time, and at a great cost.

Order: The applicant is granted leave to withdraw the application. The applicant shall pay the costs of the Electoral Commission and the Chief Electoral Officer (first and second respondents) on the attorney-client scale, including the costs of two counsel. The applicant shall pay the costs of the Democratic Alliance on the party and party scale, including the costs of counsel at scale C.

STEYN AJ (ZONDI DP, ADAMS AJ, and Professors NTLAMA-MAKHANYA and PHOOKO concurring)