REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(1)	REPORTABLE: Yes
(2)	OF INTEREST TO OTHER JUDGES: Yes

        ……………………..	………………………...
                   DATE		     

(GAUTENG LOCAL DIVISION, JOHANNESBURG)
 CASE NO: 34907/2019

                   					 
IN THE MATTER BETWEEN:

ANDILE MARIBATSI							Plaintiff

AND 

MINISTER OF POLICE						
STATION COMMISSIONER 						First Respondent
DIEPKLOOF POLICE STATION    					Second Respondent  Summary: Application for punitive costs. Request for information in terms of The Promotion of Access to Information Act. Applicant serving notice in both the initial request and internal appeal by registered mail. Failure to respond by the respondents deemed to have been a refusal. The applicant is successful in his claim and thus praying for payment of costs on attorney and client scale. Principles governing the issue of costs on a punitive scale restated Court has discretion to award cost which normally follow the result. Punitive costs to be awarded in exceptional circumstances having regard to the circumstances of the institution of litigation and the conduct of the losing party.  
JUDGEMENT

MOLAHLEHI J
Introduction
[1]	On 18 May 2019, I made the order directing the second respondent to furnish the applicant with the requested information concerning the accident in which the applicant was involved. The officials of the second respondent had drawn the sketch where the accident occurred and kept it in the docket under CAS 237/4/2019. The only issue that remained was the issue of costs on attorney and client for which judgment was reserved.
  
[2]	The respondents opposed the application. The respondents also applied for condonation for the late filing of their heads of argument. The explanation for the delay is accepted, and in the interest of justice, the respondents are granted the indulgence.

Background facts 
[3]	The dispute between the parties in this matter concerned the request for information in the possession of the first respondent. The demand for information was made in terms of the Promotion of Access to Information Act 2 of 2000 (“the Act”).

[4]	The facts giving rise to the demand for the information arose from a motor vehicle accident in which the applicant was involved in on 14 March 2019. He was a pedestrian. As indicated above after the accident a police officer took the measurements under CAS: 237/2019. 

[5]	It is not in dispute that, on 24 June 2019, the applicant dispatched a letter by registered post to the second respondent requesting the contents of the docket in the above CAS number. 

[6]	There was no response to the request; accordingly, the applicant invoked the provisions of section 27 of the Act, which deems failure to respond to a request to be a refusal to provide the information. The first respondent had thirty days in terms of section 25 (1) of the Act to respond, failing which it would be deemed that he or she has refused the request.

[7]	The applicant instituted an internal appeal in terms of sections 74 and 75 of the Act. Similar to the initial request, the applicant served the internal appeal notice through registered post. There was again no response from the first respondent, and accordingly, the applicant invoked the provisions of section 78 of the Act, and instituted the present proceedings.

[8]	During the debate, counsel for the respondents conceded that the applicant was entitled to the information requested. She also in that regard acknowledged that the second respondent was obliged to furnish the requested information to the applicant. The applicant was thus successful and the relief sought was granted in his favour. The remaining issue for determination concerns the prayer for costs on a punitive scale of attorney and client. The applicant contends that he incurred costs due to the conduct of the respondents in failing to comply with their statutory duty.  

Principles governing punitive costs

[9]	The awarding of cost on attorney and client scale may be expressly provided for in an agreement or enacted in legislation. The two basic principles governing the awarding of costs are: (a) it is in the discretion of the Court, whether or not to award costs, (b) costs follow the results, meaning that costs are awarded to a successful party. The court will on good reasons deviate from the application of the rule that costs follow the result.  

[10]	In L & B Holdings v Mashonaland Rent Appeal Board, the court in dealing with the issue of awarding costs on attorney and client scale against a statutory body said:
 
“It seems to me, from a perusal of substantial number of cases cited, that in the dispute between a litigant and statutory body which comes before the court and concerns the propriety or otherwise of the exercise of the power and duties of the (statutory) body, the starting point is that on general principles cost should normally be awarded according to success in the dispute. Consequently, if the (statutory) body is legally in the wrong, costs go against it – . . .  But the cases show that in exercising its judicial discretion as to costs, the court is justified upon occasion in departing from this general rule, and in refraining from awarding costs against the (statutory) body. If it has acted impartially and not unreasonably in exercising statutory duties, there is a strong reason for not awarding costs against it, even if it has been shown to have acted incorrectly though bona fide.” 

[11]	In summarising the above decision the authors in The Civil Practice of the High Court of South Africa, say the following: 
 “… When a statutory body is engaged in litigation the general rule that costs follow the event should apply, but that the court will be justified in departing from the general rule, when the party concerned has acted impartially and not unreasonably in exercising its statutory duties."

[12]	The consideration behind punitive costs is to punish a litigant who is in the wrong due to the manner in which he or she approached litigation or to deter would-be inflexible and unreasonable litigants from engaging in such inappropriate conduct in the future.

[13]	It has generally been said in several of the cases that the Court will issue a cost award on attorney and client scale as a matter of showing its displeasure against a litigant's objectionable conduct. Erasmus Superior Court Practice, explains that the awarding of costs on attorney and client scale is not, as has been suggested by the authorities, limited to the concept of the court showing its disapproval of the conduct of the offending party. In other words the ground for awarding these cost is not limited to punishing the offending party but includes ensuring that the successful party will not be out of pocket in respect of the expenses caused to him or her by the approach to litigation by the losing party. In this respect the learned authors had the following to say: 

"In some of the cases it has been said that the court makes an order of attorney and client costs in order to mark its disapproval of the conduct of the losing party. This terminology suggest that an award of attorney and client simply as punishment does not, however, supply a complete explanation of the grounds on which the practice rests; something more underlies it than the mere punishment of the losing party. On the other hand, the order cannot be justified merely as a form of compensation for damages suffered. The true explanation of awards of attorney and client costs not expressly authorized by statute is that, by reason of special consideration arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considered 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 expenses caused to him by the litigation.” 

[14]	In determining whether the behaviour of a litigant is objectionable, the Court will have regard to the nature of the litigant's conduct. As stated in Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and others, costs are ordinarily ordered on the party and party scale. The Court will in the exercise of its discretion and in exceptional circumstances, award costs on a punitive scale.     

[15]	The above principles were dealt with in Nel v Waterberg Landbouwerkers Kooperatiewe Vereniging, and Ferreira v Levin NO and Others.  In Nel, the court found that the explanation for awarding attorney and client’s costs, which are not authorized by the statute, was with special considerations arising either from the circumstances which gave rise to the action or conduct of the losing party. The award is made in a particular case when the court deems it just to ensure that the successful party is not out-of-pocket in respect of the expenses caused to him or her by the litigation.  In Ferreira, the Court said:

 "The Supreme Court has, over the years, developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless expressly otherwise enacted, is in the discretion of the presiding judicial officer, and the second that the successful party should, as a general rule, have his or her costs. Even this second principle is subject to the first. The second principle is subject to a large number of exceptions where the successful party is deprived of his or her costs. Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of parties, the conduct of their legal representatives, whether a party achieves technical success only, the nature of litigants and the nature of proceedings.” 

[16]	 In the context of cases similar to the present, it seems to me that the Court will look at whether there exists evidence of intentional, outrageous, reckless or conscious disregard of the rights of others created by the statute. The existence of such evidence will in general be deemed sufficiently flagrant to warrant the granting of punitive costs. 

[17]	In my view, the circumstances of the present matter do not warrant the awarding of the costs as prayed for by the applicant. I accept that in terms of the technical deeming provisions, the respondents failed to comply with their statutory duty. There is no provision in the Act for awarding of costs. There is also no evidence on the papers before this court evincing intentional, outrageous, reckless, or conscious disregard of the rights of the applicant as provided for in the Act. It should be noted that the failure to comply by the respondents occurred in the context where service in both instances was through registered post. While it is not in dispute that service complied with the provisions of the Act, there is no evidence that the respondents did receive both registered letters relating to the original request and the internal appeal. There is in this respect no evidence of track and tracing to show that the post was collected. There is also, more importantly, no evidence that the applicant's attorneys made any follow up to check if the respondents received the letters. It is for these reasons that I find that the respondents did not intentionally disregard the rights of the applicant.  

[18]	Another essential factor to consider is the attitude of the respondents upon becoming aware of the request, which was at the point of receiving the notice of motion initiating these proceedings. The deponent to the answering affidavit stated the following: 

 "I have, however, ensured that the applicant receives, the information requested upon payment of the required fee as he does not fall under the category of persons exempted from paying the fee. There is, therefore, no need for the applicant to proceed to the Court and the costs occasioned therefrom are self- generated and the applicant should be accountable for same." 

[19]	The applicant did not file a replying affidavit. In the written submission Counsel for the applicant responded to the above as follows: 

 "[16.1]	A letter was furnished to the Applicant's Attorney on 22 November 2019, requesting that matter be removed from the roll and stating that the applicant will be given access to the information he seeks. 
 [16.2]	 The applicant's attorney was keen to remove the matter, provided that the Respondent tenders wasted costs. The applicant's attorney was not in any manner, being malicious or unreasonable in demanding wasted costs prior to agreeing to remove the matter. 
 [16.3] 	Why should the client be out of pocket as a result of the respondent's conduct and not recover his wasted costs? Surely the respondent has no sound answer to that Question (sic). 
  [16.4]	 As a result, the respondent's frivolous conduct of refusing to tender wasted costs, more costs have actually been incurred by the applicant as Counsel had to be briefed for drafting heads of argument and appearance in today's opposed motion."

[20]	There is no dispute that the applicant does not fall under the category of people exempted from paying a fee before receiving the requested information. Thus in my view, had the applicant accepted the proposal that the matter be removed from the roll and made the payment as required it would not have been necessary for this matter to have proceeded to Court. It is for this reason, and those stated above that I find that in the circumstances the applicant's application for costs on attorney and client scale is neither justified nor appropriate. . The appropriate approach considering the interests of justice and fairness is that the parties should pay their own costs.

Order

[21]	In the circumstances, the following order is made:

1.	The applicant's application for costs against the respondents is dismissed.
2.	Each party is to pay its own cost.

E Molahlehi 
Judge of the High Court; 
Johannesburg.

Representation:
For the Applicant: Adv P Baloyi 
Instructed by: Njuze Attorneys 
Instructed by: The State Attorney. 
Heard: 18 May 2020
Delivered: 17 June 2020.