and

CORAM:
LEVY, AJ Heard
on: 2000-11-13

Delivered
on: 2000-11-22

JUDGMENT

LEVY,
AJ: In an urgent application dated 15^,h
March 2000, first and second applicants sought interim relief
pending certain review proceedings regarding hunting concessions
sold by the first to fourth respondents.

All
respondents of whom there were eleven and which included the sixth
and ninth respondents (who are the "virtual applicants" in
the present proceedings) were called upon to show cause on 24"'
March 2000 why an order should not issue;

"1

Restraining
and/or prohibiting all the respondents from taking any steps, either
directly or indirectly consequent upon and/or in implementation of
the sale of concession in regard to trophy hunting sold by auction,
under the auspices of second respondent, on 9 March 2000, pending
the determination of the main application for review.

1. 
   Directing
   that the costs of the urgent application be costs in the
   application for review.

   
   

2. 
   That
   the relief sought in paragraph 2 above shall serve as an interim
   interdict pending the final determination of the main application
   for review."

   
   

The
Notice of Motion of the applicants proceeded to ask for further
relief against "all respondents" who were, in this part of
the Notice of Motion, called upon to show cause on 14^th
April
2000 why:

"1

2

3. 
   The
   auction held under the auspices of second respondent on 9 March
   2000 should not be set aside.

   
   

4. 
   Any
   agreements entered into between any or all of fifth to eleventh
   respondents on the one hand and the first and fourth respondents on
   the other hand, subsequent to the auction being held, not be set
   aside.

   
   

First,
second, third and fourth respondents and in the event of any other
respondent opposing the application, also such respondent(s),
jointly and severally should not be ordered to pay the costs of the
application."

In
the light of the relief claimed by first and second applicants, they
were obliged to join sixth and ninth respondents. Those respondents
had a direct and substantial interest in any order the Court might
make in those proceedings.

Amalgamated
Engineering Union v Minister of Labour 1949(3)SA
637 (A) Henri
Viljoen (Pty) Ltd v
Awerbuch
Brothers 1953(2)
SA 151 (0) at 165-171

Sixtli
and ninth respondents entered appearance to defend and were involved
in substantial legal expenses in preparing such defence.

Applicants
had set the matter down for hearing but on the morning of the 24^lh
March 2000, prior to the matter being called, applicants and first
to fourth respondents started negotiations to settle their dispute
and the application was postponed to 31^st
March 2000. On that date Advocate Vivier who appeared for applicants
moved and was granted the following order:

1.
That the matter is postponed sine
die.

5. 
   That
   no order as to costs is made.

   
   

6. 
   That
   the 5^th
   to the 11^th
   Respondents reserve their right to set the matter down in future to
   hear arguments on costs.

   
   

7. 
   That
   those Respondents who wish to dispute costs shall agree on a date
   so that the matters can be heard simultaneously."

   
   

On
29^th
June 2000, sixth and ninth respondents acting in terms of the
aforesaid order served the following notice on applicants:

"Be
pleased to set down the above matter for hearing on Monday, the 11^th
day
of September 2000 at 10:00 o'clock and in the forenoon or so soon
thereafter as the matter may be heard in the above Honourable Court,
when
the 6^lh
and 9^th
Respondents will apply for an order for costs against the I^s'
and 2^nd
Applicant, alternatively 1^st.
2^nd.
3 ^rd
and 4^th
Respondents."
(My emphasis)

It
is clear from this that sixth and ninth respondents did not waive or
abandon their rights to a claim for costs at that date.

For
one reason or another this notice was not pursued and on 14"'
September 2000, a fresh notice was issued and served and the same
relief was claimed, namely:

"the
6^th
and 9^,h
Respondents will apply for an order for costs against 1^st
and
2^nd
Applicant, alternatively 1^st,
2^nd,
3^rd
and 4^lh
Respondents."

This
is the matter which has finally been set down for hearing.

Ms
A-M Engelbrecht appears for applicant. Mr R Totemeyer appears for
first to fourth respondents and Mr C Mouton appears for sixth and
ninth respondents.

All
the parties filed Heads of Argument.

The
Court was informed that the application instituted by applicants had
been settled by first to fourth respondents and that neither sixth
nor ninth respondents were parties to that settlement. Furthermore
neither sixth nor ninth respondents had been paid for the costs
which were incurred.

It
was held in Behm
v
Ord
1953(4)
SA 96 (C) that where papers are prepared for an application to the
High Court but the application is not issued because a demand
concerning the matter in dispute was complied with by the other
party subsequently to expiry of the date of the demand but before
the completion of the papers relating to the application, the
correct procedure to be followed by an applicant desirous of
obtaining an order for costs, is to continue with the application in
regard to costs only and obtain an order in regard thereto.

This
case was followed in First
National Bank of South Africa Ltd t/a Wesbank v First East Cape

Financing
(Pty) Ltd 1999(4)
SA 1073.

(cf.
Rule of Court 42 which provides that a plaintiff/applicant can only
withdraw a case where such plaintiff/applicant pays the
defendants/respondents costs. In the instant case, of course, the
applicants did not withdraw against respondents.)

In
the present case, it is the applicants who are at fault in not
continuing the action instituted by them against respondents who in
their turn have incurred legal expenses. Where this happens, it has
been held that the respondents are entitled, depending on how far
the abortive proceedings have progressed, to set the matter down for
costs, if necessary, by Notice of Motion.

On
31^st
March 2000, at the instance of applicants this Court granted
respondents the right to come to Court for decision on the question
of costs and this with one variation is what sixth and ninth
respondents have done. The variation is that sixth and ninth
respondents have asked for costs against first to fourth respondents
albeit in the alternative.

In
the light of the aforesaid decisions it is abundantly clear that
applicants who brought sixth and ninth respondents to Court and did
not proceed for an order against them although they certainly asked
for relief against them, (as illustrated above) are obliged to pay
the costs of these respondents.

Ms
Engelbrecht argues that if that be the case, Mr Mouton both in his
heads of argument and in his address to Court waived and abandoned
the claim against applicant in favour of first to fourth
respondents.

In
Benjamin
v Gurewitz 1973(1)
SA 418 at 428 E, Van Blerk, J.A. said;

"According
to the prevailing practice in our Courts a litigant is bound by the
decision of his counsel."

The
learned judge quoted R
v Matonsi 1958(2)
SA 450 (AD) where the Court inter
alia said;

"Once
the client has placed his case in the hands of counsel the latter
has complete control and it is he who must decide whether a
particular witness including the client is to be called or not."

Quite
obviously therefore the legal advisers of a litigant can waive and
abandon rights of the litigant.

However,
a Court does not lightly assume that a party to litigation has
waived his right.

There
is no express waiver by Mr Mouton of his client's rights. It is true
that there is a convoluted argument why first to fourth respondents
should be liable for costs but in the notice which brought this
matter before Court costs were clearly asked for against applicants
in the first instance and only alternatively against those
respondents.

In
Bay
Loan Investments (Pty) Ltd v Bay View (Pty) Ltd 1971(4)
SA 538 at 540 E-H Van Winsen, J. said;

"In
Hlatshwayo
v Mare and Deas, 1912
A.D. 242 at p. 249, Lord DE VILLIERS remarks as follows in regard to
a claim by a judgment debtor that, despite his payment of two
instalments on account of a judgment debt after the issue of a writ
of execution, he had not waived his right to appeal against the
judgment:

'Where a
person seeks to deprive another of the benefit of a right

conferred
by law on the ground that the right has been waived or renounced, it
lies upon the person relying upon such waiver to prove that there
has been some unequivocal act wholly inconsistent with the intention
to appeal.'

In
the same case DE VILLIERS, J.P., said (at p. 259) that '... before a
person can be said to have acquiesced in a judgment, and thereby to
have lost the right of re-opening a case or of appeal, a right which
he clearly has or at all events had, the Court must be satisfied
upon the evidence that he has done an act which is necessarily
inconsistent with his continued intention to have the case re-opened
or to appeal.' See, too, Martin
v de Kock, 1948(2)
S.A. 719 (A.D.) at pp. 732, 733. To constitute waiver the Court must
be satisfied that the holder of right knew of his right and intended
to surrender it. Where his intention to surrender is to be derived
by implication from his conduct, his conduct must be such that it is
necessarily inconsistent with an intention to maintain his rights."

It
is quite clear from his Heads of Argument that the legal advisers of
sixth and ninth respondents, (and therefore those respondents
themselves) did not know that sixth and ninth respondents had a
right against applicants for payment of their costs. They therefore
could not have waived their claim as contended by Ms Engelbrecht. In
any even t the Heads of Argument are essentially as the document
itself suggests "argument" and there is no statement
therein which constitutes a waiver. Frequently a lawyer fails to
deal in argument with the point in issue. This does not mean that
the law adviser, has waived or abandoned such claim.

The
Court finds therefore that first and second applicants are liable to
pay the costs of sixth and ninth respondents and that Mr Mouton did
not waive and abandon his client's rights.

The
aforesaid notwithstanding, while applicants were originally obliged
to join fourth and sixth respondents in their application, and while
fourth and sixth respondents subsequently were

obliged
to join applicants, as they were asking for an order of costs
against them, they were certainly not obliged to join first to
fourth respondents but if they felt obliged to do so, they certainly
had no claim against them. Having brought them to court, sixth and
ninth respondents are obliged to pay their costs but only such costs
are involved in this particular costs application.

The
Order of the Court therefore is:

8. 
   First
   and second applicants shall pay the costs of both sixth and ninth
   respondents in respect of the application instituted by applicants
   and dated 15^th
   March 2000, jointly and severally the one paying the other to be
   discharged.

   
   

9. 
   First
   and second applicants shall pay the costs of sixth and ninth
   respondents in respect of the application for costs brought by
   sixth and ninth respondents to Court on 13^th
   November
   2000, jointly and severally.

   
   

10. 
    The
    costs incurred by first to fourth respondents in respect of the
    application heard on 13^th
    November 2000
    shall
    be paid by sixth and ninth respondents jointly and severally, the
    one paying the other to be discharged.

    
    

LEVY,
AJ