Court name
High Court of eSwatini
Case number
Civil Case 2419 of 2003

Zikalala v Principal Secretary - Ministry of Agriculture and Others (Civil Case 2419 of 2003) [2003] SZHC 105 (13 November 2003);

Law report citations
Media neutral citation
[2003] SZHC 105
Coram
Maphalala, J









THE
HIGH COURT OF SWAZILAND


NELSON
SHODI ZIKALALA


Applicant


v


And


THE
PRINCIPAL SECRETARY - MINISTRY OF AGRICULTURE


1st
Respondent


THE
ACCOUNTANT GENERAL


2nd
Respondent


THE
ATTORNEY GENERAL


3
rd Respondent


Civil
Case No. 2419/2003


Coram S.B.
MAPHALALA - J


For
the Applicant MR. HOWE


For
the Respondents MR. MDLULI (Attached to the


Attorney
General's Chambers)


RULING


(On
costs)


(13/11/2003)


2


On
the 7th November 2003,I granted an order by consent in terms of
prayers 1 and 2 of the notice of setdown of even date. The orders
were directing that the 1st and 2nd Respondent uplift the interdict
of Applicant's salary and reinstate him to full pay forthwith and
further directing that the 1st and 2nd Respondents pay the Applicant
his arrear salary from 1st August 1997 to date of reinstatement of
his salary for full pay. Such arrear salary to include all salary
increments that were granted between 1st August 1997, to date of
reinstatement of Applicant's salary to full pay.


According
to prayer 3 the Applicant sought costs of this application on the
attorney and own client scale. The Respondents opposed the said
order. I heard arguments from both sides and then reserved my ruling
on this aspect of the matter. This ruling relates this question.


The
Applicant was tried by the Piggs Peak Magistrate's Court for Stock
Theft on the 23rd November 1998 and was convicted and sentenced to
two (2) years imprisonment half of which was suspended on condition
that he is not to be convicted of a crime under the Stock Theft Act
during the period of suspension. He appealed against the conviction
to the High Court of Swaziland. His appeal was heard by the High
Court and was eventually concluded on the 15th April 2003, when the
court upheld the appeal.


Following
the High Court's decision the Applicant immediately advised his
supervisor Dr. M.A. Sukati who then informed the 1st Respondent of
the position and asked that his full salary be reinstated in the
circumstances. This was in April 2003. To date the 1st Respondent
have not responded to the numerous letters between his attorneys and
the 1st Respondent. The Applicant then launched this application to
compel the 1st Respondent to discharge its obligations in terms of
the Public Service Act. The Applicant, therefore contends that 1st
Respondent ought to be ordered to pay costs at a punitive scale. He
further contends that he has been put out of pocket having to pay
attorney costs when 1st Respondent has no just cause for refusing to
reimburse him and reinstate him to full pay. He together with his
family continue to suffer hardships due to this interdiction which
lawfully should have been removed in April 2003.


3


The
Respondents as represented by Mr. Mdluli do not oppose the granting
of costs per se but are against costs at attorney and own client
scale. It is contended on the main that the Respondents are now in
the process of paying out the Applicant his dues and that the delay
in doing so was caused by the slowness of Government's bureaucracy.


It
is trite law that the award of 6osts is a matter wholly within the
discretion of the court. But this is a judicial discretion and must
be exercised on grounds upon which a reasonable man could have come
to the conclusion arrived at.


In
leaving the Court a discretion;


"the
law contemplates that he should take into consideration the
circumstances of each case, carefully weighing the various issues in
the case, the conduct of the parties and any other circumstance which
may have a bearing upon the question of costs and then make such
order as to costs as would be fair and just between the parties. And
if he does this, and brings his unbiased judgment to bear upon the
matter and does not act capriciously or upon any wrong principle, I
know of no right on the part of a Court of Appeal to interfere with
the honest exercise of his discretion".


(See
Herbstein and Van Winsen, The Civil Practice of the Supreme Court of
South Africa, 4th ed at page 703 in fin 704 and the cases cited
thereat).


The
leading case on the award of costs on an attorney-and-client basis is
Nel vs Waterberg Land Bouwers Ko-operatieve Vereeniging 1946 A.D. 597
(interpreted in Mudzimu vs Chinhoyi Municipality & another 1986
(3) S.A. 140 (ZH) at 143 D -1, 144).


The
grounds upon which the court may order a party to pay his opponent's
attorney-and-own client costs include the following: That he has been
guilty of dishonesty or fraud or that his motives have been
vexatious, reckless, malicious or frivolous, or that he has
misconducted himself gravely either in the transaction under inquiry
or in the conduct of the case (see Herbstein (supra) at page 718). It
has been held that attorney-and-client costs may be awarded on the
grounds of dilatory or mendacious conduct on the part of an
unsuccessful litigant (see Ward vs Slizer 1973 (3) S.A. 701 (A) 706 H
in fin).


4


In
casu from the facts advanced before me it appears that the 1st
Respondent was dilatory in processing the Applicant's claim. This
occurred from the time the appeal judgement was issued by the High
Court on the 15th April 2003 to date. This conduct is evidenced by
the numerous letters from the Applicant to the 1st Respondent which
in most cases were not attended to by the latter. The explanation on
behalf of the 1st Respondent that the delay was in view of
Government's bureaucracy rings hollow when one looks at what has
transpired from the date of the appeal judgment. The Applicant had to
launch these proceedings to compel the 1st Respondent to act.


In
the circumstances of the case I am of the considered view that the
Applicant is entitled to costs at this scale.


In
the result, the 1st Respondent is directed to pay the costs of this
application on the attorney and own client scale.


S.B
MAPHALALA


JUDGE