THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable

Case no: 1274/2017
In the matter between:

DEPARTMENT: TRANSPORT, PROVINCE OF KWAZULU-NATAL
APPELLANT

and

S RAMSARAN
FIRST RESPONDENT

J S NAIDOO
SECOND RESPONDENT

A S DE VILLIERS
THIRD RESPONDENT

R BUDHOO
FOURTH RESPONDENT

A M DIMBA
FIFTH RESPONDENT

M J MARSHALL
SIXTH RESPONDENT

V ANIRUDHRA
SEVENTH RESPONDENT

J JAGESSER
EIGHTH RESPONDENT

S P SOMI
NINTH RESPONDENT

Neutral citation:  Department: Transport, Province of KwaZulu-Natal v Ramsaran & others
(1274/2017) [2019] ZASCA 62 (23 May 2019)

Coram:
Ponnan, Mathopo and Van Der Merwe JJA and Mokgohloa and Gorven AJJA

Heard:
2 May 2019

Delivered:
23 May 2019

Summary:
Abandonment of judgment by respondents in terms of Uniform rule 41(2) –
no tender of costs – appellant can recover costs by notice in terms of rule 41(1)(c) – costs
of appeal – appellant only entitled to costs of appeal up to and including date of
abandonment.
______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: KwaZulu-Natal Local Division of the High Court, Durban (Gyanda J
sitting as court of first instance):

The appeal is dismissed with costs up to and including 6 August 2018 to be paid jointly
and severally by the first, third, fourth, sixth and eighth respondents.

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Mathopo and Van Der Merwe JJA and Mokgohloa and Gorven AJJA
concurring):

[1] On 25 November 2014 a combined summons, which was signed by Lambert
Attorneys Incorporated (Lambert Attorneys), a firm in private practice, issued out of the
High Court, KwaZulu-Natal Local Division, Durban. The summons cited the appellant, the
Department: Transport, Province of KwaZulu-Natal (the department), as the plaintiff and
nine employees of the department as the defendants.1 The particulars to the summons
alleged that the defendants had been parties to a fraudulent scheme, thereby occasioning
loss to the department in the total sum of R7 123 704.91. That loss was sought to be
recovered by the department from the defendants in the action.2

[2] The summons was met on 3 March 2015 with a notice in terms of rule 7 of the
Uniform Rules of Court, which read:
‘Kindly take notice that, having been advised of the provisions of item 12.7.2 of the Treasury
Regulations 2005, promulgated in terms of the Public Finance Management Act 1 of 1999, it has
come to the notice of the Defendants that the Plaintiff (even if the Plaintiff has been properly
authorised to act as accounting officer as defined in Act 1 of 1999, which is not admitted), may
not be authorised to instruct the attorneys acting in the matter, and accordingly that the attorneys
may not be authorised to act in the matter. The Defendants accordingly, hereby notify the said
attorneys that they are required to satisfy this Honourable Court that they are so authorised to
act.
Take further notice that until such time as the attorneys have satisfied this Honourable Court that
they are so authorised to act, they may no longer act on behalf of the Plaintiff and that proceedings

1 The nine defendants are: S Ramsaran, JS Naidoo, AS De Villiers, R Budhoo, AM Dimba, MJ Marshall, V
Anirudhra, J Jagesser and SP Somi.
2 By notice dated 11 March 2015 the claim against the seventh and ninth defendants was withdrawn.

and judgment be accordingly postponed until such time as the attorneys satisfy the Court that
they are authorised to act and have acted on behalf of the Plaintiff.’

[3] Not having received a response to the rule 7 notice, the first, third, fourth, sixth and
eighth respondents (the respondents) applied on 22 June 2015 for an order:
‘1.
That the summons and action instituted under case number 13703/2014 be and is hereby
set aside and declared a nullity.
2.
That the costs of this application be borne:
i)
by the Respondent, alternatively
ii)
by the attorneys purporting to act for the Respondent in such event the costs to be borne
de bonis propriis.’

[4] The department opposed the nullity application. On 4 December 2015 the court
(per Gyanda J) issued the following order:
‘The [department] is given 30 days from 4 December 2015 within which to file any amendment
and/or affidavit rectifying or explaining the circumstances in which the Power of Attorney was
granted and the instruction to prosecute the claim was issued’.
The respondents applied for leave to appeal the order of Gyanda J. The department took
the view that the application for leave to appeal suspended the operation of the order and
accordingly took no steps to comply with the order.              On 15 March 2016 the parties
were advised by the court that the ‘30 days were counted from 4 December 2015’. On 29
March 2016, the department accordingly filed the further affidavits contemplated by the
order of Gyanda J. Those affidavits, which were out of time, were not accompanied by an
application for condonation. On 31 March 2016, when the matter next came before court,
it was struck from the roll with the department being ordered to pay the costs of the
hearing. Only then did the department apply for an order ‘[t]hat the 30-day period in
paragraph 1 of the order handed down . . .  on 4 December 2015 be extended to 76 days’.

[5] On 16 November 2016 the court delivered judgment in the nullity application. It
stated that it was ‘not disposed to granting the [department] condonation for the late filing
of the affidavits’. It accordingly concluded:

‘In these circumstances I grant an order in terms of paragraphs 1 and 2(1) of the notice of motion
dated 4 June 2015. That is:
1.
that the summons in the action instituted under case No. 13703/2014 be and is hereby set
aside and declared a nullity;
2.
that the costs of this application be borne by the respondent – that is, the plaintiff in the
action.’

[6] The present appeal against that order is with the leave of Gyanda J. I entertain
grave reservations as to whether: (a) even assuming that the department is not permitted
in terms of the Treasury regulations ‘to instruct attorneys to act in the matter or to take
action by instituting proceedings independent of the state attorney’ (as was asserted by
the respondents in support of the nullity application) that, without more, would result in
the nullity of the summons; and (b) such an order could issue absent the joinder of the
State Attorney and relevant Ministers.  However, it is not necessary for us to enter into
those issues because during the pendency of the appeal, on 6 August 2018 the
respondents’ attorney served and filed a notice with the registrar of this court in terms of
rule 41(2) of the Uniform Rules of Court abandoning the judgment of Gyanda J, ‘save for
the order of costs’.

[7] The department contends that the abandonment does not ‘extinguish’ the
judgment of Gyanda J. That, however, is to misconceive the position. By abandoning the
judgment, the respondents have removed the lis between the parties and conceded the
relief that the department is entitled in law to seek from this court on appeal.3 We were
nonetheless urged by counsel for the department to enter into the merits of the matter
because, so the submission went, the reasoning of the court below remains extant. But,
that is to approach the matter as if an appeal lies against the reasons for judgment. It

3 Durban City Council v Kistan 1972 (4) SA 465 (N) at 469H-470A; [1972] 4 All SA 465 (N) at 470-1.

does not.4 An appeal lies against the substantive order made by the court, which is the
operative part of the judgment.5

[8] It was further contended that absent a tender for costs in the notice of
abandonment the department had no other recourse but to persist in the appeal. Once
again that is to misconceive the position. The abandonment was in terms of Uniform rule
41(2).6 According to that rule, read with rule 41(1)(c), if a notice of abandonment does not
embody a consent to pay costs, the other party (in this case the department) may apply
on notice for an order for costs.

[9] The appeal must accordingly fail. Costs of the appeal remain: Counsel was
constrained to concede that the department is only entitled to costs up to and including
the date of the abandonment. As it was put in Bonthuys v Visser’s Garage:7
‘The claimant seems to have two courses open to him to obtain these costs, i.e. (a) he may set
the appeal down, not for argument on the merits, but for recovering costs due to him up to the
date when he received the notice of abandonment, or (b) he may apply, on notice to the other

4 Western Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A); Absa
Bank Ltd v Mkhize & another, Absa Bank Ltd v Chetty, Absa Bank Ltd v Mlipha [2013] ZASCA 139; [2014]
1 All SA 1 (SCA); 2014 (5) SA 16 (SCA) para 64; Carter v Haworth [2009] ZASCA 19; 2009 (5) SA 446
(SCA); [2009] 3 All SA 197 (SCA) para 12; Atholl Developments (Pty) Ltd v Valuation Appeal Board for the
City of Johannesburg & another [2015] ZASCA 55 paras 8-10; Neotel (Pty) Ltd v Telkom SA Soc Ltd &
others [2017] ZASCA 47 paras 15-24.
5 Administrator, Cape & another v Ntshwaqela & others 1990 (1) SA 705 (A) at 714I-715D; SA Eagle
Versekeringsmaatskappy Bpk. v Harford [1992] ZASCA 42; 1992 (2) SA 786 (A); [1992] 2 All SA 73 (A) at
792C-D.
6 Uniform rule 41(2) reads:
‘Any party in whose favour any decision or judgment has been given, may abandon such decision or
judgment either in whole or in part by delivering notice thereof and such judgment or decision abandoned
in part shall have effect subject to such abandonment. The provisions of sub-rule (1) relating to costs shall
mutatis mutandis apply in the case of a notice delivered in terms of this sub-rule.’
Sub-rule (1) provides:
‘(a)
A person instituting any proceedings may at any time before the matter has been set down and
thereafter by consent of the 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.
(b)
A consent to pay costs referred to in paragraph (a) shall have the effect of an order of court for
such costs.
(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.’
7 Bonthuys v Visser’s Garage 1950 (3) SA 130 (SWA) at 132H; [1950] 2 All SA 537 (SWA) at 539.

party, for an order from the Appeal Court granting him these costs, if the other party refuses to
recognise his claim thereto, as is the case here.’
The second course seems the more logical (see SCA rule 11(1)(b);8 Afriforum v Minister
of Trade & others [2013] ZASCA 184).

[10] In the result the appeal is dismissed with costs up to and including 6 August 2018
to be paid jointly and severally by the first, third, fourth, sixth and eighth respondents.

_________________
V M Ponnan
Judge of Appeal

8 SCA Rule 11(1)(b) provides:
‘The President or the Court may mero motu, on request or on application—
give such directions in matters of practice, procedure and the disposal of any appeal, application or
interlocutory matter as the President or the Court may consider just and expedient.’

APPEARANCES:

For the Appellant:

A A Gabriel SC (with her T Seery)

Instructed by:

Lambert Attorneys Inc., Richards Bay

Honey Attorneys, Bloemfontein