Modiba v Toussaint and Another (45637/2021) [2023] ZAGPPHC 63 (1 February 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 63 | Noteup | LawCite sino index ## Modiba v Toussaint and Another (45637/2021) [2023] ZAGPPHC 63 (1 February 2023) Modiba v Toussaint and Another (45637/2021) [2023] ZAGPPHC 63 (1 February 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_63.html sino date 1 February 2023 # IN THE HIGH COURT OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA # GAUTENG DIVISION, PRETORIA GAUTENG DIVISION, PRETORIA CASE NO: 45637/2021 REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED: YES 1/02/2023 In the matter between: MPENTU MODIBA Applicant and LYNDA TOUSSAINT First Respondent UNJANI CLINICS NPC Second Respondent # JUDGMENT DELIVERED ON 1 FEBRUARY 2023 JUDGMENT DELIVERED ON 1 FEBRUARY 2023 CP WESLEY AJ 1. In this application, which was dated 9 September 2021, the applicant sought an order compelling the respondents to make available to the applicant certain documents concerning certain business dealings that had transpired between them. Curiously, the founding papers do not disclose a legal right to the documents on the applicant's part. Had the application proceeded on the merits, it would in all probability have been dismissed. 2. The respondent's opposed the application on 6 October 2021. On 22 October 2022, and notwithstanding that the founding papers do not disclose a legal right to the documents on the applicant's part, the respondents furnished the applicant with the documents. 3. Over the ensuing nine months the parties quibbled about who was liable to pay the costs of the application. The dispute concerning liability for the costs of the application remained unresolved. This prompted the respondents to deliver an answering affidavit on 8 July 2022. On 10 August 2022 the applicant delivered a replying affidavit. 4. At the outset of the hearing the applicant objected to the late filing of the respondent's answering affidavit. In the exercise of my discretion, I grant condonation for the late filing of the answering affidavit. The reason for the answering affidavit being filed late was satisfactorily explained and the applicant suffers no real prejudice if the affidavit is accepted into evidence. 5. The sole issue for determination is accordingly who should be liable to pay the costs of the application. Both parties argued with force that the other party was so liable. 6. It is trite law that the award of costs falls within the court's discretion. This discretion must be exercised judicially upon a consideration of all the facts, and is in essence a matter of fairness to both sides. 7. In my view, the overriding consideration concerning costs in this application is that the applicant had no right to the relief that she sought, but she nevertheless sought such relief; and the respondents had no duty to comply with the applicant's demand, but they nevertheless did comply. Ultimately, in my view fairness dictates that each party should pay their own costs. 8. In the result I make the following order : 8.1 Each party shall pay their own costs in the application. CP WESLEY ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Appearances Counsel for applicant: Adv P A Mabilo Attorney for applicant: Marokane Attorneys Counsel for respondents: Adv T Carstens Attorney for respondents: Venter & Associates Inc Date heard: 25 January 2023 Date of Judgment: 1 February 2023 sino noindex make_database footer start