- November 23, 2022
- |Concise Law Reports (CLR), Costs And Taxation
COSTS – COSTS FOR INACTION IN CONSIDERING APPLICATION FOR RENEWAL OF WORK PERMIT
Whereas the court earlier ordered that:
- The respondents are liable for the costs of the applicant, jointly and severally, the one paying the others to be absolved.
- Such costs to include the cost of drafting and filing of the urgent application as well as the court attendances on 30 August 2022 and 5 September 2022.
Ruling on issue of costs: Reasons for order
The applicant, a Zimbabwean national and medical doctor by profession, applied to the Ministry of Home Affairs, Immigration, Safety and Security for a permanent residence permit. The applicant’s application was successful, and the Immigration Selection Board granted the permanent residence permit on 7 May 2021. However, since the approval date, the applicant has yet to be issued with the said permanent resident permit, resulting in the applicant launching the ongoing proceedings under case number HC-MD-CIV-MOT-GEN-2021/00469. Pursuant to the court’s judgment on 15 December 2021 the applicant applied for the renewal of his employment permit on 22 February 2022.
After the lapse of six months and no response in respect of the renewal application, the applicant again turned to this court and launched the current application on an urgent basis seeking a mandamus and an interim interdict against the respondents, inter alia, to compel and direct the 3rd Respondent to deal with and make a decision on the Applicant’s application for the renewal of his employed permit dated 22 February 2022 in terms of Section 27 of the Immigration Control Act, 1993 (Act 7 of 1993), as amended, and to interdict and/or restrain the Respondents from removing and/or deporting the Applicant and his family members from the Republic until the proceedings in the present matter as well as the proceedings under case number: HC-MD-CIV-MOT-GEN-2021/00469 are adjudicated and finalized.
The applicant’s legal practitioner enrolled the urgent application for a hearing on 30 August 2022 at 09h00. However, at the hearing and before it was necessary to delve into the issue of urgency or the merits of the matter, the respondents’ legal representative informed the court that the third respondent was in the process of deliberating on the applicant’s employment permit application and requested the court to grant the respondents the opportunity to file the necessary opposition to the urgent application and a date upon which to file its answering papers in the event that the matter does not become resolved between the parties. The matter was postponed to 5 September 2022 for the hearing of the urgent application, and the court gave the necessary directions for filing papers.
On 5 September 2022, the parties informed the court that events overtook the urgent application, that the applicant would no longer pursue his application, and that the only remaining issue that the parties could not agree on was the issue of costs. It is against this background that the court would then determine the cost issue, per PRINSLOO J who dealt with the issue as follows:
‘The general principles of cost
As a general rule, the successful party is entitled to his costs, and this rule should not be departed from except upon good grounds. It is further a general rule that a party must pay such costs as have been unnecessarily incurred through his failure to take proper steps or through his taking wholly unnecessary steps (Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 483; De Villiers v Union Government (Minister of Agriculture) 1931 AD 206 at 214). The urgent application scheduled for 30 August 2022 was essentially overtaken by events as the respondents proceeded to consider the applicant’s work permit application and took a resolution in respect of the applicant’s application, and it was no longer necessary to pursue the application.
The respondent submitted that ‘applicant has withdrawn its claim without tendering costs, leaving the respondents with no option but to apply to this honourable court for costs rightly owed to it. Thus, the question which the court had to deal with was whether the respondents were the successful party and whether the general rule above applied to the facts before it.
‘[21] AC Cilliers in Law of Costs indicates that ‘where a disputed application is settled on a basis which disposes of the merits except in so far as costs are concerned, the court should not have to hear evidence to decide the disputed facts to decide who is liable for costs, but the court has, with the material at its disposal, to make a proper allocation as to costs’.
[22] Having regard to the papers before me, it is clear that the facts set out by the applicant in his founding affidavit are unchallenged. The enquiries, the follow-ups, and further attempts by the applicant to have a result from his application for renewal of his work permit were not gainsaid by the respondents as they did not file answering papers, despite having been allowed to do so. Instead, Mr Khadila filed a notice to raising two points in limine, i.e., a) urgency, and b) no objective threat of harm, and no response to the allegations by the applicant.
[23] …the applicant’s renewal application was fast-tracked…However, although the fast-tracking eventually caused the relief sought in the urgent application to become moot, it does not mean that the respondents are the successful party. The contrary is true, as the urgent application obtained the result that the applicant was aiming for, i.e., a decision or resolution on his application for the renewal of his work permit. However, to get to the result and get the wheels of bureaucracy turning, the applicant had no choice but to litigate.
[25] The applicant, as in Du Toit v Government of the Republic of Namibia HC-MD-CIV-MOT-GEN-2020/00501/ [2021] NAHCMD 18 (28 January 2021), was compelled to move an application to seek redress. For the respondents to argue that there was no trigger event to cause the applicant to bring the urgent application is just irrational. At the time of launching the urgent application, the applicant was for almost seven months already without an income as he could not risk working without a work permit, and no decision was forthcoming from the respondents. If I understand the respondents’ argument correctly the applicant literally had to wait for a notice of deportation before he approached the court, but it would be too late.
The court agreed with the applicant that the respondents should be held liable for the applicant’s costs brought about by the inaction of the respondents in considering the application for renewal of his work permit, compelling him to litigate. However, the court was not prepared to grant costs on a punitive scale.
Ngwarati v The Chief of Immigration (HC-MD-CIV-MOT-GEN-2022-00397) [2022] NAHCMD 640 (23 November 2022)