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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

CASE NO: 21688/2020

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES

…………..………….............
SIGNATURE DATE: 24 July 2020

In the matter between:

FAIR-TRADE INDEPENDENT TOBACCO APPLICANT

ASSOCIATION

and

PRESIDENT OF THE REPUBLIC OF FIRST RESPONDENT

SOUTH AFRICA

MINISTER OF CO-OPERATIVE GOVERNANCE AND SECOND RESPONDENT

TRADITIONAL AFFAIRS

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

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THE COURT

INTRODUCTION

“(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration”

"It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that another court might come to a different
conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The

1 10 of 2013.
2 57 of 2002.
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use of the word "would" in the new statute indicates a measure of certainty that another
court will differ from the court whose judgment is sought to be appealed against."3

This was confirmed in Acting National Director of Public Prosecutions and Others v
Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public
Prosecutions and Others.4

"What the test of reasonable prospects of success postulates is a dispassionate

decision, based on the facts and the law that a court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In order to succeed, therefore, the
appellant must convince this court on proper grounds that he has prospects of success
on appeal and that those prospects are not remote but have a realistic chance of
succeeding. More is required to be established than that there is a mere possibility of
success, that the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words, be a sound, rational basis for the conclusion
that there are prospects of success on appeal."5

3 2014 JDR 2325 (LCC) at para 6.

4 [2016] ZAGPPHC 489 at para 25.
5 2012 (1) SACR 567 (SCA) at para 7. See also MEC for Health, Eastern Cape v Mkhitha and Another

[2016] ZASCA 176 at para 17.

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GROUNDS ON WHICH LEAVE TO APPEAL IS SOUGHT

Costs

“the rule of our law is that all costs – unless expressly otherwise enacted – are in the
discretion of the Judge. His discretion must be judicially exercised, but it cannot be
challenged, taken alone and apart from the main order, without his permission.”8

“The enquiry in any specific case is whether, in all the circumstances, the expenses
incurred in the employment of more than one counsel were “necessary for the proper
attainment of justice or for defending the rights of the parties,” and were not incurred

6 2009 (6) SA 232 (CC).

7 See Ferreira v Levin and Others; Vryenhoek & Others v Powell NO & Others 1996 (2) SA 621 (CC);
and Motaung v Mukubela & Another NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O) at 631A.
8 1918 AD 63 at 69.

See also Graham v Odendaal 1972 (2) SA 611 (A) 616; Mouton v Die Mynwerkersunie 1977 (1) SA
119 (A); Claude Neon Lights (SA) Ltd v Peroglou 1977 (1) SA 575 (C); Christies Fish Supplies (Pty) Ltd
v Ornelas Fishing Co (Pty) Ltd 1978 (3) SA 431 (C); Lornadawn Investments (Pty) Ltd v Minister van
Landbou 1980 (2) SA 1 (A); Bowman v Howe 1980 (2) SA 226 (W); Steynberg v Labuschagne [1998]
3 All SA 384 (O) 390; Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) 1055F–G;
Coetzee v National Commissioner of Police 2011 (2) SA 227 (GNP) 259. See also Weare v Ndebele
2009 (1) SA 600 (CC) 623, [2008] JOL 22751 (CC), 2009 2009 (4) BCLR 370 (CC) (discretion of court
in constitutional law context).
9 Khumalo and Another v Twin City Developers (Pty) Ltd and Others [2017] ZASCA 143.
10 1975 (1) SA 618 (O) at 631A.
11 1964 (4) SA 138 (T) at 144F - 145.
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through “over-caution, negligence or mistake”. If it was a wise and reasonable

precaution to employ more than one counsel, the costs incurred in doing so are
allowable as between party and party. But they are not allowable if such employment
was merely luxurious.”

It is instructive that the Constitutional Court, considering the discretion of the High
Court on the issue of costs, stated in Hotz and Others v University of Cape Town12
that —

“A cautious approach is, therefore, required. A court of appeal may have a different
view on whether the costs award was just and equitable. However, it should be careful
not to substitute its own view for that of the High Court because it may, in certain
circumstances be inappropriate to interfere with the High Court’s exercise of
discretion.”

“In Biowatch this Court laid down a general rule relating to costs in constitutional
matters. That rule applies in every constitutional matter involving organs of State. The
rule seeks to shield unsuccessful litigants from the obligation of paying costs to the
State. The underlying principle is to prevent the chilling effect that adverse costs orders
might have on litigants seeking to assert constitutional rights.

However, the rule is not a licence for litigants to institute frivolous or vexatious
proceedings against the State. The operation of its shield is restricted to genuine
constitutional matters. Even then, if a litigant is guilty of unacceptable behaviour in
relation to how litigation is conducted, it may be ordered to pay costs. This means that

12 2018 (1) SA 369 (CC) at para 28.

13 2018 (1) BCLR 12 (CC).
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there are exceptions to the rule which justify a departure from it. In Affordable
Medicines this Court laid down exceptions to the rule. Ngcobo J said:

‘There may be circumstances that justify departure from this rule such as where the
litigation is frivolous or vexatious. There may be conduct on the part of the litigant that
deserves censure by the Court which may influence the Court to order an unsuccessful
litigant to pay costs.’”14

“Equal protection under the law required that costs awards not be dependent on
whether the parties are acting in their own interests or in the public interest. Nor should
they be determined by whether the parties were financially well-endowed or indigent.
The primary consideration in regard to costs in constitutional litigation had to be the
way in which a costs order would hinder or promote the advancement of constitutional
justice. The ability to finance the litigation was not a relevant consideration in making
a costs order. The general rule in constitutional litigation was that an unsuccessful
litigant ought not to be ordered to pay costs to the State. That should not be departed
from simply because of a perceived ability of the unsuccessful litigant to pay.
Conversely, a party should not get a privileged status simply because it was acting in
the public interest or happened to be indigent. It should be held to the same standards
of conduct as any other party, particularly if it had had legal representation. This meant
it should not be immunised from appropriate sanctions if its conduct had been
vexatious, frivolous, professionally unbecoming or in any other similar way abusive of
the processes of the Court.”15

14 Id at paras 11-2.
15 Biowatch supra at paras 16-8.
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Regulations 27 and 45 are ultra vires

16 See Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (7) BCLR
775 (CC).
17 2012 (2) SA 598 (CC)
18 Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC).
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19Argument can even be made that given that the Constitutional Court said that only section 55 must
be interpreted narrowly, inference can be made that the rest of the Act can be interpreted widely.
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Illicit trade of tobacco products

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Audi Alteram Partem

Essential goods
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Other considerations

CONCLUSION

20 [2020] ZASCA 76.

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ORDER

______________________

MLAMBO JP

______________________

MOLEFE J

______________________

BASSON J

Date of hearing: 15 July 2020

Date of judgment: 24 July 2020


APPEARANCES
Counsel for the Applicant:
Counsel for the Respondents:
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A Subel SC; B Edwards and N Makhaye instructed
by Morgan Law Inc C/O Hamel Attorneys 329
Braam Pretorius Street Magalieskruin Pretoria Ref:
R Merrifield/ag/FT001
MTK Moerane SC; NH Maenetjie SC; IS Cloete and
MY Salukazana instructed by The State Attorney
SALU Building 316 Thabo Sehume Street Pretoria
REF: A Wasserman/Z71