In so far as fourth to seventh respondents are concerned no order for costs was sought against
them nor in my view would any such order be appropriate in the circumstances of this case.
It remains however to deal with the question of the wasted costs incurred in consequence of the
postponement of the application on 18 th April 1996 which costs were reserved for later decision.
It appears from the papers that the Registrar at applicants’ request specifically allocated the date
of 18 th April 1996, which fell during the court recess, after consultation with the judge president.
A notice of set down of the matter was then served on the Government Attorney by applicants’
attorney on 3rd April 1996.
Mr. Jika the Government Attorney states in an affidavit that the matter was set down for hearing
on that date without any prior consultation with himself or first respondent. On receipt of the
notice of set down he immediately communicated with his counsel only to be advised that they
would not be available as senior counsel was out of the country. He then advised applicants’
attorney of record, Mr. Poyser that the date was not suitable. According to Mr. Poyser this letter
only came to his attention on 9 th April 1996 after Easter weekend. Mr. Jika telephoned Mr. Poyser
on 9th April 1996 and reiterated his concern that the matter had been set down during recess
without prior consultation with him. According to Mr. Jika to liaise directly with applicants’
instructing attorneys so as to avoid unnecessary delays.
Mr. Jika as to whether or not he did so but accordingly to him on 16th April 1996 he again wrote
to Mr. Poyser advising him that an application would be made for the postponement of the matter
on 18 th April 1996. Mr. Poyser replied stating that the application would proceed. On 18th April
1996, Mr. Jika filed a substantive application for postponement after 10:00 am. The lateness of
the application, which contained factual averments, which required to be answered, made a
postponement unavoidable. In my view the fact that Mr. Moerane was not available to argue the
application on 18th April 1996 would not normally have constituted a valid ground on which to
seek a postponement. Mr. Jika was also dilatory in failing to launch the substantive application
for a postponement on failing to receiving a positive reply to his request therefore on 9th April
- On the other hand in requesting the permission of the Judge President for the hearing of the
matter during the court recess the applicants were seeking an indulgence to suit the convenience
of themselves and their counsel. In these circumstances applicants in my view have consulted
with respondents concerning the suitability of the proposed date of hearing.
I am accordingly of the view that the most appropriate and fair order would be that each party pay
their own cost in respect of the hearing on 18 th April 1996.
The Order.
The following order is therefore made:
- That the first respondent be and is hereby ordered forthwith to take such steps and to do such
things as may be necessary to enforce the provisions of s 39(2) of the Decree 9 promulgated
by the former Government of Transkei on 24th July 1992. - That save to the extent that they may be permitted to in terms of any law, the fourth, fifth,
sixth and seventh respondents be and they are hereby restrained and interdicted from granting
to grant any rights in land which formed part of the territory that formerly constituted the
Republic of Transkei. - That first respondent is ordered to pay the costs of this application jointly and severally with
second and third respondents the one paying the others to be absolved. Such costs shall