Dr AB Xuma Local Municipality and Another v Local Residents Cited Under Consolidated Case Number 988/2023 and Another

An application for rescission of judgment brought by Dr AB Xuma Local Municipality (applicant) was set down for hearing on 21 November 2024. When the matter was called, it transpired that the court file was incomplete - the papers ended at page 595 whereas the full record consisted of more than 722 pages. Applicant's counsel sought an adjournment to inspect the court file. Upon resumption, the applicant applied for the matter to be removed from the roll. The respondent did not oppose the removal but sought costs occasioned by the removal to be paid by the applicant. The applicant resisted the costs order, proposing that costs stand over for later determination or that there be no order as to costs. The court removed the matter from the roll and ordered the applicant to pay costs occasioned by the removal of the rescission application. The applicant subsequently requested reasons for the costs order on 5 December 2024.

• Whether the applicant should bear the costs occasioned by the removal of the matter from the roll
• Whether the applicant's failure to comply with Rule 62(4) of the Uniform Rules of Court warranted a costs order
• Whether the provisions of Rule 62(4) of the Uniform Rules and Rule 3 of the Joint Rules of Practice of the Eastern Cape Division are peremptory
• The principles applicable to awarding costs where a matter is removed from the roll at the instance of one party

1. The matter is removed from the roll. 2. Applicant is to pay the costs occasioned by the removal in the rescission application.

Rule 62(4) of the Uniform Rules of Court and Rule 3 of the Joint Rules of Practice of the Eastern Cape Division are peremptory provisions requiring exact compliance. The use of the word "shall" and the phrase "This requirement will be strictly enforced" indicate that these provisions are mandatory and require strict adherence. A party who fails to comply with these peremptory provisions regarding the preparation, pagination, indexing and securing of court files, and who consequently seeks the indulgence of the court to have a matter removed from the roll, must pay the costs occasioned by such removal. The innocent party must be afforded adequate indemnification, and costs are awarded to indemnify the successful or innocent party for the expense to which they have been put. A costs order is an appropriate form of censure for non-compliance with imperative provisions of the court rules.

The court made extensive observations on the constitutional and common law duty of judges to furnish reasons for their decisions, citing Mphahlele v First National Bank of South Africa Ltd and other authorities. The court noted that the rule of law requires judges not to act arbitrarily and to be accountable, and that furnishing reasons serves multiple purposes: explaining to parties and the public why a case was decided as it was; providing a discipline to curb arbitrary decisions; enabling informed decisions about appeals; assisting appeal courts; and providing guidance to the public. The court observed that where a decision is subject to appeal, withholding reasons would violate the constitutional right of access to courts. The court also noted that failure to supply written reasons when a judgment is appealed is usually a grave lapse of duty, a breach of litigants' rights, and an impediment to the appeal process.

This judgment reinforces the strict enforcement of court rules regarding the preparation of court files in the Eastern Cape Division. It emphasizes that Rule 62(4) of the Uniform Rules of Court and Rule 3 of the Joint Rules of Practice of the Eastern Cape Division are peremptory provisions requiring exact compliance, and that failure to comply will result in costs sanctions. The case illustrates the court's commitment to procedural discipline and the principle that parties seeking indulgence from the court due to their own non-compliance with the rules must bear the costs consequences. It also underscores the importance of providing reasons for judicial decisions as a fundamental aspect of the rule of law, transparency, and accountability.