Beefcor (Pty) Ltd v De Freitas and Others (13551/2018) [2023] ZAGPJHC 508 (18 May 2023)

Beefcor (Pty) Ltd v De Freitas and Others (13551/2018) [2023] ZAGPJHC 508 (18 May 2023)

The court held that the costs order granted by Rome AJ did not expressly impose joint and several liability, but the circumstances and general principles of costs in cases where defendants act in common cause support such liability. The omission of the words 'jointly and severally' was a patent error or ambiguity attributable to the court, as the intention was for the usual rule to apply. The court therefore varied the costs order to reflect joint and several liability among the defendants who opposed the application for leave to amend. The second defendant's application to set aside the writ and recover the sum paid was dismissed, and the costs of both the main and counterapplication...

Citation
[2023] ZAGPJHC 508
Parties
Applicant: Beefcor (Pty) Ltd; Respondent: Jose Jorge De Freitas; Respondent: Franklin Domiciano De Aguar Menezes; Respondent: Abbygail Van Wyk Attorneys; Respondent: Sheriff Johannesburg Central; Respondent: ABSA Bank Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 May 2023
Case Number
13551/2018
Procedural Posture
Civil Application / Application for Variation of Costs Order and Setting Aside Writ of Execution
Outcome
The second defendant's application is dismissed with costs. The costs order by Rome AJ is varied to impose joint and several liability. The second defendant is ordered to pay the costs of the plaintiffs' conditional counterapplication.
Judges
C.E Thompson
Legal Topics
Costs Orders, Joint and Several Liability, Rule 42 Variation, Interpretation of Court Orders
Civil Procedure Costs Orders Joint and Several Liability Rule 42 Variation Interpretation of Court Orders

Case Brief

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Parties

Beefcor (Pty) Ltd

Applicant

Jose Jorge De Freitas

Respondent

Franklin Domiciano De Aguar Menezes

Respondent

Abbygail Van Wyk Attorneys

Respondent

Sheriff Johannesburg Central

Respondent

ABSA Bank Ltd

Respondent

Procedural Posture

Civil Application / Application for Variation of Costs Order and Setting Aside Writ of Execution

Legal Issues

  1. 1 Whether the costs order granted by Rome AJ imposed joint and several liability on the defendants.
  2. 2 Whether the writ of execution against the second defendant should be set aside and repayment ordered.
  3. 3 Whether the costs order should be varied under Rule 42(1)(b) due to ambiguity, patent error, or omission.

Ratio Decidendi

The court held that the costs order granted by Rome AJ did not expressly impose joint and several liability, but the circumstances and general principles of costs in cases where defendants act in common cause support such liability. The omission of the words 'jointly and severally' was a patent error or ambiguity attributable to the court, as the intention was for the usual rule to apply. The court therefore varied the costs order to reflect joint and several liability among the defendants who opposed the application for leave to amend. The second defendant's application to set aside the writ and recover the sum paid was dismissed, and the costs of both the main and counterapplication...

Court Disposition

The second defendant's application is dismissed with costs. The costs order by Rome AJ is varied to impose joint and several liability. The second defendant is ordered to pay the costs of the plaintiffs' conditional counterapplication.

Orders

  • The second defendant's application dated 26 May 2022 is dismissed with costs.
  • Paragraph b. of the order by Rome AJ handed down on 26 January 2021 is corrected and varied to read: 'The respondents (being the respondents who opposed the application for leave to amend) are to pay the opposed costs occasioned by the respondent's notice of objection dated 19 August 2020, jointly and severally.'