Botha NO and Another v Lotz and Others (23901/04) [2005] ZAGPHC 52 (12 May 2005)

Botha NO and Another v Lotz and Others (23901/04) [2005] ZAGPHC 52 (12 May 2005)

The court found that the costs order granted on 14 September 2004 was erroneously made in the absence of the applicants and without the court being informed of a material oral undertaking given by the first applicant to the respondent's attorney. This undertaking, had it been disclosed, would have influenced the court not to grant a punitive costs order. The applicants acted promptly to address the issue and sought to resolve the matter with the respondents, who refused to abandon the costs order. The court held that Rule 42(1)(a) allows for rescission where an order is erroneously granted in the absence of a party or where the court was unaware of material facts. It is not necessary for...

Citation
[2005] ZAGPHC 52
Parties
Applicant: Deon Marius Botha NO; Applicant: Adel Doreen McQuarre NO; Respondent: Johan Philip Lotz; Respondent: Elza Bel Yda Mitchell; Respondent: Shomene 3 BK; Respondent: The Master of the High Court, Transvaal Provincial Division; Respondent: Registrar of Deeds Pretoria
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
12 May 2005
Case Number
23901/04
Procedural Posture
Urgent Application / Application for Rescission of Costs Order Under Rule 42(1)(a)
Outcome
Application granted; the punitive costs order of 14 September 2004 is rescinded under Rule 42(1)(a). Costs of the application are awarded against the first respondent.
Legal Topics
Rescission of Judgment, Rule 42 Application, Costs Order, Urgent Interdict
Civil Procedure Rescission of Judgment Rule 42 Application Costs Order Urgent Interdict

Case Brief

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Parties

Deon Marius Botha NO

Applicant

Adel Doreen McQuarre NO

Applicant

Johan Philip Lotz

Respondent

Elza Bel Yda Mitchell

Respondent

Shomene 3 BK

Respondent

The Master of the High Court, Transvaal Provincial Division

Respondent

Registrar of Deeds Pretoria

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Costs Order Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the costs order granted on 14 September 2004 should be rescinded under Rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether the order was erroneously granted in the absence of material facts known to the applicants.
  3. 3 Whether the applicants are entitled to relief from the punitive costs order.

Ratio Decidendi

The court found that the costs order granted on 14 September 2004 was erroneously made in the absence of the applicants and without the court being informed of a material oral undertaking given by the first applicant to the respondent's attorney. This undertaking, had it been disclosed, would have influenced the court not to grant a punitive costs order. The applicants acted promptly to address the issue and sought to resolve the matter with the respondents, who refused to abandon the costs order. The court held that Rule 42(1)(a) allows for rescission where an order is erroneously granted in the absence of a party or where the court was unaware of material facts. It is not necessary for...

Court Disposition

Application granted; the punitive costs order of 14 September 2004 is rescinded under Rule 42(1)(a). Costs of the application are awarded against the first respondent.

Orders

  • Paragraph 6 of the judgment of Judge Els dated 14 September 2004 is set aside in terms of Rule 42(1)(a) of the Uniform Rules of Court.
  • The first respondent is ordered to pay the costs of this application.