Central University of Technology and Another v Realty 1 CC Bloemfontein and Others (A92/2019) [2019] ZAFSHC 252 (5 December 2019)

Central University of Technology and Another v Realty 1 CC Bloemfontein and Others (A92/2019) [2019] ZAFSHC 252 (5 December 2019)

The High Court found that the Magistrate failed to exercise her discretion judicially in refusing attorney and client costs and higher advocate's fees. The Magistrate did not properly consider the numerous procedural and substantive flaws in the respondents' ex parte application, the lack of legal nexus between the parties, the absence of justification for urgent relief, and the respondents' conduct in withdrawing the application without adequate tender for costs. The court held that the merits and procedural defects were inextricably linked and should have influenced the scale of costs awarded. The appellants were entitled to be fully compensated for their litigation costs, including...

Citation
[2019] ZAFSHC 252
Parties
Appellant: Central University of Technology; Appellant: University of the Free State; Respondent: Realty 1 CC Bloemfontein; Respondent: Christo Dippenaar Inc.; Respondent: Johanna Wilhelmina Dippenaar
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 December 2019
Case Number
A92/2019
Procedural Posture
Civil Appeal / Appeal Against Costs Order in Magistrates' Court
Outcome
Appeal upheld; Magistrate's order set aside and substituted with an order granting attorney and client costs, including higher advocate's fees, against the respondents.
Judges
Naidoo, Murray
Legal Topics
Costs Awards, Attorney and Client Scale, Magistrates Court Jurisdiction, Ex Parte Applications, Withdrawal of Application
Civil Procedure Costs Awards Attorney and Client Scale Magistrates Court Jurisdiction Ex Parte Applications Withdrawal of Application

Case Brief

Summary, issues, holding and outcome

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Parties

Central University of Technology

Appellant

University of the Free State

Appellant

Realty 1 CC Bloemfontein

Respondent

Christo Dippenaar Inc.

Respondent

Johanna Wilhelmina Dippenaar

Respondent

Procedural Posture

Civil Appeal / Appeal Against Costs Order in Magistrates' Court

Legal Issues

  1. 1 Whether the Magistrate exercised her discretion judicially in refusing attorney and client costs and higher advocate's fees.
  2. 2 Whether the circumstances justified an award of costs on an attorney and client scale, including increased advocate's fees.
  3. 3 Whether the flawed ex parte application and subsequent conduct of the respondents amounted to abuse of process warranting punitive costs.

Ratio Decidendi

The High Court found that the Magistrate failed to exercise her discretion judicially in refusing attorney and client costs and higher advocate's fees. The Magistrate did not properly consider the numerous procedural and substantive flaws in the respondents' ex parte application, the lack of legal nexus between the parties, the absence of justification for urgent relief, and the respondents' conduct in withdrawing the application without adequate tender for costs. The court held that the merits and procedural defects were inextricably linked and should have influenced the scale of costs awarded. The appellants were entitled to be fully compensated for their litigation costs, including...

Court Disposition

Appeal upheld; Magistrate's order set aside and substituted with an order granting attorney and client costs, including higher advocate's fees, against the respondents.

Orders

  • The order by the court a quo to dismiss the application for costs on an attorney and client scale is set aside with costs.
  • The application for costs on an attorney and client scale with higher advocate's fees succeeds with costs.