De Villiers NO and Another v BoE Bank Ltd. (477/2002) [2003] ZASCA 133; [2004] 1 All SA 481 (SCA); 2004 (3) SA 459 (SCA) (28 November 2003)

De Villiers NO and Another v BoE Bank Ltd. (477/2002) [2003] ZASCA 133; [2004] 1 All SA 481 (SCA); 2004 (3) SA 459 (SCA) (28 November 2003)

The Supreme Court of Appeal held that it was functus officio and could not amend its final costs order. The issue of costs, including the scale thereof, was fully canvassed in both heads of argument and oral submissions. The bank relied on the loan agreements for attorney and client costs, not the underlying securities, and the matter was decided on that basis. None of the exceptions to the functus officio rule applied, as the costs issue was neither overlooked nor left unaddressed. The application to amend the costs order was therefore dismissed.

Citation
[2003] ZASCA 133
Parties
Appellant: Michael De Villiers, N.O.; Appellant: Brian Basil Nel, N.O.; Respondent: BoE Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2003
Case Number
477/2002
Procedural Posture
Civil Appeal / Application to Amend Costs Order After Judgment
Outcome
Application dismissed with costs.
Judges
Howie, Streicher, Navsa, Van Heerden
Legal Topics
Costs Orders, Functus Officio, Attorney Client Scale, Supplementary Orders
Civil Procedure Costs Orders Functus Officio Attorney Client Scale Supplementary Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Michael De Villiers, N.O.

Appellant

Brian Basil Nel, N.O.

Appellant

BoE Bank Limited

Respondent

Procedural Posture

Civil Appeal / Application to Amend Costs Order After Judgment

Legal Issues

  1. 1 Whether the Supreme Court of Appeal may amend its final costs order after judgment has been delivered.
  2. 2 Whether the bank is entitled to costs on an attorney and client scale based on underlying securities after the loan agreements have lapsed.
  3. 3 Whether any exceptions to the functus officio rule apply to permit amendment of the costs order in this case.

Ratio Decidendi

The Supreme Court of Appeal held that it was functus officio and could not amend its final costs order. The issue of costs, including the scale thereof, was fully canvassed in both heads of argument and oral submissions. The bank relied on the loan agreements for attorney and client costs, not the underlying securities, and the matter was decided on that basis. None of the exceptions to the functus officio rule applied, as the costs issue was neither overlooked nor left unaddressed. The application to amend the costs order was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application to amend the costs order is dismissed with costs.