Franklin and Another v Cheralee; InRe: Cheralee v Franklin and Another (2012/14740) [2014] ZAGPJHC 254 (6 October 2014)

Franklin and Another v Cheralee; InRe: Cheralee v Franklin and Another (2012/14740) [2014] ZAGPJHC 254 (6 October 2014)

The court found that the respondent possessed all relevant information regarding the Trust's financial affairs prior to instituting the action, and her claims were baseless. The respondent and her attorney adopted a lackadaisical and dilatory approach, unnecessarily prolonging the litigation and failing to attend pre-trial conferences. The respondent's attorney, Mr Oosthuizen, failed to respond to correspondence, delayed discovery, and did not provide adequate reasons for his conduct when given the opportunity. The court held that the applicants were entitled to costs of the withdrawn action and the costs application on the attorney and client scale, but not on the more punitive attorney...

Citation
[2014] ZAGPJHC 254
Parties
Applicant: Franklin Brain; Applicant: Stephens Micheal John; Respondent: Saby Cheralee
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 October 2014
Case Number
2012/14740
Procedural Posture
Costs Application / Post Withdrawal Costs Determination Under Rule 41(1)(c)
Outcome
Costs awarded against the respondent on the attorney and client scale for the withdrawn action and the costs application; wasted costs occasioned by the postponement of the costs application awarded against the respondent's attorney de bonis propriis on the attorney and own client scale.
Judges
D S S Moshidi
Legal Topics
Punitive Costs Order, Withdrawal of Action, Attorney and Client Costs, Costs De Bonis Propriis, Uniform Rules of Court, Vexatious Litigation
Civil Procedure Punitive Costs Order Withdrawal of Action Attorney and Client Costs Costs De Bonis Propriis Uniform Rules of Court Vexatious Litigation

Case Brief

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Parties

Franklin Brain

Applicant

Stephens Micheal John

Applicant

Saby Cheralee

Respondent

Procedural Posture

Costs Application / Post Withdrawal Costs Determination Under Rule 41(1)(c)

Legal Issues

  1. 1 Whether the respondent should pay the applicants' costs of the withdrawn action on a punitive scale.
  2. 2 Whether the respondent's attorney should be ordered to pay wasted costs de bonis propriis for the postponed costs application.
  3. 3 Whether the conduct of the respondent and her attorney justified special costs orders.

Ratio Decidendi

The court found that the respondent possessed all relevant information regarding the Trust's financial affairs prior to instituting the action, and her claims were baseless. The respondent and her attorney adopted a lackadaisical and dilatory approach, unnecessarily prolonging the litigation and failing to attend pre-trial conferences. The respondent's attorney, Mr Oosthuizen, failed to respond to correspondence, delayed discovery, and did not provide adequate reasons for his conduct when given the opportunity. The court held that the applicants were entitled to costs of the withdrawn action and the costs application on the attorney and client scale, but not on the more punitive attorney...

Court Disposition

Costs awarded against the respondent on the attorney and client scale for the withdrawn action and the costs application; wasted costs occasioned by the postponement of the costs application awarded against the respondent's attorney de bonis propriis on the attorney and own client scale.

Orders

  • The respondent is ordered to pay the applicants' costs incurred in the action under case number 14740/2012 on the scale as between attorney and client.
  • Mr L Oosthuizen, respondent's attorney of record from inception, shall pay the wasted costs occasioned by the postponement of the application on 23 April 2014 de bonis propriis on the scale as between attorney and own client.