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South Africa Judgment

South Gauteng High Court, Johannesburg

Hay v Road Accident Fund (2019/5932) [2025] ZAGPJHC 278 (14 March 2025)

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01

Holding and result

The court found that the mortgage loan agreement between the parties expressly provided for costs on the attorney and client scale in the event of enforcement proceedings. The applicants prosecuted the application in a half-hearted manner, failing to file heads of argument and allowing the matter to drift, which necessitated the respondents' intervention to set the matter down. In light of the contractual provision and the applicants' conduct, the court held that a costs order on the attorney and client scale was both necessary and appropriate. The application was accordingly withdrawn with costs awarded against the applicants on the attorney and client scale.

Court disposition

Application withdrawn by leave; costs awarded against applicants on attorney and client scale.

Orders

  • The applicants are given leave to withdraw their application.
  • The applicants are directed to pay the costs of the application jointly and severally, the one paying the other to be absolved, on the scale as between attorney and client.

02

Material facts

Parties

Teresa Thring and Another

Applicant

ABSA Bank Limited and Others

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Application for Rescission and Withdrawal

04

Questions and positions

Legal issues

Party arguments

Applicant
Counsel for the applicants indicated their intention to withdraw the application and tendered costs on the party and party scale.
Respondent
ABSA Bank Limited agreed to the withdrawal but argued that costs should be awarded on the attorney and client scale, relying on the mortgage loan agreement and the manner in which the application was prosecuted.

05

Court’s reasoning

  1. 01

    Standard mortgage loan agreement terms

    Where a contract provides for costs on the attorney and client scale in enforcement proceedings, the court should ordinarily give effect to that provision unless there are compelling reasons not to.

  2. 02

    General principles of South African civil procedure

    The conduct of parties in litigation, including delay and failure to prosecute an application diligently, may justify a punitive costs order.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the mortgage loan agreement between the parties expressly provided for costs on the attorney and client scale in the event of enforcement proceedings. The applicants prosecuted the application in a half-hearted manner, failing to file heads of argument and allowing the matter to drift, which necessitated the respondents' intervention to set the matter down. In light of the contractual provision and the applicants' conduct, the court held that a costs order on the attorney and client scale was both necessary and appropriate. The application was accordingly withdrawn with costs awarded against the applicants on the attorney and client scale.

Obiter and limits

  • Litigants should prosecute applications diligently and in accordance with the rules to avoid adverse costs consequences.
  • Contractual provisions regarding costs will generally be enforced by the court unless exceptional circumstances are shown.

Court disposition

Application withdrawn by leave; costs awarded against applicants on attorney and client scale.

  • The applicants are given leave to withdraw their application.
  • The applicants are directed to pay the costs of the application jointly and severally, the one paying the other to be absolved, on the scale as between attorney and client.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2025] ZAGPJHC 278

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 46032/2018

DATE: 29-07-2025

(1) REPORTABLE: NO.

(2) OF INTEREST TO OTHER JUDGES: NO.

(3) REVISED.

DATE 29 July 2025

In the matter between

TERESA

THRING AND ANOTHER

Applicants

and

ABSA BANK LIMITED AND

OTHERS

Respondents

JUDGMENT EX TEMPORE

WILSON, J: This is an application to rescind an order of Pillay AJ, granted some three years ago, which set a reserve price on a property bonded to the first respondent, ABSA Bank. At the outset of the hearing counsel for the applicants informed me that the applicants wish to withdraw their application with a tender for costs on the party and party scale. ABSA is content for the application to be withdrawn but seeks costs on the attorney and client scale.

Accordingly, the only contentious issue before me is the scale of costs that should be ordered against the applicants. It is common cause between the parties that the mortgage loan agreement governing their relationship provides for costs on the attorney and client scale in the event and to the extent that the loan agreement needs to be enforced in court.

Moreover, this is a full opposed application, in which papers have been filed, counsel has been briefed, but which has been prosecuted half-heartedly. The applicants did not file heads and let the application drift for several months. The respondents had to file heads and set the matter down. In these circumstances, given what the agreement says and the unfortunate and inappropriate way in which the application was prosecuted, I think an order on the attorney and client scale is both necessary and appropriate.

For all these reasons I make the following order-

1 The applicants given leave to withdraw their application.

2 The applicants are directed to pay the costs of the application jointly and severally the one paying the other to be absolved, on the scale as

between attorney and client.

WILSON, J

JUDGE OF THE HIGH COURT

29 July 2025

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