Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)

Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)

The court found that Jay Incorporated was no longer representing the second respondent at the time the costs order de bonis propriis was made, was not a party to the proceedings, and was not present at the hearing. The firm was not afforded an opportunity to make submissions regarding the adverse costs order, resulting in an irregularity in the proceedings. Rule 42(1)(a) applies in circumstances where an order is erroneously granted in the absence of a party affected thereby. The court held that the costs order was erroneously granted and should be rescinded. The matter of costs was reserved, and no order as to costs was made against any party in the rescission application.

Citation
[2018] ZAGPJHC 486
Parties
Applicant: Jay Incorporated; Respondent: J T; Respondent: L T
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 September 2018
Case Number
45403/14
Procedural Posture
Review Application / Application for Rescission of Costs Order De Bonis Propriis Under Rule 42(1)(a)
Outcome
Paragraph 2 of the court order granted on 30 September 2015 under case no. 45403/2014 is rescinded; the matter of costs of that application is reserved.
Judges
P.A. Meyer
Legal Topics
Rescission of Judgment, Costs De Bonis Propriis, Uniform Rules of Court Rule 42, Urgent Application Procedure
Civil Procedure Rescission of Judgment Costs De Bonis Propriis Uniform Rules of Court Rule 42 Urgent Application Procedure

Case Brief

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Parties

Jay Incorporated

Applicant

J T

Respondent

L T

Respondent

Procedural Posture

Review Application / Application for Rescission of Costs Order De Bonis Propriis Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the costs order de bonis propriis granted against Jay Incorporated was erroneously made in its absence.
  2. 2 Whether Jay Incorporated was entitled to be heard before an adverse costs order was made against it.
  3. 3 Whether Rule 42(1)(a) of the Uniform Rules of Court applies to rescind the costs order.

Ratio Decidendi

The court found that Jay Incorporated was no longer representing the second respondent at the time the costs order de bonis propriis was made, was not a party to the proceedings, and was not present at the hearing. The firm was not afforded an opportunity to make submissions regarding the adverse costs order, resulting in an irregularity in the proceedings. Rule 42(1)(a) applies in circumstances where an order is erroneously granted in the absence of a party affected thereby. The court held that the costs order was erroneously granted and should be rescinded. The matter of costs was reserved, and no order as to costs was made against any party in the rescission application.

Court Disposition

Paragraph 2 of the court order granted on 30 September 2015 under case no. 45403/2014 is rescinded; the matter of costs of that application is reserved.

Orders

  • Paragraph 2 of the court order granted in this court on 30 September 2015 under case no. 45403/2014 is hereby rescinded.
  • The matter of costs of that application is reserved.