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South Africa Judgment

Free State High Court, Bloemfontein

Lechoano v Mogotsi and Others (3227/2018) [2018] ZAFSHC 159 (10 September 2018)

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Source document

01

Holding and result

The court found that the 1st respondent's conduct in failing to file opposition timeously, submitting the opposing affidavit only the day before the hearing, and not filing heads of argument resulted in the day being wasted. The applicant's counsel was unable to argue the matter due to these procedural failures. The 1st respondent conceded to these facts and requested that costs be costs in the cause, but the court determined that the wasted costs should be borne by the 1st respondent. The order for costs against the 1st respondent was justified by his conduct, which persisted even after the initial hearing, as evidenced by the late filing of heads of argument and the request for condonation. The court confirmed its earlier order and provided reasons in response to the 1st respondent's request under Rule 49(1)(c).

Court disposition

The court confirmed the order that the 1st respondent is to pay the wasted costs of the extension of the Rule Nisi.

Orders

  • The 1st respondent is ordered to pay the wasted costs of the extension of the Rule Nisi.
  • Condonation for the late filing of heads of argument is noted but does not affect the costs order.

02

Material facts

Parties

Moaledi Andries Lechoano

Applicant Counsel: Pieter Willers

Lebeko Andries Mogotsi

Respondent Counsel: M.L Odendaal

Precinct Financial Services Pty Ltd

Respondent

ABSA Bank Ltd

Respondent

First National Bank

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Reasons for Costs Order Following Urgent Interdict and Settlement Proceedings

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the 1st respondent wasted the court's time by opposing the motion for the settlement to be made an order of court, despite not having filed opposition timeously and only submitting the opposing affidavit the day before the hearing. The applicant's counsel was not prepared to argue due to the late filing and lack of heads of argument, and requested that the wasted costs for the day be ordered against the 1st respondent.
Respondent
The 1st respondent conceded to the late filing and requested that the costs for the day be costs in the cause, rather than a punitive costs order. In their heads of argument, the 1st respondent also sought condonation for the late filing of their heads of argument.

05

Court’s reasoning

  1. 01

    Rule 49(1)(c) Uniform Rules of Court

    A party who causes the unnecessary waste of court time and resources may be ordered to pay the wasted costs of the day.

  2. 02

    General principles of civil procedure

    Condonation for late filing of heads of argument may be granted at the court's discretion, but persistent non-compliance may justify an adverse costs order.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the 1st respondent's conduct in failing to file opposition timeously, submitting the opposing affidavit only the day before the hearing, and not filing heads of argument resulted in the day being wasted. The applicant's counsel was unable to argue the matter due to these procedural failures. The 1st respondent conceded to these facts and requested that costs be costs in the cause, but the court determined that the wasted costs should be borne by the 1st respondent. The order for costs against the 1st respondent was justified by his conduct, which persisted even after the initial hearing, as evidenced by the late filing of heads of argument and the request for condonation. The court confirmed its earlier order and provided reasons in response to the 1st respondent's request under Rule 49(1)(c).

Obiter and limits

  • The court noted that mediation had resulted in a settlement, and the matter was placed on the unopposed roll for the settlement to be made an order of court.
  • The court observed that the 1st respondent only became aware of the Rule Nisi approximately a week after it was granted, as it was issued ex parte.

Court disposition

The court confirmed the order that the 1st respondent is to pay the wasted costs of the extension of the Rule Nisi.

  • The 1st respondent is ordered to pay the wasted costs of the extension of the Rule Nisi.
  • Condonation for the late filing of heads of argument is noted but does not affect the costs order.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

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Source document

Free State High Court, Bloemfontein

Judgment

[2018] ZAFSHC 159

IN THE HIGH

COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 3227/2018

In the matter between:

MOALEDI

ANDRIES

LECHOANO APPLICANT

and

LEBEKO

ANDRIES MOGOTSI 1ST

RESPONDENT

PRECINCT FINANCIAL SERVICES PTY LTD 2ND

RESPONDENT

ABSA

BANK LTD 3RD

RESPONDENT

FIRST

NATIONAL BANK 4TH

RESPONDENT

CORAM: M OPPERMAN, J

HEARD ON: 16 AUGUST 2018

JUDGEMENT BY: M OPPERMAN, J

REASONS ON: 10 SEPTEMBER 2018

1. On the 20th of August 2018 the following was filed with the court:

Request for reasons in terms of Rule 49(1)(c). The 1st respondent hereby requests the Honourable Mrs. Acting Justice Lanie Opperman for reasons for the order granted on Thursday, 16 August 2018 and more specifically the reason(s) why the 1st respondent was ordered to pay the wasted costs of the extension of the Rule Nisi.

2. The matter was placed for argument by the 1st respondent on the 16th of August 2018 as opposed motion.

3. The matter was not placed for the mere extension of the Rule Nisi on the 16th of August 2018.

4. On 22nd of June 2018 the applicant sought and obtained an urgent interdict in terms of which the 1st and 4th respondents are interdicted from paying monies from the two accounts of the 1st respondent, held by the 3rd respondent and 4th respondent, before the dispute between the parties is resolved by agreement or order of court.

5. The Rule Nisi was granted on an ex parte basis and the 1st respondent only gained knowledge of it approximately a week after it was granted.

6. Subsequent hereto the parties herein held a mediation in which a settlement was concluded.

7. The matter was placed on the unopposed motion court roll for the settlement to be made an order of the court.

8. According to counsel for the applicant the 1st respondent opposed the motion for the settlement to be made and order of court.

9. The matter was placed on the 16th of August 2018. The 1st respondent wanted to argue the matter but counsel for applicant indicated that he was not in a position to argue the matter because:

9.1 “On 2nd July no opposition was filed.

9.2 the opposing affidavit was only received yesterday (15 August 2018),

9.3 this morning they want to argue the case,

9.4 the right to reply was not entertained and

9.5 the settlement was not dealt with.

9.6 No heads of arguments were filed.”

10. Counsel for 1st respondent conceded to the above and requested for the costs for the day to be costs in the cause. Counsel for the applicant requested an order against the 1st respondent for the wasted day.

11. The day was wasted by the 1st respondent. The court therefor made the order for costs against the 1st respondent.

12. In addition to the above it is noted that the 1st respondent; in their Heads of Argument filed on 27 August 2018, prays for condonation of the late filing of their Heads of Argument.

Justification for the order on the 16th of August is confirmed hereby and the conduct persists.

M OPPERMAN, J

ATTORNEY FOR THE 1ST RESPONDENT: M.L ODENDAAL

PHATSHOANE

HENNEY

35 Markgraaf

Westdene

Bloemfontein

Ref: MOG58/0001/mlo

ATTORNEY FOR THE APPLICANT: PIETER WILLERS

WILLERS

ATTORNEYS

52 Reid Street

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rule 49(1)(c) Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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