Lotz v Aerts and Another (A3061/2016) [2017] ZAGPJHC 45 (17 February 2017)

Lotz v Aerts and Another (A3061/2016) [2017] ZAGPJHC 45 (17 February 2017)

The court found that the appeal could not be properly adjudicated due to the absence of a reliable record of the proceedings that led to the third costs order. The transcript relied upon by the appellant was determined to reflect a later date and not the relevant proceedings. Without a record, the court could not assess whether the magistrate's discretion in awarding punitive costs was exercised improperly or unreasonably. The responsibility to provide the record lay with the appellant, and his failure to do so meant the appeal could not proceed on the merits. Consequently, the appeal was struck from the roll and costs were awarded against the appellant.

Citation
[2017] ZAGPJHC 45
Parties
Applicant: Herman Lotz; Respondent: Paul Aerts; Respondent: Total Concrete Solutions (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 February 2017
Case Number
A3061/2016
Procedural Posture
Civil Appeal / Appeal Against Costs Orders in Magistrates' Court
Outcome
Appeal struck from the roll due to lack of record; costs awarded against appellant.
Judges
WHG van der Linde, B Vally
Legal Topics
Costs Orders, Punitive Costs, Record on Appeal, Discretion of Court
Civil Procedure Costs Orders Punitive Costs Record on Appeal Discretion of Court

Case Brief

Summary, issues, holding and outcome

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Parties

Herman Lotz

Applicant

Paul Aerts

Respondent

Total Concrete Solutions (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Costs Orders in Magistrates' Court

Legal Issues

  1. 1 Whether the appeal against the costs order as to scale (attorney and client) can be adjudicated without a proper record of proceedings.
  2. 2 Whether the magistrate's discretion in awarding punitive costs was exercised improperly or unreasonably.
  3. 3 Whether the appellant fulfilled his responsibility to procure the record for appeal.

Ratio Decidendi

The court found that the appeal could not be properly adjudicated due to the absence of a reliable record of the proceedings that led to the third costs order. The transcript relied upon by the appellant was determined to reflect a later date and not the relevant proceedings. Without a record, the court could not assess whether the magistrate's discretion in awarding punitive costs was exercised improperly or unreasonably. The responsibility to provide the record lay with the appellant, and his failure to do so meant the appeal could not proceed on the merits. Consequently, the appeal was struck from the roll and costs were awarded against the appellant.

Court Disposition

Appeal struck from the roll due to lack of record; costs awarded against appellant.

Orders

  • The appeal is struck from the roll.
  • The appellant is directed to pay the costs of 13 February 2017.