Luzipo v Ntabayikonjwa (CA262/2017) [2018] ZAECGHC 54 (12 June 2018)

Luzipo v Ntabayikonjwa (CA262/2017) [2018] ZAECGHC 54 (12 June 2018)

The magistrate correctly exercised discretion in granting rescission, considering the respondent's prompt instruction to his attorney and lack of wilful default. However, the magistrate failed to provide reasons for not awarding the appellant costs incurred in obtaining the default judgment and execution, and for not granting counsel's fees at a higher tariff. The appellate court, therefore, considered the issue of costs afresh, finding that the appellant was entitled to opposed costs of the application, including counsel's fees at double the tariff, and party and party costs arising from the default judgment proceedings and execution steps. The court declined to order that costs be taxed...

Citation
[2018] ZAECGHC 54
Parties
Appellant: Jongisipho Desmond Luzipo; Respondent: Freeman Ntabayikonjwa
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
12 June 2018
Case Number
CA262/2017
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Cost Order Following Rescission of Default Judgment
Outcome
Appeal upheld with costs; magistrate's cost order set aside and replaced.
Judges
Dawood, Jaji
Legal Topics
Rescission of Judgment, Costs Orders, Judicial Discretion, Condonation, Default Judgment
Civil Procedure Rescission of Judgment Costs Orders Judicial Discretion Condonation Default Judgment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Jongisipho Desmond Luzipo

Appellant

Freeman Ntabayikonjwa

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Cost Order Following Rescission of Default Judgment

Legal Issues

  1. 1 Whether the magistrate correctly exercised discretion in granting rescission of default judgment.
  2. 2 Whether the magistrate's cost order warrants interference on appeal.
  3. 3 Whether the appellant is entitled to costs incurred in obtaining default judgment and execution.

Ratio Decidendi

The magistrate correctly exercised discretion in granting rescission, considering the respondent's prompt instruction to his attorney and lack of wilful default. However, the magistrate failed to provide reasons for not awarding the appellant costs incurred in obtaining the default judgment and execution, and for not granting counsel's fees at a higher tariff. The appellate court, therefore, considered the issue of costs afresh, finding that the appellant was entitled to opposed costs of the application, including counsel's fees at double the tariff, and party and party costs arising from the default judgment proceedings and execution steps. The court declined to order that costs be taxed...

Court Disposition

Appeal upheld with costs; magistrate's cost order set aside and replaced.

Orders

  • The appeal is upheld with costs.
  • The cost order of the magistrate is set aside and replaced with an order that the applicant is ordered to pay the opposed costs of the application, such costs to include counsel's fees in amounts not exceeding double the amounts set out in the relevant tariff contained in Part IV annexure two of the Rules.