Maboya v Norman Berger & Partners Inc (19500/15) [2016] ZAGPJHC 17 (18 February 2016)

Maboya v Norman Berger & Partners Inc (19500/15) [2016] ZAGPJHC 17 (18 February 2016)

The court found that both parties, through their attorneys, acted unreasonably and engaged in conduct that was unnecessary and irrelevant to the resolution of the real issue, namely the delivery of the applicant's file. The application was not required to be ventilated in extensive affidavits and annexures, and both sides missed opportunities to resolve the matter amicably. The respondent did not properly object to the alleged irregularity regarding the absence of a supporting affidavit, and the applicant persisted with litigation despite the respondent's tender to deliver the file. In light of the conduct of both parties, the court concluded that neither was entitled to recover any costs.

Citation
[2016] ZAGPJHC 17
Parties
Applicant: Brandie Maboya; Respondent: Norman Berger & Partners Inc
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 February 2016
Case Number
19500/15
Procedural Posture
Civil Application / Costs Determination
Outcome
Application dismissed; no order as to costs.
Judges
Malindi
Legal Topics
Costs Award, Punitive Costs, Attorney and Client Scale, De Bonis Propriis, Irregular Proceedings
Civil Procedure Costs Award Punitive Costs Attorney and Client Scale De Bonis Propriis Irregular Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Brandie Maboya

Applicant

Norman Berger & Partners Inc

Respondent

Procedural Posture

Civil Application / Costs Determination

Legal Issues

  1. 1 Whether the application was premature, denying the respondent reasonable time to locate the applicant's file.
  2. 2 Whether the respondent was obliged to file an answering affidavit after receiving the application.
  3. 3 Whether the applicant should have filed a replying affidavit after the respondent tendered delivery of the file.

Ratio Decidendi

The court found that both parties, through their attorneys, acted unreasonably and engaged in conduct that was unnecessary and irrelevant to the resolution of the real issue, namely the delivery of the applicant's file. The application was not required to be ventilated in extensive affidavits and annexures, and both sides missed opportunities to resolve the matter amicably. The respondent did not properly object to the alleged irregularity regarding the absence of a supporting affidavit, and the applicant persisted with litigation despite the respondent's tender to deliver the file. In light of the conduct of both parties, the court concluded that neither was entitled to recover any costs.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.