Maclean v Lentz and Others (2647/2020) [2021] ZAECGHC 104 (25 November 2021)

Maclean v Lentz and Others (2647/2020) [2021] ZAECGHC 104 (25 November 2021)

The court found that the applicant withdrew the application with the consent of the parties and did not tender costs. The respondents were entitled to their costs. The applicant's attempt to shift liability for costs to her former attorneys was not supported by the evidence. The termination of the attorneys' mandate did not equate to an instruction to withdraw the application, and the applicant was aware of the ongoing proceedings. While Mageza Mokoena Raffee Inc. failed to file a notice of withdrawal timeously, their conduct did not amount to gross negligence or exceptional circumstances warranting a costs order de bonis propriis. The wasted costs of the postponement on 12 August 2021...

Citation
[2021] ZAECGHC 104
Parties
Applicant: Ntombekhaya Joyce Maclean; Respondent: Elwyn Lentz N.O.; Respondent: Pumeza Simayile; Respondent: Tuliswa Maclean; Respondent: Nolusindiso Maclean; Respondent: Nelitha Mcwabeni; Respondent: Buhle Hlombe Ngwane; Respondent: Asanda Magalela; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
25 November 2021
Case Number
2647/2020
Procedural Posture
Civil Application / Costs Determination Following Withdrawal of Application
Outcome
Application withdrawn by agreement; costs awarded against applicant.
Judges
M.J. Lowe
Legal Topics
Withdrawal of Application, Costs De Bonis Propriis, Attorney Misconduct, Wasted Costs, Notice of Withdrawal
Civil Procedure Withdrawal of Application Costs De Bonis Propriis Attorney Misconduct Wasted Costs Notice of Withdrawal

Case Brief

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Parties

Ntombekhaya Joyce Maclean

Applicant

Elwyn Lentz N.O.

Respondent

Pumeza Simayile

Respondent

Tuliswa Maclean

Respondent

Nolusindiso Maclean

Respondent

Nelitha Mcwabeni

Respondent

Buhle Hlombe Ngwane

Respondent

Asanda Magalela

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Civil Application / Costs Determination Following Withdrawal of Application

Legal Issues

  1. 1 Whether the applicant's withdrawal of the application entitles respondents to costs.
  2. 2 Whether the applicant's former attorneys should be ordered to pay costs de bonis propriis.
  3. 3 Whether the late filing of the notice of withdrawal by Mageza Mokoena Raffee Inc. justifies a punitive costs order.

Ratio Decidendi

The court found that the applicant withdrew the application with the consent of the parties and did not tender costs. The respondents were entitled to their costs. The applicant's attempt to shift liability for costs to her former attorneys was not supported by the evidence. The termination of the attorneys' mandate did not equate to an instruction to withdraw the application, and the applicant was aware of the ongoing proceedings. While Mageza Mokoena Raffee Inc. failed to file a notice of withdrawal timeously, their conduct did not amount to gross negligence or exceptional circumstances warranting a costs order de bonis propriis. The wasted costs of the postponement on 12 August 2021...

Court Disposition

Application withdrawn by agreement; costs awarded against applicant.

Orders

  • The withdrawal of the application by agreement as at 18 November 2021 is noted.
  • The applicant is to pay the respondents' costs of the application, including the wasted costs of 12 August 2021.