Malaza and Others v Mokoena and Others (31873/2014) [2017] ZAGPPHC 907 (15 December 2017)

Malaza and Others v Mokoena and Others (31873/2014) [2017] ZAGPPHC 907 (15 December 2017)

The court found that the applicants' grounds for leave to appeal did not constitute exceptional circumstances. The attorney had notice of the relief sought against her, was separately represented, and failed to provide the requested affidavit in time. The costs order was a proper exercise of judicial discretion in response to frivolous and vexatious proceedings. The amount involved was insubstantial, and an appeal would not contribute to the resolution of the real issues. Accordingly, leave to appeal was refused.

Citation
[2017] ZAGPPHC 907
Parties
Applicant: Lillian Malaza; Applicant: Poppy Shabala; Applicant: Pertunia Nkosi; Applicant: Nomthandazo Mkhonza; Respondent: Kenneth Tshepo Mokoena; Respondent: Stefaan Sithole; Respondent: Fana Enoch Nkosi; Respondent: Qondeni Mathebula; Respondent: The Master of the High Court; Respondent: Albert Lythuli Municipality; Applicant: Nalini Maharaj
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 December 2017
Case Number
31873/2014
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Costs Order
Outcome
Application for leave to appeal dismissed with costs.
Judges
DP de Villiers
Legal Topics
Leave to Appeal, Costs Orders, Punitive Costs, De Bonis Propriis, Judicial Discretion
Civil Procedure Leave to Appeal Costs Orders Punitive Costs De Bonis Propriis Judicial Discretion

Case Brief

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Parties

Lillian Malaza

Applicant

Poppy Shabala

Applicant

Pertunia Nkosi

Applicant

Nomthandazo Mkhonza

Applicant

Kenneth Tshepo Mokoena

Respondent

Stefaan Sithole

Respondent

Fana Enoch Nkosi

Respondent

Qondeni Mathebula

Respondent

The Master of the High Court

Respondent

Albert Lythuli Municipality

Respondent

Nalini Maharaj

Applicant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Costs Order

Legal Issues

  1. 1 Whether leave to appeal should be granted against a punitive costs order made jointly and severally against the applicants and their attorney.
  2. 2 Whether the attorney was afforded adequate opportunity to present reasons against a de bonis propriis costs order.
  3. 3 Whether exceptional circumstances exist to justify leave to appeal on costs in interlocutory proceedings.

Ratio Decidendi

The court found that the applicants' grounds for leave to appeal did not constitute exceptional circumstances. The attorney had notice of the relief sought against her, was separately represented, and failed to provide the requested affidavit in time. The costs order was a proper exercise of judicial discretion in response to frivolous and vexatious proceedings. The amount involved was insubstantial, and an appeal would not contribute to the resolution of the real issues. Accordingly, leave to appeal was refused.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The costs of the application for leave to appeal are to be paid jointly and severally by the four applicants and attorney Maharaj.