Mazwai v Nkosi (2021/14182) [2024] ZAGPJHC 86 (30 January 2024)

Mazwai v Nkosi (2021/14182) [2024] ZAGPJHC 86 (30 January 2024)

The court found that the respondent failed to provide any viable defence to the defamatory material and had previously accepted liability under the judgment. The application for leave to appeal was brought fifteen months late, with no satisfactory explanation for the delay and no prospects of success. The respondent's attorney, acting on instructions from a third party with no direct interest, facilitated litigation that was ill-founded and contrary to the interests of justice. The court held that this conduct justified a punitive costs order, including costs de bonis propriis against the attorney, as neither the respondent nor her attorney could reasonably have believed there were...

Citation
[2024] ZAGPJHC 86
Parties
Applicant: Nontsikelelo Mazwai; Respondent: Themba Mbongeni Nkosi
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 January 2024
Case Number
2021/14182
Procedural Posture
Leave to Appeal / Application for Condonation and Leave to Appeal Against Final Interdict Order
Outcome
Application for condonation dismissed with costs; application for leave to appeal not entertained; costs of both applications to be borne by the respondent and her attorney de bonis propriis, jointly and severally, on an attorney and client scale.
Judges
Fisher
Legal Topics
Condonation, Leave to Appeal, Defamation, Punitive Costs, De Bonis Propriis, Freedom of Expression
Civil Procedure Delict Condonation Leave to Appeal Defamation Punitive Costs De Bonis Propriis Freedom of Expression

Case Brief

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Parties

Nontsikelelo Mazwai

Applicant

Themba Mbongeni Nkosi

Respondent

Procedural Posture

Leave to Appeal / Application for Condonation and Leave to Appeal Against Final Interdict Order

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the application for leave to appeal has reasonable prospects of success.
  3. 3 Whether costs should be awarded on a punitive scale and de bonis propriis against the respondent's attorney.

Ratio Decidendi

The court found that the respondent failed to provide any viable defence to the defamatory material and had previously accepted liability under the judgment. The application for leave to appeal was brought fifteen months late, with no satisfactory explanation for the delay and no prospects of success. The respondent's attorney, acting on instructions from a third party with no direct interest, facilitated litigation that was ill-founded and contrary to the interests of justice. The court held that this conduct justified a punitive costs order, including costs de bonis propriis against the attorney, as neither the respondent nor her attorney could reasonably have believed there were...

Court Disposition

Application for condonation dismissed with costs; application for leave to appeal not entertained; costs of both applications to be borne by the respondent and her attorney de bonis propriis, jointly and severally, on an attorney and client scale.

Orders

  • The application for condonation is dismissed with costs and the application for leave to appeal is not entertained.
  • The costs of both applications are to be borne by the respondent (Nontsikelelo Mazwai) and de bonis propriis by her attorney (Risiva Maxwell Khosa) jointly and severally (the one paying the other to be absolved), such costs to be calculated on the scale as between attorney and client.