Mkhondwane and Others v Malapa and Another (40424/2021) [2022] ZAGPJHC 28 (21 January 2022)

Mkhondwane and Others v Malapa and Another (40424/2021) [2022] ZAGPJHC 28 (21 January 2022)

The court found that although Mr David De Frend acted dishonestly in his representations regarding the withdrawal of the application, he is a layperson who acted pro bono and cannot be equated to a trained lawyer. His motive was to assist indigent applicants without remuneration. The applicants themselves were indigent and did not act with malice. The circumstances did not warrant an exceptional costs order de boniis propriis against Mr De Frend, nor was it appropriate to order costs against the applicants. The court exercised its discretion to make no order as to costs, emphasizing fairness and the absence of exceptional circumstances.

Citation
[2022] ZAGPJHC 28
Parties
Applicant: Ntombizodwa Mkhondwane; Applicant: Zandile Imbali Mkhondwane; Applicant: Fanyana Elies Mkhondwane; Respondent: Malapa Moletelo Caroline; Respondent: Sheriff of the Court, Tembisa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 January 2022
Case Number
40424/2021
Procedural Posture
Urgent Application / Costs Determination Following Withdrawal of Urgent Application
Outcome
No order as to costs; neither the applicants nor Mr De Frend are liable for costs.
Judges
M A Makume
Legal Topics
Costs Award, Withdrawal of Application, De Boniis Propriis, Judicial Discretion
Civil Procedure Costs Award Withdrawal of Application De Boniis Propriis Judicial Discretion

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 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Ntombizodwa Mkhondwane

Applicant

Zandile Imbali Mkhondwane

Applicant

Fanyana Elies Mkhondwane

Applicant

Malapa Moletelo Caroline

Respondent

Sheriff of the Court, Tembisa

Respondent

Procedural Posture

Urgent Application / Costs Determination Following Withdrawal of Urgent Application

Legal Issues

  1. 1 Whether Mr David De Frend, a layperson who assisted the applicants, should be held personally liable for the costs of the withdrawn urgent application.
  2. 2 Whether the applicants, who are indigent and acted on advice, should bear any costs.
  3. 3 Whether exceptional circumstances exist to justify a costs order de boniis propriis against a non-lawyer.

Ratio Decidendi

The court found that although Mr David De Frend acted dishonestly in his representations regarding the withdrawal of the application, he is a layperson who acted pro bono and cannot be equated to a trained lawyer. His motive was to assist indigent applicants without remuneration. The applicants themselves were indigent and did not act with malice. The circumstances did not warrant an exceptional costs order de boniis propriis against Mr De Frend, nor was it appropriate to order costs against the applicants. The court exercised its discretion to make no order as to costs, emphasizing fairness and the absence of exceptional circumstances.

Court Disposition

No order as to costs; neither the applicants nor Mr De Frend are liable for costs.

Orders

  • No order as to costs.