Mofokeng and Another v Ridge Body Corporate and Others (4685/2023) [2024] ZAFSHC 323 (17 October 2024)

Mofokeng and Another v Ridge Body Corporate and Others (4685/2023) [2024] ZAFSHC 323 (17 October 2024)

The Court held that the distinction between 'removal' and 'withdrawal' is not material for the purposes of Rule 41(1)(c), as both result in the matter not proceeding. The Respondents unilaterally removed the exception from the roll without tendering costs or obtaining the Applicants' consent, contrary to the requirements of Rule 41(1)(c). The Applicants were entitled to oppose the exception and seek costs. The general principle is that the party withdrawing or removing a matter is liable for the costs occasioned thereby. The Applicants did not make out a case for punitive costs, so costs were awarded on a party and party scale. The Respondents are ordered to pay the costs occasioned by...

Citation
[2024] ZAFSHC 323
Parties
Plaintiff: Thabo Moses Mofokeng; Plaintiff: Mabatho Mofokeng; Defendant: The Ridge Body Corporate; Defendant: The Trustees of the Ridge Body Corporate; Defendant: The National Real Estate (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 October 2024
Case Number
4685/2023
Procedural Posture
Civil Application / Application for Costs Order Under Rule 41(1)(c) Following Removal of Exception From the Roll
Outcome
Application granted. Costs awarded to the Applicants on a party and party scale, jointly and severally.
Judges
Chesiwe
Legal Topics
Uniform Rules of Court Rule 41, Costs Award, Removal Vs Withdrawal, Party and Party Scale
Civil Procedure Uniform Rules of Court Rule 41 Costs Award Removal Vs Withdrawal Party and Party Scale

Case Brief

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Parties

Thabo Moses Mofokeng

Plaintiff

Mabatho Mofokeng

Plaintiff

The Ridge Body Corporate

Defendant

The Trustees of the Ridge Body Corporate

Defendant

The National Real Estate (Pty) Ltd

Defendant

Procedural Posture

Civil Application / Application for Costs Order Under Rule 41(1)(c) Following Removal of Exception From the Roll

Legal Issues

  1. 1 Whether the Applicants are entitled to costs under Rule 41(1)(c) of the Uniform Rules of Court where the Respondents removed the exception from the roll without consent or tendering costs.
  2. 2 Whether removal from the roll is equivalent to withdrawal for the purposes of Rule 41(1)(c).

Ratio Decidendi

The Court held that the distinction between 'removal' and 'withdrawal' is not material for the purposes of Rule 41(1)(c), as both result in the matter not proceeding. The Respondents unilaterally removed the exception from the roll without tendering costs or obtaining the Applicants' consent, contrary to the requirements of Rule 41(1)(c). The Applicants were entitled to oppose the exception and seek costs. The general principle is that the party withdrawing or removing a matter is liable for the costs occasioned thereby. The Applicants did not make out a case for punitive costs, so costs were awarded on a party and party scale. The Respondents are ordered to pay the costs occasioned by...

Court Disposition

Application granted. Costs awarded to the Applicants on a party and party scale, jointly and severally.

Orders

  • The Respondents are to pay the costs occasioned by the subsequent notice of removal of the exception dated 24 May 2024.
  • The Respondents are to pay such costs jointly and severally, the one paying the other to be absolved.