Ngomane and Another v Silinda N.O and Others (Leave to Appeal) [2023] ZAGPPHC 89; 34251/21 (16 February 2023)

Ngomane and Another v Silinda N.O and Others (Leave to Appeal) [2023] ZAGPPHC 89; 34251/21 (16 February 2023)

The court found that the applicants were repeatedly and explicitly warned, through affidavits, correspondence, and heads of argument, of the intention to seek a special costs order de bonis propriis and referral to the Legal Practice Council. Despite these warnings, the applicants failed to present evidence or arguments as to why such orders should not be made and deliberately absented themselves from the hearing. The court distinguished the present matter from the Chithi case, finding that procedural fairness was satisfied given the extensive notice provided. The court concluded that there are no reasonable prospects that another court would reach a different decision and dismissed the...

Citation
[2023] ZAGPPHC 89
Parties
Applicant: Simeon Ngomane; Applicant: S Ngomane Inc.; Respondent: M.T. Silinda N.O.; Respondent: Simeon Ngomane N.O.; Respondent: Lazarus Tiki Zitha N.O.; Respondent: Makhombo Farm Management (Pty) Ltd (in liquidation); Respondent: Daniel Terreblance N.O.; Respondent: Hilmi Daniels N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 February 2023
Case Number
34251/21
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Costs Order Dated 22 November 2022.
Outcome
Application for leave to appeal dismissed with costs.
Judges
Reinard Michau
Legal Topics
Special Costs Orders, De Bonis Propriis, Legal Practice Council Referral, Notice and Opportunity to Be Heard
Civil Procedure Special Costs Orders De Bonis Propriis Legal Practice Council Referral Notice and Opportunity to Be Heard

Case Brief

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Parties

Simeon Ngomane

Applicant

S Ngomane Inc.

Applicant

M.T. Silinda N.O.

Respondent

Simeon Ngomane N.O.

Respondent

Lazarus Tiki Zitha N.O.

Respondent

Makhombo Farm Management (Pty) Ltd (in liquidation)

Respondent

Daniel Terreblance N.O.

Respondent

Hilmi Daniels N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment and Costs Order Dated 22 November 2022.

Legal Issues

  1. 1 Whether the applicants were afforded adequate notice and opportunity to make representations before a special costs order de bonis propriis and referral to the Legal Practice Council were made against them.
  2. 2 Whether the applicants should have been joined as parties to the proceedings before being subjected to the costs order and referral.
  3. 3 Whether there are reasonable prospects that another court would reach a different conclusion.

Ratio Decidendi

The court found that the applicants were repeatedly and explicitly warned, through affidavits, correspondence, and heads of argument, of the intention to seek a special costs order de bonis propriis and referral to the Legal Practice Council. Despite these warnings, the applicants failed to present evidence or arguments as to why such orders should not be made and deliberately absented themselves from the hearing. The court distinguished the present matter from the Chithi case, finding that procedural fairness was satisfied given the extensive notice provided. The court concluded that there are no reasonable prospects that another court would reach a different decision and dismissed the...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs, to be paid by the applicants jointly and severally, the one paying, the other to be absolved.