Qhalo v Road Freight & Logistics Industry Provident Fund (36271/16) [2018] ZAGPJHC 492 (19 April 2018)

Qhalo v Road Freight & Logistics Industry Provident Fund (36271/16) [2018] ZAGPJHC 492 (19 April 2018)

The court held that the cost order granted against the applicant should be rescinded because the notice of motion did not explicitly seek costs de boniis propriis against the applicant, and he was therefore not properly alerted to the risk of such an order. The respondent's argument that costs could be sought against the attorney even if the matter was not opposed was rejected as fallacious. The court found that the respondent's own negligence in failing to secure a formal withdrawal or attend court contributed to the situation. The applicant's failure to read the supporting affidavit was negligent but did not justify punitive costs in the absence of proper notice. Accordingly, the cost...

Citation
[2018] ZAGPJHC 492
Parties
Applicant: Monyane Qhalo; Respondent: Road Freight & Logistics Industry Provident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 April 2018
Case Number
36271/16
Procedural Posture
Urgent Application / Application for Rescission of Cost Order
Outcome
Application for rescission of cost order granted; no order as to costs.
Judges
SM Wentzel
Legal Topics
Rescission of Judgment, Costs De Boniis Propriis, Notice of Motion Requirements
Civil Procedure Rescission of Judgment Costs De Boniis Propriis Notice of Motion Requirements

Case Brief

Summary, issues, holding and outcome

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Parties

Monyane Qhalo

Applicant

Road Freight & Logistics Industry Provident Fund

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Cost Order

Legal Issues

  1. 1 Whether the cost order granted against the applicant on 29 March 2017 should be rescinded.
  2. 2 Whether costs de boniis propriis can be awarded against an attorney where not explicitly prayed for in the notice of motion.
  3. 3 Whether the respondent's conduct in not securing a formal withdrawal or attending court was negligent.

Ratio Decidendi

The court held that the cost order granted against the applicant should be rescinded because the notice of motion did not explicitly seek costs de boniis propriis against the applicant, and he was therefore not properly alerted to the risk of such an order. The respondent's argument that costs could be sought against the attorney even if the matter was not opposed was rejected as fallacious. The court found that the respondent's own negligence in failing to secure a formal withdrawal or attend court contributed to the situation. The applicant's failure to read the supporting affidavit was negligent but did not justify punitive costs in the absence of proper notice. Accordingly, the cost...

Court Disposition

Application for rescission of cost order granted; no order as to costs.

Orders

  • The cost order granted on 29 March 2017 against the applicant is rescinded.
  • No order as to costs.