Raleting and Another v Kose (2216/2023) [2024] ZAFSHC 175 (6 June 2024)

Raleting and Another v Kose (2216/2023) [2024] ZAFSHC 175 (6 June 2024)

The court found that the applicants' belief that no costs order would be granted against them does not constitute an error in the proceedings as contemplated by Rule 42(1)(a). The applicants were aware, through personal service of the notice of motion, that costs orders were sought. Their failure to oppose the application and their mistaken belief regarding costs do not amount to procedural error. The evidence before the original court justified the costs order, as the applicants' lack of cooperation necessitated the application. There was no error in the granting of the costs order, and the applicants are not entitled to a variation.

Citation
[2024] ZAFSHC 175
Parties
Applicant: Mmako Raleting; Applicant: Mmako Raleting N.O.; Respondent: Malitsepiso Thulo Kose
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 June 2024
Case Number
2216/2023
Procedural Posture
Variation Application / Application for Variation of Costs Order Under Rule 42(1)(a)
Outcome
Application for variation of the order is dismissed with costs.
Judges
Hefer AJ
Legal Topics
Rule 42 Variation, Default Judgment, Boundary Dispute, Costs Order
Civil Procedure Land and Property Rule 42 Variation Default Judgment Boundary Dispute Costs Order

Case Brief

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Parties

Mmako Raleting

Applicant

Mmako Raleting N.O.

Applicant

Malitsepiso Thulo Kose

Respondent

Procedural Posture

Variation Application / Application for Variation of Costs Order Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the costs order granted by default against the applicants should be varied under Rule 42(1)(a).
  2. 2 Whether the applicants' belief regarding costs constitutes an error in the proceedings as contemplated by Rule 42(1)(a).

Ratio Decidendi

The court found that the applicants' belief that no costs order would be granted against them does not constitute an error in the proceedings as contemplated by Rule 42(1)(a). The applicants were aware, through personal service of the notice of motion, that costs orders were sought. Their failure to oppose the application and their mistaken belief regarding costs do not amount to procedural error. The evidence before the original court justified the costs order, as the applicants' lack of cooperation necessitated the application. There was no error in the granting of the costs order, and the applicants are not entitled to a variation.

Court Disposition

Application for variation of the order is dismissed with costs.

Orders

  • The application for variation of the order of Van Zyl J, dated 10 August 2023, is dismissed with costs.