Smith and Another v Van Heerden and Others (8177/00) [2002] ZAWCHC 56; [2002] 4 All SA 461 (C) (14 October 2002)

Smith and Another v Van Heerden and Others (8177/00) [2002] ZAWCHC 56; [2002] 4 All SA 461 (C) (14 October 2002)

The court found that the costs order made against the applicants was erroneously granted in their absence, as they were not informed of the cost arrangements between Van Heerden and Chapman and the other respondents. These arrangements resulted in the applicants being saddled with the entire costs of the review application, contrary to the original notice of motion which sought costs against all five respondents. The applicants were prejudiced by not being notified of the cost agreements, and the order was made beyond the notice given. The court held that fairness required the costs order to be amended so that the applicants are only liable for their aliquot share (one-fifth each) of the...

Citation
[2002] ZAWCHC 56
Parties
Applicant: Pieter Francois Smith; Applicant: Aletta Susanna Catherina Smith; Respondent: Jacoba Van Heerden; Respondent: Cynthia Chapman; Respondent: Mossel Bay Municipality; Respondent: Minister of Local Government; Respondent: Premier of the Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 October 2002
Case Number
8177/00
Procedural Posture
Review Application / Application to Set Aside or Amend a Costs Order Under Rule 42(1)(a)
Outcome
Application granted in part; costs order against applicants amended to aliquot share; Van Heerden and Chapman to pay applicants' costs of the present application; other respondents to pay their own costs.
Judges
B J Van Heerden
Legal Topics
Costs Orders, Review of Administrative Action, Municipal Expropriation, Rule 42 Application, Notice and Fairness
Civil Procedure Land and Property Costs Orders Review of Administrative Action Municipal Expropriation Rule 42 Application Notice and Fairness

Case Brief

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Parties

Pieter Francois Smith

Applicant

Aletta Susanna Catherina Smith

Applicant

Jacoba Van Heerden

Respondent

Cynthia Chapman

Respondent

Mossel Bay Municipality

Respondent

Minister of Local Government

Respondent

Premier of the Western Cape

Respondent

Procedural Posture

Review Application / Application to Set Aside or Amend a Costs Order Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the costs order granted against the applicants on 22 February 2001 was erroneously sought or granted in their absence within the meaning of Rule 42(1)(a).
  2. 2 Whether the applicants should bear the full costs of the review application or only an aliquot share.
  3. 3 Whether the applicants were prejudiced by not being informed of cost arrangements between other parties.

Ratio Decidendi

The court found that the costs order made against the applicants was erroneously granted in their absence, as they were not informed of the cost arrangements between Van Heerden and Chapman and the other respondents. These arrangements resulted in the applicants being saddled with the entire costs of the review application, contrary to the original notice of motion which sought costs against all five respondents. The applicants were prejudiced by not being notified of the cost agreements, and the order was made beyond the notice given. The court held that fairness required the costs order to be amended so that the applicants are only liable for their aliquot share (one-fifth each) of the...

Court Disposition

Application granted in part; costs order against applicants amended to aliquot share; Van Heerden and Chapman to pay applicants' costs of the present application; other respondents to pay their own costs.

Orders

  • The costs order granted by Jali R on 22 February 2001 under case number 8177/2000 against Mr and Mrs Smith is amended to read that Mr and Mrs Smith are each ordered to pay one-fifth of Van Heerden and Chapman’s costs of the review application.
  • Van Heerden and Chapman are ordered to pay Mr and Mrs Smith’s costs of this application.