South African Securitisation Programme (RF) Ltd and Others v Litsamaiso (Pty) Ltd (32179/2019) [2021] ZAGPJHC 785 (7 December 2021)

South African Securitisation Programme (RF) Ltd and Others v Litsamaiso (Pty) Ltd (32179/2019) [2021] ZAGPJHC 785 (7 December 2021)

The court found that the applicants were entitled to the costs of the application to compel discovery because the respondent delivered the discovery affidavit only after the application had been set down for hearing. There was no express agreement that the applicants would waive their entitlement to costs if the respondent complied before the hearing. The applicants' attorney acted reasonably in briefing counsel, as the necessity for appearance could not be determined in advance. Procedural objections raised by the respondent were disregarded as they were not included in the opposing affidavit and the respondent failed to invoke Rule 30. The costs are to be awarded on an opposed scale,...

Citation
[2021] ZAGPJHC 785
Parties
Applicant: South African Securitisation Programme (RF) Ltd; Applicant: Fintech Underwriting (Pty) Ltd; Applicant: Sunlyn (Pty) Ltd; Respondent: Litsamaiso (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 December 2021
Case Number
32179/2019
Procedural Posture
Civil Application / Application to Compel Discovery; Costs Dispute Following Compliance
Outcome
Application to compel discovery withdrawn; costs awarded to applicants on an opposed scale.
Judges
SK Hassim
Legal Topics
Discovery Affidavit, Costs Award, Rule 35 Application, Withdrawal of Application
Civil Procedure Discovery Affidavit Costs Award Rule 35 Application Withdrawal of Application

Case Brief

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Parties

South African Securitisation Programme (RF) Ltd

Applicant

Fintech Underwriting (Pty) Ltd

Applicant

Sunlyn (Pty) Ltd

Applicant

Litsamaiso (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Compel Discovery; Costs Dispute Following Compliance

Legal Issues

  1. 1 Whether the applicants are entitled to the costs of the application to compel discovery after the respondent delivered the discovery affidavit.
  2. 2 Whether the applicants' attorney acted unreasonably in briefing counsel for the hearing after the respondent's compliance.
  3. 3 Whether the costs should be awarded on an opposed scale.

Ratio Decidendi

The court found that the applicants were entitled to the costs of the application to compel discovery because the respondent delivered the discovery affidavit only after the application had been set down for hearing. There was no express agreement that the applicants would waive their entitlement to costs if the respondent complied before the hearing. The applicants' attorney acted reasonably in briefing counsel, as the necessity for appearance could not be determined in advance. Procedural objections raised by the respondent were disregarded as they were not included in the opposing affidavit and the respondent failed to invoke Rule 30. The costs are to be awarded on an opposed scale,...

Court Disposition

Application to compel discovery withdrawn; costs awarded to applicants on an opposed scale.

Orders

  • The respondent shall pay the opposed costs of the application to compel discovery.