Straus Daly Incorporated v Goqwana, In re: Meeg Bank Ltd v Goqwana (439/2005) [2013] ZAECMHC 31 (24 October 2013)

Straus Daly Incorporated v Goqwana, In re: Meeg Bank Ltd v Goqwana (439/2005) [2013] ZAECMHC 31 (24 October 2013)

The court found that the correspondence between the parties did not establish a settlement agreement regarding costs, as the applicant's proposal was not accepted by the respondent's attorneys. The absence of acceptance meant no agreement existed at the time the costs order was made. However, the court held that an order for costs de bonis propriis on an attorney and client scale is an extraordinary remedy and should not be granted lightly. The applicant was not afforded an opportunity to explain her conduct before the order was made, and the requirements of justice and fairness dictate that she should have been heard. Consequently, the applicant showed sufficient cause for rescission...

Citation
[2013] ZAECMHC 31
Parties
Applicant: Straus Daly Incorporated; Respondent: Bulelwa Nozuko Goqwana; Plaintiff: Meeg Bank Limited; Defendant: Bulelwa Nozuko Goqwana
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
24 October 2013
Case Number
439/2005
Procedural Posture
Review Application / Application for Rescission of Costs Order
Outcome
Application for rescission of costs order granted; paragraph 2 of the order of 8 September 2011 is rescinded; costs reserved.
Judges
D Z Dukada
Legal Topics
Rescission of Judgment, Costs De Bonis Propriis, Attorney and Client Costs, Rule 42 Uniform Rules, Settlement Agreement, Non Joinder
Civil Procedure Rescission of Judgment Costs De Bonis Propriis Attorney and Client Costs Rule 42 Uniform Rules Settlement Agreement Non Joinder

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Parties

Straus Daly Incorporated

Applicant

Bulelwa Nozuko Goqwana

Respondent

Meeg Bank Limited

Plaintiff

Bulelwa Nozuko Goqwana

Defendant

Procedural Posture

Review Application / Application for Rescission of Costs Order

Legal Issues

  1. 1 Whether the costs order de bonis propriis against the applicant was erroneously granted and should be rescinded.
  2. 2 Whether there was a settlement agreement regarding costs between the parties.
  3. 3 Whether non-joinder or misjoinder affected the validity of the application for rescission.

Ratio Decidendi

The court found that the correspondence between the parties did not establish a settlement agreement regarding costs, as the applicant's proposal was not accepted by the respondent's attorneys. The absence of acceptance meant no agreement existed at the time the costs order was made. However, the court held that an order for costs de bonis propriis on an attorney and client scale is an extraordinary remedy and should not be granted lightly. The applicant was not afforded an opportunity to explain her conduct before the order was made, and the requirements of justice and fairness dictate that she should have been heard. Consequently, the applicant showed sufficient cause for rescission...

Court Disposition

Application for rescission of costs order granted; paragraph 2 of the order of 8 September 2011 is rescinded; costs reserved.

Orders

  • Paragraph 2 of the order of this Court granted on 8 September 2011, directing Strauss Daly Incorporated to pay costs on an attorney and own client scale, is rescinded.
  • Costs of this application for rescission are reserved for determination together with the question of costs in the main action.