Thulo v Madolo and Another (697/2023) [2023] ZAFSHC 426 (31 October 2023)

Thulo v Madolo and Another (697/2023) [2023] ZAFSHC 426 (31 October 2023)

The court found that both parties contributed to the escalation of litigation, which could have been avoided through mediation and cooperation. The respondents, as current owners of the encroaching property, are liable for the costs of removal, consistent with established legal principles and equity. However, given the conduct of both parties and the unnecessary prolongation of proceedings, each party is ordered to bear their own legal costs for the application and postponements. The court emphasized the importance of mediation and the need for parties to resolve such disputes without resorting to expensive litigation.

Citation
[2023] ZAFSHC 426
Parties
Applicant: Jantjie Sabata Thulo; Respondent: Hans Smanga Madolo; Respondent: Relebohile Penelope Madolo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
31 October 2023
Case Number
697/2023
Procedural Posture
Civil Application / Costs Determination Following Order for Removal of Encroachment
Outcome
The respondents are ordered to pay the costs occasioned by the removal of the encroachment. Each party is to bear their own costs for the application and postponements up to 5 October 2023.
Judges
Opperman, J
Legal Topics
Encroachment, Costs Award, Removal of Structures, Mediation Rule 41a
Land and Property Civil Procedure Encroachment Costs Award Removal of Structures Mediation Rule 41a

Case Brief

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Parties

Jantjie Sabata Thulo

Applicant

Hans Smanga Madolo

Respondent

Relebohile Penelope Madolo

Respondent

Procedural Posture

Civil Application / Costs Determination Following Order for Removal of Encroachment

Legal Issues

  1. 1 Who is liable for the costs of removing the unlawful encroachment on the applicant's property.
  2. 2 Who should bear the costs of the application and related postponements.
  3. 3 Whether the conduct of the parties justifies a shared or exclusive costs order.

Ratio Decidendi

The court found that both parties contributed to the escalation of litigation, which could have been avoided through mediation and cooperation. The respondents, as current owners of the encroaching property, are liable for the costs of removal, consistent with established legal principles and equity. However, given the conduct of both parties and the unnecessary prolongation of proceedings, each party is ordered to bear their own legal costs for the application and postponements. The court emphasized the importance of mediation and the need for parties to resolve such disputes without resorting to expensive litigation.

Court Disposition

The respondents are ordered to pay the costs occasioned by the removal of the encroachment. Each party is to bear their own costs for the application and postponements up to 5 October 2023.

Orders

  • The respondents shall pay the costs occasioned by the removal of the encroachment.
  • Each party shall bear their own costs for the application, including costs occasioned by postponements up to 5 October 2023.