Total South Africa (Pty) Ltd v Dowraj Service Station CC and Another (16767/2022) [2023] ZAGPJHC 1155 (13 October 2023)
The court applied the general rule that a party withdrawing proceedings is considered unsuccessful and should bear the costs of the application. The plaintiff failed to provide cogent reasons for reserving costs, and there was no justification for departing from the established principle. The court was satisfied...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 1155
- Parties
- Plaintiff: Total South Africa (Pty) Ltd; Defendant: Dowraj Service Station CC; Defendant: Yeshmin Harduth
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 16767/2022
- Procedural Posture
- Summary Judgment Application / Costs Determination Following Withdrawal of Summary Judgment Application
- Outcome
- Plaintiff's application for summary judgment withdrawn; costs of the application awarded against the plaintiff.
- Judges
- G Farber
- Legal Topics
- Withdrawal of Proceedings, Costs Award, Summary Judgment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Total South Africa (Pty) Ltd
Plaintiff
Dowraj Service Station CC
Defendant
Yeshmin Harduth
Defendant
Procedural Posture
Summary Judgment Application / Costs Determination Following Withdrawal of Summary Judgment Application
Legal Issues
- 1 Should the costs of the withdrawn summary judgment application be reserved or awarded to the defendants.
- 2 Does the general rule regarding costs on withdrawal apply in this case.
Ratio Decidendi
The court applied the general rule that a party withdrawing proceedings is considered unsuccessful and should bear the costs of the application. The plaintiff failed to provide cogent reasons for reserving costs, and there was no justification for departing from the established principle. The court was satisfied that it was in a position to determine costs immediately and saw no reason to defer the matter to another court. Accordingly, the costs of the summary judgment application were awarded against the plaintiff.
Court Disposition
Plaintiff's application for summary judgment withdrawn; costs of the application awarded against the plaintiff.
Orders
- The plaintiff is ordered to pay the costs of the summary judgment application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 16767/2022
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
13.10.23
In the matter between:
TOTAL SOUTH AFRICA (PTY) LTD PLAINTIFF and DOWRAJ SERVICE STATION CC FIRST DEFENDANT YESHMIN HARDUTH SECOND DEFENDANT
JUDGMENT
FARBER AJ:
[1] At the commencement of the hearing counsel on behalf of the Plaintiff withdrew its application for summary judgment. He submitted that the costs of the application ought to be reserved. Counsel on behalf of the Defendant submitted that it was entitled to the costs of the application.
[2] It is well settled that on the withdrawal of proceedings by a litigant, he is to be considered as having been unsuccessful in those proceedings and thus liable for his adversary’s costs. The Court nonetheless retains its discretion to proclaim otherwise (see Waikiwi Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd 1078 (1) SA 671 AD and Waste Products Utilisation Pty Ltd v Wilkes 2003 (2) SA 590 (W)).
[3] I see no reason why I should not apply the general rule. I am in a position to determine the question of costs and there is no reason why this should be left to another Court on some future date. In short the Plaintiff has not advanced cogent reasons the reservation of the costs.
I thus decree that the costs of the summary judgment application are to be paid by the Plaintiff.
G Farber
ACTING JUDGE OF THE HIGH COURT
Date of Hearing: 11 October 2023
Date of Judgment: 13 October 2023
APPEARANCES
For the Plaintiff:
Adv R Petersen
Instructed by:
Kapditwala Incorporated t/a Dentons
For the Defendants:
Adv J Karuaihe
Instructed by:
Des Naidoo & Associates