Vukile Property Fund Limited v Joli Music (Pty) Ltd t/a Music World (2018/23392) [2025] ZAGPJHC 462 (12 May 2025)
- Citation
- [2025] ZAGPJHC 462
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- GC Wright
- Case number
- 2018/23392
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- GC Wright
- Case number
- 2018/23392
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court finds that the respondent withdrew the action without tendering costs and failed to raise any valid legal defence to the applicant's claim for costs. The delays cited by the respondent do not constitute wrongful conduct by the applicant or its attorneys. In the absence of special circumstances, the general rule applies: the withdrawing party is liable for the costs of the proceedings. The court is not persuaded that costs should be borne equally or that each party should pay its own costs. No basis exists for awarding costs on the attorney and client scale, as no exceptional conduct by the respondent is established. Accordingly, the applicant is entitled to the costs of the withdrawn action and the present application on the ordinary scale.
Court disposition
Application granted. Costs awarded to the applicant on the ordinary scale.
Orders
- The respondent is ordered to pay the costs of the withdrawn action.
- The respondent is ordered to pay the costs of the present application.
02
Material facts
Parties
Vukile Property Fund Limited
Applicant Counsel: Adv R KriekJoli Music (Pty) Ltd t/a Music World
RespondentJoli Music (Pty) Ltd t/a Music World
PlaintiffVukile Property Fund Limited
DefendantSivalutchme Moodliar N.O
DefendantKgashane Christopher Monyela N.O
DefendantPogiso Tumisang Timothy Mfolo N.O
Defendant03
Procedural history
Posture
Costs Application / Post Withdrawal Costs Determination
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to costs following the respondent's withdrawal of the action.
- 02
Whether costs should be awarded on the attorney and client scale.
- 03
Whether any valid legal defence to the costs claim has been raised.
Party arguments
- Applicant
- The applicant contends that, following the respondent's withdrawal of the action without a tender for costs, it is entitled to the costs of the withdrawn action as well as the costs of the present application on the attorney and client scale. The applicant asserts that no wrongful conduct is attributable to it or its attorneys, and that the respondent's withdrawal was for commercial reasons unrelated to any misconduct by the applicant.
- Respondent
- The respondent argues that delays in the litigation were caused by missing files, the covid pandemic, and the applicant's attorneys taking exception to the particulars of claim twice. The respondent submits that the action was withdrawn for commercial reasons and proposes that costs be borne equally or that each party pays its own costs. No specific legal defence to the costs claim is advanced.
05
Court’s reasoning
Legal principles
- 01
Rule 41(1)(c) of the Uniform Rules of Court
A party who withdraws an action is generally liable for the costs of the proceedings unless special circumstances justify a different order.
- 02
Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa
Costs on the attorney and client scale are awarded only in exceptional circumstances where the conduct of a party warrants such an order.
06
Ratio, limits and disposition
Ratio decidendi
The court finds that the respondent withdrew the action without tendering costs and failed to raise any valid legal defence to the applicant's claim for costs. The delays cited by the respondent do not constitute wrongful conduct by the applicant or its attorneys. In the absence of special circumstances, the general rule applies: the withdrawing party is liable for the costs of the proceedings. The court is not persuaded that costs should be borne equally or that each party should pay its own costs. No basis exists for awarding costs on the attorney and client scale, as no exceptional conduct by the respondent is established. Accordingly, the applicant is entitled to the costs of the withdrawn action and the present application on the ordinary scale.
Obiter and limits
- The court notes that commercial reasons for withdrawal do not affect the general rule regarding liability for costs.
- Delays caused by missing files or the pandemic are not sufficient to shift the costs burden away from the withdrawing party.
Court disposition
Application granted. Costs awarded to the applicant on the ordinary scale.
- The respondent is ordered to pay the costs of the withdrawn action.
- The respondent is ordered to pay the costs of the present application.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 2018/23392
1. Reportable: No
2. Of interest to other judges: No
3. Revised
12 MAY 2025
VUKILE
PROPERTY FUND LIMITED
Applicant
and
JOLI MUSIC (PTY) LTD t/a MUSIC WORLD
Respondent
In re:
JOLI MUSIC (PTY) LTD t/a MUSIC WORLD
Plaintiff
VUKILE PROPERTY FUND
LIMITED
First Defendant
SIVALUTCHME MOODLIAR N.O
Second Defendant
KGASHANE CHRISTOPHER MONYELA N.O
Third Defendant
POGISO TUMISANG TIMOTHY MFOLO N.O
Fourth Defendant
(In their capacities as joint liquidators in the estate of NMC
Proprietary Limited in liquidation)
JUDGMENT
WRIGHT J
1. In 2018 the respondent, Joli Music instituted action as plaintiff against the present applicant, Vukile as first defendant.
2. On 2 September 2021 Joli’s attorneys delivered a notice of withdrawal of the action but did not tender costs.
3. Vukile now applies for the costs of the withdrawn action. It also now seeks the costs of the present application, on the attorney and client scale.
4. The attorneys for Joli filed an answering affidavit saying that they had attempted to advance the litigation but because of missing file delays, covid delays and the fact that Vukile’s attorneys had taken exception to the particulars of claim twice and generally delayed the matter, it was decided that the action be withdrawn for commercial reasons. It is suggested that costs be borne equally or that each side pays its own costs.
5. No wrongful conduct by Vukile or its attorneys is shown.
6. In my view, no valid defence in law is raised to the costs sought.
ORDER
1. X as amended -
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD: 12 May 2025
DELIVERED: 12 May 2025
APPEARANCES:
Applicant Adv R Kriek
079 514 9411
advrozannerkriek@counseljhb.co.za
Instructed by Whalley Van Der Lith Inc
011 880 3473
barry@wvl.co.za
Respondent No appearance
Instructed by Bembridge Minnaar Attorneys Inc
011 783 8300
bradley@bm-attorneys.co.za
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.