IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 16999/2023
In the matter between:
ROBIN ROY SCHLEICH Applicant
and
BRIAN RAMON LANTON First Respondent
REGISTRAR OF DEEDS, CAPE TOWN Second Respondent
CRAIG SCHNEIDER ASSOCIATES Third Respondent
THE CITY OF CAPE TOWN Fourth Respondent
CAPITEC BANK LTD Fifth Respondent
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ABSA DEBTOR FINANCE (PTY) LTD Sixth Respondent
Neutral citation:
Coram: COOKE AJ
Heard: 7 August 2025
Delivered: 12 September 2025
Summary: Costs of urgent application – condonation of late affidavit
ORDER
[1] The application for the condonation of the late delivery of the first respondent’s
answering affidavit is granted, with the costs of the application to be paid by the first
respondent, including the costs of two counsel , with senior counsel on scale C and
junior counsel on scale B.
[2] The costs of the application dated 19 March 2024 shall be paid by the first
respondent, including the costs of two counsel, with senior counsel on scale C and
junior counsel on scale B.
JUDGMENT
[1] In this matter, o n 17 April 2024 , Saldanha J granted an order by agreement
between the applicant and the first respondent ( referred to as Mr Schleich and Mr
Lanton) in terms of which the latter was directed to make application to the fourth
respondent (‘the City’) for an extension of the period within which he is to comply
with certain provisions rel ating to the consolidation and subdivision of a property in
Noordhoek. I shall refer to the application before Saldanha J as ‘the extension
application’.
[2] In terms of the order of Saldanha J, the question of costs was postponed for hearing
on the opposed motion court roll. This question is now before me, and t he crisp
issue which falls for determination is whether Mr Lanton should pay the costs of the
extension application. Related to this ques tion, is a subsidiary issue, namely
whether the late delivery of Mr Lanton’s answering affidavit should be condoned .
The costs issue must be decided on broad and general lines .1 I therefore only set
out those facts which, in my view, are essential to the determination of this issue.
[3] On 4 October 2023 , Mr Schleich launched an application for an order directing that
Mr Lanton transfer a property to him (‘the transfer application’). This application was
opposed by Mr Lanton , and, on 5 December 2023 , an order was granted by
agreement in terms of which the transfer application was postponed for hearing on
4 June 2024. Mr S chleich was conscious of the fact that the consolidation and
subdivision approval granted by the City was due to expire just two days after this
hearing date , on 6 June 2024. T herefore, on 12 December 2023 , his attorneys
addressed a letter to Mr Lanton’s attorneys in which they requested Mr Lanton to
provide an irrevocable, written undertaking that he will apply to the City for the
extension of that period to prevent the lapse of the approval. Mr Lanton was
requested to give the undertaking by 16 January 2024.
[4] No undertaking was given by this date. Various emails were then exchanged
between the attorneys , and it appears that settlement discussions were also held.
On 27 February 2024 , Mr Lanton’s attorney s sent an email to Mr S chleich’s
attorneys stating that they are ‘applying for an extension of the sub -division
approval and will keep you advised in that regard. We have instructed an engineer
approval and will keep you advised in that regard. We have instructed an engineer
who is well versed in the ways of the City in that regard. ’ Thereafter, on 8 March
1 Gamlan Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd and Another 1996 (3) SA 692 (CPD)
at 700C-701H.
2024, Mr Schleich’s attorney s sent a letter to Mr Lanton’s attorney s in which they
noted that despite the agreement to make an application to extend the date for
subdivision approval, Mr Lanton had failed to do so. Mr Schleich’s attorneys advised
that should the application for an approval not be made by 13 March 2024, an
urgent application would be brought.
[5] It is apparent that at around this time, a building professional (Mr Gordon) had been
appointed by Mr Lanton to deal with the extension application, and he was taking
steps to obtain the City’s approval. However, Mr Schleich’s attorneys were not kept
fully informed of these developments. Notwithstanding the request that the
application for approval be made by 13 March 2024, Mr Lanton failed to do so. This
led Mr Schleich to launch an urgent application on 19 March 2024 for various
orders, including a directi on that Mr Lanton make application to the City for an
extension of the applicable period for consolidation and subdivision (ie the
extension application). It appears that on that same day , Mr Gordon uploaded the
extension of validity application on the City’s online portal (DAMS).
[6] On 27 March 2024 , Mr Lanton’s attorney s sent a ‘without prejudice’ letter to Mr
Schleich’s attorneys in which they quoted correspondence received from Mr Gordon
which indicated that the application for approval had been lodged. Mr Lanton’s
attorneys requested that the court application be withdrawn immediately ‘as it is
moot’. Mr Schleich’s attorney s responded on 11 April 2024 , recording that their
client had been forced to launch the application and Mr Lanton should ther efore be
liable for the costs of the application. They stated further that ‘...given the history of
this matter, our client requires the comfort of a court order ’. Mr Lanton’s attorney s
replied on the following day stating that their client would oppose an y costs order.
The order of Sald anha J was then granted by agreement on 17 April 2024. This
The order of Sald anha J was then granted by agreement on 17 April 2024. This
order provided that the question of costs was postponed for hearing on the opposed
motion roll on 13 February 2025. In due course, on 19 August 2024, the City
granted the approval sought.
[7] On 30 January 2025 , Mr Schleich’s legal representatives delivered a practice note
and heads of argument . A few days later, o n 5 February 2025 , Mr Lanton brought
an application to condone the late delivery of his answering affidavit. The
application was supported by an affidavit deposed to by his attorney . The attorney
sought to explain the delay by stating that h e did not make a note of the 13
February 2025 hearing date in his diary and the matter slipped his mind, as well as
that of his counsel. It was only when the practice note and heads of argument were
delivered, that the attorney realised that the hearing wa s imminent. On about 9
February 2025 , Mr Schleich delivered an affidavit which served as an answering
affidavit in the condonation application, and a replying affidavit in the main
application. On 14 February 2025, by agreement between the parties, the hearing
was postponed by Mapoma AJ to 7 August 2025, with no order as to costs.
[8] In my view , the explanation for the late delivery of the answering affidavit is not
convincing. Regardless of the hearing date, Mr Lanton and his legal representatives
should have been aware that Mr Lanton needed to file an answering affidavit if he
wished to place evidence before the court dealing with the costs issue. Having said
that, some of the information put up in the answering and replying affidavits is
relevant to the determination of the question of costs. These affidavits provide
insight into the events that transpired after the application was launched. I am
therefore, reluctant to exclude them. I also do not believe that Mr Schleich will suffer
any prejudice that cannot be cured by a cost s order i f the affidavit is admitted.
Therefore, in the particular circumstances of this case , I consider that it would be in
the interests of justice to admit the answering affidavit, and condonation is therefore
granted. Mr Lanton seeks an indulgence, and t he costs of the application should
granted. Mr Lanton seeks an indulgence, and t he costs of the application should
thus be paid by him, including the costs of two counsel.
[9] To my mind , the main question is whether Mr Schleich acted reasonably in
launching the application on 19 March 2024, having regard to the information which
had been provided by Mr Lanton’s attorneys . Mr Lanton submits that the extension
application was ‘precipitous and heavy-handed’. I disagree. In my view, Mr Schleich
acted prudently . Although Mr Lanton’s attorney s had indicated two weeks earlier
that they ‘are applying’ for an extension, they had added that they would keep Mr
Schleich’s attorneys advised in that regard. As it turns out, they failed to keep Mr
Schleich’s attorneys advised and even th ough Mr Gordon was taking steps to
compile the application, Mr Schleich’s attorneys were not apprised of the steps
being taken. The use of the present progressive tense – ‘we are applying’ - also
introduced uncertainty as to when, exactly, the application would be made. The
extension was a matter of importance to Mr Schleich, and I do not think Mr Schleich
may be criticised for preferring not to leave the matter in abeyance until shortly
before the lapsing date. Such an approach would be fraught with perils.
[10] Furthermore, Mr Schleich’s attorneys addressed the letter of 8 March 2024 (being a
Friday) in which they expressly warned that an application would be made to court if
the approval application had not been lodged by 13 March 2024. Also on 8 March
2024, Mr Gordon informed Mr Lanton’s attorney s that he expected to be able to
submit the application during the following week. But this information was not
passed on to Mr Schleich’s attorneys. In the face of the demand from Mr Schleich’s
attorneys, I would have expected Mr Lanton’s attorneys to have informed them what
steps had been taken by Mr Gordon. They failed to do so and in the circumstances,
I do not think Mr Schleic h can be blamed for launching the extension application a
few days later.
[11] A related question is whether Mr Schleich should have withdrawn the extension
application after receiving the letter from Mr Lanton’s attorneys on 27 March 2024.
This letter was ma rked ‘without prejudice ’, presumably because a proposal was
made that the transfer application be resolved on the basis that an agreed order be
taken, without any order for costs being made. In my view , if an application had
taken, without any order for costs being made. In my view , if an application had
been submitted to the City , it did not make sense pursu ing an order compelling Mr
Lanton to do what had already been done. There does, however, appear to be
some uncertainty as to whether a complete application had been made, as the
correspondence indicates that certain documents were only uploaded in April. In my
view, the factual question should have been resolved before Saldanha J was asked
to make an order which presupposed the absence of an application.
[12] Nonetheless, the parties did not agree on the question of costs, and there fore, the
application had not been resolved altogether. It was therefore necessary for Mr
Schleich to continue with the application, at least for the purposes of the order
postponing the question of costs. In the result, while I have reservations regarding
the persistence with the prayer compelling Mr Lanton to make an extension
application, this is not material to the question of costs. I am therefore persuaded
that Mr Schleich acted reasonably in not withdrawing the application after receiving
the letter of 27 March 2024.
[13] The final issue which requires consideration is the scale of costs. Mr Schleich
requested that the costs be ordered on the attorney and client scale. He placed
reliance upon clause 9 of the sale agreement which provides that if e ither party
commits a breach of the agreement and/or fails to comply with any of the
provisions, and fails to comply with a notice to remedy, then the ag grieved party
shall be entitled , but not obliged, without prejudice to any other rights or remedies
which he or she may have in law, including the right to claim damages: (a) to cancel
the agreement; and (b) to claim immediate performance and/or payment of the
obligations in terms thereof, in which case the defaulting party shall be liable for all
legal cos ts incurred by the non -defaulting party on the attorney and own client
scale.
[14] It is alleged by Mr Schleich that Mr Lanton failed to comply with clause 10 of the
sale agreement which provide s, amongst other things, that he must sign and/or
execute all necessary documents in a timeous manner and take all reasonable
steps to ensure that other persons perform all such acts required to complete the
transaction. In my view , it is not clear that Mr Lanton breached this obligation. The
transaction. In my view , it is not clear that Mr Lanton breached this obligation. The
problem, rather, was that he failed to convey to Mr Schleich that he had taken the
applicable steps. Furthermore, although a court would generally recognise the
agreement reached by the parties regarding the scale of co sts, a court is not bound
by such agreement.2 Moreover, the validity of the sale agreement has been placed
in issue for the reasons set out in more detail in the judgment delivered under case
number 2025-001018. In all the circumstances , I do not consider that this is a case
which warrants a punitive costs order.
[15] Although the extension application devolved to a narrow dispute regarding costs, it
is connected to a series of other cases , one of which was heard together with th e
extension application. Both parties employed two counsel for the two matters that
came before me , and I think it would be fair if Mr Schleich were to be entitled to
recover the costs of both his counsel. For these reasons I make the order set out
above.
Cooke AJ:
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant: RG Patrick SC and H Beviss-Challinor
Instructed by: Clyde & Co.
For first respondent: E Fagan SC and A Price
Instructed by: Slabbert Venter Yanoutsos Inc.
2 Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) paras 25-6 - as a matter of policy
and principle, a court should not, and must not, permit the ouster of its discretion because of agreement
between the parties with regard to costs . See more recently Road Accident Fund and Others v Hlatswayo
and Others 2025 JDR 0932 (SCA) paras 21-2.