Khumalo v Minister of Police (1200/2021) [2026] ZAMPMBHC 5 (28 January 2026)

70 Reportability

Civil Procedure

Brief Summary

Costs — Postponement — Appropriate costs order following postponement of trial — Defendant sought postponement to correct procedural irregularity — Plaintiff contended for punitive costs on attorney-and-client scale due to alleged blameworthy conduct — Court finding no evidence of mala fide conduct by Defendant — Costs awarded on party-and-party Scale B, reflecting the nature of the postponement.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings concerned an application for a costs order consequent upon the postponement of a trial that had been set down for hearing on 4 November 2025 in the High Court of South Africa, Mpumalanga Division, Mbombela (case number 1200/2021). The judgment addressed only the appropriate costs consequence of the postponement, not the merits of the underlying claim.

The parties were Kenty Mfundo Khumalo as the plaintiff and the Minister of Police as the defendant. The defendant sought a postponement, which the plaintiff consented to, after the defendant indicated an intention to bring a substantive application to withdraw an admission that had been erroneously made in the pre-trial agenda.

Procedurally, the trial was postponed and the matter was reallocated to the trial week commencing 27 January 2026. The remaining dispute for determination was the appropriate scale and nature of the wasted costs occasioned by the postponement, particularly whether the circumstances justified a punitive costs order (attorney-and-client) rather than the ordinary party-and-party costs.

The general subject-matter of the dispute was therefore civil procedure and costs, specifically the exercise of the High Court’s discretion in awarding costs following a postponement sought as an indulgence, and the proper application of the Uniform Rules of Court relating to cost scales introduced by Rule 67A.

Material Facts

It was common cause that the trial set down for 4 November 2025 did not proceed because the defendant sought a postponement, and that the plaintiff consented to the postponement, subject to an appropriate costs order. The postponement was sought after it emerged that the defendant wished to bring a substantive application to withdraw an erroneous admission contained in the pre-trial agenda.

It was also undisputed that the defendant accepted responsibility for the postponement and tendered payment of wasted costs on a party-and-party basis, but proposed Scale A under the post-April 2024 costs regime. The plaintiff, however, sought wasted costs on a punitive basis, contending for attorney-and-client costs (and argued for Scale C in relation to the seriousness of the defendant’s conduct and non-compliance).

The material dispute was not about whether wasted costs should be paid (this was common cause), but rather about whether the defendant’s conduct in causing the postponement justified a departure from the ordinary approach and warranted punishment through a punitive costs order, or whether the appropriate outcome was a party-and-party costs award on an appropriate scale under Rule 67A.

Legal Issues

The central legal question was whether, in the circumstances leading to the postponement, the plaintiff was entitled to an attorney-and-client costs order (a punitive award), or whether the ordinary party-and-party costs regime should apply.

A further question, arising from the modern costs framework, was the proper scale for a party-and-party costs award in terms of Rule 67A (Scale A, B, or C), which depends on factors such as the importance, value, and complexity of the matter.

The dispute primarily concerned the application of legal principles to largely common-cause facts, coupled with an evaluative judgment concerning the degree of blameworthiness required to justify punitive costs. The determination involved the court’s discretion in costs, exercised judicially with reference to established principles distinguishing ordinary adverse costs from punitive costs.

Court’s Reasoning

The court approached the matter from the premise that costs are discretionary, to be determined judicially in light of all relevant circumstances. It reaffirmed the distinction between the function of party-and-party costs, which are intended to indemnify a successful party for necessary or proper litigation expenses as taxed, and attorney-and-client costs, which provide a broader indemnity and are generally punitive in character when awarded as a sanction.

In addressing party-and-party costs, the court considered the implications of Rule 67A of the Uniform Rules of Court (effective 12 April 2024). The rule requires that when party-and-party costs are awarded, the court must indicate the applicable scale (A, B, or C). The court referred to authority explaining that Scale A is the default and lowest scale, Scale B is suited to matters of medium complexity, and Scale C is reserved for significantly complex matters or those involving notable public interest, with the scales affecting the maximum taxable tariff.

The court then turned to punitive costs. It emphasised that punitive costs orders are exceptional and are reserved for conduct properly characterised as vexatious, reckless, dishonest, mala fide, or an abuse of process, rather than mere error or procedural non-compliance. The court treated this distinction as central: an indulgence such as a postponement ordinarily attracts an adverse costs order, but it does not, without more, justify punitive costs.

Applying these principles to the facts, the court accepted that the defendant sought an indulgence and should bear the wasted costs of the postponement. However, it found no evidential basis to conclude that the postponement was sought for an ulterior purpose, to secure strategic delay, or to prejudice the plaintiff. The explanation that the postponement was required to address an erroneous admission was not treated as implausible and was regarded as consistent with a bona fide attempt to ensure the matter proceeded on a proper record.

The plaintiff’s reliance on prejudice and delay (including the fact that the dispute arose from events dating back to 2020) was recognised as understandable, but the court held that delay and procedural non-compliance, without more, do not automatically amount to the type of egregious conduct that warrants punishment through attorney-and-client costs.

The court also treated the plaintiff’s consent to the postponement (subject to costs) as a relevant factor in assessing whether the defendant’s conduct met the threshold for punitive costs. Consent did not preclude punitive costs in principle, but it diminished the force of characterising the defendant’s conduct as sufficiently egregious to warrant a punitive departure from the ordinary approach.

Ultimately, the court concluded that the defendant’s conduct merited an adverse costs order but did not cross the threshold required for an attorney-and-client award. It considered a punitive costs order to be disproportionate in the circumstances. As to the party-and-party scale, the court determined that the interests of justice were served by awarding the wasted costs on party-and-party Scale B, reflecting an exercise of discretion under Rule 67A tailored to the matter before it.

Outcome and Relief

The court postponed the matter to the trial week commencing 27 January 2026, where it was allocated as matter number 7.

The court ordered the defendant to pay the plaintiff’s wasted costs occasioned by the postponement of the trial of 4 November 2025, on a party-and-party basis taxed on Scale B. The plaintiff’s request for a punitive attorney-and-client costs order was effectively refused.

Cases Cited

Mashavha v Enaex Africa (Pty) Ltd and others [2024] JOL 64269 (GJ).

Nel v Waterberg Landbouwers Ko-operatieve Vereniging 1946 AD 597.

Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd (35347/13, 30004/13) [2013] ZAGPPHC 261; [2013] 4 All SA 346 (GNP); 2014 (3) SA 265 (GP) (6 September 2013).

Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd (Judgment on Costs) [2025] JOL 68816 (GP).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 67A, including Rule 67A(3).

Uniform Rules of Court, Rule 69.

Held

The court held that while the defendant, as the party seeking an indulgence, had to bear the wasted costs of the postponement, the circumstances did not justify a punitive costs order. In the absence of evidence of mala fides, dishonesty, abuse of process, or vexatious conduct, an attorney-and-client costs order was considered disproportionate.

The court further held that the appropriate party-and-party costs scale under the post-April 2024 costs regime was Scale B, and it ordered the defendant to pay the plaintiff’s wasted costs on that basis.

LEGAL PRINCIPLES

Costs awards are discretionary and must be made judicially with reference to all relevant circumstances, including the nature of the proceedings and the parties’ conduct.

A party seeking an indulgence such as a postponement will ordinarily be ordered to pay the wasted costs occasioned by the indulgence, but this does not, without more, justify a punitive costs order.

Party-and-party costs serve an indemnificatory function limited to costs necessarily or properly incurred, as taxed, whereas attorney-and-client costs are broader and are typically punitive when imposed as a sanction for blameworthy litigation conduct.

Punitive costs orders are exceptional and are generally reserved for conduct that is vexatious, dishonest, reckless, mala fide, or constitutes an abuse of process, rather than mere error, neglect, or procedural non-compliance.

Under Rule 67A of the Uniform Rules of Court, when awarding party-and-party costs, the court must indicate the applicable scale (A, B, or C) with reference to factors such as the importance, complexity, and value of the matter, and the selection of scale determines the applicable tariff for taxation.