IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: 7976/2024
In the matter between:
THE MINISTER OF FORESTRY, FISHERIES First Applicant
DEPUTY DIRECTOR-GENERAL: FISHERIES
MANAGEMENT Second Applicant
KHUMO SH MORAKE-MAKHELEMELE N.O. Third Applicant
THOSE 76 CATEGORY A RIGHT HOLDER Fourth Applicant
INDUSTRY RESPONDENTS NAMED IN
APPENDIX 1 TO THE NOTICE OF MOTION
and
SIYABONGA FISHING (PTY) LTD Respondent
Date of hearing: 19 February 2026
Further submissions: 25 and 27 February 2026
Date of judgment: 12 March 2026 [Electronically]
JUDGMENT
HOLDERNESS, J
[1] This court’s common law inherent discretion to suspend execution of an
order is fettered only by the limitation that such discretion must be exercised
judicially, that is not capriciously but based upon a proper consideration of
relevant factors and the employment of sound legal principles.1
[2] The first and second applicants, organs of state, 2 and the third applicant
(collectively ‘the applicants’) seek an order that, pending the determinatio n of
the relief in Part B of the application , the rescission and setting aside of the
allocaturs granted on 6 February 2026 in respect of the respondent’s attorney’s
bill of costs,3 the enforcement of the two allocaturs granted on 6 February 2026
by the Taxing Master (the allocaturs) be stayed.
1 Newnet Properties (Pty) Ltd t/a Sunshine Hospital v The Road Accident Fund (unreported, SCA case no
1150/2023 dated 14 March 2025) at paragraph [25].
2 See section 239 of the Constitution, 1996 which reads, ‘'organ of state' means-
(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution-
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation…’
3 Under the common law principles governing the rescission of default taxations, alternatively under the court’s
inherent jurisdiction in terms of section 173 of the Constitution of the Republic of South Africa, 2006.
Essential facts
[3] On 11 November 2024, this court 4 granted a costs order , on a party and
party scale, against the first and second applicants, including counsel’s fees at
scale C.
[4] On 21 January 2025, the respondent served a notice to tax the bills of
costs in respect of its instructing attorney’s fees only.
[5] The applicants opposed the taxation of the instructing attorney ’s bill of
costs, filing a list of objections totalling R 1 035 000.
[6] The main objections were as follows:
(a) R323 046 for printing the 53 841 -page record. The applicants contended
that the record was supplied electronically and there was accordingly no
reason to print it.
(b) R207 968 for perusing the 53 841 -page record. The respondent contended
that it had spent 134 hours perusing the record. The applicants objected as
there were no supporting notes to confirm that the respondent had read and
understood the record.
(c) R376 887 for printing the 53 841 -page record for counsel. The applicants
argued that as counsel had confirmed that no supplementary affidavit was
needed, there was no need to print the record afresh. Moreover, it contended
4 Per Mangcu-Lockwood J.
that the contention that 180 le ver arch files would have been delivered to
counsel was ‘unrealistic and overreaching’.
(d) R26 688 charged for time spent sorting and compiling counsel’s records, for
the reasons set out above.
(e) R31 694.50 in relation to various items on the respondent’s bills of costs
which were only chargeable if the costs award was on the scale as between
attorney and own client, or attorney and client. These included but were not
limited to perusal fees, consultations, electronic service of documents,
drafting fees and research charges. In some instances, the objection was to
remove the charge in its entirety, and in others it was to reduce the amount
charged.
[7] The applicants furthermore disputed R17 885 in fees and R750 in
disbursements in the correspondent attorney ’s bill of costs . The objectionable
items included duplicated perusal fees, excessive court attendances for
postponements and fees for items which were not allowable as party and party
costs.
[8] The respondent replied to the applicants list of objections on 6 March
2025.
[9] On 21 October 2025, the taxation was set down for hearing and
proceeded before the Taxing Master on such date (“the first taxation
proceedings”). Mr. Yusuf Davidso n (“Mr. Davidson”) attended the taxation on
behalf of the applicants, in his capacity as an admitted attorney practising at
Paulse Davidson & Associates. Mr. Bernard Kramer ( “Mr. Kramer") attended
the hearing on behalf of the respondent.
[10] Two procedural issues were raised at the first taxation proceedings, by
Mr. Kramer and Mr. Davidson respectively:
(a) Mr. Kramer disputed Davidson’s authority to represent the applicants , but
the taxation proceeded nonetheless in accordance with the provisions of
Rule 70(4).
(b) Mr. Davidson dis puted that the correspondent attorneys bill of costs had
been properly set down. The Taxing Master upheld Davidson’s objection
and ruled that correspondent attorneys bill of costs was not ripe for hearing
on that day.
[11] By the end of the first taxation proceedings, neither party had fully
ventilated their submissions in respect of the instructing attorneys bill of costs.
The instructing attorney’s bill of costs was only taxed up until item 123 of item
263. Notably, the ‘big ticket’ items referred to above had not been argued yet,
and the parties were yet to make submissions in relation to the correspondent
attorney’s bill of costs.
[12] So much for the common cause facts. The central disputed allegations are
whether the part heard during taxation was postponed by agreement to 6
February 2026, and no notice of set down was accordingly required, o r whether
the further date for the part heard during taxation was to be confirmed
thereafter.
[13] According to Mr. Davidson, who deposed to the founding affidavit on
behalf of the applicants, t he parties in conjunction with the Taxing Master
deliberated about alternative dates for the further hearing of the taxation. On
Mr. Davidson’s version, the proceedings were adjourned provisionally to 6
February 2026, subject to his confirmation of his availability.
[14] On the respondent’s version, the first taxation proceedings were
adjourned to 10h00 on 6 February 2026 regardless of Mr. Davidson’s
availability, as this was the Taxing Master’s first available date.
[15] No correspondence followed between the parties thereafter. A notice of
set down was not served in respect of either bill of costs, in particular, in respect
of the taxation of the correspondent attorney’s bill of costs, as it had not yet
been properly enrolled.
[16] The taxation proceeded on 6 February 2026 (the second taxation
proceedings). Mr. Kramer appeared before the Taxing Master. Twenty minutes
into the proceedings, Mr. Kramer called Mr. Davidson. According to the
evidence of Mr. Davidson, this was the first time he became aware of the
taxation.
[17] Mr. Kyle Vermooten of Kaplan Blumberg Inc, the attorneys of record for
the responde nt, who deposed to the answering affidavit , stated that ‘Mr.
Davidson seemingly had no idea about this adjournment date and took great
issue with the fact that no notice of set down was served on hi m, the Applicants
or the State Attorney.’ This was confirmed in an affidavit by Mr. Kramer.
[18] The Taxing Master overheard the telephonic conversation between them
and heard Mr. Davidson asked why no notice of set down had been served on
him. Mr. Kramer denied that one was needed because of the adjournment.
[19] At this juncture, Mr Davidson asked to speak to th e Taxing Master. Mr.
Kramer refused. After the call with Mr. Kramer, Mr. Davidson attempted to call
the Taxing Master , but there was no answer. The taxation continued in the
absence of the applicants, and the Taxing Master proceeded to hear oral
submissions from Mr. Kramer.
[20] Mr. Davidson arranged for a member of his office, Ms Shanya Hemraj
(Ms. Hemraj) to attend the taxation in his stead. It is not disputed that Ms.
Hemraj is an admitted legal practitioner and would have been able to make
submissions to the Taxing Master.
[21] On 6 February 2026 at 10h34 Mr. Davidson’s office emailed both taxing
masters of this division , Mr. Anathi Malindi (“Mr. Malindi ”), who was
presiding over the taxation in question, and Ms. Franschesca Cilliers, advising
that Ms. Hemraj was en route to attend the taxation, and was stuck in traffic.
[22] Ms. Hemraj arrived at court at approximately 10 h55.5 Upon her arrival
the Taxing Master informed her that the taxation was finalised . He had granted
the allocaturs , which were being completed by Mr. Kramer at the time. The
Taxing Master refused to allow Mr. Hemraj to make submissions or to have the
matter re-enrolled.
[23] According to Mr. Kramer, the taxation, continued for more than an hour
after he called Mr. Davidson, which would have been at approximately 10h20.
As pointed out by the applicants , this cannot be as Ms. Hemraj arrived at Court
5 This is confirmed by a parking ticket with this time stamp.
35 minutes later and the taxation had already been concluded by the time she
arrived.
[24] Ms. Hemraj states that she called Mr. Jared Poole (“Mr. Poole”), another
member of Mr. Davidson’s office, after her discussio n with the Taxing Master
to convey the outcome of her discussions. Their call log is time stamped 10:59.
[25] The correspondent attorney ’s and the instructing attorney’s allocaturs
were endorsed by the Taxing Master on 6 and 8 February 2026 respectively.
[26] On 9 February 2026, the respondent’s attorney, Mr. Vermooten, sent the
applicant’s attorney of record, Ms Aayesha Hoosain ( “Ms. Hoosain ”) of the
Office of the State Attorney a letter demanding that the applicants pay the
amounts of R1 257 825.86; and R48 657.02, in a total amount of R1 306 482.88
within seven calendar days, i.e. on or before 16 February 2026. They advised
that their instructions are to proceed immediately with recovery steps if
payment was not received by the above deadline.
[27] Ms. Aspeling, who appeared on behalf of the applicants, submitted th at
this import of this letter was clear - if the applicants did not pay the amount
claimed by 16 February 2026, the allocaturs, under cover of the order granted
by Mangcu-Lockwood J in November 2024, would immediately be presented to
the registrar for a writ to be issued.
[28] Ms. Hoosain replied on 11 February 2026, advising that her office had
been instructed to launch a rescission application. She requested the respondent
to provide a written undertaking , that it would not issue a writ of execution or
take any steps to enforce the allocaturs, and that no recovery steps would be
instituted pending the final determination of the rescission application , to avoid
unnecessary urgency and further costs.
[29] On 12 February 2026, Mr. Vermooten replied advising inter alia that as
the applicants have ‘no reasonable prospect of success and given the extreme
prejudice our client has already suffered in this matter, we decline to p rovide
you with the requested undertakings’.
[30] The applicants launched these urgent proceedings on 16 February 2026,
the day when the respondent’s demand expired.
Locus standi
[31] The respondent contended that notwithstanding the fact that the
application was brought by the State Attorney (Ms. Hoosain signed the notice of
motion and it was brought by the State Attorney on behalf of the applicants), the
party which in fact brought the application was BriefCo (Pty) Ltd (“ BriefCo”).
In this regard the applicants place reliance on an email from BriefCo attaching
the application, in which Mr. Davidson state that BriefCo has been assisting the
State Attorney in the taxation of the matter.
[32] Ms. Aspeling, submitted that this point in limine is without merit. The
SCA have endorsed the long -standing authority that he simply needs to have
first-hand knowledge of the facts deposed to in the affidavit and be able to
swear to the truthfulness thereof.6
6 See Masako v Masako and Another 2022 (3) SA 403 (SCA) at paragraphs 10 and 11; applied in this division
in Sabi River Share Block (Pty) Ltd t/a Sabi River Sun Resort v Gold Data Holdings (Pty) Ltd (22755/23) [2025]
ZAWCHC 298 (21 July 2025) at paragraphs 92-96.
[33] In casu Mr. Davidson deposed to the founding affidavit as a witness to
the facts arising from his personal attendance at the taxation on 21 October
2025 and his direct involvement in the events of 6 February 2026.
[34] Ms. Hossain of the State Attorney’s offices have been actively involved
in these proceedings. She deposed to a confirmatory affidavit on 16 February
2026, the date on which the application was launched, in which she confirmed
that she was duly authorised to institute and conduct these proceedings on
behalf of the first to third applicants in her capacity as Assistant State Attorney.
She further confirmed the conten ts of the founding affidavit insofar as they
related to matters within her personal knowledge and to matters derived from
the official records of the State Attorney’s Office.
[35] Ms. Hoosain also deposed to the affidavit filed in opposition to the
application for leave to admit the affidavit of the Taxing Master, Mr. Malindi
and confirmed in an email dated 18 February 2026 that ‘BriefCo and its law
firm, Paulse Davidson and Associates, have the instructions and mandate of the
OSA Cape Town, to continue with the urgent application being brought
tomorrow.’
[36] It cannot be disputed that Mr. Davidson, who the respondent conceded is
a practising attorney and a legal pra ctitioner, duly registered with the Legal
Practice Council, was instructed to oppose the taxation of the b ills of costs of
the respondent. The respondent does not appear to challenge his authority to act
as the first to third applicants’ cost consultant or attorney in respect of attending
and opposing the taxations.
[37] Nevertheless, Mr. Davidson is not the attorney who has instituted or
prosecuted these proceedings. It follows that he r equires no authority on this
score either.
[38] It is clear that it was the State Attorney, and not BriefCo, who instituted
these proceedings. If the respondent wished to challenge the authority of the
attorney instituting the proceedings, it ought to in any e vent have availed itself
of Rule 7, which it did not do.7
[39] In the circumstances in my view there is no merit to the legal standing or
authority points raised in limine.
Urgency
[40] Uniform Rule 6(12)(b) enjoins an applicant who seeks relief on an urgent
basis to set forth ‘explicitly the circumstances which is averred render the
matter urgent and the reasons why the applicant claims that applicant could not
be afforded substantial redress at a hearing in due course.’8
[41] These circumstances must also justify the extent of the deviation from the
forms, manners of service and timelines as provided for in the Uniform Rules of
Court.
[42] The Urgent Application was served on Monday , 16 February 2026 at
16h24 via email only, with a deadline for the filing of an answering affidavit by
7 PM v MM and Another 2022 (3) SA 403 at paras 10 to 13 and the authorities there cited.
8 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers)
1977 (4) SA 135 (W) at 137E – G.
18 February 2026 and a hearing date of 19 February 2026 – approximately 48
hours later.
[43] In support of the respondent’s case for urgency, Mr Davidson states that
‘in law, an endorsed allocatur is immediately executable w ithout further
judicial intervention.’
[44] Ms. Van Wyk, who appeared on behalf of the respondent, argued that; this
is patently misleading and unsubstantiated in fact and law , as section 3 of the
State Liability Act, 20 of 1957 ( “the SLA”), prohibits the issuing of a writ of
execution in respect of a final order for monetary relief against the State before
the expiry of at least 30 days of the date of the order becoming final and
executable.
[45] It is so that an allocatur is proof of the amo unt of a party’s liability for
costs (as opposed to proof of liability), and that it fixes the costs so that
execution can be levied on the court order in terms of which the costs were
granted.9 As such, along with the underlying Court Order granted in th e Review
Application, the allocaturs became equivalent to a final court order sounding in
money, as contemplated by section 3 of the SLA.
[46] The respondents had not taken any steps to execute on the allocaturs at
the time the application was brought. The earliest the writ could be issued is
mid-March 2026.
9 See the recent judgment of Miller AJ in this division in Shawzin v Tollman NO and Another 2026 JDR 0177
(WCC) at par 63 (Shawzin).
[47] To the best of my recollection, t his was not raised at the hearing and was
raise for the first time in the respondent’s post-hearing written submissions.
[48] It appeared from the correspondence addressed by the respondent’s
attorney the day after the taxation that it intended to ‘immediately’ execute the
costs order per the allocatur, notwithstanding the provisions on the SLA and the
fact that as at the date proceedings were instituted it had not (nor could have)
proceeded with a writ.
[49] Moreover, neither the applicants’ nor the respondent’s attorneys raised
the provisions of the SLA in correspondence before the proceedings were
launched. They both appear to have been acting under the misapprehension that
execution could proceed without further ado.
[50] I accept that during the period from 6 to 12 February 2026 , in seeking to
obtain an undertaking that the respondent would not execute pending the
applicants bringing an application for rescission, the applicants acted reasonably
and took steps to avoid this application having to be brought, with the attendant
costs and further delays.
[51] The applicants however have failed to explain why, when th e respondent
refused to provide such undertaking, they did not launch this application but
waited four days, and then only afforded the respondent forty-eight hours to
reply.
[52] The matter has been dealt with on the merits as the urgency was not
opposed on this basis at the hearing and both parties have subsequently incurred
significant costs in filing detailed (and most helpful) written submissions. I t is
accordingly in the interests of justice that the matter is not struck from the roll
for want of urgency. The issues regarding urgency will however be factor which
I consider in determining an appropriate costs order.
Test for stay of execution
[53] In terms of Rule 45A a court, ‘may’, on application, suspend the
operation and execution of any order for such period as it may deem fit. The
Rule affords a
court a wide discretion, to be exercised judicially.10
[54] The Court is called to consider what real and substantial justice requires
in the circumstances, and in appropriate circumstances may be guided by factors
usually applicable to interim interdicts.11
[55] As elucidated by Lekhuleni J in R.A v F .A12, in considering an application
for a stay, the guiding principle is the interest of justice. The court will generally
grant a stay of execution where real and substantial justice requires such a stay
or where real injustice would otherwise be done or caused. 13 An applicant must
establish that he has a prima facie right that h e wants to protect in the main
action.
10 R.A v F .A [2024] ZAWCHC 35 para 19; and authorities discussed there.
11 Van Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others NNO v Van Rensburg NO
and Others 2011 (4) SA 149 (SCA); Stoffberg N.O and Another v Capital Harvest (Pty) Ltd (2130/2021) [2021]
ZAWCHC 37 para 26
12 R.A v F .A supra at para 20.
13 See also Strime v Strime 1983 (4) SA 850 (C) at 852A.
[56] The court in Gois t/a Shakespeare’ s Pub v Van Zyl 14 summarised t he
general principles for the granting of a stay in execution as follows:
‘(a) A court will grant a stay of execution where real and substantial
justice requires it or where injustice would otherwise result.
(b) The court will be guided by considering the factors usually applicable
to interim interdicts, except where the applicant is not asserting a right,
but attempting to avert injustice.
(c) The court must be satisfied that:
(i) the applicant has a well -grounded apprehension that the execution is
taking place at the instance of the respondent(s); and
(ii) irreparable harm will result if execution is not stayed and the
applicant ultimately succeeds in establishing a clear right.
(d) Irreparable harm will invariably result if there is a possibility that the
underlying causa may ultimately be removed, i.e. where the underlying
causa is the subject matter of an ongoing dispute between the parties.
(e) The court is not concerned with the merits of the underlying dispute
— the sole enquiry is simply whether the causa is in dispute.’
[57] The mere fact that the taxation is under review (or that an order will be
sought for the recission thereof) does not suffice.15
Bona fides and explanation of default
14 2011 (1) SA 148 (LC) at 155H – 156B.
15 Shawzin at para 76.
[58] Mr. Davidson has given a detailed explanation for his failure to appear at
the second taxation proceedings.
[59] Annexed to his founding affidavit is a note which he took at the first
taxation proceedings16. In this note he records, inter alia, that: ‘Bernard was to
argue about Rule 53 record today. Not enough time . Matter part heard. I’m
not here in December. They want to hear it in Feb 2026, but I may not be here
because of training. We will all confirm date next year.’
[60] Mr. Davidson emphasised that at no stage after 21 October 2025 did the
respondent seek to challenge, vary or revisit this ‘ruling’.
[61] There is clear factual dispute in this regard. Mr. Vermooten’s response is
that the date of 6 February 2026 was ‘expressly agreed to between Mr. Kramer
and Mr. Davidson in the presence of the Taxing Master.’
[62] The respondent sought to leave to deliver a further affidavit by Mr.
Malindi in this regard , which confirms the respondent ’s version . The
application was opposed by the applicants.
[63] I have considered the application and in my view the affidavit is germane
to the issues to be decided by this court and ought to be admitted. 17
[64] I am mindful of the fa ct that the Taxing Master’s evidence confirms that
led on behalf of the respondent regarding th e agreement to postpone the
16 There is no written transcript of the proceedings.
17 De Kock v Du Plessis (284/2-23) [2024] ZASCA 117 (27 July 2024) at para 24.
taxation to 6 February 2026, however this alone is not decisive of whether
good cause has been shown.
[65] I cannot simply ignore the contents of Mr. Davidson’s note, nor the fact
that he was not available on 6 February 2026 and is accordingly unlikely to
have agreed to a postponement to that date (he sent Mr. Hemraj in his stead).
[66] What the parties do agree on is that Mr. Davidson was by all accounts
unaware that the taxation was to proceed on such date.
[67] Mr Davidson’s conduct when he was contacted by Mr. Kramer and asked
where he was supports his version in this regard. He tried to speak to the
Taxing Master and sent a colleague to attend on his behalf. Mr. Kramer and
Mr. Malindi were both aware that he intended to oppose the taxation and he
had already filed detailed objections thereto.
[68] I accept that it was not the responsibility of Mr. Kramer nor Mr. Malindi
to remined Mr. Davidson of the remanded date, although as a matter of
collegiality it perhaps was preferable for them to do so . However, by
proceeding in his absence they deprived him of his right to be heard, to the
significant prejudice of the applicants, who are state functionaries and who
rely solely on public funds.
[69] The taxation could have been postponed and the applicants held liable for
the wasted costs occasion ed thereby, if it was not possible for the taxation to
stand down until Ms Hemraj arrived at court.
[70] Notably, neither Mr. Kramer nor Mr. Malindi provided an adequate
explanation as to why the matter could not stand down further, particularly in
circumstances where, according to Mr. Malindi’s evidence, two hours were
reserved for the taxation, i.e. from 10h00 until 12h00.
[71] It is clear from all the facts before me that at all times Mr. D avidson held
instructions to oppose the taxation in respect of the remaining items on both
bills. The amounts claimed are not insignificant and the grounds for opposition
have been set out and prima facie appear to have some prospect of success.
The applicants have a right to have their objections heard.
[72] Even if Mr. Davidson was mistaken and was not entitled to be further
notified of the postponed date, his mistake should not, in the circumstances of
this case, deprive the applicants of such right to their prejudice. To my mind
this would be manifestly unjust.
[73] In all the circumstances I am satisfied that the applicants have shown
good cause, provided a reasonable explanation for the default and shown that
the application is brought on bona fide grounds and that they have a bona fide
defence which prima facie holds prospects of success.
[74] I am further satisfied that applicants have met the further requirements for
an interim inter dict. If t he stay is not granted, the applicants face the risk of
having their assets attached or having to disburse R1 306 482.88 in public
funds.
[75] If the allocatur is enforced and the rescission application is successful, the
respondent would have received approximately R1 million more than it was
entitled to, and the applicants would have to the n recover these funds from a
private litigant – the prospects of recovery being uncertain, time consuming
and costly.18
[76] The only alternative remedy available to the applicants, an undertaking
was refused.
[77] Lastly, I am satisfied that the temporary delay in the payment of the
respondent’s costs in terms of the bills of costs is outweighed by the potential
prejudice to the applicants if their public funds are paid out prematurely and
subsequently found not to be due and cannot be recovered.
[78] Having said all of that, Mr. Davidson’s failure to, at the very least, make
the necessary enquiries regarding the new date if indeed he was mistaken
regarding the fact that no agreement had been reached is one of the central
factors in the unfortunate series of event s which ultimately culminated in this
application.
[79] In my view it was not acceptable for him to merely rest on his laurels for
four months in the hope that Mr. Kramer or the Taxing Master would propose
or arrange a new date and correspond with him in this regard.
[80] On a conspectus of the evidence, it appears that he was not sufficiently
diligent in establishing whether the matter was to proceed on 6 February 2026
18 See also Independent Development Trust v Bakone Pride (Pty) Ltd and Another (6740/2024) [2024]
ZALMPPHC 140 at paragraph 9.
or, if not, on which date the taxation would resume. This in turn appears to
have fortified the respondent in their decision not to provide the requested
undertaking.
Costs
[81] This leads me to the issue of costs. The ordinary rule is that costs should
follow the result. In my view there is a basis for a departure from the ordinary
rule in this case.
[82] The supine stance adopted by Mr. Davidson has been a significant
contributing factor resulting in the incurrence of significant costs in respect of
this application but will also result in a delay of possibly months for the
rescission application to be heard. The respondent’s opposition was not, in the
peculiar circumstances of this case, unreasonable or unjustified.
[83] The respondent sought costs de bonis propriis against BriefCo, Mr.
Davidson, Paulse, Davidson & Associates and / or the State Attorney ‘ to
ensure that public funds are not indirectly burdened through unauthorised
actions, and to signal the Court’s intolerance for practitioners who flout
statutory requirements and ethical standards.’
[84] I am not persuaded that the conduct of the applicants’ legal practitioners
is so egregious that a personal costs order is warranted , or indeed that on a
conspectus of the evidence, the applicants should be liable for the respondent’s
costs.
[85] In the circumstances of this mat ter, where it was apparent to the
respondent’s attorney that Mr. Davidson was not aware of the taxation date
and at all times held instructions to object to the disputed items and to persist
in its opposition to the taxation, it was unreasonable for the respondent to
refuse to provide the necessary undertaking pen ding the application for
rescission, however frustrated it may have been by any delays this may cause .
It proceeded by default and the risk of an application for rescission would have
been apparent as soon as it elected to proceed on this basis.
[86] I do however agree with the respondent that the matter should not have
been brought as a matter of utmost urgency, on such severely truncated
timelines, in circumstances where the respondent could not have proceeded to
issue a writ until a month later as stipulated the section 3 of the SLA.
[87] As both parties have had a part to play in this application being brought in
the manner it which it was, and the incurrence of the costs in relation thereto,
in my view a just order is for each party to pay their own costs in respect of
Part A.
Order
[88] In the circumstances, I make the following order:
(a) The applicants’ non-compliance with the forms and service prescribed
in the Uniform Rules of Court is condoned and this application is
heard as an urgent application in terms of Rule 6(12).
(b) Part B of this application is postponed to the semi-urgent roll on a date
to be determined by the Registrar.
(c) The parties shall file heads of argument for Part B in terms of the
relevant practice directions.
(d) Pending the final determination of Part B:
i. The enforcement of the allocatur granted on 6 February 2026 in
respect of the respondent’s instructing attorney’s bill of costs (the
first allocatur) is stayed.
ii. The enforcement of the allocatur granted on 8 February 2026 in
respect of the respondent’s correspondent attorneys bill of costs
(the second allocatur) is stayed.
iii. The respondent is interdicted and restrained from issuing any writ
of execution pursuant to the first and second allocaturs.
(e) The first, second and third applicants and the respondent are to bear
their own costs in relation to Part A of this application.
________________________
M HOLDERNESS
Judge of the High Court
APPEARANCES
Counsel for the first, second
and third applicants: J Aspeling
Instructed by: State Attorney
Counsel for the respondent: R van Wyk
Instructed by: Kaplan Blumberg Attorneys