IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
CASE NO: 78017/2017
( 1} REPORT ABLE: YES / NO
(2} OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED. ~
.. 6J .. 9.r.l.:-z.o ~ ~ . . .....
dA TE SI A TURE
In the matter of
JOHANNA JOCOBA MULLER APPLICANT
And
EKURHULENI METROPOLITAN MUNICIPALITY RESPONDANT
JUDGMENT
MAKAMUJ
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Introduction
This is an application for costs on a punitive scale after parties agreed that the matter
be removed from the roll on application by the Defendant pending their application for
rescission of the judgment granted on 18 October 2018.
[1] In the Constitutional court case of Shaynaz Prithilal and Akani Egoli (Pty)
Limited and Tsogo Sun Gaming Limited', Rogers J said the following:
"The judicial power to order costs requires the court to exercise a discretion ".
[2] The Respondent/ Plaintiff in the main case argued that they have no qualms
with the matter being removed from the roll and the Applicant/ Defendant tendering
costs, but the fact that they came with the request on an eleventh hour, they deserve
to be awarded costs on a punitive scale of Attorney and Client scale C.
[3] The Respondent/Plaintiff in the main case further argued that they were served
with the documents by the Applicant/Defendant only shortly before the court
commenced on the day of trial, and that the affidavit was not even signed by the
deponent.
[4] Had the Applicant served the Respondent timeously , they would not have
prepared themselves to come to court for trial, as they would not even have opposed
the removal of the case from the roll.
[5] The Applicant submitted that it is a well-known fact that the Ekurhuleni
Metropolitan Municipality is under scrutiny by the Madlanga Commission regarding its
administration, and that many senior officials are either suspended or arrested, so it
was not possible to obtain officials in authority to assist the current lawyers in drafting
and signing documents .
1 Prithilal v Akani Egoli (Pty) Ltd and Another [2025] ZACC 5, para 8.
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[6] The official who was finally appointed to act was only appointed on 4 of May
2026, and the fact that the documents were signed very late is a testimony to the
difficulties that the applicant is facing.
[7] Adv. Mudimeli for Ekurhuleni, the applicant/defendant, submitted that the City
of Ekurhuleni decided to review all litigation matters in which the settlement was
reached by their erstwhile attorney without consulting the Municipality, and that this
matter is one of those cases.
[8] He submitted further that the Ekurhuleni made few discoveries in their own
investigations that revealed that there was no actual incident or accident reported on
the date the Plaintiff/ Respondent alleged that it happened and the injuries alleged to
have been sustained some were even much older complaints of knee injury which in
any case was supposed to have been replaced few years before the alleged incident
on advice of the medical doctors who attended to the Plaintiff/Respondent as such
even though the agreement was reached in 2018 they need to rescind it and go for
trial.
[9] In South African civil Law, punitive costs are commonly awarded on an
attorney-and-client scale when a court seeks to express displeasure with a litigant's
conduct, rather than merely compensating the unsuccessful party for necessary
expenses. While the general rule is that costs are awarded on a "party and party"
scale, punitive costs are reserved for exceptional cases where a party has acted in an
unethical, frivolous, or abusive manner.
[1 O] This is not a case where the court feels that the applicant is a vexatious litigant
who seeks to waste time and abuse the system; however, the explanation offered is
persuasive enough, without the court having to pronounce on the actual outcome of
the litigation itself.
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Order
I hereby make the following order;
1. The matter is removed from the roll by consent of both parties.
2. The applicant tendered costs on party and party, scale Band it is so granted.
MSMAKAMU
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
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Appearance on behalf of the Applicant
Adv Jane Stroebel
Appearance on behalf of the Respondent
Adv Oscar Mudimeli