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DU PLESSIS, AJ
INTRODUCTION
1.
1.1. This is an application brought in terms of section 22 of the Superior
Courts Act 10 of 2013, read with section 6(2)(a)(iii) of the Promotion
of Administrative Justice Act 3 of 2000 ("PAJA"), to review and set
aside the costs order granted by the First Respondent, sitting as the
Regional Magistrate for the Regional Division of Gauteng, held at
Pretoria North, on 7 November 2025 in case number
GP/PTANORTH/RC/910/2025.
1.2. The Applicants pertinently do not seek to review the substantive
outcome of the proceedings in the court a quo, namely the discharge
of the rule nisi on the basis that the Regional Court lacked
jurisdiction in terms of section 46(2)(c) of the Magistrates' Courts Act
32 of 1944. They accept that finding. What they place before this
Court is a narrow but pointed complaint: that the costs order made
against them, jointly and severally, is the product of bias and gross
irregularity, and that the First Respondent erred in refusing to
entertain their post-judgment submissions on costs.
1.3. The First Respondent has filed a Notice to Abide. The Second and
Third Respondents oppose the application and seek its dismissal
with costs.
1.4. For the reasons that follow, the application succeeds in part.
FACTUAL BACKGROUND AND THE PROCEEDINGS A QUO
2.
2.1. The background, insofar as it is necessary for the disposal of the
issues now before me, is largely common cause.
2.2. On 4 August 2025 the Second Applicant concluded an agreement
of sale in respect of a subdivided portion of the immovable property
known as Erf 703 Lady Selborne Extension 1, Suiderberg, Gauteng.
The Third Respondent had been mandated to attend to the
subdivision of that property. A dispute arose between the Applicants
and the Third Respondent concerning the timing of the final payment
of professional fees. The Third Respondent refused to lodge the
subdivision application with the City of Tshwane until full payment
subdivision application with the City of Tshwane until full payment
had been made; the Applicants contended that, on a proper
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construction of the parties' arrangement, the balance was payable
only upon successful completion of the subdivision and from the
proceeds of the sale.
2.3. On 13 October 2025, on an ex parte and urgent basis, the Applicants
obtained from the First Respondent a rule nisi in terms of which,
inter alia, the Third Respondent was directed to submit the
subdivision application to the City of Tshwane immediately, and
which order operated with immediate effect pending the return day
of 28 November 2025.
2.4. The Third Respondent anticipated the return day. The anticipated
proceedings served before the First Respondent on 31 October
2025. Judgment was reserved and delivered electronically on 7
November 2025.
2.5. In her judgment, the First Respondent dealt seriatim with the points
in limine raised on either side. She dismissed the Applicants' sole
point in limine (directed at the propriety of the Third Respondent's
anticipation of the rule) with costs. She thereafter dismissed each of
the four points in limine raised by the Third Respondent, doing so
without making any costs order in respect of any of them.
2.6. Having so dealt with the points in limine, the First Respondent mero
motu raised the question of the Regional Court's jurisdiction. She
concluded that, because what the Applicants in truth sought was
specific performance unaccompanied by an alternative claim for
damages, the Court was deprived of jurisdiction by section 46(2)(c)
of the Magistrates' Courts Act. On that basis she discharged the rule
nisi and ordered the Applicants, jointly and severally, to pay the
costs of the application.
2.7. By e-mail dated 10 November 2025, the Second Applicant
addressed written submissions to the First Respondent concerning
the costs order, asking her to reconsider it. The Third Respondent's
attorneys, by letter dated 12 November 2025, responded objecting
to the Applicants' communication on the basis that the First
Respondent had become functus officio. The First Respondent did
Respondent had become functus officio. The First Respondent did
not entertain the Applicants' submissions; the present application
followed.
THE RELIEF SOUGHT
3.
The Applicants seek an order reviewing and setting aside the costs order of 7
November 2025 and substituting it with an order that each party bears its own
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costs. They seek further that the Second and Third Respondents pay the costs
of this application.
THE POINTS IN LIMINE RAISED BY THE SECOND AND THIRD
RESPONDENTS
4.
Misjoinder and non-joinder
4.1. The Second and Third Respondents contend that the application is
fatally defective by reason of (a) the non-joinder of Labuschagne
Attorneys, Real Estate Services and Mr Tebogo Solomon Motsiri,
who were respondents in the court a quo, and (b) the misjoinder of
the Second Respondent, Ms Ferreira, in her personal capacity, in
circumstances where the litigation a quo was conducted against the
Third Respondent as a juristic person.
4.2. The settled test for joinder is whether the party concerned has a
direct and substantial interest in the subject-matter of the litigation,
in the sense of a legal interest in the right which is the subject of the
litigation, which may be prejudicially affected by the judgment of the
court (Amalgamated Engineering Union v Minister of Labour 1949
(3) SA 637 (A) at 657-9).
4.3. The subject-matter of the present review is, on a proper reading of
the founding papers, confined to the costs order made in favour of
the Third Respondent and against the Applicants. The other
respondents in the court a quo did not appear before the First
Respondent on the anticipated return day, took no part in the
argument, and were not the beneficiaries of any costs order.
Whatever interest they may have had in the underlying contractual
dispute, they have no direct and substantial interest in the question
whether the costs order in favour of the Third Respondent should be
reviewed and set aside. Their non-joinder is therefore not fatal.
4.4. As for the citation of Ms Ferreira: she is the sole director and
deponent on behalf of the Third Respondent. She is cited in this
Court in that representative capacity. Whilst the better practice
would have been to cite the Third Respondent alone, and to identify
Ms Ferreira simply as the deponent, the inclusion of her name in the
Ms Ferreira simply as the deponent, the inclusion of her name in the
heading does not, on the papers as they stand, expose her to
personal liability and does not vitiate the proceedings. Any prejudice
she may apprehend can be addressed by an appropriate ancillary
order.
4.5. The point in limine of misjoinder and non-joinder is accordingly
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dismissed.
Appeal disguised as review
4.6. The Second and Third Respondents contend, with reference to
Snyders and Others v De Jager 2016 (5) SA 218 (SCA) and the line
of authority deriving from Johannesburg Consolidated Investment
Co v Johannesburg Town Council 1903 TS 111, that the application
is in truth an appeal on the question of costs, masquerading as a
review.
4.7. The distinction between appeal and review is well known. An appeal
is directed at the correctness of the decision; a review is directed at
the manner in which the decision was arrived at, including the
question whether the decision-maker was actuated by bias or
committed a gross irregularity. Costs orders, being discretionary, will
not lightly be interfered with on either appeal or review, and a court
of review will not substitute its own discretion for that of the
magistrate merely because it might have decided the matter
differently.
4.8. Section 22(1) of the Superior Courts Act, however, expressly
provides that the proceedings of any Magistrates' Court may be
brought under review on the grounds, amongst others, of bias on
the part of the presiding officer (s 22(1)(a)), and gross irregularity in
the proceedings (s 22(1)(c)). Where, as here, an applicant alleges
that the costs order is itself the product of bias or gross irregularity,
the complaint sounds in review and not in appeal. The fact that the
relief sought is the setting aside of a costs order does not, without
more, convert the proceeding into an appeal.
4.9. Whether the Applicants have made out the grounds of review they
assert is a different question, to which I turn presently. The point in
limine that the application is an appeal disguised as a review is,
however, not well founded and falls to be dismissed.
Failure to file the Rule 53 record
4.10. In their heads of argument the Second and Third Respondents place
reliance on the absence of a Rule 53 record, citing Democratic
Alliance v Acting National Director of Public Prosecutions 2012 (3)
Alliance v Acting National Director of Public Prosecutions 2012 (3)
SA 486 (SCA). The complaint was not pertinently raised as a
discrete point in limine in the answering affidavit and was advanced
only in argument. In any event, the entirety of what occurred before
the First Respondent is reflected in the reasoned written judgment
of 7 November 2025, which forms an annexure to the founding
affidavit, together with the correspondence subsequent to that
judgment. The First Respondent has elected to abide and has not
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been called upon to supplement the record. The Applicants' grounds
of review are confined to what appears ex facie the judgment and
the post-judgment correspondence. In those narrow circumstances,
the absence of a formal Rule 53 record is not fatal.
THE MERITS OF THE REVIEW
5.
The first ground: differential treatment in respect of costs on the points in limine
5.1. The Applicants' principal complaint is this: their single point in limine
was dismissed with costs, whereas each of the Third Respondent's
four points in limine was dismissed without any costs order. They
contend that, no rational basis having been provided for the
differential treatment, the only inference reasonably available is that
the First Respondent was biased against them, alternatively that she
failed to exercise her discretion judicially.
5.2. The award of costs is pre-eminently a matter for the discretion of the
presiding officer, to be exercised judicially upon a consideration of
all the relevant facts and circumstances. The settled grounds upon
which a court of review will interfere with a discretionary costs order
are those identified in Naylor v Jansen 2007 (1) SA 16 (SCA) para
10: a failure to exercise the discretion judicially, the application of a
wrong principle, the taking into account of an irrelevant
consideration, or the failure to take into account a relevant one.
5.3. The test for a reasonable apprehension of bias, as set out in
President of the Republic of South Africa v South African Rugby
Football Union 1999 (4) SA 147 (CC) paras 38-48, requires objective
facts which would give rise, in the mind of a reasonable, objective
and informed person, to a reasonable apprehension that the
presiding officer would not bring an impartial mind to bear on the
adjudication of the case. The threshold is a high one. Mere
displeasure with an outcome, or with adverse findings, does not
suffice.
5.4. I have read and re-read the judgment of the First Respondent. In
suffice.
5.4. I have read and re-read the judgment of the First Respondent. In
paragraph [12] of that judgment, dealing with the Applicants' point in
limine, the First Respondent expressly explained her decision on
costs in the following terms: punitive costs were not warranted, but
"the relevant parties' arguments hinged around the interpretation of
the Rules ". The clear inference is that she considered the point
misconceived to a degree warranting an adverse costs order, albeit
not a punitive one. She thus furnished a reason, even if a brief one.
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5.5. When one turns to her treatment of the Third Respondent's four
points in limine, no equivalent reasoning is to be found. Each point
was dismissed on its merits, but no consideration is recorded of why
those dismissals should not also attract a costs order. The judgment
is silent. The judgment does not, for example, suggest that the Third
Respondent's points in limine were better grounded than the
Applicants' point, or that there was some other feature distinguishing
the two sets of points for purposes of costs.
5.6. Differential treatment, without more, does not establish bias. It is
open to a presiding officer to award costs against a party who has
unsuccessfully taken a procedural point, and to refrain from doing
so in respect of another party whose own unsuccessful points were
nevertheless thought to be reasonably advanced. What the law
requires, however, is that the discretion be exercised judicially, and
that, where reasons are called for, they be furnished. That is
particularly so where the differential treatment is on its face stark:
one party penalised in costs for a single dismissed point, the other
party not so penalised for four dismissed points.
5.7. Counsel for the Second and Third Respondents met this complaint
head-on in argument. He submitted that, the rule nisi having been
discharged with costs against the Applicants, it is of no moment that
the First Respondent dismissed the Third Respondent’s four points
in limine without dealing separately with the costs of each: the
Applicants were in any event liable for the costs of the application
as the unsuccessful party, and the practical effect is therefore the
same. There is a measure of force in the submission, but it does not,
in my view, answer the Applicants’ true complaint. The Applicants’
grievance is not that the Third Respondent ought to have been
ordered to pay the costs of its own dismissed points. It is that the
First Respondent singled out their single dismissed point for a
First Respondent singled out their single dismissed point for a
discrete adverse costs order – an order additional to, and
independent of, the costs that followed the result – while passing
over four materially indistinguishable dismissed points of the Third
Respondent in silence. The vice complained of lies not in the
ultimate incidence of the costs of the application, but in the unequal
manner in which the discretion was exercised on the points in limine.
That a litigant is liable for the costs of an application it has lost does
not relieve the presiding officer of the obligation to exercise, judicially
and even-handedly, any separate discretion she elects to exercise
as to the costs of interlocutory points along the way. The submission
accordingly goes to the consequences of the irregularity rather than
to its existence, and, for the reasons set out below, it is the
cumulative effect of that irregularity together with the further
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considerations canvassed hereunder that proves decisive.
5.8. Whether what is here demonstrated is bias, in the strict sense, or
rather a failure to apply the mind to the question of costs on the Third
Respondent's points in limine, is in my view less important than the
underlying conclusion. The judgment, read as a whole, does not
disclose the exercise of a judicial discretion in respect of the costs
treatment of the Third Respondent's points in limine. The First
Respondent has, by her election to abide, declined the opportunity
to explain. Section 5(3) of PAJA permits this Court, where reasons
are not forthcoming, to draw the inference that the decision was
taken without good reason.
5.9. I am satisfied that the Applicants have, on this limited ground, made
out a case for review. The discretion was not, in respect of the costs
treatment of the Third Respondent's points in limine, judicially
exercised. To that extent the proceedings are tainted by gross
irregularity in the sense contemplated by section 22(1)(c) of the
Superior Courts Act.
The second ground: the functus officio question and the post-judgment
correspondence
5.10. The Applicants' second ground of review is that the First
Respondent, having delivered her judgment on 7 November 2025,
declined to entertain their written submissions of 10 November 2025
on the costs order, yet received and (so the Applicants contend)
acted upon the contrary submissions made by the Third
Respondent's attorneys on 12 November 2025. The Applicants say
that this constitutes a gross irregularity, the more so because their
submissions were said to fall within a recognised exception to the
functus officio rule.
5.11. It is trite that a judicial officer is, save in narrowly defined
circumstances, functus officio upon the handing down of a final
order. The exceptions identified in Firestone South Africa (Pty) Ltd
v Genticuro AG 1977 (4) SA 298 (A) at 306F-307A are well known:
v Genticuro AG 1977 (4) SA 298 (A) at 306F-307A are well known:
the correction of clerical or arithmetical errors, the clarification of
patent ambiguities, and the supplementation of accessory or
consequential matters inadvertently omitted. To these may be
added the limited power to vary an order as to costs in the
circumstances contemplated by the rules and recognised in the
case law (see also West Rand Estates Ltd v New Zealand Insurance
Co Ltd 1926 AD 173 at 184).
5.12. The Applicants' written submissions of 10 November 2025 did not,
on any reasonable reading, fall within any of those exceptions. They
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constituted, in substance, an attempt to persuade the First
Respondent to reconsider the merits of her costs order and to
substitute a different one. The proper remedy for such a complaint
lies in appeal or review, not in informal correspondence.
5.13. To that extent, the First Respondent was entitled, indeed obliged, to
decline to entertain those submissions. Her conduct in that regard
was not irregular.
5.14. The Applicants' related complaint, however, that she nevertheless
received and was influenced by the Third Respondent's attorneys'
letter of 12 November 2025, requires separate consideration. There
is nothing in the record before me to suggest that the First
Respondent acted upon that letter, or that it had any bearing upon
her judgment, which had already been delivered. The letter was, on
its face, defensive and reactive: it was directed at the Applicants'
correspondence and asked the court to note its contents and to
decline to entertain post-judgment submissions. No further order
was made by the First Respondent. The functus officio principle
was, on the record, observed.
5.15. I am accordingly not persuaded that the handling of the post-
judgment correspondence, taken in isolation, constitutes a
reviewable irregularity.
The third ground: the "successful party" complaint and the court correcting itself
5.16. The Applicants further submit, with some force, that the Third
Respondent cannot fairly be described as the "successful party" in
the proceedings before the First Respondent. Each of the Third
Respondent's points in limine was dismissed. The discharge of the
rule nisi was occasioned not by any argument advanced on the Third
Respondent's behalf, but by the First Respondent's own ex officio
identification of the jurisdictional defect. In substance, so the
Applicants contend, the court was correcting its own earlier decision
to issue the rule, and the Applicants should not be visited with the
costs of that course.
to issue the rule, and the Applicants should not be visited with the
costs of that course.
5.17. There is real substance in this complaint. The general rule that costs
follow the result is not inflexible; it must always yield to the dictates
of fairness in the particular case. Where the dispositive issue is one
taken by the court itself, and where neither of the contending parties
has materially assisted the court in arriving at the conclusion that
disposed of the matter, the ordinary rule may be displaced. The
same applies where the court is, in effect, correcting an earlier
decision of its own.
5.18. I do not, however, find it necessary to decide whether this
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consideration alone would have warranted interference. It suffices
for present purposes to observe that, taken together with the
irregularity already identified in relation to the costs treatment of the
points in limine, the cumulative effect is such that the costs order as
a whole cannot be allowed to stand.
APPROPRIATE REMEDY
6.
6.1. Having concluded that the costs order is reviewable, the question
arises whether to remit the matter to the First Respondent for
reconsideration, or to substitute this Court's own order. The First
Respondent has elected to abide; she has had the opportunity to
furnish reasons and has chosen not to do so. The matter has been
fully ventilated before me on the papers. Remittal would serve no
useful purpose and would only occasion further delay and expense.
I shall, in the exercise of the discretion conferred by section
8(1)(c)(ii) of PAJA, substitute the order.
6.2. Considering all the circumstances - the dismissal of all four of t he
Third Respondent's points in limine, the limited assistance afforded
to the court a quo by the parties on the dispositive question of
jurisdiction, the fact that the court was in substance correcting its
own earlier order, and the absence of any reasoned exercise of
discretion as to costs on the Third Respondent's points in limine - I
am satisfied that the appropriate order is one in which each party
bears its own costs of the proceedings in the court a quo.
COSTS OF THIS APPLICATION
7.
The Applicants have substantially succeeded. The Second and Third
Respondents opposed the application throughout, and in doing so advanced a
number of points in limine which I have rejected. There is, however, no basis
for any punitive costs order. The Applicants seek costs against the Second and
Third Respondents. In my view the proper order is that the Third Respondent,
being the substantive opposing party and the beneficiary of the costs order set
being the substantive opposing party and the beneficiary of the costs order set
aside, should bear the costs of this application, on the ordinary scale. No costs
order is appropriate against the Second Respondent in her personal capacity,
who was, as I have indicated, improperly so cited.
ORDER
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For the 1st Respondent:
No appearance (Notice to Abide filed)
Date heard: 25 May 2026
Date of judgment: ______ 2026