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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
FIRST RAND BANK LIMITED t/a FIRST NATIONAL
BANK
and
PHILIPPUS JOHANNES JACOBUS CRONJE
ADOLF JOHANNES DU BRUYN NO
PHILIPPUS JOHANNES JACOBUS CRONJE NO
CECILE CRONJE NO
ANDRIES GUSTAV LE GRANGE NO
(In their capacity as trustees of the PC Trust IT780/2011
DIE CRONJE SEUNS BOERDERY CC
HENDRIK BERNARDUS CRONJE NO
HESTER CRONJE NO
(In their capacity as trustees of the Hendrik Cronje
Family Trust IT2254/2001)
Not reportable
Case no: A57/2025
APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
Neutral citation: First Rand Bank Ltd tla First National Bank v Cronje and Others
(A57/2025) [2026] ZAFSHC 303 (26 May 2026)
Coram:
Heard:
Delivered:
MHLAMBI ADJP et DAFFUE et GREYLING-COETZER JJ
23 January 2026
This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 11 h00 on 26 May 2026.
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Summary: Appeal of cost order - court may not venture beyond what has been
pleaded - appeal upheld .
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ORDER
1 The appeal succeeds.
2 The order of the court a quo is set aside and substituted with the following order:
'The respondents , jointly and severally, the one paying the other to be absolved, are
ordered to pay the plaintiff's costs arising from the postponement up to and including 21
November 2024, including the costs consequent upon the employment of two counsel on
Scale C.'
3 The respondents, jointly and severally, the one paying the other to be absolved,
are ordered to pay the costs of appeal (including the costs relevant to the application for
leave to appeal), which shall include the costs consequent upon the employment of two
counsel on scale C.
JUDGMENT
Mhlambi ADJP (Daffue and Greyling-Coetzer JJ concurring)
[1] In this appeal, the only issue for adjudication is whether the court a quo erred in
granting an order that the appellant pay the costs of the application for postponement on
an attorney-and-client scale. The costs order reads as follows:
'1. The trial proceedings are postponed to 13, 14, 16, 20, 21 and 23 May 2025.
2. The respondent in this application, who is the plaintiff, is ordered to pay the costs of the
application for postponement on the attorney and client scale.
3. The applicants in this application, who are the defendants, are ordered jointly and
severally, the one paying the other to be absolved, to pay the wasted costs occasioned by the
postponement of the trial on the attorney and client scale, including the costs consequent upon
the employment of two counsel.'
[2] The appeal is with leave of the court a quo . The record reveals that in the
application for leave to appeal , the appellant's counsel pointed out that the defendants ,
in their notice of motion for a postponement of the trial proceedings , never sought a
punitive order of costs against the plaintiff in the event of the plaintiff opposing the
application to postpone the trial. The defendants sought only an order for costs if the
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plaintiff opposed the application for a postponement. In addition, he referred to a
transcription of the submissions made at the hearing of the application to postpone, in
which the defendants' counsel conceded that it was reasonable for the plaintiff to have
opposed the application for postponement up to 21 November 2024.
[3] The record further reveals that the defendants' counsel submitted that (referring
to the plaintiff), '[T]hey are within their right to oppose it.' The plaintiff's counsel submitted
that, in the premises, there was no dispute between the parties that the application for
postponement was reasonable until a few days before commencement of the trial
proceedings, and there was furthermore no dispute that the defendants had not sought a
punitive costs order in the event of opposition.
[4] The appellant's counsel submitted in this Court that the court a quo ought to have
directed the respondents to pay the appellant's costs, including the costs occasioned by
the opposition to the postponement application. This submission was based on the
respondents' concession that the appellant's opposition was reasonable until 21
November 2024, as well as the fact that not a single jurisdictional requirement was met
to enable the court to exercise its discretion to grant the postponement.
[5] Relying on Cuninghame and Another v First Ready Development 249, 1 the
appellant's counsel contended that a court is e·ntitled to base its judgment and make
findings only in relation to matters that fairly flow from the record, the judgment, the heads
of argument, or the oral arguments of the respective parties, particularly when oral
argument is supplementary to the written argument submitted on behalf of a party.2 It is
for the parties, either in the pleadings or affidavits, to set out and define the nature of their
dispute, and for the Court to determine that dispute and that dispute alone.3
[6] In granting leave to appeal, the court a quo stated that a failure to exercise judicial
[6] In granting leave to appeal, the court a quo stated that a failure to exercise judicial
discretion would usually constitute an exceptional circumstance. Because a judicial officer
in civil proceedings must resolve the dispute on the issues raised between the parties,
the court a quo was of the view that it could reasonably be argued that the court had not
exercised judicial discretion when it based the punitive costs order on facts which were
not in dispute between the parties.
1Cuninghame and Another v First Ready Development 249 [2010] ZASCA 120; 2010 (5) SA 325 (SCA)
para 29.
2 Thompson v South African Broadcasting Corporation 2001 (3) SA 746 (SCA) para 7.
3 Fischer and Another v Ramahle/e and Others [2014) ZASCA 88; 2014 (4) SA 614 (SCA) paras 13 and
14.
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[7] In light of the above, the reasonableness of the appellant's opposition was not in
dispute, and the court a quo was required to determine the application within the bounds
of the issues defined by the parties. A court decides the case presented and does not
introduce or determine issues not traversed in the pleadings, affidavits or argument.
Where a matter is common cause, it does not constitute a live issue for adjudication.
(8] The court a quo found that the respondents failed to establish any of the
jurisdictional requirements for a postponement , including an adequate explanation for the
lateness of the application, the absence of prejudice to the opposing party, or prospects
of success in relation to the underlying cause. The respondents sought an indulgence,
and absent a proper evidential basis, the appellant was entitled to oppose the application.
The respondents' counsel's concession underscores this conclusion.
[9] In awarding punitive costs against the appellant in the postponement application,
the court a quo stated that the appellant had proposed that the hearing of the application
to compel further and better particulars be held a mere five days before the
commencement of the trial proceedings. In such circumstances, the court a quo held the
insistence that the trial proceed on 26 November 2024 was, no doubt, unreasonable and
illogical.
[1 0] In light of these considerations , the court a quo's finding that the appellant's
opposition was unreasonable and the resulting punitive costs order cannot be supported.
The court a quo erred by venturing into territory not placed in dispute and by imposing a
costs burden not sought by the respondents. The proper exercise of the court's discretion
ought to have resulted in an order directing the respondents, who sought the indulgence,
to bear the costs of the postponement application up to 21 November 2024.
Order
[11] In the result, I order as follows:
1 The appeal succeeds.
Order
[11] In the result, I order as follows:
1 The appeal succeeds.
2 The order of the Court a quo is set aside and substituted with the following order:
The respondents, jointly and severally, the one paying the other to be absolved, are
ordered to pay the plaintiffs costs arising from the postponement up to and including 21
November 2024, including the costs consequent upon the employment of two counsel on
Scale C.'
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3 The respondents, jointly and severally, the one paying the other to be absolved,
are ordered to pay the costs of appeal (including the costs relevant to the application for
leave to appeal), which shall include the cost consequent upon the employment of two
counsel on scale C.
I concur.
I concur.
- I
·- ·-l··· :.: -.. - T • .. .,,
J J MHLAMBI
JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT
DGR ~
JUDGE OFT HIGH COURT
Appearances
For the Appellant:
Instructed by:
For the Respondent:
Instructed by:
KW Luderitz SC & S Tsangarakis
Symington De Kok
CLH Harms
EG Cooper Majiedt Inc
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