( l)
(2)
(3) REVISED.
~'!:.lr/f:?·~---·
I
In the matter betwe~
EVRON MINING (PTY) LTD
and
FUTURE DYNAMIC INNOVATIONS (PTY) LTD
Case No: 2023-087030
Applicant
Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by e-mail. The date for the handing down of the
judgment shall be deemed to be 24 August 2026
JUDGMENT
M COETZEE, AJ:
12
Introduction
[1] This application concerns the question as to whether the applicant should
pay the respondent's costs on an attorney and client scale, following the
applicant's withdrawal of its Rule 30 application against the respondent.
[2] The applicant had already tendered to pay the costs of the respondent on
a party and party scale, following the withdrawal of the Rule 30 application.
This did not satisfy the respondent, who holds the view that costs ought to
be paid by the applicant on an attorney and client scale.
[3] The matter has been brought to the court by the respondent in terms of
Rule 41(1 )(c) of the Uniform Rules of court and is opposed by the applicant.
The applicant's argument
[4] The applicant argues that the respondent has, when considering the
principles applicable to the determination of costs, failed to demonstrate
exceptional circumstances to justify a punitive cost order.
[5] The applicant contends that, in bringing the Rule 30 application, it held the
bona fide view that Rule 22 of the Uniform Rules of court did not
accommodate circumstances where a special plea for jurisdiction and an
exception could have been entertained simultaneously. However, and after
having consulted counsel, the applicant withdrew the Rule 30 application
and costs were tendered thereafter, demonstrating a bona fide attempt not
13
to prolong unnecessary and vexatious litigation after having been better
informed.
(6) According to the applicant, adequate costs will be recovered if the
applicant pays all costs associated until the withdrawal of the Rule 30
application on a party and party scale, as tendered.
The respondent's argument
(7] The respondent argues that the applicant only withdrew the Rule 30
application after both parties had already filed their heads of argument.
[8] In the premises, the respondent contends that injustice will result if the
respondent is not awarded attorney and client costs in respect of the
applicant's withdrawn Rule 30 application, and furthermore that the
granting of such a punitive cost order will ensure that the respondent will
not unduly be left "out of pocket" as a result of the so-called abortive
proceedings.
The legal framework
[9] Rule 41(1 )(a) provides as follows:
"(a) a person instituting any proceedings may at any time before the
matter has been set down and thereafter by consent of the parties
or leave of the Court, withdraw such proceedings, in any of which
event he shall deliver a notice of withdrawal and may embody in
such notice a consent to pay costs and the taxing master shall tax
such costs on the request of the other party;
(b) ...
(c) if no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to Court on notice for an
order of costs."
14
[10) The general rule is that a party who withdraws proceedings is ordinarily
liable for the costs occasioned by the withdrawal1 and is, for purposes of
costs, regarded as the unsuccessful litigant2•
[11] As the Court explained in Ne/3, party and party costs that a successful
litigant may recover from the unsuccessful party are, almost invariably, not
enough to fully cover the expenses incurred by the successful party in the
litigation.
[12) However, the fact that a successful litigant may not recover every expense
incurred by him in litigation does not, without more, constitute exceptional
circumstances warranting punitive costs. The granting of such an order
would still depend upon the particular facts of each case and remains a
matter within the Court's discretion.4
1 Germishuys v Douglas Besproeingsraad 1973 (3) SA 299 (NC)
2 Master Blaster (Pty} Ltd v Sasol Dyno Nobel {Pty} Ltd (2020) ZAGPPHC 376 at par 15
3 Ne/ v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD 597
4 Trencon Construction ( Pty) Ltd v Industrial Development Corporation of South Africa 2015 (5) SA 245
(CC)
15
[13] Punitive cost orders are extraordinary and are reserved for exceptional
cases involving conduct deserving of the Court's disapproval, including
vexatious, dishonest or abusive litigation.
[14] In Lawyers for Human Rights v Minister in the Presidency5, the
Constitutional Court had to consider an adverse costs order against a party
litigating to secure constitutional rights. It held that "vexatious" litigation is-
"litigation that [is] 'frivolous, improper, instituted without sufficient ground,
to serve solely as an annoyance to the defendant'. And a frivolous
complaint? That is one with no serious purpose or value. Vexatious
litigation is initiated without probable cause by one who is not acting in good
faith and is doing so for the purpose of annoying or embarrassing an
opponent. Legal action that is not likely to lead to any procedural result is
vexatious."
[15] A "manifestly inappropriate" appli9ation was described as an application
that is "so unreasonable or out of line that it constitutes an abuse of process
of courf'.
[16] In this matter, the applicant admittedly misconceived the procedural
position when it launched the Rule 30 application.
[17] However, there is nothing before this Court to suggest that the application
was instituted ma/a fide, for an ulterior purpose or with the intention of
harassing the respondent.
[18] Once the applicant obtained further legal advice and appreciated the
difficulties confronting its application, it elected to withdraw the proceedings
5 2017 (1) SA 645 (CC)
16
instead of persisting with litigation that it no longer considered sustainable .
In my view, such conduct is not indicative of vexatiousness or an abuse of
process.
[19) The fact that the withdrawal occurred only after the parties had filed heads
of argument does not, without more, alter that conclusion. While the timing
undoubtedly increased the costs occasioned by the Rule 30 application,
those costs are included in costs tendered by the applicant.
[20] The respondent referred the Court to the matter of Hyperception v
Waterhouse6, where the following was stated:
"ft was submitted on behalf of the respondents that the appeal was
prosecuted in an extremely careless and inept manner and that this court
should in the totality of these circumstances show its disapproval by
ordering that costs be paid on an attorney and client scale ...
It is true that the appeal was prosecuted carelessly and that in fact the
explanation afforded on behalf of the applicant for the inordinate delay is
hardly an explanation at all. However, the circumstances are not such as
to warrant the costs order sought by the respondent'
[21) Considering the history of the matter, I am similarly unpersuaded that this
is one of those rare cases in which the Court should express its disapproval
of the applicant's actions through an attorney and client costs order.
[22] A party and party costs order is the appropria te order in the circumstances.
Although the applicant's conduct was mistaken , it has not been shown to
6 (2006) SCA 137 (RSA)
17
have been vexatious, abusive or otherwise deserving of the Court's
censure.
[23] In the circumstances, I grant an order in the following terms:
ORDER:
1. The applicant is ordered to pay the costs of the Rule 30 application until
the date of the withdrawal of such application on a party and party sca le.
2. The respondent is ordered to pay the costs incurred after the date on
which the applicant tendered the costs occasioned by the withdrawal,
including the costs of this application in terms of Rule 41(1)(c).
A ...,,.,,.._.-,. OF THE HIGH COURT OF
s
G ·G DIVISION
PRETORIA
Hearing date: 10 November 2025
Judgment date: 21 August 2026
Counsel for the Applicant: Adv BC Smith
Applicant's Attorneys: Coenraad Kukkuk Attorneys
Counsel for the Respondent: Adv BP Geach SC
Respondent's Attorney: Van Dyk Steenkamp Attorneys