Mark Byron v Duke Incorporated

A settlement agreement between Mark Byron (the appellant), Derek Jackson and Absa Bank Ltd was made an order of court in August 1999. Byron was ordered to pay Jackson’s taxed costs within seven days of taxation. The bill of costs was taxed and settled at R48 612,44 on 11 August 2000. Jackson had ceded his rights to the proceeds of the bill of costs to his attorneys, Duke Incorporated (the respondent), in respect of outstanding legal fees. After Byron refused to pay, disputing the cession, Duke Incorporated caused a writ of execution to be issued in Jackson’s name and the sheriff attached Byron’s movable property. Byron unsuccessfully applied in the High Court to set aside the writ and attachment. He sought to appeal that decision but failed to comply with several procedural rules of the Supreme Court of Appeal, necessitating an application for condonation.

The application for condonation was refused. The appellant was ordered to pay the respondent’s costs, including the costs of appeal. The appellant’s attorneys were barred from recovering any costs from the appellant in relation to the condonation application.

The case clarifies South African law on the effect of a cession of a bill of costs, confirming that such a cession ordinarily includes the procedural right to execute. It affirms that a cessionary may sue out a writ in the name of the cedent without prior substitution and underscores the requirement that writs must conform strictly to the court order. The judgment also illustrates the approach of the Supreme Court of Appeal to condonation applications and attorney negligence.