Dhlamini v Schumann, Van den Heever & Slabbert Inc and Others

The appellant, Ms Thandi Caroline Dhlamini, was injured in a motor vehicle accident in 2014 and instructed the first respondent firm of attorneys to pursue a Road Accident Fund (RAF) claim on her behalf. Her claim was settled, but she later alleged that the respondents had misrepresented the settlement amount and paid her only a portion, as part of a broader fraudulent scheme involving RAF clients. Acting on information from a whistle-blower, she launched an Anton Piller application to secure client and accounting files of the respondents, with the intention of instituting a class action. An interim Anton Piller order was granted, but the intended action was not instituted within the stipulated 30 days. The respondents tendered delivery of relevant files to the appellant’s attorneys and the Legal Practice Council. On the return day, the High Court declared the interim order lapsed, struck the matter from the roll, and ordered the appellant to pay costs.

The appeal was upheld to a limited extent. The High Court’s order was set aside and replaced with an order striking the matter from the roll. Each party was ordered to pay its own costs on appeal.

The case clarifies the application of mootness in appeals under s 16(2)(a) of the Superior Courts Act and confirms that, in exceptional circumstances, an appellate court may consider an appeal solely to correct an improper costs order. It also underscores that courts may not grant costs where the issue is not properly before them.