De Villiers NO and Another v BOE Bank Limited

BOE Bank Limited instituted action against the joint liquidators of Intramed (Pty) Ltd (in liquidation) based on three loan agreements containing attorney-and-client costs clauses. The High Court upheld the bank’s claims on the loan agreements and securities and awarded costs on that scale. On appeal, the Supreme Court of Appeal held that although the loan agreements and securities were authorised, the loan agreements had lapsed due to non-fulfilment of suspensive conditions. The bank was nevertheless entitled to restitution of monies advanced. Because the loan agreements had lapsed, the SCA set aside the attorney-and-client costs order and substituted it with an ordinary party-and-party costs order. The bank subsequently applied to amend the costs orders, arguing that the underlying security documents independently entitled it to attorney-and-client costs.

The application to amend the costs orders to include attorney-and-client costs was dismissed with costs.

The case is an important authority on the doctrine of functus officio in South African law, particularly in relation to costs orders. It clarifies the limited circumstances in which a court may alter or supplement a final judgment and reinforces that costs orders, once fully considered and made, are as final and immutable as any other part of a judgment.