Sublime Technologies (Pty) Ltd v Jonker and Wilkinson

The appellant company sued two former senior employees, alleging breach of fiduciary duties and fraud involving fictitious invoices and misappropriation of millions of rand. Central to the case were bank statements evidencing the alleged fraud. After prolonged discovery disputes, the appellant attempted to introduce bank statements obtained via subpoenas shortly before trial. At trial, the respondents successfully objected to the admissibility of the bank records due to non-compliance with the notice requirements of s 30(1) of the Civil Proceedings Evidence Act 25 of 1965. The appellant was forced to apply for a postponement to give proper notice. The High Court granted the postponement but ordered the appellant to pay wasted costs on an attorney-and-client (punitive) scale, relying on the appellant’s alleged fault and an earlier undertaking regarding costs if the trial exceeded its estimated duration.

The appeal was upheld with costs. The High Court’s costs order was set aside and replaced with an order postponing the matter sine die, with wasted costs to stand over for later determination.

The case is significant for reaffirming principles governing appellate interference in costs awards, particularly in postponement scenarios. It emphasises that courts should be slow to make final and punitive costs orders before all relevant facts are known and criticises rigid trial management practices that prejudice litigants. It also underscores the appropriateness of reserving costs where responsibility for a postponement is disputed.