Adele Spinks v Arnold Spinks

The applicant (plaintiff) issued summons against the respondent (defendant) claiming to be declared the beneficial owner of property including the half share registered in the defendant's name. Alternatively, the plaintiff tendered payment of R445,092.94 (the balance of half the value after considering her contributions to improvement and maintenance) against registration of the defendant's share in her name. The defendant filed a counterclaim seeking cancellation of the oral agreement, termination of joint ownership, and payment of R1,997,554.42. The court delivered judgment, apparently in favor of the plaintiff on the main issue. On 14 October 2022, three days before trial, the plaintiff made an offer in terms of Rule 34(1) on a "without prejudice basis" to pay the defendant R645,000.00 in full and final settlement of all claims arising from their joint ownership, payable from proceeds upon sale of the property, with each party paying their own costs. The defendant rejected the offer on 15 October 2022. After judgment, the plaintiff applied for reconsideration of the costs order under Rule 34(12), arguing the tender exceeded the court's eventual award by R234,564.50.

• Whether the court should exercise its discretion to reconsider the costs order under Rule 34(12) of the Uniform Rules of Court based on the plaintiff's tender
• Whether the plaintiff's offer complied with the requirements of Rule 34, particularly Rule 34(5)
• Whether a plaintiff (as defendant in reconvention) can invoke Rule 34 protections
• Whether the defendant's rejection of the tender was unreasonable
• Whether the conditional nature of the tender (payment upon sale of property) rendered it non-compliant with Rule 34(5)(b)

The application for reconsideration of the costs order is dismissed with costs.

A tender made under Rule 34 that is conditional upon future uncertain events (such as payment being made only upon sale of property and from proceeds thereof) does not comply with the peremptory requirements of Rule 34(5)(b) of the Uniform Rules of Court. Where a tender fails to comply with the formal requirements of Rule 34, the court will not exercise its discretion under Rule 34(12) to reconsider a costs order in favor of the party who made the non-compliant tender, even where the tender exceeded the eventual award and the rejection might otherwise appear unreasonable. While a plaintiff may invoke Rule 34 protections when acting as defendant in reconvention, strict compliance with all Rule 34 requirements is necessary to obtain the benefits of the rule.

The court noted that offers to settle can take two forms: (a) an offer in terms of Rule 34, and (b) a Calderbank offer made outside the Uniform Rules on a "without prejudice basis except as to costs." There is no reason why a litigant should not be permitted to rely on a Calderbank offer in support of a particular costs order once judgment has been granted. The court observed that Rule 34 does not prohibit reliance on a secret tender made by the plaintiff outside the Rules when it comes to costs. The court noted the purpose of Rule 34 is to limit costs and avoid unnecessary litigation, and entails consideration of whether rejection of a tender was reasonable under the circumstances. The rule is designed to enable a defendant (or plaintiff in reconvention) to avoid further litigation and, failing that, to avoid liability for costs of such litigation.

This case clarifies the strict requirements for compliance with Rule 34 of the Uniform Rules of Court, particularly that offers to settle must be unconditional or comply strictly with Rule 34(5)(b) regarding conditions. It confirms that a plaintiff may invoke Rule 34 protections when acting as defendant in reconvention, but must meet all formal requirements. The judgment emphasizes that Rule 34(5)(b) is peremptory and that conditional tenders (such as payment contingent on future events like property sale) do not comply with the rule. This case is significant for practitioners drafting settlement offers and demonstrates the court's strict approach to procedural compliance when seeking favorable costs orders based on rejected tenders.