Chapman's Seafood Company (Pty) Ltd v Lombard and Another

The First Respondent was employed by the Applicant from May 2021 to July 2023. She then commenced employment with the Second Respondent on 2 October 2023. On 4 October 2023, the Applicant requested an undertaking from the Second Respondent to cease the First Respondent's employment in terms of a restraint of trade agreement. The Second Respondent complied and terminated the First Respondent's employment (which had lasted only two days) before the application was launched. Despite this compliance, the Applicant launched an urgent application on 15 October 2023 seeking interdictory relief against both Respondents. On 23 October 2023, the matter against the First Respondent was settled by agreement and a prohibitory interdict was granted. The matter against the Second Respondent was adjourned to 7 December 2023 with a timetable for further pleadings. The Second Respondent filed supplementary papers on 6 November 2023, but the Applicant filed a Notice of Removal on 3 November 2023 and did not file replying papers. The restraint of trade expired in January 2024, rendering the main application moot. The Second Respondent set the matter down solely for determination of costs.

• Whether an applicant who launches an application but fails to proceed with it can avoid the costs consequences by refusing to set the matter down or withdraw the application.
• Whether an order granted against the First Respondent by agreement also binds the Second Respondent such that no further relief is required against the Second Respondent.
• Whether the matter had become moot due to the lapse of the restraint of trade period.
• Whether the Applicant obtained substantial success against the Second Respondent entitling it to costs.
• Whether a punitive costs order (attorney-and-client scale) is justified against the Applicant in favour of the Second Respondent.

1. The First Respondent is to pay the Applicant's costs on a party-and-party Scale C from 12 April 2024. 2. The Applicant's application for costs against the Second Respondent is dismissed. 3. The Applicant is ordered to pay the Second Respondent's costs on an attorney-and-client scale, including counsel's costs on Scale C from 12 April 2024. 4. Costs for 15 April 2024 to be on a Third Division Fee tariff as agreed.

An applicant who launches an application but fails to proceed with it cannot avoid the costs consequences of its failure to obtain any relief by simply refusing to set the matter down for hearing or by refusing to withdraw the application. Additionally, a court order obtained by agreement against one respondent does not, without more, bind a second respondent in the absence of a fair hearing, as this would violate the audi alteram partem rule and Section 34 of the Constitution.

The court observed that the Applicant's argument that the Second Respondent was bound by an order agreed to between the Applicant and First Respondent was 'tantamount to some sort of legal osmosis' and, if condoned, would render Section 34 of the Constitution meaningless. The court also noted that the timing of the Notice of Removal raised a question as to whether the Applicant foreshadowed that the relief sought would become moot due to the effluxion of time.

This case clarifies the cost consequences when an applicant abandons an application without formal withdrawal. It reinforces that the audi alteram partem principle and Section 34 of the Constitution require that each party be given a fair opportunity to be heard before an order can bind them. The judgment also confirms that a High Court does not have discretion to hear moot matters where no live issue remains, and it provides guidance on when punitive costs orders are warranted for abuse of court process.