Groundswell Developments Africa (Pty) Ltd and Others v Brown

This is a supplementary judgment dealing with the reconsideration of a costs order made by the Supreme Court of Appeal on 12 November 2025. The Court had previously dismissed an application for reconsideration and awarded costs against the second applicant on a punitive attorney and client scale. The Court gave the second applicant an opportunity to show cause within ten days why the punitive costs order should not be made final. The second applicant filed written submissions arguing that a punitive costs order was inappropriate. The respondent filed submissions supporting the punitive costs order.

• Whether the second applicant demonstrated good cause for the variation of the provisional punitive costs order
• Whether the second applicant's conduct justified a costs order on a punitive (attorney and client) scale

1. Reconsideration of paragraph 2 of the Court's order made on 12 November 2025 was refused. 2. The second applicant was ordered to pay the respondent's costs associated with the reconsideration on a party and party scale. The provisional punitive costs order made on 12 November 2025 was confirmed and made final with immediate effect.

A party seeking to have a provisional punitive costs order varied or set aside must do more than simply rehearse arguments from the main application. The party must specifically demonstrate why the punitive costs order is inappropriate in the factual context of the case. Where a party's conduct is found to be unconscionable and part of an egregious scheme against the other party, a punitive costs order (attorney and client scale) is justified and will be confirmed.

The Court noted that the second applicant appeared in person during the reconsideration of costs proceedings, while the first and third applicants had no representation. This may suggest that the second applicant was the primary actor whose conduct was the subject of criticism, as he was the only applicant against whom the punitive costs order was made, not the corporate applicants.

This case illustrates the Supreme Court of Appeal's approach to punitive costs orders and the high threshold an applicant must meet to have such an order varied. It confirms that punitive costs orders will be upheld where a party's conduct is found to be unconscionable or part of an egregious scheme. The case also demonstrates the procedural mechanism whereby the Court may issue a provisional punitive costs order and invite the affected party to show cause why it should not be made final. The judgment reinforces that mere repetition of previous arguments without addressing the specific reasons for the punitive costs order will not persuade the Court to vary such an order.