Koedoesrivier Boerdery (Pty) Ltd v The Commission on Restitution of Land Rights

On 3 December 2014, the Regional Land Claims Commissioner: Limpopo initiated an application for leave to appeal against the whole of the judgment of the Land Claims Court delivered on 24 November 2014. The parties consulted and agreed that the application would be heard on 10 April 2015, and that the respondent (applicant in the appeal) would set the matter down. However, the respondent failed to file a notice of set down. Despite this, the applicant (Koedoesrivier Boerdery (Pty) Ltd) attended court on 10 April 2015 ex abundanti cautela (out of an abundance of caution) upon instruction from their attorneys. The respondent did not appear. Koedoesrivier Boerdery then applied for wasted costs incurred on 10 April 2015.

• Whether wasted costs should be awarded when a party attends court out of an abundance of caution despite no legal obligation to do so
• The requirements for awarding costs in circumstances where no notice of set down was filed
• The application of Rule 55(4) of the Land Claims Court Rules regarding notices of set down

The application for payment of wasted costs was dismissed. No order as to costs was made.

A party who attends court proceedings ex abundanti cautela, without being legally compelled to do so (such as when no notice of set down has been filed), is not entitled to recover wasted costs. Cost orders are intended to refund expenses actually incurred when a party is unjustly compelled to participate in litigation, not to compensate for risks avoided by precautionary attendance. The absence of a notice of set down as required by Rule 55(4) means there is no legal obligation to attend court, and therefore no basis for a costs award.

The court acknowledged that the applicant's attendance was prudent from a risk management perspective to protect their client's rights in case the presiding judge decided to hear the matter despite the absence of a notice of set down. However, this precautionary approach, while understandable, does not create an entitlement to costs. The court's observation suggests that parties must balance their risk aversion with the understanding that precautionary measures taken without legal compulsion may not be recoverable as costs.

This case illustrates the important principle in South African law that costs are not awarded to compensate for risks avoided or precautionary measures taken, but only to indemnify parties for expenses incurred when legally compelled to attend court. It clarifies that attending court ex abundanti cautela (out of an abundance of caution) when there is no legal obligation to do so does not give rise to an entitlement to recover costs, even where the opposing party failed to comply with procedural requirements such as filing a notice of set down.