Litigation is what it takes
- andrewgibbins0
- Apr 17
- 2 min read
The old I didn’t get the email … or is it that emails are never read or even responded to ?
Acrow Limited v South Mead (Pty) t/a Meister Cold Store (26961/2019) [2022] ZAGPPHC 802 (26 October 2022)
The Applicant (Acrow Limited) sought rescission of a costs bill taxation due to alleged failure by the Respondent (South Mead) to serve a notice of set down via email. The court found no evidence the notice was sent to the Applicant's attorneys, concluding this failure constituted an irregularity under Rule 30. The Respondent relied on the Electronic Communications and Transactions Act (ECTA) to claim deemed receipt, but the court required proof of email transmission (e.g., a 'sent report') which the Respondent failed to provide. The Applicant succeeded in proving the irregularity and was awarded costs on the opposed scale.
Issues
The Applicant alleges an irregularity in the taxation process due to its absence at the taxation hearing, which it attributes to the failure of the Respondent to serve the notice of set down. The court must evaluate if this irregularity justifies rescission of the taxation under Rule 31(2)(b) or Rule 42, while also addressing the Respondent's contention that the Applicant abandoned claims related to the taxed bill of costs.
The court must determine whether the Respondent's attorneys or their costs consultants properly served the notice of set down of taxation via email to the Applicant's attorneys, considering the requirements of Rule 4A of the Uniform Rules of Court and sections 23(a) and 23(b) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA). This includes assessing whether the email entered the Applicant's information system and was capable of retrieval, as well as the burden of proof for demonstrating receipt.
SOURCE JJBUDDOCS
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