A full bench of the High Court in Cape Town has handed down a punitive cost order against unrepresented applicants – an unusual move considering the more lenient approach our courts usually show unrepresented litigants.

The Cassiems had instituted proceedings against the Government Employees Medical Scheme (GEMS) before various forums with “ostensible impunity”.

In 2018 the High Court dismissed the Cassiems’ urgent application for interim payment of a portion of a counterclaim by the Cassiems which was the subject of a pending action. A year later, GEMS was, once again, faced with an application seeking the same interim payments.

The full bench noted that issue estoppel (ie a bar on raising issues that have already dealt with in prior proceedings) applies regardless of whether the judgment from the previous proceedings expressly deals with the issue in question.  The full bench said that the issue of whether the Cassiems could claim interim payment of a part of their disputed counterclaim had been dealt with by the judge in the first application.

On the issue of costs, the full bench noted that the mere fact that the Cassiems were unrepresented did not mean the fundamental principles regarding legal costs did not apply.

The full bench awarded punitive costs against the Cassiems considering that:

  1. The application was a “mirror image” of the urgent application which had been dismissed;
  2. The money the Cassiems sought was already the subject matter of other proceedings (ie the action);
  3. The Cassiems were seeking relief by way of motion proceedings despite knowing there were disputes of fact;
  4. The Cassiems sought their relief urgently but had not established it was urgent;
  5. The application contained a number of vexatious and slanderous statements concerning GEMS.

The case is Cassiem and Another v GEMS.

*Contributing author: Caitlin Gardiner