On 28 January 2026 the High Court ordered the defendant to pay the plaintiff’s wasted costs on a party‑and‑party scale following a consented postponement and declined to award punitive costs.

The defendant sought to bring a substantive application to withdraw an erroneous admission made in the pre‑trial agenda and with the consent of the plaintiff, postponed a trial that was set down for 4 November 2025.  The postponement was sought to correct a procedural issue so the matter could proceed on a proper record, and the plaintiff consented subject to costs.

The sole question was whether the plaintiff was entitled to punitive attorney‑and‑client costs, or whether the ordinary party‑and‑party costs were appropriate. It was common cause that costs would follow the postponement. The dispute was about the scale of costs and whether the defendant’s conduct warranted a punitive scale.

The court drew a distinction between party and party costs and attorney and client costs. Party and party costs are awarded to indemnify a successful litigant for expenses incurred in initiating or defending litigation. These costs are limited to those deemed necessary for the attainment of justice. In accordance with the rules of court, party and party costs are awarded on scales A, B or C according to a case’s importance, value and complexity. Scale A is the lowest, scale B is mid‑range, and scale C is the highest, affecting the rate at which costs are taxed. On the other hand, attorney and client costs include reasonable expenses incurred by an attorney, even if not strictly necessary for the attainment of justice. The court also noted that punitive costs orders are exceptional and reserved for cases where a litigant’s conduct is vexatious, reckless, dishonest, mala fide, or constitutes an abuse of court processes.

On the facts, the postponement sought did not flow from any ulterior purpose or abuse – there was no evidence of dishonesty, bad faith or strategic delay. The plaintiff’s consent to the postponement, while not decisive, was a relevant factor against a punitive order. The court reiterated that a party seeking an indulgence must ordinarily bear the wasted costs, but that does not, without more evidence, justify attorney‑and‑client costs. In the circumstances, a punitive order would have been disproportionate.

This judgment highlights that parties seeking postponements as indulgences should expect to pay wasted costs, typically on a party‑and‑party basis, unless their conduct crosses the high threshold for punishment.

Khumalo v Minister of Police (1200/2021) [2026] ZAMPMBHC (28 January 2026)