About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 7
|
|
Adlem and Another v Arlow (782/11) [2013] ZASCA 7 (14 March 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 782/11
Not reportable
In the matter between:
EUGENE
ADLEM
......................................................................
FIRST
APPELLANT
JOSEPH
ADLEM
.................................................................
SECOND
APPELLANT
and
NESTOR
ALGEMUS ARLOW
..........................................................
RESPONDENT
Neutral citation:
Adlem v Arlow
(782/11)
[2013] ZASCA 7
(14 March 2013)
Coram:
Cloete, Cachalia, Shongwe and Theron JJA
and Erasmus AJA
Heard:
6 November 2012
Delivered
14 March 2013
Summary:
Variation of provisional costs order
refused.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North West High Court, Mafikeng
(Leeuw JP sitting as court
of first instance):
(a) Para 2(b) of the order made by this court in
relation to the costs in the high court is confirmed.
(b) The respondent is ordered to pay the appellants’
costs occasioned by the argument to vary such order.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (CACHALIA, SHONGWE AND THERON JJA AND
ERASMUS AJA CONCURRING):
[1] In the order made by this court allowing the appeal,
leave was granted to either party to make submissions in regard to
the
provisional order for costs in the high court. Leave was not
granted to make submissions in regard to the order for the costs of
appeal ─ that order was made by agreement as appears from para
14 of the judgment, and I see no good reason to revisit it.
It was
obviously correct on a parity of reasoning with what follows.
[2] The effect of para 2(b) of this court’s order
is limited, as the order expressly says, to ‘the costs
occasioned
by the argument’ ie the argument on the question
before the high court. The order does not extend to the costs of the
proceedings
as a whole. The effect of the answer to the question put
to the court and answered on appeal will have to be decided by the
high
court, if the parties cannot reach agreement. The fact that the
answer given to the question may have adverse consequences for both
parties (the respondent’s counsel submitted that it will be as
fatal to the appellants’ first counterclaim as it will
be to
the respondent’s claim) is to my mind beside the point when the
costs occasioned by the argument are considered. The
appellants’
argument prevailed and the usual order should follow. The
ramifications of the order will have their own consequences
on costs,
and those ramifications are by no means certain ─ either party
may amend; and it is as unnecessary for us to decide
on the fate of
the claim and counterclaims as presently formulated as it was for the
high court.
[3] The following order is made:
(a) Para 2(b) of the order made by this court in
relation to the costs in the high court is confirmed.
(b) The respondent is ordered to pay the appellants’
costs occasioned by the argument to vary such order.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For Appellant: P J van der Walt
Instructed by:
F & F van der Walt Attorneys, Rustenburg
Bezuidenhout’s Inc, Bloemfontein
For Respondent: S Güldenpfennig
Instructed by:
Spector Attorneys, Johannesburg
Hill McHardy & Herbst Inc, Bloemfontein