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[2011] ZASCA 203
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Rosenberg v Nuco Chrome Bophuthatswana (Pty) Ltd and Others (18/11) [2011] ZASCA 203 (25 November 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
No precedent significance
Case No: 81/11
In the matter between:
MARTIN
ROSENBERG
…..........................................................................
Appellant
and
NUCO
CHROME BOPHUTHATSWANA (PTY) LTD
….................
First Respondent
DANIELINA
CORNELIA BUTLER NO
….................................
Second
Respondent
PHILLIPUS
ARNOLDUS OLIVIER NO
GERRIT
MARTHINUS VAN ZYL
…..............................................
Third
Respondent
THE
ROYAL BAFOKENG NATION
…........................................
Fourth
Respondent
MOGALE
ALLOYS (PTY) LTD
…..................................................
Fifth
Respondent
UTHANGO
MINING RESOURCES (PTY) LTD
….........................
Sixth
Respondent
Neutral citation:
Rosenberg v Nuco Chrome
Bophuthatswana (Pty) Ltd
(81/11)
[2011] ZASCA 203
(25 November 2011).
Coram:
CLOETE, SNYDERS, MHLANTLA, THERON
and SERITI JJA
Heard:
17 November 2011
Delivered:
25 November 2011
Corrected:
27 March 2012
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North West High Court, Mmabatho
(Lever AJ sitting as
court of first instance):
1 The order by the court a quo is set aside and the
following order substituted:
'(a) The matter is referred to trial.
(b) The notice of motion shall stand as a simple
summons.
(c) The applicant is ordered to deliver his declaration
within 21 days from the date of this order (provided that the days
between
16 December and 15 January, both inclusive, shall not be
counted as part of this period).
(d) The second respondent, the executors, are ordered to
deliver their plea within 21 days of the date of delivery of the
applicant's
declaration (subject to the same proviso contained in
(c), should the declaration be delivered before or during the period
specified
in the proviso).
(e) Thereafter the proceedings shall be governed by the
Uniform Rules of Court.
(f) The costs to date shall be costs in the cause.
(g) The applicant is directed to serve a copy of this
order on the respondents other than the second respondent and the
costs in
connection therewith shall be costs in the cause.'
2 The second respondent, the executors, are ordered to
pay the appellant's costs of appeal, including the costs of two
counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (SNYDERS, MHLANTLA, THERON and SERITI JJA
concurring):
[1] The parties have, sensibly, agreed that this matter
should be referred to trial. The only live issue in the appeal is who
should
pay the costs in this court.
[2] The second respondent, the executors who have been
cited jointly, submit that these costs should be paid by the
appellant as,
we were informed, he had persisted in seeking final
relief on motion before the court a quo up until the fifth day of the
hearing
in that court; and in the alternative, the submission was
that the appropriate order should be that the costs of appeal should
be costs in the cause. To my mind, the decisive fact is that the
appellant had to come to this court to have the order of the court
a
quo set aside and that entitles him to the costs of appeal.
[3] The following order is made:
1 The order by the court a quo is set aside and the
following order substituted:
'(a) The matter is referred to trial.
(b) The notice of motion shall stand as a simple
summons.
(c) The applicant is ordered to deliver his declaration
within 21 days from the date of this order (provided that the days
between
16 December and 15 January, both inclusive, shall not be
counted as part of this period).
(d) The second respondent, the executors, are ordered to
deliver their plea within 21 days of the date of delivery of the
applicant's
declaration (subject to the same proviso contained in
(c), should the declaration be delivered before or during the period
specified
in the proviso).
(e) Thereafter the proceedings shall be governed by the
Uniform Rules of Court.
(f) The costs to date shall be costs in the cause.
(g) The applicant is directed to serve a copy of this
order on the respondents other than the second respondent and the
costs in
connection therewith shall be costs in the cause.'
2 The second respondent, the executors, are ordered to
pay the appellant's costs of appeal, including the costs of two
counsel
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: P Levenberg SC (with him P Strathern)
Instructed by Jay Mothobi Inc, Johannesburg
E G Cooper & Majiedt Inc, Bloemfontein
SECOND RESPONDENTS: P Pauw SC (with him Ms C Hartford
SC)
Instructed by Rachbuch & Associates,
Johannesburg
Lovius Block Attorneys, Bloemfontein