IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 2025-021499
In the matter between:
TANYA COX First Applicant
PURE WHITE SNOW (PTY) LTD Second Applicant
(Registration No.: 2014/032173/07)
and
GERBER CO PROCESSING (PTY) LTD First Respondent
GERBER CO SCOURING (PTY) LTD Second Respondent
(Registration No.: 2021/929254/07)
Coram : Da Silva Salie, J
Matter argued : 26 August 2025
Judgment delivered : 26 August 2025
Counsel for Applicants : Adv. P S MacKenzie
Instructed by : Smith & De Jongh Attorneys
OFF ICE OF T H E CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
Counsel for Respondents : Adv. G.J. Gagiano
Instructed by : William Koch Attorneys Inc.
Interlocutory application – main relief settled on concession of alternative order – costs
only in issue. Neither party achieving substantial success – full factual matrix of
conduct of the parties and events considered by the Court - no order as to costs
______________________________________________________________________
Order:
[17] For the reasons set out above, I make the following order:
“There is no order as to costs.”
______________________________________________________________________
EX TEMPORE JUDGMENT HANDED DOWN ON TUESDAY, 26TH AUGUST 2025
DA SILVA SALIE, J:
Introduction
[1] This matter came before me on the semi -urgent roll today, on the issue of costs
only. The substantive (interlocutory) relief by the applicants initially sought (on the
urgent roll earlier this year, February 2025) was directed at securing possession of
certain assets forming the subject of pending litigation under case number 18554/24.
[2] The main action arises from a sale of shares agreement and memorandum of
understanding concluded in November 2023, under which the first respondent paid
R375 000 to the first applicant. A dispute ensued about alleged breaches, leading to a
mutual cancellation of the agreement.
[3] In August 2024, action was instituted by the respondents’ consequent to the
cancellation of the agreement. The applicants defended the action and counterclaimed.
The assets at issue in this interlocutory application are connected to the pending action:
the applicants alleged that the respondents, despite an und ertaking not to do so, were
using the applicants’ equipment/assets which formed part of the dispute. The
interlocutory application therefore sought to interdict such use (primary relief) or, in the
alternative to have the assets placed in independent stor age under the Sheriff’s custody
pending the outcome of the main action.
[4] By agreement between the parties , the applicants accepted the respondents’
concession of the alternative relief: that the assets be placed under the custody of the
Sheriff in independent storage pending the determination of the action.
[5] This judgment concerns the costs only of the now settled interlocutory
application. The substantive relief has been resolved by agreement, with the applicants
accepting the respo ndents’ concession of the alternative order. The sole issue for
determination is whether either party should bear the costs of this application.
Applicants’ Submissions
[6] The applicants contend that they are entitled to their costs, including the costs o f
counsel on scale C. Their principal grounds are:
(a) The respondents breached their written undertaking of 3 July 2024 not to
use the applicants’ assets, which compelled the applicants to launch these
proceedings.
(b) the respondents ultimately conceded the alternative relief in the notice of
motion.
(c) But for the breach, the interdict application would not have been
necessary, warranting a costs order against the respondent.
(d) In the circumstances, the applicants argue that they were justified in
approaching the Court and should not be mulcted in costs.
Respondents’ Submissions
[7] The respondents submit that no order as to costs should follow, emphasising
that:
[a] Although they breached the undertaking, the breach arose from a bona
fide (albeit mistaken) belief that they were entitled to use the assets in light of the
unresolved repayment dispute. The breach ceased immediately upon receipt of
legal advice after service of the application.
[b] The applicants refused a tender for return of the assets against payment
of the R375 000 – a stance which , according to respondents, unnecessarily
prolonged the dispute.
Applicable Principles
[8] The principles governing costs are trite. The general rule is that costs follow the
event, but the rule is not inflexible. The Court retains a discretion to depar t from it,
exercised judicially taking into account all relevant facts.
[9] Where neither party achieves outright success and the litigation reflects mutual
concessions; the Court may properly order that there be no order as to costs. Stated
differently, where litigation yields a compromise, or where responsibility for the
proceedings lies on both sides, it is often appropriate that no order as to costs be made.
Evaluation
[10] The thrust of applicant’s argument is that the respondent must be held
accountable for the breach: in this case by way of a costs order. I am not persuaded
that the matter is entirely that simple and such a stance would be a myopic view of the
cost’s determination before me today. I am mindful of the broader sequence of events ,
including the back-and-forth communications between the parti es regarding the
underlying cancelled agreement , which culminated in the genesis of this interdict
application. The respondent’s position was that they had already paid R375 000 to the
first applicant under the cancelled agreement, which they contended ought to be repaid.
[11] As I see the papers before me, the applicants reflect an oblique denial that such
amount is due to the respondents . Albeit that this issue is for determination by the
Court which will ultimately hear the main action, I am nonetheless required to be mindful
of the vagueness thereof as it appears on the papers before me in determining the
issue of costs today. This oblique denial of the R375 000 claim does not fully displace
the respondent’s claim and this equivocation or indistinctiveness contributed to an
impasse. It i s t his disagreement over repayment which underlies the present
interlocutory dispute. The stalemate position resulting between the parties apropos the
R375 000 and the assets culminated in a macabre dance between parties who have
fallen into dispute on the consequences of a cancelled agreement. To decide the matter
simply on who breached the undertaking would, in my view, be an unduly narrow
approach and a miscarriage of justice. I am bound to have regard to the broader
context of the parties’ conduct and communications which gave rise to this ap plication.
context of the parties’ conduct and communications which gave rise to this ap plication.
As the proverbial saying goes, “one hand cannot clap alone” , for this dispute did not
arise from the moment of the breach of the undertaking by the respondent. What I see
is a series of tit-for-tat exchanges escalating to the interlocutory application and yet
again, incurring further costs to cover the appearance and argument of costs today.
The record reveals a sequence of exchanges, counter proposals and unresolved
disputes which together created the conditions which gave rise to the interdict.
[12] As I see it, b oth parties herein contributed to the initiation and continuation of
these proceedings. The respondents’ breach of their undertaking was a material factor
that triggered the application. However, it was not shown to have been malicious . The
respondents explained that he acted under a bona fide belief that there would be no
issue to make use of the assets, since the applicants were withholding repayment of the
R375 000. I note that the whilst the undertaking not to use the assets was issued (as
per the correspondence of the attorneys of record for the respondents), it did so
maintaining at the introduction of the correspondence, ad paragraph 2: “It is our
submission that your client has no legal basis to withhold payment of the R375 000 on
condition that our client returns your client’s assets/property.”
[13] On the other hand, the applicants’ refusal of the respondents’ tender (which
aligned with their own earlier proposal) and their persistence with the primary relief
prolonged these interlocutory proceedings unnecessarily. The respondents’ answering
affidavit gives a broader perspective of the ongoing disputes in the matter. At paragraph
12 of record page 95, Mr. Gerber, (deponent for the respondents) state in the answering
affidavit:
“To resolve all aspects of this application, and prior to the hearing thereof on the
urgent date, respondents tendered release of applicants’ assets against
repayment of the amount of R375 000 which liability cannot be in dispute and
which tender was direc tly in line with a previous tender made by applicants
themselves on 15 May 2024.”
[14] In response to this tender, the applicants maintain a position (as I see it) that the
horse had already bolted. It was the applicant’s immovable position that the attempts to
horse had already bolted. It was the applicant’s immovable position that the attempts to
settle was an overall settlement attempt of the dispute and places the failure of
settlement at the feet of the respondent for having an “unreasonable attitude”.
[15] During argument, counsel for the applicant argued that at this stage (re: the
repeated tender) the interdict had already been launched and that the tender was not
supported by an offer as to costs. I find this argument problematic. This tender was a
rehash of previous settlement talks and would have been capable of resolving at least
this issue. The argument that it was not accepted because it was not supported by a
tender to pay costs is not persuasive. In my view, the launch of the main action and the
counterclaim had resulted in an attitude by the applicant that it would not be limited by
its own previous tender and instead wanted the overall claims to run its course. At the
very least, w hen the applicants took this approach, it litigated in this interlocutory
application at its own expense . Seen overall, considering the full factual matrix of
events, both parties contributed to the escalation of costs on an issue which formed but
a piece of a bigger puzzle , that being: a claim and counterclaim pending in an action
consequent to the cancelled agreement.
[16] Having regard to the totality of circumstances, I am not persuaded that it would
be just to saddle either party with an adverse costs order. The balance of fairnes s on
these facts and circumstances lies in neutrality by this Court on the issue of costs . For
the reasons set out above, I am of the view it that would be just th at each party bear its
own costs.
Order:
[17] For the reasons set out above, I make the following order:
“There is no order as to costs.”
_______________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION