IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 17470/2014
In the matter between:
TECHNICAL SYSTEMS (PTY) LTD
LAVIRCO BELEGGINGS (PTY) LTD
FIRST APPLICANT
SECOND APPLICANT
and
RTS INDUSTRIES
C QUIPTECH (PTY) LTD
CGC INDUSTRIES (PTY) LTD
CHRISTAAN ARNOLDUS KURTZ
CARL WILLIAM RITCHER
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
Neutral citation: Technical Systems (Pty) Ltd and Another v RTS Industries and
Others (Case no: 17470/2014) [2025] ZAWCHC … (3 October
2025)
Coram: NUKU J
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Heard: 15 September 2025
Delivered: 3 October 2025
Summary: Practice – application for leave to appeal a cost order only –
heightened threshold due to costs being in the discretion of the court – an appeal
would have no reasonable prospects of success where no misdirection is alleged.
ORDER
1 The application for leave to appeal is refused; and
2 The applicants jointly and severally, the one paying the other to be absolved,
are directed to pay the party and party costs, including costs of counsel on scale B.
JUDGMENT
Nuku J:
[1] This is an application for leave to appeal a costs order issued against the
respondents after the parties had settled two applications between them.
[2] The first application, which the applicants had instituted, aimed to determine
whether the production facility that the first respondent planned to put into operation
infringed on the applicants’ confidential information and copyright (the first
application).
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[3] The second application was instituted by the respondents, seeking the
cooperation of the applicants to prepare a report about another production facility
they planned to commission in place of the one that prompted the applicants to
initiate the first application (the second application).
[4] These applications were prompted by an agreement made between the parties
in 2015, which required the respondents to subject any production facility to
inspection before it could be put into operation.
[5] In the first application, the experts that had been engaged to inspect the
production facility disagreed on whether that production facility infringed on the
applicants’ confidential information and copyright. It, however, became unnecessary
to resolve this dispute once the respondents indicated that they no longer intended
to put that production facility into operation.
[6] One of the considerations that the Court took into account, in awarding costs
against the respondent, was the fact that the respondents’ indication that they no
longer intended to put the production facility which was alleged by the applicants to
be infringing on their confidential information and copyright amounted to a
withdrawal of the defence. This is because the entire litigation was prompted by the
respondents’ intention of putting the production facility into operation.
[7] Similar to the first application, the second application was driven by the
respondents’ desire to put an alternative production facility into operation . The
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applicants argued that the alternative production facility was not suitable for
meaningful inspection because it was incomplete. The agreement the parties
ultimately reached made it unnecessary to resolve that dispute. This is because the
respondents were not going to proceed with their plan to put the alternative
production facility into operation. In essence, the respondents withdrew the second
application, and this was one of the factors the court considered when determining
costs.
[8] The respondents argue, in their application for leave to appeal, that the Court
should not have awarded costs against them for the first application because the
applicants did not seek any substantive relief in that application. They also claim
that the costs related to the first application were already covered by a previous court
order issued by Bishop AJ.
[9] None of these arguments have any merit. First, as the applicants point out, the
judgment being appealed clearly states in paragraph [20] that the costs awarded in
that judgment do not include any costs determined by Bishop AJ. Second, the
argument that the re was no substantive relief sought by the applicants is
disingenuous, to say the least. The respondents are well aware that the first
application was aimed at resolving the disputes between the parties’ respective
expert opinions. The resolution of the di sagreement between the parties’ experts
would determine whether the respondents could put their production facility into
operation.
[10] The respondents also argue that the determination of qualifying fees for the
experts in this application effectively prejudges the same issue in a pending case
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between the parties involving the same experts. This argument, however, is
unsustainable. This Court only determined issues that have arisen in this application
and did not consider what has happened or might happen in a pending action between
the parties.
[11] To the extent that it may be suggested there may be some overlaps, it is for
the respondents to bring that to the attention of the trial court. And the respondents
can easily do so with a court order that determined part of the costs between the
parties.
[12] It was correctly submitted on behalf of the applicants that an applicant seeking
leave to appeal solely a costs order faces a higher threshold. This is because cost
orders are discretionary decisions of the court, and an appellate court will only
interfere if that discretion was not exercised judicially , for example, on wrong
principles, due to misdirection on the facts, or when the decision is clearly wrong.1
[13] Since the applicants have not alleged that the Court misapplied the relevant
authorities or that its summary of facts and the parties’ arguments is incorrect, it was
argued that the respondents have failed to demonstrate a basis for which a court of
appeal would be entitled to interfere.
[14] There is merit in these submissions, as demonstrated by the respondents'
argument that an appropriate order in this case would be to make 'no order as to
costs.’ While such an order falls within the broad range of orders the court could
1 Merber v Merber [1948] 1 SA 446 (A), p443
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issue, it does not necessarily mean that the order the court actually made was clearly
wrong. That being the case, I am not persuaded that the respondents have met the
requirements for leave to appeal. Leave is accordingly refused with costs to follow
the result.
Order
[ 15] As a result, I make the following order:
a) The application for leave to appeal is refused; and
b) The applicants jointly and severally, the one paying the other to be absolved,
are directed to pay the party and party costs, including costs of counsel on
scale B.
Appearances
For applicants:
Instructed by:
For respondents:
Instructed by:
C /0:
J Van Der Merwe SC , and M de Wet
De Klerk and Van Gent Inc, Cape Town
G Myburg SC with K Rotas
Bossr Inc, Durbanville
Robert Charles Attorneys, Cape Town
LGNUKU