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[2026] ZANCHC 25
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London and Others v Department of Transport, Roads and Public Works, Northern Cape and Others (380/2012) [2026] ZANCHC 25 (13 March 2026)
THE
HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Reportable/
Not Reportable
Case
no: 380/2012
In
the matter between:
FRANCES
OBAKENG LONDON
First Plaintiff
MOTSAME
PETRUS RANTHO
Second Plaintiff
MALEBOGO
LOUIS MOKWENA
Third Plaintiff
NTHABISENG
CONSTANCE KEMANE
Fourth
Plaintiff
and
DEPARTMENT
OF TRANSPORT, ROADS
AND
PUBLIC WORKS, NORTHERN CAPE
First Defendant
THE
PREMIER OF THE NORTHERN CAPE
Second Defendant
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE NORTHERN CAPE FOR TRANSPORT,
ROADS
AND PUBLIC WORKS
Third Defendant
Coram:
Lever J.
Heard:
01
November 2024
.
Delivered:
13 March 2026.
Summary:
Pleadings – Exception – To particulars of
claim – Not disclosing cause of action – Amended
particulars of
claim disclose cause of action – Exception
unsuccessful.
ORDER
1.
The exception is dismissed.
2.
The defendants (excipients) are to pay the party-and-party costs
related
to this exception on scale C.
JUDGMENT
Lever
J
[1]
The present matter before this Court is an exception by the
defendants
to the plaintiffs’ amended Particulars of Claim. For
the sake of convenience, the parties will be referred to as in the
main
action.
[2]
This matter has a long history of procedural and interlocutory issues
and is not yet ready for trial. In response to the exception, the
first argument raised by the plaintiffs is the question of issue
estoppel or
res judicata
. To place this argument in its proper
context, it is necessary to give a summary of firstly, the background
to the dispute and
secondly, a summary of the history of the
interlocutory and procedural skirmishes in this matter.
[3]
The plaintiffs were shareholders and directors of a company named
Canton Trading 159 (Pty) Ltd, which traded under the name and style
of Nyumbane Investments (the company).
[4]
The interests of the defendants in this matter are identical, and
they shall be referred to collectively as the defendants unless the
context requires specific reference to any one of them individually.
[5]
The company entered into a public-private partnership agreement (the
agreement) with the Department of Transport, Roads and Public Works,
Northern Cape (the department), in terms of which the company
took
over the management of the department’s fleet of vehicles,
which included the obligation to purchase and supply the
vehicles.
[6]
The agreement foresaw and provided for the fact that the company
would have to obtain finance to fulfil its obligations under the
agreement. In these circumstances, the agreement provided that
the
company was entitled to cede its rights under the agreement to its
principal financier as security for performance by the company
of its
obligations to the said financier. This term of the agreement was
subject to the proviso that the plaintiffs obtain the
prior written
approval of the department. The agreement further provided that such
prior written approval would not be unreasonably
withheld.
[7]
The plaintiffs contend, as part of their cause of action, that the
department unreasonably refused such approval and that this prevented
the company from obtaining the necessary finance.
[8]
This resulted in the company being unable to pay for the motor
vehicles
which it had acquired, and as a consequence thereof, the
company was placed into liquidation.
[9]
The plaintiffs, in their capacities as shareholders in the company,
contend that they suffered damages as a result of the defendants’
conduct set out above. That such damages comprised the
dividends they
would have earned on their respective shareholdings for the duration
of the contract. The plaintiffs claimed that
the department and the
other defendants were liable to make good such loss. In other words,
the plaintiffs contend that they, as
shareholders and distinct from
the company, suffered these damages.
[10]
The plaintiffs instituted action against the defendants in which they
claimed payment of
such damages. The summons was issued during or
about February 2012. The defendants gave notice to defend the said
action on 16
April 2012 and on 14 June 2012, the defendants delivered
a special plea and plea in the matter.
[11]
The special pleas contended that the plaintiffs had no
locus
standi
to bring the action, and that the liquidators of the
company should have been joined in the action.
[12]
The special pleas were argued before my sister Williams J on 12
June 2014 and on 6
February 2015, the Court delivered judgment in
terms of which the special pleas were dismissed with costs.
[13]
The defendants thereupon brought an application in terms of Rule
33(4) of the Uniform Rules
of Court (the Rule/s) to have a separate
issue heard before the commencement of the trial. The matter was
argued before my brother
Matlapeng AJ on 4 November 2016. On 10
February 2016, Matlapeng AJ granted an order separating the
issue as prayed for
by the defendants.
[14]
The effect of such separation was that the defendants took an
exception that the plaintiffs’
Particulars of Claim did not
disclose a cause of action.
[15]
Such exception was argued before my sister Vuma AJ on 22 March
2018. In her judgment,
Vuma AJ upheld the exception and granted
the plaintiffs leave to amend their Particulars of Claim within 20
days of her order
in the matter being handed down.
[16]
The plaintiffs sought and were granted leave to appeal the said
judgment on that exception.
On 18 September 2018, the plaintiffs
noted an appeal to the Supreme Court of Appeal (SCA).
[17]
The appeal was heard by the SCA. The judgment is reported as 2019 JDR
2137 (SCA) under
the name
London and Others v Department of
Transport, Roads and Public Works, Northern Cape
(“
London
”).
The SCA upheld the judgment of Vuma AJ and dismissed the appeal.
[18]
The SCA granted the plaintiffs leave to amend their Particulars of
Claim. The plaintiffs
duly amended their Particulars of Claim. Such
amended Particulars of Claim were delivered on 20 November 2019.
[19]
The defendants then brought an application to strike out the
plaintiffs’ amended
Particulars of Claim together with a
special order of costs either
de bonis propriis
,
alternatively, on the scale as between attorney and own client
against the plaintiffs.
[20]
The said application to strike out was argued before my sister
Mamosebo J on 19 November
2020. On 5 February 2021, Mamosebo J
handed down judgment dismissing the application to strike out with
costs.
[21]
The defendants applied for leave to appeal from Mamosebo J which
was refused. The
defendants did not take the matter any further and
the judgment of Mamosebo J stands.
[22]
This brings us to the present exception, the subject of this
judgment. This exception was
filed by the defendants on 1 September
2021. The plaintiffs’ notice to oppose was dated 17 September
2021.
[23]
The defendants’ exception is a substantive document. It
comprises some 15 typed pages.
In summary, the exception is to the
effect that the amended Particulars of Claim in their current form do
not disclose a cause
of action.
[24]
In support
of this contention, that the said amended Particulars of Claim do not
disclose a cause of action, the defendants submit
that: The dispute
relates to a public-private partnership; That the agreement
establishing this public-private partnership was
concluded between
the Northern Cape Department of Transport, Roads and Public Works and
a corporate entity named Canton Trading
159 (Pty) Ltd, which traded
under the name and style of Nyumbane Investments (already referred to
herein as “the company”);
The said company has been
liquidated under the provisions of the Companies Act
[1]
;
The action has not been brought by the liquidators of the company,
instead, the plaintiffs seek to claim against the defendants
where
there is no legal connection between them and the defendants.
[25]
Finally, the defendants argue that all of this is contrary to the
relevant provisions of
the Companies Act.
[26]
The plaintiffs, in turn, oppose the exception on two grounds.
Firstly, that the issues
raised in the exception have already been
determined, and that issue estoppel or
res judicata
would be a
bar to this being entertained again. Secondly, that the plaintiffs’
Particulars of Claim as amended after the
decision of the SCA
referred to above, do disclose a cause of action.
[27]
Turning to
the issue of
res
judicata
or issue estoppel. Mr Segal, who appeared for the plaintiffs in
opposing this exception, referred this Court to the judgment of
Olivier JA in the matter of
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2]
.
He submitted, on the authority of the said case and the authorities
cited therein that the requirements for a party to succeed
on a plea
of
res
judicata
are that the party pursuing him in the new suit has previously
pursued him, and in such new suit is demanding the same thing in
respect of: the same cause of action; for the same relief as that
claimed in the earlier suit which has been determined; and the
parties in the new suit are exactly the same as they were in the suit
already determined.
[3]
[28]
Then Mr
Segal referred to the following passage in the matter of
Boshoff
v Union Government
[4]
which sets out the position as follows:
“
Where
the decision set up as a
res
judicata
necessarily involves a judicial determination of some question of law
or issue of fact, in the sense that the decision could not
have been
legitimately or rationally pronounced by the tribunal without at the
same time, and in the same breath, so to speak,
determining that
question or issue in a particular way, such determination, though not
declared on the face of the recorded decision,
is deemed to
constitute an integral part of it as effectively as if it had been
made so in express terms; but, beyond these limits,
there can be no
such thing as a
res
judicata
by implication.”
[5]
[29]
Mr Segal
also referred to the matter of
Mkhize
N.O. v Premier of the Province of KwaZulu-Natal and Others
[6]
(“
Mkhize
”),
where the Constitutional Court held that
res
judicata
is a legal doctrinal shield that was designed to bring finality to
judgments and precluded continued litigation after a final court
order “on the same case, on the same issues, [and] between the
same parties”.
[30]
In
Mkhize’s
case, the Constitutional Court went on to explain that issue estoppel
is an extension of
res
judicata
to cases where the ‘same issue’ must have arisen between
the same parties. The enquiry into the ‘same issue’
entails determining whether the relevant issue of fact or law was an
essential part of the relevant previous judgment.
[7]
[31]
Then Mr
Segal referred this Court to the matter of
Smith
v Porritt and Others
,
[8]
where Scott JA explained issue estoppel in the following terms:
“
Following
the decision in
Boshoff v Union Government
1932 TPD 345
the
ambit of the
exception rei judicata
has over the years been
extended by the relaxation in appropriate cases of the common-law
requirements that the relief claimed
and the cause of action be the
same (
eadem res
and
eadem petendi causa
) in both the
case in question and the earlier judgment. Where the circumstances
justify the relaxation of these requirements those
that remain are
that the parties must be the same (
idem actor
) and that the
same issue (
eadem questio
) must arise. Broadly stated, the
latter involves an inquiry whether an issue of fact or law was an
essential element of the judgment
on which reliance is placed. Where
the plea of
res judicata
is raised in the absence of a
commonality of cause of action and relief claimed it has become
commonplace to adopt the terminology
of English law and to speak of
issue estoppel. But, as was stressed by Botha JA in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA 653
(A) at
669D, 670J-671B, this is not to be construed as implying an
abandonment of the principles of the common law in favour of
those of
English law; the defence remains one of
res judicata
. The
recognition of the defence in such cases will however require careful
scrutiny. Each case will depend on its own facts and
any extension of
the defence will be on a case-by-case basis.
(
Kommissaris
van Binnelandse Inkomste v ABSA Bank
(supra) at 670E-F.)
Relevant considerations will include
questions of equity and fairness not only to the parties themselves
but also to others. As
pointed out by De Villiers CJ as long ago as
1893 in
Bertram v Wood
(1893) 10 SC 177
at 180, ‘unless
carefully circumscribed, [the defence of
res judicata
] is
capable of producing great hardship and even positive injustice to
individuals’.”
[32]
Mr Segal then argues that the issue raised by the defendants in the
application to strike
out the amended Particulars of Claim was that
the plaintiffs were not entitled to deliver amended Particulars of
Claim pursuant
to the SCA judgment but had to first file a notice of
intention to amend. That in light of the aforesaid, the defendants
accordingly
applied for such amended Particulars of Claim to be
dismissed. Mr Segal submits that the issue raised by the defendants
in the
application to strike out the amended Particulars of Claim is
the same issue that the defendants now raise in the current
exception.
Mr Segal argues that the defendants contend that the
plaintiffs are not entitled to proceed with their amended Particulars
of Claim
and the defendants thereby seek the dismissal of the
plaintiffs’ claim.
[33]
Mr Segal then proceeds to argue that this falls within the parameters
of
res judicata
and issue estoppel. He bases this argument on
the submission that in the application to strike out, the issue to be
decided by
Mamosebo J, was whether the plaintiffs’ amended
Particulars of Claim fell to be dismissed. Mr Segal then submits that
this is the same issue to be decided in the present exception namely,
that the amended Particulars of Claim fall to be dismissed.
[34]
In my view,
this is a fallacious and superficial argument. It is also factually
incorrect. On my reading of the judgment of Mamosebo J,
the
application to strike out was reasoned on a purely procedural
question, being that the amended Particulars of Claim were filed
with
the leave of the SCA and that in those circumstances, a notice of
intention to amend was not required.
[9]
Mamosebo J did not consider the underlying principles of company
law, nor was she required to in the circumstances. Accordingly,
in my
view, the issue of
res
judicata
or issue estoppel is not applicable in the present circumstances, and
it does not assist the plaintiffs.
[35]
Turning now to consider the exception itself. The defendants’
exception is based
on the contention that the plaintiffs’
amended Particulars of Claim do not disclose a cause of action. The
defendants do
not rely on the alternative ground for an exception
provided by Rule 23(1) being that the amended Particulars of Claim
are vague
and embarrassing.
[36]
In the case
of
Living
Hands (Pty) Ltd and Another v Ditz and Others
[10]
(“
Living
Hands
”),
Makgoka J provides a helpful overview of the general principles
relevant to exceptions distilled from the existing
case law. The said
overview reads as follows:
“
(a)
In considering an exception that a pleading does not sustain a cause
of action, the court will
accept, as true, the allegations pleaded by
the plaintiff to assess whether they disclose a cause of action.
(b)
The object of an exception is not to embarrass one’s opponent
or to take advantage of a
technical flaw, but to dispose of the case
or a portion thereof in an expeditious manner, or to protect oneself
against an embarrassment
which is so serious as to merit the costs
even of an exception.
(c)
The purpose of an exception is to raise a substantive question of law
which may have the effect
of settling the dispute between the
parties.
If the exception is not taken
for that purpose, an excipient should make out a very clear case
before it would be allowed to succeed.
(d)
An excipient who alleges that a summons does not disclose a cause of
action must establish that,
upon any construction of the particulars
of claim, no cause of action is disclosed.
(e)
An over-technical approach should be avoided because it destroys the
usefulness of the exception
procedure, which is to weed out cases
without legal merit.
(f)
Pleadings must be read as a whole and an exception cannot be taken to
a paragraph or a part
of a pleading that is not self-contained.
(g)
Minor blemishes and unradical embarrassments caused by a pleading can
and should be cured by further
particulars.”
[11]
(Footnotes omitted.)
[37]
On the basis of the first general principle quoted above, in
assessing an exception which
asserts that the relevant Particulars of
Claim do not disclose a cause of action, this Court accepts the
allegations as pleaded
by the plaintiffs in their amended Particulars
of Claim as being factually correct or true, for the purposes of
assessing whether
such Particulars of Claim disclose a cause of
action or not.
[38]
The passages that are at the root of the defendants’ exception
read as follows:
“
20.
Pursuant to the acceptance of Canton’s bid set out above and on
or about 27
th
January 2009 at Kimberley the company and
the first defendant entered into a Public Private Partnership Fleet
Agreement (the agreement);
a copy of the agreement is annexed hereto
marked A.
21.
Inter alia
in terms of the agreement:
21.1
The company undertook to carry out certain fleet solution services
for and on behalf of the first defendant
for an agreed remuneration.
21.2
. . .
21.3
Clause 32.1 of the agreement provided as follows:
‘
Restriction
on Assignment or Transfer of this Agreement
Neither party shall be
entitled to assign or otherwise transfer the benefits or obligations
of all or any part of this agreement
without the prior written
consent of the other party, which consent shall not be unreasonably
withheld. Notwithstanding the aforesaid,
the Private Party may cede
its rights under this agreement to its principal financing bank
(Principal Financier) as security for
performance by the Private
Party of its obligations to such principal financier in respect of
this agreement, provided that the
private party receives prior
written approval of DTRP/User Department and such written approval
shall not be unreasonably withheld
by DTRPW/User Department.’
21.4
‘Parties’ is defined in clause 2.29 of the agreement to
mean ‘the DTRPW/User Department
and the Private Party.’
21.5
‘Private Party’ is defined in clause 2.33 of the
agreement to mean ‘Canton Trading
159 (Pty) Limited t/a
Nyumbane (Proprietary) Limited, Registration Number 2008/004267/07
its agents, sub-contractors and any other
duly appointed
representative of the Private Party.’
21.6
The parties would at all times owe each other a duty of good faith
(clause 31.4).
22.
The plaintiffs were all directors of the company and participated in
its management while Joseph was
the company’s Chief Executive
Officer in overall control of its day-to-day management; the
plaintiffs were accordingly parties
to the agreement in terms of
clause 2.33 thereof referred to above.
23.
The plaintiffs had a direct and substantial interest in whether or
not consent to cession or assignment was granted and acquired
rights
under the agreement independently of the company.
(My emphasis.)
24.
The first defendant was obliged to act in good faith to the
plaintiffs.
25.
It was known to all parties to the conclusion of the Agreement that:
25.1
In order for the plaintiffs to render the necessary fleet management
services to the first defendant
through the company under the
agreement, it would be necessary for the plaintiffs through the
company to obtain finance from an
outside source.
25.2
Such finance could only be obtained through an arrangement between
the company and the financier in
terms of which the company would
assign or otherwise transfer the benefits of all or any part of the
fleet management agreement
with the first defendant (the agreement)
it had to such financier in respect of loan funding to be made
available by the financier
in respect of the agreement.
25.3
Such arrangement by the company with a financier to finance the
company’s obligations under such
agreement with the first
defendant was commonly known as a Finance Direct Agreement (FDA).
25.4
It would be necessary for the first defendant to consent to such FDA.
25.5
If the first defendant should unreasonably refuse to consent to such
FDA, the company would not be
able to carry out its obligations under
the agreement and would have to be liquidated, which would cause the
shareholding in the
company to become worthless and the plaintiffs
would be deprived of the dividends which they would have earned as
shareholders
of the company.
26.
. . .
27.
The first defendant orally represented to the plaintiffs that it
would consent to the FDA.
28.
However, the first defendant nevertheless unreasonably refused to
consent to the FDA, as will be set
out further below.
TACIT AGREEMENT
29.
In the premises the first defendant and the plaintiffs entered into a
tacit or implied agreement by
their conduct as set out above at
Kimberley during or about January 2009 on the following terms:
29.1
The first defendant would consent to the necessary FDA.
29.2
The first defendant would act reasonably in consenting to the
necessary FDA and would not unreasonably
refuse such consent.
29.3
If the first defendant should nevertheless refuse to consent to the
necessary FDA and should act unreasonably
in this regard, and the
company should as a result thereof be placed in liquidation, the
first defendant would be liable for the
damages suffered by the
plaintiffs in consequence thereof, being the loss of the value of the
shareholding of the plaintiffs in
the company and/or the loss of the
dividends which they would have received as shareholders of the
company.
REPRESENTATION
30.
Alternatively, to 29 above:
30.1
The first defendant orally represented to the plaintiffs that it
would consent to the FDA and that
it would not unreasonably withhold
its consent to the FDA (the representation).
30.2
The representation was material in that it induced the plaintiffs to
cause the company to enter into
the agreement with the first
defendant.
30.3
The first defendant deliberately and intentionally breached the
representation in that it unreasonably
withheld its consent to the
FDA.
30.4
In the premises the first defendant was under a legal duty not to
withhold its consent to the FDA and
wrongfully and unlawfully
breached such legal duty.
30.5
It was foreseeable by the first defendant that if it should so breach
such legal duty, the company
would be placed in liquidation and the
plaintiffs would suffer damages being the loss of dividends which
they would have received
from the company.
STATUTORY DUTY
31.
Further alternatively to 29 and 30 above:
31.1
The statutes referred to above
[12]
were intended to give a right of action.
31.2
The plaintiffs were persons for whose benefit the said statutory duty
was imposed.
31.3
The defendants’ conduct in refusing to consent to the FDA
constituted a breach of such duty.
31.4
Such breach caused the liquidation of the company and the loss to the
plaintiffs of the dividends which
they would have received from the
company.
31.5
The damages suffered by the plaintiffs were of the kind contemplated
by the said statutes.
31.6
The said breach caused or materially contributed to the said damages.
.
. .”
[39]
The essence of the defendants’ exception is that in the
defendants’ view, the
plaintiffs are claiming damages which
were suffered by the company itself. The argument is that in
circumstances where the company
has been liquidated, as in the
present case, the only person who can claim such damages is the
liquidator of such a company.
[40]
The SCA, in
upholding the first exception in this matter in the appeal relating
to the judgment of Vuma AJ,
[13]
dealt with this issue by setting out the essence of the defendants’
then exception in paragraph 29 of such judgment, and
then dealt with
it in paragraph 30 of such judgment. Quoting the said paragraphs
would be the most expeditious way of dealing with
the exception in
the present matter.
“
In
essence, the Department’s response to the appellants’
pleaded cause of action is the following: First, if any wrong
was
committed at all, that wrong was not to the appellants, whose
shareholding in Canton remained unaffected by the alleged breach
of
legal duty, but against Canton. Secondly, the Department owed a
contractual duty in terms of the agreement not to the appellants
but
to Canton. Thirdly, in the appellants’ amended particulars of
claim there is no allegation that the loss allegedly suffered
by them
was separate and distinct from that suffered by Canton, and arose
from a breach of a legal duty independently owed to them
as
shareholders.
I propose dealing first
with the law relating to the relationship between an incorporated
company and its shareholders. In
Johnson v Gore Wood & Co (a
firm),
after considering the authorities on the recoverability of
damages by shareholders, the relationship between a company
vis-à-vis
its shareholders in respect of wrongs committed against the company
was succinctly captured by Lord Bingham in the following terms:
‘
(1)
Where a company suffers loss caused by a breach of duty owed to it,
only the company may sue in
respect of that loss. No action lies at
the suit of a shareholder suing in that capacity and no other to make
good a diminution
in the value of the shareholder’s
shareholding where that merely reflects the loss suffered by the
company. A claim will
not lie by a shareholder to make good a loss
which would be made good if the company’s assets were
replenished through action
against the party responsible for the
loss, even if the company, acting through its constitutional organs,
has declined or failed
to make good that loss. So much is clear from
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2)
[1982]
1 All ER 354
esp at 266-267…
(2)
Where a company suffers loss but has no cause of action to sue to
recover that loss, the shareholder
in the company may sue in respect
of it (if the shareholder has a cause of action to do so), even
though the loss is a diminution
in the value of the shareholding. …
(3)
Where a
company suffers loss caused by a breach of a duty to it, and a
shareholder suffers a loss separate and distinct from that
suffered
by the company caused by a breach of a duty independently owed to the
shareholder, each may sue to recover the loss caused
to it by breach
of the duty owed to it but neither may recover loss caused to the
other by breach of the duty owed to that other
.’”
[14]
(Endnotes omitted and the emphasis is mine.)
[41]
The SCA, in
the said
London
appeal, went on to find that the Particulars of Claim relevant to the
appeal on the exception before it did not pertinently allege
that the
plaintiffs’ loss was separate and distinct from the loss
suffered by the company (Canton). The SCA in those circumstances
dismissed the appeal.
[15]
[42]
Mr Segal
submits that the amended Particulars of Claim were drafted to cater
for the decision of the SCA on the prior exception.
He argues that
the plaintiffs have now corrected the fault found by the SCA in its
prior pleadings. Further, that the current amended
Particulars of
Claim, in respect of each of the three alternative claims, fell
within the third category set out by Lord Bingham
in the case of
Johnson
v Gore Wood & Co (a firm)
[16]
cited in the quote in the SCA decision quoted above.
[43]
Mr Mokhare SC who appeared for the defendants, who took the exception
in this matter, argued
that the now amended Particulars of Claim do
not fall into Lord Bingham’s third category, and that the
current amended Particulars
of Claim still do not disclose a cause of
action for the reasons already set out above.
[44]
In my view, the current amended Particulars of Claim, read as a
whole, but more especially
the passages quoted above, do in fact
disclose a cause of action. It is alleged that the plaintiffs
acquired rights under the public-private
partnership agreement
separate to the rights acquired by the said company under such
agreement. This fits into the third category
set out by Lord Bingham
quoted above. I believe this applies to all three of the alternative
bases of the plaintiffs’ claim
as set out in the current
amended Particulars of Claim.
[45]
As can be seen from the general principles collated by Makgoka J
in the
Living Hands
judgment quoted above, and the first of
such principles: for the purposes of the exception, this Court
accepts the contentions
set out in the current amended Particulars of
Claim as being true and correct. In all these circumstances, I find
that the plaintiffs
have set out a cause of action. Accordingly, the
exception stands to be dismissed.
[46]
That leaves only the question of costs to be determined. Mr
Mokhare SC and Mr Segal
were both of the view that the costs
should follow the result. No reason was placed before me why this
approach should not be followed,
and I too cannot find any reason not
to order that costs should follow the result. That is the order I
intend to make.
[47]
An ancillary issue still to be considered is, on what scale should
the said order for costs
be taxed. There is a long history of
litigation in this matter. The issues are of obvious importance to
the parties. The defendants
have made use of Senior Counsel in most
of the proceedings already brought before the courts. Considering all
of these issues,
I think it is appropriate that the costs be taxed on
scale “C”.
[48]
In the circumstances, the following order is made:
1.
The exception is dismissed.
2.
The defendants (excipients) are to pay the party-and-party costs
related
to this exception on scale C.
L.G. LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION,
KIMBERLEY
Appearances
For
the Plaintiffs:
Adv N
Segal
Instructed
by:
Adrian
B Horwitz & Associates
For
the Defendants:
Adv
WR Mokhare (SC) & Adv R Mathebula
Instructed
by:
Mjila
& Partners Inc.
[1]
71 of 2008.
[2]
2001 (2) SA 232 (SCA).
[3]
Supra
at 239F-G, para 2.
[4]
1932 TPD 345.
[5]
Supra
at 350 to 351.
[6]
2019
(3) BCLR 360
(CC) para 36.
[7]
Supra
para
37.
[8]
2008
(6) SA 303
(SCA) at 307J to 308G, para 10.
[9]
Department
of Transport, Roads and Public Works of the Northern Cape and Others
v London and Others
(380/2012)
[2021] ZANCHC 17
(7 May 2021) para 6.
[10]
2013 (2) SA 368 (GSJ).
[11]
Supra
at
374G to 375C, para 15.
[12]
Here reference is made to paragraphs 13 and 14 of the amended
Particulars of Claim. These paragraphs refer to section 217 of
the
Constitution as read with the relevant BBBEE Act.
[13]
London
v Department of Transport, Roads and Public Works, Northern Cape
2019 JDR 2137 (SCA).
[14]
Supra
paras
29 and 30.
[15]
Supra
para 36.
[16]
[2000] UKHL 65
;
[2001] 1 All ER 481
(HL).