SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 613/2017
In the matter between:
TECHNOLOGY CORPORATE MANAGEMENT
(PTY) LTD FIRST APPLICANT
ANDREA CORNELLI SECOND APPLICANT
ANTONIO JOSE GARRIDO DA SILVA THIRD APPLICANT
IQBAL HASSIM NO FOURTH APPLICANT
BARRY KALMIN NO FIFTH APPLICANT
and
L[...] M[...] R[...] V[...] D[...] S[...] FIRST RESPONDENT
JOSE MANUEL GARCIA DIEZ SECOND RESPONDENT
S[...] A[...] O[...] INTERVENING APPLICANT
Neutral citation: Technology Corporate Management (Pty) Ltd and Others v
D[...] S[...] and Another (Case No 613/2017) [2026]
ZASCA 84 (18 June 2026).
Coram: WALLIS, MBHA, VAN DER MERWE, PLASKET and
DLODLO AJJA
Heard: The application to vary the court’s order was dealt with on the
papers without an oral hearing.
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand -down is
deemed to be 11h00 on 18 June 2026.
________________________________________________________________
ORDER
________________________________________________________________
It is ordered that:
1 Paragraph 3(a) of the order granted in this matter in the judgment delivered on
26 March 2024 is amended by the insertion of the words ‘and to be paid by the
defendants jointly and severally, the one paying the other to be absolved’ at the
end of the paragraph.
2 The application for variation of the order is otherwise dismissed.
3 There is no order in regard to the costs of the application for variation of the
original order.
________________________________________________________________
JUDGMENT
________________________________________________________________
Wallis AJA ( Mbha, Van der Merwe, Plasket and Dlodlo AJJA
concurring):
[1] Paragraphs 2 and 3 of the order in this appeal read as follows:
‘[2] The application for leave to appeal is upheld with costs, such costs to include the
costs of the application for leave to appeal before the high court and the costs of two
counsel.
[3] The appeal is upheld with costs, including the costs of two counsel and the
judgment of the High Court is altered to read as follows:
(a) The plaintiffs’ claim is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
(b) The costs of the adjournment on 2 October 2012 including the costs consequent
upon the employment of two counsel are to be costs in the cause in the action.
(c) The plaintiffs are ordered jointly and severally, the one paying the other to be
absolved, to pay the costs of the application to amend the particulars of claim
dated 9 December 2013 and the costs of the application in terms of Rule 35(3)
dated 4 December 2015, such costs to include those consequent upon the
employment of two counsel.’
Sub-paragraph (d) is omitted as being irrelevant to the question now before us.
[2] The First Respondent and the Intervening Applicant were formerly
married to one another in community of property and after their divorce a
number of disputes ensued regarding the division of their joint estate. An
accountant, Mr Anton Lewis was appointed as the liquidator of the joint estate.
Given that the principal asset of that estate was Mr D[...] S[...]’s shareholding in
the First Appellant the process of liquidation was delayed pending the outcome
of the litigation leading to this appeal and the judgment delivered on 26 March
2024. It was further delayed by a subsequent unsuccessful application for leave
to appeal to the Constitutional Court by Mr D[...] S[...]. Only thereafter was it
possible to give effect to the costs orders made by this Court and to proceed to
taxation of those costs.
[3] In the course of taxation, Mr Lewis expressed the view that the orders
cited above, with the exception of paragraph 3(c), rendered Mr D[...] S[...] and
Mr Diez jointly, and not jointly and severally, liable to pay those costs. That led
the Appellants on 9 February 2026 to lodge the application with this Court
seeking the amendment of the order by the insertion at the end of paragraphs 2
and 3(a) of the words ‘such costs are to be paid by the plaintiffs jointly and
severally, the one paying the other to be absolved’. Mr Diez and Mrs O[...] have
been served and either support the relief sought in the application (Mr Diez), or
abide the outcome of the application (Mrs O[...]). Mr Lewis represents the joint
estate of Mr D[...] S[...] and Mrs O[...]. He has not opposed the application but
deposed to an affidavit setting out certain facts and his reasons for thinking that
the order should remain unaltered. Mr D[...] S[...] has been served but has not
the order should remain unaltered. Mr D[...] S[...] has been served but has not
intervened. His interests are protected by what Mr Lewis has to say.
[4] The application was supported by an affidavit by Ms Monique Harris,
who only became a director of the company, after the resignation of the Fourth
Appellant on 1 October 2016 when she was employed in corporate sales. 1 Ms
Harris was not directly involved in any way in the litigation and , although a
director while the appeal ran its course, it is unclear that she had any
engagement with the conduct of the appeal or any personal knowledge of events
arising in relation to it. Her conclusion that the words the Appellants seek to
have incorporated in the order had been omitted in error 2 and that it was the
intention of the court that they should be included was therefore an inference
from the fact that the point had not been dealt with expressly in paragraphs
[271] to [277] of the judgment and that the costs order in paragraph 3(c) was
made joint and several against the Respondents.
[5] Fortunately all members of the original appeal Bench were available to
deal with the application. The issues were clear from the affidavits delivered
and it was not suggested that written argument or a hearing was necessary. We
agree and the application was accordingly disposed of on the papers and without
a hearing.
[6] It is correct that the Court has power to correct an error in an order, but
before doing so it must be satisfied that there was indeed an error or oversight.
It is now over two years since the judgment was delivered and all the members
of that Bench had already retired when they were recalled to service for the
specific purpose of hearing this appeal. None of us claim to have any direct
recollection of the course of argument on th is aspect of costs, as opposed to the
separate issues dealt with in paragraphs [271] to [277] of the judgment. It may
1 De Sousa v Technology Corporate management (Pty) Ltd and Others: De Sousa v De Sousa and Another
[2018] ZAGPJHC 445, para 5.
2 Described in her affidavit as a clerical or administrative error.
in fact be the case that it was not adverted to at all in the course of oral
argument.
[7] Justice Wallis retained on his computer a bundle of documents dated
21 September 2023 tendered on behalf of the appellants as supplementary to
their heads of argument. This was accepted provisionally at the time and to our
recollection no dispute about its having been filed was ventilated during the
hearing. That bundle contained a draft order if the appeal succeeded, that in
pertinent part read as follows:
‘2 The appeal is dismissed with costs.
3 The Order a quo is replaced with the following order:
3.1 The action is dismissed with costs
3.2. The respondents (the plaintiffs a quo ) are to pay the costs of
3.2.1 the action, jointly and severally, the one paying the oterh to be absolved, including the
qualifying and attendance fees of the expert witnesses, J Geel and HE Wainer, and those
costs consequent upon the employment of two counsel;’
The remaining sub -paragraphs of paragraph 3.2 dealt with the costs in various
interlocutory proceedings at the trial.
[8] There is a difference between that draft order’s treatment of the costs of
the appeal and the costs of the trial , in that the latter asked for an order that the
costs be paid jointly and severally by the Respondents, the one paying the other
to be absolved, whilst the former did not. There is nothing before us to indicate
that this was not intentional. We accept that there was an oversight on our part
in not addressing the request for the costs of the trial to be paid jointly and
severally and are satisfied that but for that oversight such an order would have
been granted. However, in the absence of an explanation to similar effect, we
cannot assume that the draft order in regard to the costs of the appeal was
erroneously formulated by counsel and did not reflect what was being sought in
that regard. The order in re spect of those costs cannot therefore be altered. No
costs order was sought in regard to the co sts of this application and none is
granted.
[9] Accordingly the following order is made:
1 Paragraph 3(a) of the order granted in this matter in the judgment delivered on
26 March 2024 is amended by the insertion of the words ‘and to be paid by the
defendants jointly and severally, the one paying the other to be absolved’ at the
end of the paragraph.
2 The application for variation of the order is otherwise dismissed.
3 There is no order in regard to the costs of the application for variation of the
original order.
________________________
Justice M J D Wallis