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[2019] ZASCA 104
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Afgri Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship Bulkers A/S (in liquidation) and Others (797/2018) [2019] ZASCA 104 (23 August 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
no: 797/2018
Name of
ship:
MV ‘FONARUN NAREE’
In the
matter between:
AFGRI
GRAIN MARKETING (PTY)
LTD APPELLANT
and
TRUSTEES
FOR THE TIME BEING
OF
COPENSHIP BULKERS A/S
(IN
LIQUIDATION) FIRST
RESPONDENT
TRUSTEES
FOR THE TIME BEING
OF
COPENSHIP MPP A/S
(IN
LIQUIDATION)
SECOND
RESPONDENT
TRUSTEES
FOR THE TIME BEING
OF
COPENSHIP MANAGEMENT A/S
(IN
LIQUIDATION)
THIRD
RESPONDENT
ABSA
BANK
LTD FOURTH
RESPONDENT
Neutral
citation:
Afgri Grain
Marketing (Pty) Ltd v Trustees for the time being of Copenship
Bulkers A/S (in liquidation) and Others
(797/2018)
[2019] ZASCA 104
(23 August 2019)
Coram:
Wallis, Van der Merwe, Mocumie, Schippers and
Mokgohloa JA
Heard
:
Matter disposed of without a hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
Delivered
:
23 August 2019
Summary:
Variation of costs order granted in
error.
ORDER
Paragraph
2(b) of the order granted in this matter is amended by the deletion
of the words ‘and the costs of the application
in terms of
s 18(3)
of the
Superior Courts Act 10 of 2013
’.
JUDGMENT
Wallis
JA (Van der Merwe, Mocumie and Mokgohloa JJA concurring)
[1]
The costs order granted in this appeal
read:
‘
The
applicants are to pay the costs of the application in terms of s 5(3)
of the Admiralty Jurisdiction Regulation Act 105
of 1983, including
the costs of the application for reconsideration of the order of
21 February 2018 and the costs of the
application in terms of
s 18(3)
of the
Superior Courts Act 10 of 2013
, such costs to
include the costs of two counsel where two counsel were employed.
[2]
On 21 June 2019 the unsuccessful
respondents, referred to collectively as Copenship, lodged an
application seeking the deletion
from that order of the words ‘and
the costs of the application in terms of
s 18(3)
of the
Superior
Courts Act 10 of 2013
’. They did so on the basis that this
portion of the order had been made in error. The appellant abided the
decision of the
court on the application and Copenship did not seek
an order for costs against it.
[3]
The appeal arose from an order granted by
the Gauteng Division of the High Court, Johannesburg, on 14 March
2018 confirming an order
for the arrest of funds standing to the
credit of the appellant in two bank accounts. Leave to appeal against
that order was sought
and at the same time a dispute arose between
the parties in regard to the effect of the grant of leave to appeal
on the funds subject
to the arrest order. To resolve that dispute
Copenship brought an application in terms of s 18(3) of the
Superior Courts Act
10 of 2013 (the Act) seeking to give effect to
the arrest order notwithstanding the grant of leave to appeal.
Opposing and replying
affidavits were delivered in that application.
[4]
The two applications were dealt with
together by Weiner J in a judgment handed down on 18 June 2018. She
granted leave to appeal
and in regard to the application directed
that certain funds should remain under arrest and that those funds
should be supplemented
by the deposit of further security up to the
total value of Copenship’s claim. In making those orders the
judge was aware
that this might render the appeal in relation to
certain of the relief ordered in the security arrest moot, but she
held that these
orders were within the powers of the court in terms
of s 173 of the Constitution. The court’s order read as
follows:
‘
1 Leave to appeal is granted
to the Supreme Court of Appeal.
2 Costs of the application for leave to appeal are to be
costs in the appeal.
3 Pending the appeal, the amount of R18 771 151.38
is to remain under arrest in the first respondent’s accounts
held at the second respondent Absa Bank;
4 The first respondent is to repay the rand equivalent
of US$6 372 593.78 (less the sum of R18 771 151.38)
into
account number 4066574289 within 7 days hereof;
5 The first respondent is to pay the
costs of this application on the attorney and client scale, including
costs consequent upon
the employment of two counsel.’
[5]
The appellant’s notice of appeal
pursuant to this order noted an appeal against the whole of the
judgment and order granted
on 14 March 2018. It did not appeal
against paragraphs 3, 4 and 5 of the order of 18 June 2018.
Leave to appeal against those
portions of the order had not been
sought or granted, although insofar as the judge was dealing with an
application under s 18(3)
the appellant had an automatic right
of appeal against the order by virtue of s 18(4)(ii) of the Act.
However, there is nothing
in the record to indicate that the
appellant wished to exercise, or took any steps to exercise, that
right.
[6]
The record filed in this court included all
the papers in the s 18(3) application, but that was not
admissible for the purpose
of considering whether the arrest order
should have been confirmed and it was disregarded as recorded in para
16 of the main judgment.
The position is therefore that Copenship is
correct in its submission that this court was not seized of the
question whether paras
3, 4 and 5 of the order of 16 June 2018 were
correct. Accordingly the inclusion in the order of a provision
altering the high court’s
decision in regard to the costs of
the s 18(3) application was erroneous and it must be amended by
the deletion of the words
‘and the costs of the application in
terms of
s 18(3)
of the
Superior Courts Act 10 of 2013
’ in
para 2(b) thereof.
[7]
Our brother Schippers JA is at present
absent from the court and accordingly in terms of s 13(3)
(a)
of the Act this application is
determined by the decision of the remaining members of the bench that
heard this appeal.
[8]
It is ordered that:
Paragraph
2(b) of the order granted in this matter is amended by the deletion
of the words ‘and the costs of the application
in terms of
s 18(3)
of the
Superior Courts Act 10 of 2013
’.
_________________________
M J D WALLIS
JUSTICE OF APPEAL
Appearances
Applicants’
attorneys: Bowman Gilfillan, Cape Town
Matsepes,
Bloemfontein.
Respondent’s
attorneys: Van Greunen Attorneys, Centurion;
Noordmans
Attorneys, Bloemfontein.