Rosenberg v Nuco Chrome Bophuthatswana (Pty) Ltd and Others (18/11) [2011] ZASCA 203 (25 November 2011)

Rosenberg v Nuco Chrome Bophuthatswana (Pty) Ltd and Others (18/11) [2011] ZASCA 203 (25 November 2011)

The Supreme Court of Appeal held that, since the appellant had to approach the appellate court to have the order of the court a quo set aside, he is entitled to the costs of appeal. The parties sensibly agreed that the matter should be referred to trial, and the notice of motion should stand as a simple summons. The proceedings will henceforth be governed by the Uniform Rules of Court, and the costs to date will be costs in the cause. The second respondent, the executors, are ordered to pay the appellant's costs of appeal, including the costs of two counsel.

Citation
[2011] ZASCA 203
Parties
Appellant: Martin Rosenberg; Respondent: Nuco Chrome Bophuthatswana (Pty) Ltd; Respondent: Danielina Cornelia Butler NO; Respondent: Phillipus Arnoldus Olivier NO; Respondent: Gerrit Marthinus van Zyl; Respondent: The Royal Bafokeng Nation; Respondent: Mogale Alloys (Pty) Ltd; Respondent: Uthango Mining Resources (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 2011
Case Number
81/11
Procedural Posture
Civil Appeal / Appeal From North West High Court, Mmabatho
Outcome
Appeal upheld; order of court a quo set aside and substituted; costs of appeal awarded to appellant.
Judges
Cloete, Snyders, Mhlantla, Theron, Seriti
Legal Topics
Referral to Trial, Costs in the Cause, Motion Proceedings, Uniform Rules of Court
Civil Procedure Referral to Trial Costs in the Cause Motion Proceedings Uniform Rules of Court

Case Brief

Summary, issues, holding and outcome

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Parties

Martin Rosenberg

Appellant

Nuco Chrome Bophuthatswana (Pty) Ltd

Respondent

Danielina Cornelia Butler NO

Respondent

Phillipus Arnoldus Olivier NO

Respondent

Gerrit Marthinus van Zyl

Respondent

The Royal Bafokeng Nation

Respondent

Mogale Alloys (Pty) Ltd

Respondent

Uthango Mining Resources (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From North West High Court, Mmabatho

Legal Issues

  1. 1 Should the matter be referred to trial rather than determined on motion?
  2. 2 Who should bear the costs of the appeal in this court?

Ratio Decidendi

The Supreme Court of Appeal held that, since the appellant had to approach the appellate court to have the order of the court a quo set aside, he is entitled to the costs of appeal. The parties sensibly agreed that the matter should be referred to trial, and the notice of motion should stand as a simple summons. The proceedings will henceforth be governed by the Uniform Rules of Court, and the costs to date will be costs in the cause. The second respondent, the executors, are ordered to pay the appellant's costs of appeal, including the costs of two counsel.

Court Disposition

Appeal upheld; order of court a quo set aside and substituted; costs of appeal awarded to appellant.

Orders

  • The order of the court a quo is set aside and substituted with an order referring the matter to trial.
  • The notice of motion shall stand as a simple summons.