Samancor Chrome Holdings (Pty) Limited and Another v Samancor Holdings (Pty) Limited and Others (42659/18) [2019] ZAGPJHC 370; [2019] 4 All SA 906 (GJ) (24 October 2019)

Samancor Chrome Holdings (Pty) Limited and Another v Samancor Holdings (Pty) Limited and Others (42659/18) [2019] ZAGPJHC 370; [2019] 4 All SA 906 (GJ) (24 October 2019)

The court found that enforcing the time-bar clause would cause undue hardship to the applicants, as they were not at fault for the delay and could not have discovered the claim before the expiry of the time-bar. The respondents were responsible for the late and incorrect submission of the tax return, which led to the additional tax liability only being discovered after the time-bar had lapsed. The claim is valid and undisputed but for the time-bar, and the respondents have suffered no legally cognizable prejudice due to the delay. The court held that all relevant circumstances, including the absence of fault on the part of the applicants, the substantial amount at stake, and the lack of...

Citation
[2019] ZAGPJHC 370
Parties
Applicant: Samancor Chrome Holdings (Pty) Limited; Applicant: Samancor Chrome Limited; Respondent: Samancor Holdings (Pty) Limited; Respondent: BHP Billiton SA Limited; Respondent: Anglo South Africa Capital (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 October 2019
Case Number
42659/18
Procedural Posture
Review Application / Application for Extension of Time Bar Under S 8 of Arbitration Act
Outcome
Application granted; time-bar period extended.
Judges
P.A. Meyer
Legal Topics
Arbitration Time Bar, Undue Hardship, Contractual Autonomy, Indemnity Claims, Interpretation of Arbitration Act, Tax Liability
Commercial and Corporate Civil Procedure Arbitration Time Bar Undue Hardship Contractual Autonomy Indemnity Claims Interpretation of Arbitration Act Tax Liability

Case Brief

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Parties

Samancor Chrome Holdings (Pty) Limited

Applicant

Samancor Chrome Limited

Applicant

Samancor Holdings (Pty) Limited

Respondent

BHP Billiton SA Limited

Respondent

Anglo South Africa Capital (Pty) Limited

Respondent

Procedural Posture

Review Application / Application for Extension of Time Bar Under S 8 of Arbitration Act

Legal Issues

  1. 1 Whether enforcement of the time-bar clause for commencing arbitration would cause undue hardship within the meaning of section 8 of the Arbitration Act, 42 of 1965.
  2. 2 Whether the court should exercise its discretion to extend the time stipulated in the time-bar clause.
  3. 3 Whether the delay in bringing the application for extension should preclude relief.

Ratio Decidendi

The court found that enforcing the time-bar clause would cause undue hardship to the applicants, as they were not at fault for the delay and could not have discovered the claim before the expiry of the time-bar. The respondents were responsible for the late and incorrect submission of the tax return, which led to the additional tax liability only being discovered after the time-bar had lapsed. The claim is valid and undisputed but for the time-bar, and the respondents have suffered no legally cognizable prejudice due to the delay. The court held that all relevant circumstances, including the absence of fault on the part of the applicants, the substantial amount at stake, and the lack of...

Court Disposition

Application granted; time-bar period extended.

Orders

  • The time period stipulated in clause 23.6.3 of the Sale of Shares Agreement is extended until after the applicants' claim in the arbitration proceedings was initiated on or about 20 August 2013.
  • The respondents are to pay the costs of the application, jointly and severally, including those of two counsel.