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South Africa Order

North Gauteng High Court, Pretoria

Cheetah Chrome South Africa (Pty) Ltd v Dilokong Chrome Mine (Pty) Limited and Others (45259/2020) [2020] ZAGPPHC 636 (29 October 2020)

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01

Holding and result

The court reconsidered its provisional costs order after receiving representations from the first respondent. It accepted the respondents' arguments that the applicant should pay the costs occasioned by the amendments, including the costs of two counsel, as these were necessitated by the applicant's actions. The remaining costs, specifically those relating to urgency and section 133 of the Companies Act, were ordered to be costs in the cause of the application, meaning they will be determined at the conclusion of the main application. The previous order was amended accordingly.

Court disposition

The applicant is ordered to pay the costs occasioned by the amendments, including the costs of two counsel. The remaining costs in relation to the issue of urgency and section 133 of the Companies Act are costs in the cause of the application.

Orders

  • The applicant is ordered to pay the costs occasioned by the amendments, including the costs of two counsel.
  • The remaining costs in relation to the issue of urgency and section 133 of the Companies Act are costs in the cause of the application.

02

Material facts

Parties

Cheetah Chrome South Africa (Pty) Ltd

Applicant Counsel: JP Daniels S.C & CT Vetter

Dilokong Chrome Mine (Pty) Limited

Respondent Counsel: AJ Eyles S.C & C Robertson

Johannes Frederick Klopper N.O.

Respondent Counsel: AJ Eyles S.C & C Robertson

Christopher Raymond Rey N.O.

Respondent Counsel: AJ Eyles S.C & C Robertson

Jubilee Tailings Treatment Company (Pty) Ltd

Respondent Counsel: T Mundell S.C & CH Bothma

03

Procedural history

  1. Posture

    Civil Application / Costs Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant sought to amend its application and requested the court's permission under section 133(1) of the Companies Act. It argued that the costs should not be solely for its account, as the amendments and urgency were necessitated by the circumstances of the business rescue process.
Respondent
The respondents contended that the applicant should be responsible for the costs arising from the amendments, including the costs of two counsel, as these amendments were initiated by the applicant. They further argued that costs related to urgency and section 133 should be costs in the cause, not immediately payable by the applicant.

05

Court’s reasoning

  1. 01

    Uniform Rules of Court

    Costs occasioned by amendments are generally borne by the party seeking the amendment, unless the court orders otherwise.

  2. 02

    Companies Act 71 of 2008, s133

    Costs relating to issues of urgency and statutory interpretation may be ordered as costs in the cause, depending on the circumstances.

06

Ratio, limits and disposition

Ratio decidendi

The court reconsidered its provisional costs order after receiving representations from the first respondent. It accepted the respondents' arguments that the applicant should pay the costs occasioned by the amendments, including the costs of two counsel, as these were necessitated by the applicant's actions. The remaining costs, specifically those relating to urgency and section 133 of the Companies Act, were ordered to be costs in the cause of the application, meaning they will be determined at the conclusion of the main application. The previous order was amended accordingly.

Obiter and limits

  • The court noted that representations on costs can be valuable in ensuring a fair allocation of responsibility.
  • The absence of a hearing did not prejudice the parties, as the matter was determined on written submissions.

Court disposition

The applicant is ordered to pay the costs occasioned by the amendments, including the costs of two counsel. The remaining costs in relation to the issue of urgency and section 133 of the Companies Act are costs in the cause of the application.

  • The applicant is ordered to pay the costs occasioned by the amendments, including the costs of two counsel.
  • The remaining costs in relation to the issue of urgency and section 133 of the Companies Act are costs in the cause of the application.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Order

[2020] ZAGPPHC 636

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3)

REVISED

CASE NO: 45259/2020

In the matter between:

CHEETAH CHROME SOUTH AFRICA (PTY) LTD

Applicant

and

DILOKONG CHROME MINE (PTY) LIMITED

First Respondent

(IN BUSINESS RESCUE)

JOHANNES FREDERICK KLOPPER N.O.

Second Respondent

CHRISTOPHER RAYMOND REY N.O.

Third Respondent

JUBILEE TAILINGS TREATMENT COMPANY (PTY) LTD

Fourth Respondent

ORDER

ON COSTS

FABRICIUS J

[1] On 19 October 2020, I delivered a written judgment dealing with a notice of amendment and the permission of the court referred to in s133 (1) of the Companies Act.

[2] I made a provisional costs order only and invited representations within 7 days. On 26 October 2020 DCM made such representation and I have re­ considered my previous provisional costs order.

[3] I agree with their views and par 18.2 of my order is deleted and substituted by the following par 18.2:

"the applicant is ordered to pay the costs occasioned by the amendments, including the costs of 2 counsel. The remaining costs in relation to the issue of urgency and s133 of the Companies Act, are costs in the cause of the application.

H

FABRICIUS

JUDGE

OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE OF HEARING: NO HEARING

DATE OF JUDGMENT: 29 OCTOBER 2020

COUNSEL FOR THE APPLICANT:

JP DANIELS S.C &

CT VETTER

INSTRUCTED BY:

THOMSON WILKS INC

COUNSEL FOR THE FIRST TO THIRD RESPONDENT:

AJ EYLES S.C &

C ROBERTSON

HOGAN LOVELLS (JOHANNESBURG) INC

COUNSEL FOR THE FOURTH RESPONDENT:

T MUNDELL S.C &

CH BOTHMA

AJH ATTORNEYS

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Companies Act 71 of 2008

Legislation

Legislation referenced in the available case record.

Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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