Von Schimper v Monastery Diamond Mining Corporation Ltd (551/2006) [2007] ZAFSHC 24 (9 March 2007)

Von Schimper v Monastery Diamond Mining Corporation Ltd (551/2006) [2007] ZAFSHC 24 (9 March 2007)

The court held that the affidavits of the provisional liquidators were irrelevant to the proceedings before it, as the application for costs de bonis propriis was not against the company in liquidation but against individuals acting in a representative capacity. Section 359(1)(a) of the Companies Act only suspends proceedings against the company, not against its directors or attorneys personally. The court found that it had jurisdiction to make a costs order against Van Jaarsveld and STRB, regardless of their residence or business location, as the costs arose from litigation conducted before it. However, the applicant withdrew the application against STRB after accepting their...

Citation
[2007] ZAFSHC 24
Parties
Applicant: F.J. Von M Schimper; Respondent: Monastery Diamond Mining Corporation Ltd; Respondent: Auret Pritchard Van Jaarsveld; Respondent: Smith Tabata Buchanan Boyes (STRB); Respondent: Petrus Jacobus Maryn Van Staden; Respondent: Yusuf Ebrahim
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 March 2007
Case Number
551/2006
Procedural Posture
Urgent Application / Application for Costs De Bonis Propriis Following Liquidation and Interlocutory Proceedings
Outcome
The application to strike out the affidavits of the provisional liquidators was granted with costs. The application for a costs order de bonis propriis against Van Jaarsveld and STRB was dismissed. Each party was ordered to pay their own costs.
Judges
C.J. Musi
Legal Topics
Costs De Bonis Propriis, Company Liquidation, Jurisdiction of Cost Orders, Interlocutory Applications, Representative Capacity, Notice and Service
Civil Procedure Commercial and Corporate Costs De Bonis Propriis Company Liquidation Jurisdiction of Cost Orders Interlocutory Applications Representative Capacity Notice and Service

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 19 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

F.J. Von M Schimper

Applicant

Monastery Diamond Mining Corporation Ltd

Respondent

Auret Pritchard Van Jaarsveld

Respondent

Smith Tabata Buchanan Boyes (STRB)

Respondent

Petrus Jacobus Maryn Van Staden

Respondent

Yusuf Ebrahim

Respondent

Procedural Posture

Urgent Application / Application for Costs De Bonis Propriis Following Liquidation and Interlocutory Proceedings

Legal Issues

  1. 1 Whether the affidavits of the provisional liquidators should be struck out with costs.
  2. 2 Whether Van Jaarsveld and STRB attorneys should be ordered to pay the costs of the application for leave to appeal de bonis propriis.
  3. 3 Whether the proceedings against Van Jaarsveld and STRB are affected by the suspension of proceedings under section 359(1)(a) of the Companies Act due to liquidation.

Ratio Decidendi

The court held that the affidavits of the provisional liquidators were irrelevant to the proceedings before it, as the application for costs de bonis propriis was not against the company in liquidation but against individuals acting in a representative capacity. Section 359(1)(a) of the Companies Act only suspends proceedings against the company, not against its directors or attorneys personally. The court found that it had jurisdiction to make a costs order against Van Jaarsveld and STRB, regardless of their residence or business location, as the costs arose from litigation conducted before it. However, the applicant withdrew the application against STRB after accepting their...

Court Disposition

The application to strike out the affidavits of the provisional liquidators was granted with costs. The application for a costs order de bonis propriis against Van Jaarsveld and STRB was dismissed. Each party was ordered to pay their own costs.

Orders

  • The affidavits of the provisional liquidators Petrus Jacobus Maryn Van Staden and Yusuf Ebrahim are struck out with costs.
  • The application for Van Jaarsveld and STRB attorneys to pay the costs of the application for leave to appeal de bonis propriis is dismissed.