Commercial Law Index

The applicant applied to set aside an arbitration award made in 2015. It was argued that the arbitrator misconducted herself when she amended the award; when she awarded nominal charges to the second respondent; and gave no reasons for ordering costs against the applicant, who was successful at the arbitration.

An arbitration award may be set aside on the grounds of an error on the face of it when reasons given for the award are based upon a legal proposition that is erroneous. It was found that the arbitrator’s reasons for making the award were erroneous and contrary to the Civil Procedure Code when awarding costs against the winning party. No reasons were provided for apportioning the costs, and for heavily weighting the costs against the winning party.

A court may also set aside an award if it is bad on its face for involving an apparent error in fact or law, or it has not complied with the requirements of finality and certainty. The award was bad on its face as it granted costs based on an apparent error of law by apportioning greater costs to the winning party. It is trite law that the losing party should bear the costs of a matter to compensate the successful party for expenses incurred for having to vindicate their rights.

The court held that there was good cause to remit the part of the award on apportionment of costs for reconsideration by the arbitrator.

The court considered three issues. Firstly, how a court should exercise its discretion in regulating a motion meant to regularise the process and the other meant to terminate the process. Secondly, whether the respondents were necessary parties to the suit. Lastly, whether the trial court was correct in awarding costs.

The court held that the practice was to give priority to hearing a motion set to regularise a process if the motion succeeds the other motions seeking to terminate the proceedings will be withdrawn. The court also held that respondents are necessary to a suit if they would be directly or financially affected by the outcome of the judgement of the case. Also, the court held that courts have absolute discretion to either award or refuse costs.

The court found that the trial judge instead of taking the motion for joinder and amendment, preliminary objections of the first and second respondent based on jurisdiction were taken which were meant to terminate the points in limine. The court also found that the respondents were necessary parties because they are not only interested in the subject matter of the proceedings, but they constitute those who in their absence the proceedings could not be fairly dealt with. The court found that the costs awarded were not exceptionally high or punitive to conclude that the court's discretion was not in the interest of justice.

The court accordingly upheld the appeal.
 

The issues before the court were whether the registrar erred in law when he did not exercise his jurisdiction to refer the matter to a judge for a final disposal of issues he had found as contentious in his ruling; whether the learned registrar erred in law when he unilaterally dismissed the matter without determining the contentious issues raised therein and whether it is in the interest of justice that the appellant is granted leave to tax its Advocate-Client Bill of Costs.

The court stated that the claims did not arise out of a single transaction and the best way forward for the applicant was to file an action (civil suit) to recover these various claims.

The court came to the conclusion that the application was for recovery of costs and the registrar had no jurisdiction to entertain a dispute between advocate and client as to whether costs or fees were due. Secondly it is alleged that the bill is illegal or arises from an illegal contract. The court upheld the registrar’s decision not to entertain the bill and refer the parties to a suit with the only question remaining of whether he ought to have referred the parties to the judge for trial of the suit. The court reiterated that the registrar reached the right conclusion.
The matter of recovery of costs was contentious and the registrar had no jurisdiction to entertain it. 

The court dismissed the appeal.
 

The appellant appealed against a taxing officer’s order awarding the second respondent costs of 1, 900, 739/= contending that the instruction fee awarded was based on an incorrect value of the suit. The respondents’ counsel raised preliminary objections inter alia that couldn’t be permitted to raise a new point of law that was not argued in the lower court. 

The 3 rd respondent instituted in the High Court an election petition against Rose
the 1 st and 2 nd Respondent. The High Court dismissed the petition and awarded
costs against the petitioner, the 3 rd Respondent. She instructed the 1 st and 2 nd
appellant to appeal against the decision of the High Court. There was a mess in
the process of filing or attempting to institute the Notice of Appeal and effecting
service of the same on the respondents in that intended appeal. As a result, the
1 st and 2 nd Respondents successfully moved the Court of Appeal to strike out both
the Notice of Appeal and the Appeal itself for failure to comply with relevant
rules governing the institution of such appeals and the serving of relevant records
such as the Notice of Appeal, and due to professional negligence on the part of
the two appellants, the Court ordered the appellants to pay the costs both in the
Court of Appeal in respect of the appeal itself and the application to strike out
that appeal and the costs of the petition. The appellants appealed against the
whole order.

This was an application by the plaintiff seeking an order declaring the first and second defendants’ construction of a milling plant and prospecting activities as unlawful, for interfering with the plaintiff’s agricultural activities. 

The first defendant opposed the reliefs sought, on grounds that he was the lawful owner of the mining blocks.

The court first assessed the evidence and concluded that the defendants were not in compliance of the procedures set out under the Mines and Minerals Act, for registering the claims and the subsequent conversion into blocks. The court further held that the defendants failed to show any plan lodged with the Commissioner of Mines, as required under the Mines and Minerals Act. 

Lastly, the court determined whether the land in dispute was cleared on or before the registration of the blocks and whether such land is the only portion, suitable of for farming. After outlining the rights of various parties, the court concluded that the plaintiff had no right to clear the land pegged for mining. However, the court could not make a holding on whether the prospecting operations were interfering with the plaintiff’s agricultural activities. This is because the plaintiff failed to
clarify whether the cleared field was located 450 metres from the principal homestead. The court therefore referred this issue to the Mining Commissioner for investigation and report, according to s 345 of the Mines and Minerals Act.

The court ordered the defendants to stop mining operations without complying with the law and to pay costs.

This was an application for a decree of perpetual silence against the respondents for engaging in lawsuits aimed at harassing the applicants. The dispute between the parties emanated from certain claims in a mine, which resulted in over 30 court applications between the parties.

The court first dealt with the nature of the relief sought by the applicants. The court after citing authorities pointed out that the relief is recognised in the jurisdiction of the court. The court pointed out that in cases where repeated and persistent litigation between parties, in the the same cause of action, the court can make a general order prohibiting the institution of such litigation without the leave of the court. It was noted that such a remedy is extraordinary as it makes a person deaf before the court. The court also pointed out that the remedy is only granted where a party demonstrates to the court that the defendant or respondent is a serial litigator, with a tendency to abuse the court, the court process and the other party.

In dismissing the application, the court dealt with the history of the litigants and concluded that the respondents had a defined cause and were not serial litigators. 

The court dismissed the application with costs on a higher scale.

This High Court case concerned an application for review in which the applicant sought an order that the third respondentÕs decision cancelling the applicants mining registration be set aside. 

The dispute arose between the applicant and the second respondent allegedly due to a double allocation of the same mining area to the applicant and the first respondent. The third respondent convinced that there was a double allocation cancelled the applicants mining rights to the extent that their boundaries were overlapping. His reasoning was that the first respondent was the first to be allocated the disputed area. The applicant was dissatisfied with the decision and hence applied for a review to the High Court.

The issue for determination by the Court was thus whether the third respondentÕs decision was justified. The Court held that since the matter was first decided in the Mining CommissionerÕs Court, the appeal was supposed to be directed to the High Court per s361 of the Mines and Minerals Act of 1961 and not to the Minister. The High Court thus held that the entire proceeding, and the decision that followed it, was a nullity.

As such, the determination by the third respondent cancelling the applicantÕs Mining registration certificate held by the applicant was set aside with cost.

In this case, the appellant brought this suit against the decision of the Chief magistrate, where it had been stated that the appellant was entitled to pay costs to the first and third respondents, before proceeding further with the case against the second respondent and his legal representative.

The appellant intended to withdraw the case against both the first and third respondents so that she could maintain the suit against the second respondent. The withdrawal was recorded and the trail magistrate ordered that she first pays costs to the first and third respondents.

This matter originated from an application where the respondents were required to show cause why a final interdict should not be issued against them, to prohibit them from damaging the applicant's wattle forest and timber at the old Nkoyoyo quarry site.

In a series of events, the applicant requested for postponement of the hearing and later filed a notice of withdrawal and prayed for costs. The respondents prayed that the matter be dismissed with costs.

The court considered whether the withdrawal was proper in terms of rule 41 (1)(a) of the High Court Rules that required withdrawal by consent of the parties or leave of the court. The court found the withdrawal to be invalid since the applicant was not compliant with the rules.

The court considered whether the withdrawal application had any merit. The court held that the respondent had proved that the applicant had no right in the land, as per s 94 of the constitution, s 3 of the Safe Guarding of Swazi Areas Act of 1910 and s 2 of the Contract by Swazi Chief Act of 1924.

Consequently, the applicant failed to prove the requirements for an interim interdict and court found him to be in abuse of court process by seeking commercial advantage through the court.

Accordingly, the application was dismissed, and the applicant was ordered to pay punitive damages for abusing court process.

The court considered an application for the ejectment of the respondent from the applicant’s premises. 

The respondent was a sublease on property leased by the applicant. The area was subsequently declared a development in terms of the Land Act of 1979. The respondent had earlier applied for the setting aside of the declaration, which application was unsuccessful. 

The court distinguished several cases that supported the view that in ejectment matters, courts should not quickly order the ejectment of a respondent who is carrying out business on the land. 

The court found that the declaration of the area into a development, and the subsequent publication in the government gazette all supported the view that development had to continue. 

The court further balanced the costs incurred by the applicants, the benefits of the development to the public and the fact that the applicant offered the respondents space in the completed development to support that the respondent had to vacate the premises. 

The court ordered the respondent to vacate and to pay the costs of the application.

The court considered an  appeal against the decision of the High Court, in which the trial judge accepted the appellant’s case that the conduct of the respondent in ordering the seizure of her fish, and subsequently dealing with it in a manner inconsistent with the rights of the owner, was unlawful and consequently made an award in her favour for damages, but directed that the appellant pays the appropriate custom duties on the fish. 

The issues facing the trial court was whether or not the seizure was lawful, whether the quantum of damages awarded in favour of the appellant was correct and whether the trial court was right to order that the respondent-cross-appellant pay custom duties. 

The court held that the appellant suffered damages equivalent not to the cost price but fair market value of the fish. Therefore, it was just for the said amount to attract interest at the prevailing exchange rate from the date of the wrong. Since the fish were wrongfully dealt with by the respondent, there was no merit in the cross appeal.

Finally, the court dismissed the appeal of the appellant as well as the cross appeal of the respondent and affirmed the decision of the court below, however, ordered a variation, in relation to the award of damages and the payment of interest on the custom duties by the respondent.

The court considered an appeal against the decision of the Court of Appeal, staying the proceedings of the High Court. 

The origin of the appeal was an application for a mandatory injunction, against the respondent, for disturbing the “natural calm flow” of the Volta River, into the sea, while executing their contractual obligations (marine reclamation). The Respondent appealed 3 interlocutory applications in the High Court, which appeals were still pending. 

The stay was granted to the respondents following an application for judgment to be entered against them.

The appellant raised six grounds of appeal, however the court held that the determination of one main issue would dispose of the appeal. Thus, the court had to determine whether the Court of Appeal erred in granting the stay of proceedings. 

The court noted that all the interlocutory orders were on appeal before the Court of Appeal. The court found that the court of appeal was right to halt the proceedings, since the determination of the interlocutory orders could have a serious effect on the case before the High Court.

It was further noted that an order staying proceedings is interlocutory, and discretionary and should not be interfered with unless it might result in serious injustice. The court found that the appellant failed to demonstrate that the discretion exercised would result to injustice.

Accordingly, the appeal was dismissed.