IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO.: 22269/2010
In the matter between

and

JUDGMENT DELIVERED ON 19 MARCH 2012

DOLAMO, AJ

[2] The Applicant is Bloomberg Investment Holdings (Pty) Limited, registration number 2008/029292/07, a company duly incorporated with limited liability under the Company Laws of the Republic of South Africa. The Applicant is one of eight registered entities in South Africa in the Bloomberg Group of Companies and Close Corporations, all of which feature the element "Bloomberg" as the dominant part of their corporate names.

to the First Respondent in which the defective nature of the objection and the First Respondent's failure to permit the applicant to respond to the objection as it had indicated it intended to upon receipt of a complete objection was reiterated. The First Respondent was requested to withdraw the order.

[12] The application was opposed by the Second Respondent only. The First Respondent confirmed that it will abide the court's decision.

[14] The Second Respondent submitted that the Applicant had for a period of about five months after it came to its knowledge that the First Respondent had made an order declaring its name objectionable and undesirable did nothing to correct the situation. Also, it was argued, that the Applicant could have responded to the objection and reserved its right to supplement its response on receipt of the missing page. In particular it was argued that Applicant failed to request an extension of the period of time within which to respond to the Second Respondent's objection despite the fact that the First Respondent readily grants such extensions of the time within which to respond to a company name objection. Respondent emphasized that this was a fact which the Applicant could not dispute as it is familiar with the day to day practice of the First Respondent.

[17] In the alternative Second Respondent also argued that should the court find that the Applicant is entitled to a review of the First Respondent's decision in terms of the common law then, at most, the Applicant would be entitled to an order setting aside the First Respondent's decision coupled with an order that the matter be remitted back to the First Respondent for consideration.

[19] The Applicant's stance however has altered and at the hearing it accepted that should the order of the First Respondent be set aside, the proper approach will be to remit the matter back to the First Respondent for her reconsideration.

Douglas who appeared for the Applicant referred in his heads of argument the Constitutional Court confirmed that the courts' power to review administrative action now ordinarily arises from PAJA, not from the common law as in the past. It is clear therefore that PAJA cannot be circumvented where it is applicable. It follows furthermore that Section 8 of PAJA which now fashions the remedies to which an applicant for review may be entitled is also applicable. This section provides in subsection 8(1)(c)(ii) that remitting the matter for reconsideration by the administrator follows on the setting aside of the decision. Having regard to the scheme of this section an order of setting aside an administrative decision is coupled with one of remittance for reconsideration. Only in exceptional circumstances would the court substitute its order for that of the administrator. In my view the Second Respondent was correct in pointing out that the relief sought by the Applicant, in the circumstances, should incorporate an additional order of remittance for reconsideration.

[21] Although it was conceded by the Second Respondent that the order of the First Respondent had to be set aside I mention all the arguments raised by it because, in my view, are relevant to the question of costs.

[22] As regards costs, Ms Joubert, who appeared for the Second Respondent, argued that even if the Applicant were to succeed in having the decision of the First Respondent set aside, the matter would have to be remitted back to her to be adjudicated properly. For this reason, if I understood his argument correctly, it was necessary for the Second Respondent to oppose the matter so as go point this out. Consequently the Applicant should not be entitled to a cost order because it rejected the suggestion that the mater be remitted back to the First Respondent when it was made early in this matter. In other words, the Second Respondent's opposition of the matter was justified in that it pointed out the correct procedure to be followed once the First Respondent's order is set aside. Mr Sholto-Douglas, on behalf of the Applicant, on the other hand, argued that the Second Respondent's opposition of the matter in the face of a clear case that the First Respondent's decision was to be set aside was unnecessary and that it should be ordered to pay the costs including the costs of two counsel. The costs of two counsel, according to Mr Sholto-Douglas, were necessary because of the importance of the matter to the Applicant. He also argued that the Second Respondent mentioned the remittance of the matter to the First Respondent in the alternative, the main argument being that the Applicant was not entitled to bring a review of the First Respondent's decision under the common law but in terms of Section 48 of the Companies Act. In the circumstances the Second Respondent should be ordered to pay the costs, he argued.

[23] Was the Second Respondent justified in going beyond just pointing out that on setting aside Second Respondent's order the matter has to be remitted to the administrator for consideration?

[24] I am of the view that there is merit in Ms Joubert's argument. The concession that in the event of the order of the First Respondent being set aside the matter should be remitted back to her (First Respondent) was made in the opposing affidavit and not for the first time in argument. I am satisfied that even if it was in the alternative it was incumbent upon the Applicant to consider it rather than to brush it aside in the terms in which it did as set out supra [para 6 supra]. The argument that this was not the Second Respondent's main reason for opposing the application does not detract from the fact that the concession was made and should have been properly considered by the Applicant. The Second Respondent however should not have raised all the other grounds of opposing the application. Both parties in my view had acted in haste in responding to the other party's case.

[25] I am satisfied that this is a case where the general rule that the costs follow the event should not be strictly applied. A fair order of costs would be that each party should pay its own costs in lien with the alternative submission of Ms Joubert.

[26]       The order I make therefore is the following:
1. The order of the First Respondent dated 9 July 2010 directing the Applicant to change its name in terms of Section 45(2) of the Companies Act 1973 is set aside;
2. The matter is remitted to the First Respondent for reconsideration with the following further direction:
2.1. That the Applicant respond to the Second Respondent's letter of objection to the First Respondent dated 17 December 2009, read together with missing page 3 thereof (paragraphs 9-16 inclusive) within 30 days of date of this order;

DOLAMO, AJ