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[2018] ZAWCHC 85
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Westerhuis and Another v Westerhuis and Others (A276/2017) [2018] ZAWCHC 85 (27 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE
NO: A 276/2017
In
the matter between:
FREDERICK
WESTERHUIS
First
Appellant
CATHERINE
WESTERHUIS
Second
Appellant
and
JAN
LAMBERTUS
WESTERHUIS
First
Respondent
JAN
LAMBERTUS WESTERHUIS N.O.
(In
his capacity as the Executor in the
Estate
of the late John
Westerhuis)
Second
Respondent
DERICK
ALEXANDER WESTERHUIS N.O.
(In
his capacity as the Executor in the
Estate
of the late John
Westerhuis) Third
Respondent
JAN
LAMBERTUS WESTERHUIS N.O.
(In
his capacity as the Executor in the
Estate
of the late Hendrikus
Westerhuis) Fourth
Respondent
PATRICIA
WESTERHUIS
Fifth
Respondent
MARELIZE
VAN DER
MESCHT
Sixth
Respondent
VARIATION
OF ORDER OF 27 JUNE 2018 IN TERMS OF RULE 42(1)(b)
GAMBLE,
J:
[1]
After handing down judgment in this matter
on behalf of the Full Bench on Wednesday 27 June 2018 it appeared to
me that there are
2 omissions in the order which occurred as a
consequence of an oversight.
[2]
Firstly, the order failed to formally deal
with the first, second, fifth and sixth respondents’ cross
appeal lodged on 4 July
2017. While the Full Bench order, in setting
aside the order of the trial court and replacing it with the relief
sought in the
declaration, implicitly upholds the cross appeal, it is
preferable to deal therewith expressly as there may be costs
implications
for the parties.
[3]
Secondly, in ordering the appellants to
bear the costs in the trial court, the Full Bench order failed to
expressly grant the qualifying
expenses of the handwriting expert who
testified on behalf of the plaintiffs, Dr Rosa, and whose evidence
this court has found
to be convincing and material. The cross appeal
expressly sought such costs and insofar as they might not be
recoverable before
the Taxing Master without an express direction in
that regard (
South African Forestry Co.
Ltd v York Timbers Ltd
2001 (4) SA 884
(T) at 888B-H), it is necessary to correct para 5 of the order which
this court substituted in place of the order of the trial
court.
[4]
In so varying the order, this court
mero
motu
exercises its powers under Rule
42(1)(b) of the Uniform Rules.
ORDER
OF COURT
IN
THE CIRCUMSTANCES, THE ORDER OF THIS COURT HANDED DOWN ON 27 JUNE
2018 IS VARIED AS FOLLOWS:
A.
By the insertion in para A thereof of the
phrase “
and the cross appeal is
granted with costs,”
after the
first reference to the word “
costs
”
therein.
B.
By the addition of the phrase “
as
well as the qualifying expenses of Dr.C.
Rosa”
after the word “
declaration
”
at the end of para 5 of the order made in substitution of the order
of the trial court
__________________
GAMBLE,
J
I
AGREE.
IT
IS SO ORDERED.
____________________
ERASMUS, J
I
AGREE
____________________
PARKER,
J