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[2014] ZAGPJHC 349
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Perumal and Others v Dunnewels Body Corporation and Others (2012/22733) [2014] ZAGPJHC 349 (25 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2012/22733
DATE:
25 MARCH 2014
In the matter
between:
IRVIN
PERUMAL
.............................................................
First
Applicant
SHIRLEY
PERUMAL
...................................................
Second
Applicant
KERSHIA
PERUMAL
.....................................................
Third
Applicant
And
DUNNEWELS BODY
CORPORATE
............................
First
Respondent
GERRIT
GENIS
.......................................................
Second
Respondent
LAILA
SARANG
.......................................................
Third
Respondent
SANNETTE
ERASMUS
...........................................
Fourth
Respondent
JANINE
TARGETT
….................................................
Fifth
Respondent
OLIETE
PERESTRELO
.............................................
Sixth
Respondent
VHUMBANAI
PROPERTY SOLUTIONS
..............
Seventh
Respondent
JUDGMENT
(RESCISSION OF
SPILG J’S ORDER – 28 JUNE 2012)
MAKUME, J:
[1] This is an
application for an order as put by the applicants to rescind a
so-called new order and reinstate the original order.
[2] If I grant the
order as prayed for by the applicants it will result in absolving the
second and third applicants from the costs
order granted against them
and leave only the first applicant as the party liable to pay the
taxed bill of costs.
[3] The original
order was granted by Spilg J on the 28th June 2012. Paragraph 4 of
that order reads as follows:
“4. The
Applicant is to pay the costs of the First, Fourth, Fifth, Sixth and
Seventh Respondents on an unopposed scale.”
[4] The respondent
taxed a bill of costs against all three applicants in the sum of
about R28 000 on the 30th October 2012 and thereafter
proceeded to
issue a writ of execution which led to the attachment and removal of
the second applicant’s motor vehicle.
[5] The first
applicant then sought to rectify the court order as it is his
argument that the costs order only relates to him and
not the other
applicants.
[6] On the 28th
February 2013 Spilg J clarified the ambiguity on his original court
order as a result paragraph 4 was amended to
read as follows:
“The First,
Second and Third Applicants are to pay the costs of the First,
Fourth, Fifth, Sixth and Seventh Respondents on
an unopposed scale.”
[7] This application
is directed at amending paragraph 4 to read that only the first
applicant is liable for the costs.
[8] I agree with
respondents that the applicant ought to have brought this application
within a reasonable time after having obtained
knowledge of the
complaint in accordance with Rule 42. This he did not do.
[9] In the matter of
First National Bank Limited v Van Rensburg NO and Others
1994 (1) SA
677
TPD the Full Bench held that if it is in the interest of justice
that there should be relative certainty and finality as soon as
possible concerning the scope and effect of orders of the court.
Persons affected by such orders should be entitled within a
reasonable time after the issue thereof to know that the last word
has been spoken on the subject.
[10] The power
created by Rule 42(1) is discretionary and it would be a proper
exercise of that discretion to say that even if the
appellant proved
that Rule 42(1) applied it should not be heard to complain after the
lapse of a reasonable time.
[11] In the present
matter the applicant was present in court on the 28th June 2012 when
the original court order was granted and
was present when it was
clarified on the 28th February 2013 by Spilg J and yet he waited for
five months before bringing this application.
[12] Having said
this I refrain from pursuing this aspect any further because the
application must fail on another ground.
[13] In a number of
cases dealing with the provisions of Rule 42(1)(b) (an ambiguity or
patent error or omission) the Appellate
Division in upholding the
general principles that once a court has duly pronounced a final
judgment or order it has itself no authority
to correct, alter or
supplement it. Then the court proceeded in the matter of Firestone
SA (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) at 306-7 to recognise
a number of exceptions namely:
13.1 The court may
clarify its judgment or order if on proper interpretation the meaning
thereof remains obscure, ambiguous or otherwise
uncertain, so as to
give effect to its true intention, provided it does not thereby alter
the sense and substance of the judgment
or order.
13.2 The court may
correct a clerical or other error in its judgment or order so as to
give effect to its true intention. This
exception is confined to the
mere correction of an error in expressing the judgment or order. It
does not extend to altering its
intended sense or substance.
[14] In the present
matter at the instance of the applicant and the respondent the
presiding Spilg J by including second and third
applicants in
paragraph 4 of his order was in fact not effecting any alteration but
did a correction in order to give his order
its true meaning.
[15] The three
applicants withdrew their application against the respondents. It is
procedure that all three pay the costs unless
otherwise absolved by
agreement. In using the word applicant in paragraph 4 Spilg J did not
refer to first applicant only he used
the word applicant to refer to
all three applicants hence in his correction he brought about that
meaning.
[16] I remain
unpersuaded that this application has any merit and accordingly I
make the following order:
16.1 The application
for rescission is dismissed.
16.2 The court order
handed down by Spilg J as amended is hereby confirmed as correct.
16.3 The applicant
is ordered to pay the costs of this application.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPLICANT:IN
PERSON
21 DUNNEWELS
COMPLEX
7 MAIDEN STREET
ROBINDALE
RANDBURG
RESPONDENT:ADV G
STEYN
INSTRUCTED
BY:BICCARI,BOLLO&MARIANO ATTORNEYS
Tel: (011)
628-9300
Fax:
(011)788-1736
Ref: M
Hinz/rv/RD1873
DATE OF HEARING:
3RD MARCH 2014
DATE OF JUDGMENT:
25TH MARCH 2014