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[2011] ZAECPEHC 25
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Carstens v Carsten and Others (1519/2004) [2011] ZAECPEHC 25 (7 June 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 1519/2004
Date
heard: 19 May 2011
Date
delivered: 07 June 2011
In the matter between:
BRIGID
MARY CARSTENS (born O’Reilly)
Applicant
and
CHRISTIAAN LOUIS CARSTENS
First Respondent
CHRISTIAAN
LOUIS CARSTENS N.O.
Second Respondent
ANDRIES
JOHANNES DANIEL BESTER N.O.
Third Respondent
ARNO
STRYDOM N.O.
Fourth Respondent
VINCENT
CYRIL TEE N.O.
Fifth Respondent
BRIGID MARY CARSTENS N.O.
Sixth
Respondent
NEIL ANTHONY THOMAS N.O.
Second Respondent in Reconvention
JUDGMENT ON APPLICATION OF
COSTS ORDER
DAMBUZA, J
:
In this application the applicant
seeks an order that the judgment and order that I granted on the
respondents’ point in
limine
be varied in that the
costs awarded to her be directed to include the costs of employment
of two counsel. The application is opposed
by the first respondent.
It is common cause that when the
point in
limine
was heard before me the applicant was
represented by two counsel,
Mr Buchanan SC
and
Ms Mey
,
whilst the first respondent on one hand and the second to sixth
respondents on the other were represented by one counsel each.
In my
judgment and order I made no reference or order consequent upon the
employment of two counsel.
Indeed a specific submission was made
in the applicant’s Heads of Argument on the point
in
limine
, that the applicant be awarded costs of two counsel. No
written submissions were made on behalf of the respondents in this
regard
and I do not recall any submissions being made on their
behalf during argument. In error I omitted to consider this issue in
the judgment.
The basis for the opposition to the
application by the first respondent is the delay by the applicant in
bringing the application.
The Judgment was delivered on 11 January
2011; an application for leave to appeal on behalf of the second to
sixth respondents
was filed on 4 February 2011 and the application
for variation of the judgment was filed on 17 May 2011. I can only
assume that
the applicant became aware of the judgment on the day
that it was handed down. There is no explanation in the application
as
to the cause of the delay in bringing the application.
Rule 42(1)(b) of the Rules of
practice in this court, in terms of which the application is brought
provides that:
“
The
court may, in addition to any powers it may have,
mero
motu
or
upon application of any party affected, rescind or vary:
(a)
… … … …
(b)
an order or judgment in which there is an ambiguity, or a patent
error, or omission, but only to the extent of such ambiguity,
error
or omission;
(c)
…………”
Although it is generally expected and
in certain cases mandatory that the cause for a delay in approaching
court for relief be
explained, in this case the Rule does not
stipulate a specific period within which the application should be
brought. It would
therefore not be proper to deprive the applicant
of the relief sought for failure of explaining the delay alone;
particularly
as it is not the contention of the first respondent
that there is valid reason, apart from the delay, for refusing the
relief
sought.
The general rule
is that where the question of costs has not been argued, the court
will either make a provisional order giving
an opportunity to the
parties to make representations for variation of such order, failing
which the court will frame its order
on the facts before it.
1
In view of the importance of the
matter to the parties, the substantial amount of the applicant’s
potential claim in the
divorce proceedings and the difficulty and
novelty of the issue raised in
limine
it was, in my view
proper and reasonable for the applicant to employ two counsel.
Regarding the costs of this
application it is significant that the omission was through no fault
of the parties. Further, although
the first respondent opposes the
application there was no separate hearing in respect thereof.
Subsequent to the filing of the
application I granted the first
respondent opportunity to respond to the application. My decision is
based on the papers filed.
My view therefore is that the appropriate
order would be for each party pay its own costs in respect of this
application.
I am persuaded that the order in the
judgment should be varied accordingly.
The following order shall therefore
issue:
[11.1] The judgment and order handed
down on 11 January 2011 is hereby varied to read as follows:
“
The point of
law raised together with the application to strike out certain
paragraphs in the particulars of claim are dismissed
with costs, such
costs shall include the costs consequent upon the employment of two
counsel and shall be paid by the defendants
jointly and severally,
the one paying the others to be absolved.”
[11.2] In this application each party
shall pay its own costs.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the applicant: Adv R.G. Buchanan
SC instructed by Greyvensteins Nortier of Port Elizabeth
For the 1
st
respondent: Adv
J.D. Huisamen instructed by Kaplan Blumbert of Port Elizabeth
For 2
nd
to 5
th
respondents: Adv P.A. Van Niekerk SC instructed by Van Vollenhoven &
Associates of Port Elizabeth
1
Lawsa
Vol 3 at paragraph 299.