About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2018
>>
[2018] ZAECPEHC 47
|
|
Nelson Mandela Bay Municipality v Gcora (508/2018) [2018] ZAECPEHC 47 (21 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 508/2018
In
the matter between:
NELSON
MANDELA MAY
MUNICIPALITY
Applicant
and
SIPHO
GCORA
Respondent
REASONS
FOR RULE 42 ORDER
MBENENGE
JP:
[1]
On 10 July 2018 this court delivered judgment involving an
application brought by the applicant for the grant of certain
declaratory
relief, as also an interdict restraining the respondent
from defaming the applicant, the applicant’s executive
officials,
the applicant’s employees and legal representatives
(the main application). The matter also involved an application
brought
by the respondent against the applicant for an order
declaring that the applicant had either breached or not fulfilled
certain
of its constitutional or statutory obligations (the
counter-application). There were other applications either pending or
disposed
of involving the applicant and the respondent brought under
different case numbers, for instance case number 992/2016 heard on 14
September 2017 and whose judgment was delivered on 20 September 2017.
[2]
The relevant prayer in the applicant’s notice of motion in the
main application had been couched as follows:
“
3. That the
respondent be interdicted and restrained from publishing in any form
or manner material of any kind which is defamatory
of:
3.1 the applicant;
3.2 the applicant’s
executive
officials
and its
employees
;
and
3.3 the applicant’s
legal representatives…”
(the
emphasis is mine).
[3]
Both the main and counter applications were heard to a finish on 07
June 2018, culminating in an order being granted,
inter alia
,
worded:
“
(b) The respondent
is restrained and interdicted from, in any manner whatsoever,
defaming or making derogatory remarks of and concerning
the
applicant, its official (sic) and legal representatives.”
[4]
Even though the main and counter applications had been brought and
heard under case number 508/2018, the judgment therein was
delivered
under case number “
992/2016”.
From a scrutiny of
the order referred to in paragraph 3 above it will be observed that
no reference is made to “
executive
” and to
“
employees
”. Furthermore, it referred to
“
official
”, and not to “
officials
”.
[5]
Shortly after the launch of an application for leave to appeal by the
respondent against the part of the order dismissing the
counter-application with costs, the applicant brought an application
in terms of rule 42(1) (b) of the Uniform Rules of Court pointing
to
certain omissions in the order and contending that the omissions had
resulted from a clerical and/or patent error (the variation
application).
[6]
At the hearing of the application for leave to appeal the variation
application was dealt with first. The respondent, who seemed
to have
initially been bent on opposing the application, went on record as no
longer opposing the same.
[7]
The order sought in the variation application was granted in the
terms sought and resulted in an order (without reasons) being
granted
effectively varying the case number and paragraph [53] (b) of this
court’s order embodied in the judgment delivered
on 10 July
2018, to read as follows:
“
(b) The
respondent is restrained and interdicted from, in any manner
whatsoever, defaming or making derogatory remarks of and concerning
the applicant, its executive officials, employees and legal
representatives.”
[8]
Rule 42 is specifically meant to cater for omissions such as those
that form the subject hereof. The court was of the view that
the
application passed muster, hence it granted the order it did. The
applicant was successful in the main application; the order
ought to
have been granted in the terms sought in the notice of motion. There
is no reason why the respondent should not be interdicted
from
defaming or making derogatory remarks of and concerning the
applicant’s executive officials and employees as well. The
intention had always been to refer to these functionaries, and the
omission was a patent error. It is trite law that a judgment
or order
obtained in those circumstance is liable to be varied so as to
reflect the intention of the court.
[1]
[9]
In the
Thompson
matter
[2]
it was held:
“
In this regard
there appears to be a misunderstanding about the power of a Court to
amend or supplement its findings in contradistinction
to its orders.
The correct position was spelt out in
Firestone
South Africa (Pty) Ltd v Gentiruco
AG
1977
(4) SA 298
(A) at 307C-G:
‘
The Court may correct a
clerical, arithmetical 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. Kotze JA made this distinction manifestly clear in
[
West Rand Estates Ltd v New Zealand Insurance Co Ltd
1926 AD
173
at 186-7], when, with reference to the old authorities, he said:
‘
The Court can,
however, declare and interpret its own order or sentence, and
likewise correct the wording of it, by substituting
more accurate or
intelligent language so long as the sense and substance of the
sentence are in no way affected by such correction;
for to interpret
or correct is held not to be equivalent to altering or amending a
definitive sentence once pronounced…
’’”
[10]
For the sake of completeness and caution it has become necessary,
even absent a request therefor, to furnish reasons for the
order made
on 13 August 2018, as we hereby do.
________________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
I
agree
M
MAKAULA
JUDGE
OF THE HIGH COURT
I
agree
N
L NTSEPE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the applicant:
S C Rorke SC
(with him
A
Rawjee
)
Instructed
by: Gray Moodliar Inc. Attorneys
Port
Elizabeth
The
respondent:
In person
Date
heard: 13 August 2018
Date
order delivered: 13 August 2018
Date
reasons furnished: 21 August 2018
[1]
Thompson v South African
Broadcasting Corporation
2001 (3) SA 746 (SCA)
[2]
Supra