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[2024] ZAGPPHC 271
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N.P.S obo A.S v Member of the Executive Council for Health, Gauteng (Variation) (55763/2020) [2024] ZAGPPHC 271 (18 March 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:55763/2020
DOH: 28 August –
05 September &
06 October 2023
1.
REPORTABLE:
NO
/YES
2.
OF INTEREST TO OTHER JUDGES:
NO
/YES
3.
REVISED.
DATE:
18 MARCH 2024
SIGNATURE:
In the matter of:
S[...]
N[...] P[...]
Plaintiff
Obo
A[...]
S[...]
AND
MEMBER
OF THE EXECUTIVE COUNCIL
Defendant
FOR
HEALTH, GAUTENG
JUDGMENT
VARIATION OF JUDGMENT
IN TERMS OF RULE 42 (1) (b)
Bam
J
1.
This
is a variation of the order granted by this court on 14 March 2024 to
correct a patent error or omission. In her draft order,
the plaintiff
prays for the reasonable qualifying, preparation and reservation fees
in respect of Professor Lotz (on the basis
that he was exceed on 23
August 2023, Dr Lombard and Dr Weitz (who both testified at the
trial)
[1]
.
2.
The court in its final order made an error
and omitted to grant the said costs.
3.
In terms of Rule 42 (1) (b) of the Uniform
Rules of Court:
‘
(1)
The court may, in addition to any other powers it may have, mero motu
or upon the application of any party affected, rescind
or vary:
(a) An order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby;
(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) an order or judgment
granted as the result of a mistake common to the parties.
(2)
Any party desiring any relief under this rule shall make application
therefor upon notice to all parties whose interests may
be affected
by any variation sought.
(3) The court shall not
make any order rescinding or varying any order or judgment unless
satisfied that all parties whose interests
may be affected have
notice of the order proposed.
4.
Accordingly, this court hereby varies its
order as follows:
By adding the following
paragraph, after paragraph 41.2:
41.3: The defendant shall
pay the reasonable qualifying costs of preparation and reservation
fees in respect of Professor Lotz (on
the basis that he was exceed on
23 August 2023, Dr Lombard and Dr Weitz (who both testified at the
trial).
5.
In the event and unless any party whose
interests may be affected raises an objection stating their reason/s
within FIVE (5) days
from date of signature of this variation, the
order shall be so amended. The whole order shall after the
variation read:
Order
40. The question of
liability is hereby separated from the quantum of the plaintiff’s
damages.
41. The Plaintiff’s
case is upheld.
41.1 The defendant must
pay the plaintiff’s proved or agreed damages.
41.2 The defendant must
pay the plaintiff’s costs, including the costs occasioned by
the employment of two counsel, on a scale
as between attorney and
client.
41.3 The defendant shall
pay the reasonable qualifying costs of preparation and reservation
fees in respect of Professor Lotz (on
the basis that he was excused
on 23 August 2023), Dr Lombard and Dr Weitz (who both testified at
the trial).
NN BAM
JUDGE
OF THE HIGH COURT, PRETORIA
Date
of Hearing:
28 August – 05 September &
06
October 2023
Date
of Judgment:
12 March 2024
Date
judgment varied:
18 March 2024
Appearances:
For
Plaintiff:
Adv
JF Mullins SC with Adv LA East
Instructed
by
Paul
du Plessis and Associates
c/o
KMG & Associates
Rietondale,
Pretoria
For
the Defendant:
Adv
M Botma and Adv MH Mhambi
Instructed
by:
State
Attorney, Pretoria
[1]
Caselines
V2:36 with reference to Caselines 04:2 paragraph 2.2.