About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 38
|
|
Laubscher v Road Accident Fund (2018/2013) [2018] ZANCHC 38 (14 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Reportable:
YES/
NO
Circulate
to Judges:
YES/
NO
Circulate
to Magistrates:
YES/
NO
Circulate
to Regional Magistrates: YES/
NO
Case
No: 2018/2013
Heard
on: 25/01/2018
Delivered
on: 14/06/2018
In
the matter between
CHRISTIAAN
NICOLAI
LAUBSCHER
Plaintiff
And
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
PAKATI
J
[1]
The plaintiff, Mr Christiaan Nicolai Laubscher, instituted action
against the defendant, the Road Accident Fund, for payment
of
R6 724 074-29 as a result of an accident that occurred on a
public road at Jacobus Street, Kimberley on 10 January
2009. On 16
November 2017 Mr Chris Botha, for the plaintiff, and Mr P Eia, on
behalf of the defendant, consented that the defendant
had to pay
proven damages less 20% apportionment. In the meantime a draft order
marked “CNL” was made an order of court
and was forwarded
to Dr Koch to make calculations in relation to the plaintiff’s
past and future loss of earning capacity.
[2]
On 25 January 2018 after the actuary had filed its calculation the
parties filed heads of argument. Mr Eia brought an interlocutory
application and argued that the court order dated 16 November 2017
should be amended, rescinded or varied in terms of Rule 42 of
the
Uniform Rules of Court due to errors and omissions contained therein.
Mr Botha opposed the application and argued that the
order of 16
November 2017 is final.
[3]
In this judgment I will deal only with the interlocutory application.
The order of 16 November 2017 is exclusive of Clause 13
and 14
dealing with the plaintiff’s past and future loss of earning
capacity which still has to be dealt with after the actuarial
calculation. Rule 42 provides:
“
42
Variation and Rescission of Orders
(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 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 therefore 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]
The general principle is that once a court has duly pronounced a
final judgment or order, it has itself no authority to correct,
alter
or supplement it. The reason is that it becomes
functus
officio
: its
jurisdiction in the case having been fully and finally exercised and
its authority over the subject-matter has ceased.
[1]
In my view, this is not the appropriate forum in which Rule 42
finds application. The application therefore stands to be
dismissed.
[5]
Mr Eia submits further that if the Court is unwilling to correct its
order in terms of Rule 42 the Court has to grant him leave
to appeal.
Mr Botha objects to this submission and argues that no application
for leave to appeal is properly before this Court,
I agree.
COSTS
[6]
The outstanding issue is the costs of 25 January 2018. Mr Botha
submits that the defendant should be ordered to pay the costs
of 25
January 2018. Mr Eia, on the other hand requests an order that the
plaintiff’s legal representatives should bear the
costs, the
one paying the other to be absolved, due to their conduct in dealing
with this matter, alternatively that each party
be ordered to pay its
own costs on party and party scale.
[7]
It is trite that costs should follow the result. It is therefore my
view that the same principle applies in this case. Instead
of arguing
fully the actuarial calculation as far as past and future loss of
income, the parties concentrated on the interlocutory
application.
In the circumstances I make
the following order:
The
application in terms of Rule 42 is dismissed with costs.
______________
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
For
the Plaintiffs: Mr H
Van Niekerk
Instructed
by:
ELLIOTT MARIS WILMANS & HAY
For
the Defendants: Ms C Thomas
Instructed
by:
ROBERT CHARLES ATTORNEYS
[1]
The Superior Court Practice at
B1-309; See also West Rand Estates Ltd v New Zealand Insurance Co
Ltd
1926 AD 173
at 176, 178, 186-187 and 192; S v Wells
1990 (1) SA
816
(A) at 820A-D