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[2016] ZAGPPHC 358
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Draht NO and Others v Manqele and Others (18771/13) [2016] ZAGPPHC 358 (18 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
18/5/2016
Case
Number: 18771/13
In
the matter between:
HEIKO
DRAHT
N.O. 1
st
APPLICANT
MARC
BRADLEY BEGINSEL N.O.
DONOVAN
THEODORE MAJIEDT N.O.
DYNAMIC
AUCTIONEERS CC
and
MBONGISENI
ISAAC
MANQELE 1st
RESPONDENT
LINDIWE
GRACE
MANQELE 2
nd
RESPONDENT
EKURHULENI
METROPOLITAN
MUNICIPALITY 3
rd
RESPONDENT
Coram:
HUGHES J
REASONS
HUGHES
J
[1]
This is an application for leave to appeal against the judgment
handed down on 7 August 2015. Leave is sought by the first and
second
respondent in the main application, being the applicant's in this
application.
[2]
One of the reasons advanced in the applicants application papers is
that they seek clarification of the costs orders which appear
in the
judgment. On the one hand in the body of the judgment at paragraph 21
the cost order reads that the costs awarded are on
a party and party
scale. Whilst in the order, at paragraph 22.3, costs are awarded on
an attorney and client basis.
[3]
In terms of Rule 42(1) of the Uniform Rules of Court a court may
mero
motu
rescind or vary an order.
[4]
In this instance it clear that a glaringly patent typographical error
occurred when the order was being typed. In addressing
the costs
paragraph in the order itself this in fact falls in line with the
scale of costs that was to appear in order. There is
now clarity
between paragraph 21 and 22.3.
[5]
I am of the view that this is such a case that I can
mero motu
change paragraph 22.3 as regards the scale of costs to be applied
as the sense and substance of the judgment is not altered.
[6]
In the result the order at paragraph 22.3 will read that the scale of
the costs is to be on party and party scale and not an
attorney and
clients scale.
[7]
In the applicants application papers for leave to appeal for the
first time in the proceedings does the applicant bring to the
fore
the argument that the applicants as suppliers and as such will be
affected by Consumer Protection Act 68 of 2008(CPA) if leave
to
appeal is not granted.
[8]
This argument of the CPA was not canvassed when I presided over the
opposed eviction application which resulted in the judgment
which
the applicants seek to appeal.
[9]
Those facts were never part of the argument and naturally did not
form part of the judgment. The applicant's cannot seek to
appeal that
which was not considered, is on the record and is neither in the
judgment.
[10]
In the circumstances the reason advanced for leave to appeal to be
granted with regards to the aspect of the CPA must be dismissed
with
costs.
[11]
The following order is made:
[11.1]
The words "as
between attorney and client"
which
appear in paragraph 22.3 of the judgment are to be deleted and
replaced with
"on
a
party and party scale".
[11.2] The application
for leave to appeal on the applicability of the Consumer Protection
Act 68 of 2008 is dismissed with costs.
_________________________
W
HUGHES
JUDGE
OF THE HIGH COURT, PRETORIA
For
the 1
st
and 2
nd
Applicants: NCHUPETSANG
ATTORNEYS
011-4923544
For
the respondent: VELILE TINTO & ASSOCIATES
012-8073366