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[2016] ZAGPPHC 783
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Basson v Health Professions Council of South Africa, In Re: Basson v Hugo and Others (3113/2015) [2016] ZAGPPHC 783 (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 3113/2015
26/8/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
DR
WOUTER
BASSON
Applicant
and
HEALTH
PROFESSIONS COUNCIL OF
SOUTH
AFRICA
Respondent
IN
RE:
the
application between:
DR
WOUTER
BASSON
Applicant
and
PROFESSOR
J F N
HUGO
1
st
Respondent
PROFESSOR
R E
MHLANGA
2
nd
Respondent
HEALTH
PROFESSIONS COUNSEL OF
SOUTH
AFRICA
3
rd
Respondent
JUDGMENT
HF
JACOBS, AJ:
[1]
The facts germane to this application are mostly common cause. On
Monday 19 January 2015 the applicant walked out of a disciplinary
inquiry before a Committee of the Health Professions Council of South
Africa (the third respondent in this application). The applicant
later that day applied to the Judge sitting in the urgent court,
Baqwa J and was granted the following relief contained in a draft
order prepared by the applicant's legal representatives:
"1. Applicant is
ordered to serve the application on the Respondents on the 19
th
of January 2015 before 16h30 by way of e-mail.
2. First and Second
Respondents are prohibited to proceed with the disciplinary
proceedings against Applicant, pending the finalisation
of this
application,
3. Respondents are
ordered to file answering affidavits, if any, on or before 16h00 on
the 20
th
of January 2015.
4. Applicant is
ordered to file replying papers, if any, on or before 10h00 on the
21
st
of January 2015.
5. The application is
postponed till 10h00 on the 21
st
of January
2015."
[2]
On Thursday 22 January 2015 the application was argued before Barn J
and the next day, 23 January 2015, Barn J made the following
order:
"1. The applicant
is granted the right to institute the application for the recusal for
the first and second respondents, if
he is inclined to do so, within
10 days of this order. The third respondent is ordered to pay the
applicant's costs, the costs
to
include the costs of two counsel."
[1]
[3]
When the applicant's bill of costs was sent to the respondents, their
attorney contended on behalf of the third respondent,
that the costs
order embodied in the judgment of Barn J does not include the costs
of 19 January 2015 when the order quoted in
paragraph 1 above was
made by Baqwa J.
[4]
The applicant contended that the order of Barn J is unambiguous and
includes the costs of the proceedings before Baqwa J and
applies in
terms of Rule 42(1)(b) for a variation. The respondents argue that in
the absence of an express statement in the orders
of Barn J or of
Baqwa J holding the third respondent liable for the costs of 19
January 2015, the third respondent would not be
liable for those
costs.
[5]
The applicant now applies for an order in terms of Rule 42(1)(b) to
remedy the order of Barn J of 23 January 2015 to vary that
order to
include a further paragraph that stipulates that
"the costs
will include the cost incurred by the applicant pertaining to the
appearance on the 19
th
of January 2015".
[6]
The order with which a judgment of a court concludes is the executive
part of the judgment that defines what the Court requires
has to be
done, or not done, so that the parties to the suit (and others) may
know. It may be said that the order must undoubtedly
be read as part
of the entire judgment and not as a separate document. The Court's
directions must be found in the order and not
elsewhere. If the
meaning of an order is clear and unambiguous, it is decisive, and
cannot be restricted or extended by anything
else stated in the
judgment.
[2]
If a court order is
considered by a person to be ambiguous does not mean that it is. Its
meaning must be determined through established
rules of
interpretation.
[7]
The basic rules of interpretation of a judgment or order of a Court
are no different from those applicable to the construction
of
documents.
[3]
Interpretation of
a document should take place by having regard to the context provided
by the reading of the provisions of the
document in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. The context of
the document is fundamental and the
apparent purpose to which the document is directed determines its
context. A sensible meaning
is to be preferred to one that leads to
an insensible result or one that undermines the apparent purpose of
the document.
[4]
[8]
It is in my view clear from the order of Barn J that he, sitting in
the urgent Court of this Division (which at any time demands
swift
decision making while time to prepare a written judgment is a
luxury), intended to award the costs of the application
before him to
the applicant. It is also in my view clear that Baqwa J did not award
the costs to the applicant on 19 January 2015.
In the absence of an
order by Baqwa J or provision pertaining to costs in his order of 19
January 2015 stating otherwise, I have
to infer that the issue of
costs was not considered at all on 19 January. The parties also did
not state in the papers in this
application that costs was argued
before Baqwa J. The wording of the order of Baqwa J tallies with such
an interpretation and is
the only plausible conclusion considering
that Baqwa J on 19 January 2015 expressly ordered that the
respondents be served with
the papers and were to be afforded the
opportunity to file their answering affidavits before 16h00 on 20
January 2015 and that
the applicant was allowed to file its replying
papers, if any, before 10h00 on the 21
st
of January 2015.
It is in my view unlikely that Baqwa J would have granted or even
considered a costs order against the respondents
(or any of them) or
not granting the applicant his costs of the day on 19th January 2015.
The relief sought before Baqwa J on 19
January is contained in
paragraph 2 of the order. It is in the form of interim interdictory
relief and constitute substantial success
in the application. Relief
of that kind is often granted in the urgent Court in this Division
without consideration of the costs
aspect of the dispute. Costs often
stand over for consideration once all parties to the suit have had
the opportunity to be heard
and placed evidence before the Judge in
the urgent court to consider a costs order.
[9]
What is absent from the judgment of Barn J is any reasoning or
consideration given to the costs of 19 January 2015. At the time
of
his judgment Barn J must have been aware of the order of Baqwa J. The
appearance on 19 January before Baqwa J was the first
step in
obtaining interim relief. That relief brought the disciplinary
proceedings to a halt. Barn J a few days later as per paragraph
1 of
his order granted the applicant further interim relief and those
costs were, and are, in my view part of the costs of the
application
of which Barn J awarded the costs to the applicant.
[10]
In my view there is nothing ambiguous in the judgment of Barn J
calling for clarification. The order is clear. The costs of
the
entire urgent application of that week were awarded to the applicant.
The costs in that context include the costs of the appearance
before
Baqwa J.
[11]
This application was necessitated by the stance adopted by the third
respondent. The third respondent's interpretation of the
order is
wrong · and the applicant should have placed his bill before
the Taxing Master for taxation. In my view the application
in terms
of Rule 42(1 )(b) cannot succeed. It is evident from the papers filed
of record that the third respondent would have continued
with its
objection and allegations of ambiguity as far as the court order is
concerned. As stated by Mahomed J in
Battis
[5]
it is
not one of the functions of the Court to give legal advice. There
seems to be some
animosity
between the litigants in these proceedings. Thus the dispute. I am
entitled in terms of
section 21(1)(c)
of the
Superior Courts Act 10
of 2013
to issue a declaratory order. I am prepared to exercise my
discretion in that regard as will be seen from the order that
follows.
[12]
As far as the costs of this application is concerned it is clear that
the application was necessitated as a result of the unfounded
view
adopted by the third respondent as far as the costs of the 19th of
January 2015 is concerned. In my view the applicant should
be awarded
the costs of this · application.
Under
the circumstances I make the following order:
1. The costs order of
Barn J of 23 January 2015 shall include the costs incurred by the
applicant pertaining to the appearance on
19 January 2015 before
Baqwa J;
2. The third respondent
is ordered to pay the costs of this application.
_____________________
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
Date:
26 August 2016
[1]
The order is on the last page of the written judgment of Bam J.
[2]
Administrator, Cape & Another v Ntshwaqela & Others 1990
(SA) 705 AD at 716.
[3]
Herbstein & Van Winsen: The Civil Practice of High Courts of
South Africa 5th Ed, Vol 1 p 936.
[4]
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4)
SA 593 (SCA).
[5]
Battis & Another v E/centre Group Holdings Ltd & Others
1993
(4) SA 69
WLD at 75E.