IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
SAREL JACOBUS VAN DER WALT
and
CLOETE MURRAY N 0
RUWA YNE SMITH N 0
Not Reportable
Case no: A56/2021
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Van der Walt v Murray N O & Another (A56/2021) [2025) ZAFSHC
345 (03 November 2025)
Coram: MBHELE AJP
Heard: In Chambers
Delivered: 03 November 2025
Summary: Application for leave to appeal - functus officio - rule 42(1 )(b) of the
Uniform Rules of Court - curing an omission in a court order - costs of the appeal.
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ORDER
1 The application for leave to appeal is dismissed with costs including costs of
counsel at scale C.
JUDGMENT
Mbhele AJP
[1] On 03 June 2025, I supplemented an earlier order, wherein I had omitted to grant
a costs order in an application for leave to appeal, by adding that 'costs shall be costs in
the appear. I further declined to grant an application to review the Taxing Mistress'
decision to grant costs in favour of the first and second respondent.
[2] The reasons for not granting the relief sought by the applicant and supplementing
my earlier order can be gleaned from my written judgment. It suffices to say that when it
became apparent that I omitted to expressly state who should bear the costs for the
application for leave to appeal, although a costs order was requested by the successful
party, I invoked the provisions of rule 42(1 )(b) of the Uniform Rules of Court.1
[3] In reaching the conclusion, I found that the court has the authority to mero motu
rescind or vary an order in which there is an ambiguity or a patent error or omission. It is
a fundamental principle of our law that an order must be effective and capable of being
1 Rule 42( 1 )(b) of the Uniform Rules of Court, provides:
'(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.'
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obeyed and enforced. That principle underpins the legitimacy and very purpose for which
an order is made.
[4) It is well established that once a court has pronounced a final judgment or order, it
becomes functus officio and lacks authority to correct or supplement the order. The
principle of functus officio elevates finality and certainty over perfectionism. However, this
rule is not absolute, there are exceptions which are well recognised in our law where the
decision maker is permitted to re-engage with the order to cure defects that render it
ambiguous. The omission of a costs order falls within the ambit of exceptions recognised
in our law. In Firestone South Africa (Pty) Ltd v Gentiruco AG,2 the Supreme Court of
Appeal identified the following exceptions to the functus officio rule:
'(i) The principal judgment or order may be supplemented in respect of accessory or
consequential matters, for example, costs or interest on the judgment debt, that the Court
overlooked or inadvertently omitted to grant.
(ii) The Court may clarify its judgment or order, if, on a proper interpretation, the
meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its
true intention, provided it does not thereby alter "the sense and substance" of the judgment or
order.
(iii) 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.
(iv) Where counsel has argued the merits and not the costs of a case (which _nowadays often
happens since the question of costs may depend upon the ultimate decision on the merits), but
the Court, in granting judgment, also makes an order concerning the costs, it may thereafter
correct, alter or supplement that order.'
[5] This application was predicated upon sections 17(1 )(aJ(i) and/or (ii).
[5] This application was predicated upon sections 17(1 )(aJ(i) and/or (ii).
Section 17(1 )(a)(i) has not only raised the bar for applications for leave to appeal but also
fettered the Judge's discretion when considering such applications. Leave to appeal may
only be given when the Judge or Judges are of the opinion that the appeal would have a
reasonable prospect of success.
2 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) 306H-307H. See also Tahilram v
Trustees of the Lukamber Trust and Another [2021] ZASCA 173; 2022 (2) SA 436 (SCA) para 19.
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[6] I have read my judgment and carefully considered the heads of argument filed in
this application for which I thank both counsel appearing on behalf of the parties. I have
come to the conclusion that none of the grounds of appeal enjoy reasonable prospects of
success. The application for leave to appeal must fail.
[7] In the circumstances, I make the following order:
1 The application for leave to appeal is dismissed with costs including costs of
counsel at scale C.
NM M HELE
ACTING JUDGE PRESIDENT OF THE HIGH COURT
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Appearances
For the applicants: J E Bester
Instructed by: FJ Senekal Inc, Bloemfontein
For the respondents: N J Horn
Instructed by: McIntyre Van Der Post Inc, Bloemfontein.