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[2013] ZACC 20
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Glenister v President of the Republic of South Africa and Others (CCT 28/13) [2013] ZACC 20; 2013 (11) BCLR 1246 (CC) (14 June 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 28/13
[2013] ZACC 20
In the matter between:
HUGH GLENISTER
............................................................................................
Applicant
and
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
................................................................................
First
Respondent
MINISTER FOR SAFETY AND SECURITY
.....................................
Second
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
.................................................
Third
Respondent
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
...................................................................
Fourth
Respondent
GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
................................................................................
Fifth
Respondent
Decided on : 14 June 2013
JUDGMENT (For delivery)
THE COURT:
Introduction
[1] This is an application in terms of Rule 42 of the Uniform Rules
of Court
1
requesting a variation of a costs order granted by this Court in
Glenister v President of the Republic of South Africa and Others
2
(
Glenister II
) on 17 March 2011. The deponent, the applicant’s
attorney, requests that costs for the expert witness be added to the
costs
order. He believes that this omission occurred by mistake.
Background
[2] The
factual background giving rise to these proceedings is to be found in
Glenister v President of the Republic of South Africa and Others
3
(
Glenister I
) and
Glenister II.
4
It is therefore unnecessary to repeat it in its entirety here except
insofar as it is relevant for the determination of this application.
[3] The
proceedings in
Glenister II
dealt with applications brought by
the applicant to determine the constitutional validity of the
National Prosecuting Authority
Amendment Act
5
(NPAA Act) and the South African Police Service Amendment Act
6
(SAPSA Act). The applicant was successful in his challenge, and the
Court ordered the respondents to pay the costs of the applicant,
including costs of two counsel, in the High Court and in this Court.
However, the costs order made no provision for the qualifying
fees of
an expert witness.
In this
application
[4] The
applicant points out that, in the Notice of Application and in his
Heads of Argument filed in
Glenister II
, the costs of the
expert witness were requested. He contends that nowhere in the
majority or the minority judgments, is any reference
made to the
question of whether the expert witness should be paid his fee as part
of the costs award against the respondents.
[5] The
applicant submits that the inference is that this Court overlooked
the qualifying expenses of the expert witness when it
delivered its
judgment and when the costs order was framed. He contends that the
rule that the costs follow the event should apply,
as the services of
the expert were both necessary and useful.
[6] Rule
42(1) of the Uniform Rules of Court empowers a court to rescind or
vary an order or judgment erroneously sought or granted,
in which
there is an ambiguity or a patent error or omission, or in which
there is a common mistake by the parties.
7
The jurisdictional facts in subrule (1) must, however, be established
by the party seeking variation before a court may exercise
its
discretion to set aside the order or to amend it. As this Court has
said before,
8
a court may clarify its order or judgment to give effect to its true
intention. This is to be ascertained from the language used,
without
altering the sense and substance of the judgment if, on its proper
interpretation, the meaning remains unclear.
9
[7] In
essence, the function of an expert is to assist the court to reach a
conclusion on a matter on which the court itself does
not have the
necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy
the court that,
because of his special skill, training or experience, the reasons for
the opinions he expresses are acceptable.
Any expert opinion which is
expressed on an issue which the court can decide without receiving
expert opinion is in principle inadmissible
because of its
irrelevance. The rule was crisply stated in
Gentiruco A.G. v
Firestone S.A. (Pty.) Ltd.
: “[T]he true and practical test
of the admissibility of the opinion of a skilled witness is whether
or not the Court can
receive ‘appreciable help’ from that
witness on the particular issue”.
10
Expert witness testimony on an ultimate issue will more readily tend
to be relevant when the subject is one upon which the court
is
usually quite incapable of forming an unassisted conclusion. On the
other hand the opinion of the witness is excluded not because
of a
need to preserve or protect the fact-finding duty of the court, but
because the evidence makes no probative contribution.
[8] In
addition to the above, the Court in
Ferreira
posited the rule
that in certain circumstances, only with the assistance of an expert
witness could the Court give proper effect
to a constitutional
right.
11
We were, however, not faced with those circumstances in
Glenister
II
. The application before us and the issue upon which we were
called to adjudicate was the constitutional validity of impugned
statutes.
12
The determination of constitutional validity is well within the
competence of this Court.
13
This Court sought no assistance from an expert in reaching its
conclusions nor was the expert witness testimony required to give
effect to the litigant’s constitutional rights. The applicant’s
expert was therefore of no “appreciable help”
on the
particular issue of constitutional validity with which the Court was
seized.
[9]
Furthermore, the applicant’s expert witness was not qualified
as such before this Court, having no specialised knowledge
that would
have assisted the Court in deciding the issues. The probative weight
of the expert evidence was negligible as this Court
did not rely on
any expert testimony in its determination.
14
Were a qualified expert to provide assistance to the Court, indeed
qualifying costs would be appropriate. That is not the case
here. In
the light of this conclusion, there was no reason why qualifying
costs should have been afforded to the applicant. Ordinarily,
this
Court would have dismissed this application without further reasons
because Rule 42(1) has not been properly engaged in the
sense that
its requirements have not been met. However, it is important, to
address the aspect regarding the costs of an expert
with which
Glenister II
did not deal.
Order
[10] The following order is made:
1. The application in terms of Rule 42 of the Uniform Rules of Court
to amend this Court’s order in
Glenister II
is refused.
2. There is no order as to costs.
For
the Applicant: Louis & Associates.
For
the Respondents: The State Attorney.
1
Rule
28 of the Constitutional Court Rules provides that Rule 42 of the
Uniform Rules of Court shall, with such modification as
may be
necessary, apply to proceedings in this Court.
2
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC).
3
[2008]
ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC) at paras 1-2
and 10-26.
4
Above
n 2 at paras 3-15.
5
56
of 2008.
6
57
of 2008.
7
Rule
42(1) provides:
“
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 without notice to any party affected thereby;
(b) an order or judgment in which there is 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.”
8
Minister
for Correctional Services and Another v Van Vuren and Another: In re
Van Vuren v Minister for Correctional Services and
Others
[2011]
ZACC 9
;
2011 (10) BCLR 1051
(CC) at paras 7-8.
9
Firestone
South Africa (Pty.) Ltd. v Genticuro A.G.
1977 (4) SA 298
(A) at
307A-E. See also
Thompson v South African Broadcasting
Corporation
[2000] ZASCA 76
;
2001 (3) SA 746
(SCA) at paras 5-6 and
S v Wells
1990 (1) SA 816
(A) at 820C-F.
10
1972
(1) SA 589
(A) at 616H. See also
Ferreira and Others v S
[2004]
ZASCA 29
;
2004 (2) SACR 454
(SCA) (
Ferreira
) at 382;
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 370;
and
Holtzhauzen v Roodt
1997 (4) SA 766
(W) at 776G.
11
Ferreira
above n10 at para 40.
12
See
[3] above.
13
Section
172(1) of the Constitution.
14
For
requirements on the qualification of an expert see Schwikkard and
Van der Merwe
Principles of Evidence
3
rd
ed.
(Juta, Cape Town 2009) at 96-7.