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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: A1055/2013

Date: A1055/2013

In the matter between:

MOGOMOTSI SHADRACK MOKAKALE                                                                 Appellant

and

THE ROAD ACCIDENT FUND                                                                               Respondent

Heard:            4 November 2015

Delivered:      11 February 2016

JUDGMENT

A.A.LOUW J:

[1] I have had the pleasure of reading the  judgment  and  opinion  of Mabuse J. I however do not find myself in agreement with the reasoning of his judgment and the conclusion reached.

[2] In order to save time, I have adopted with some amendments the facts set out by my learned colleague in his judgment. I gratefully acknowledge - that input.

[3] This matter came before us as an appeal directed against a costs order made by Kubushi J sitting as the court a quo. Leave to appeal was granted by her on 29 November 2013.

[4] The appellant instituted an action against the respondent in which he claimed damages and ancillary relief. The appellant's claim arose from a motor collision that took place on 14 April 2006.

[5] The hearing was on 7 June 2013 before Kubushi J. The appellant was represented in the court a quo by Mr. M S Mphahlele while the respondent, the defendant in the court a quo, was represented by Ms. J Liebel.

[6] At a previous hearing before Ismail J the issue regarding the merits of the matter was settled on 60% in favour of the appellant.  This was confirmed by the order of Court granted by Ismail J on 1 November 2012. That in effect meant that the respondent would be liable for 60% of the appellant's proven or agreed damages.  Furthermore the court was informed that the parties' battlefield  was  quantum. In  respect  of  quantum,  the  appellant  claimed separately certain amounts in respect of:

(a)           future medical expenses;

(b)          .loss of income; and,

(c)           general damages.

[7] With regard to the appellant's claim for future medical expenses, the parties informed the court that they had agreed that the respondent would furnish the appellant with an undertaking in terms of s17(4)(a) of the Road Accident Fund Act, 56 of 1996 ("the Act").  With regard to the appellant's claim for loss of income, the court a quo was informed that the appellant would use, in support of such a claim, the following documents:

7.1     the joint minutes of the orthopaedic surgeons;

7.2     the joint minutes of the industrial psychologists;

7.3      an  actuarial  calculation  based  on the joint  minutes  of the  industrial psychologists.

[8] The parties placed on record furthermore that the actuarial report had · been prepared at the  instance of the  appellant's  legal team  and that the respondent  had accepted  unreservedly the  actuarial calculations;  that the parties were ad idem with regard to the contingencies to be applied both in respect of pre-morbid calculations which was agreed at 7% and the post- morbid contingency which was agreed at 20%.

[9] It was agreed by the parties and placed by them on record that the nett amount due and payable by the respondent to the appellant in respect of loss of income after the deductions of the contingencies was R1,106,897.39, which amount the parties agreed was fair and reasonable in the circumstances of the case.

[10] There was disagreement with regard to the manner in which the amount of R1,106,897.39, should be paid, with the respondent's counsel arguing that  it should  be paid in instalments while the appellant's  counsel strongly argued for one lump sum payment in terms of s17(4)(b) of the Act. The amount to be awarded for general damages was also in dispute.

[11] After counsel had ventilated the issues and made their submissions, in some respects with reference to relevant authorities, the court reserved judgment.

[12] On 12 June 2013 the court a quo handed down its written judgment. The order reads as follows:

"(a)    General damages are awarded to the plaintiff in the amount of R1, 100,000.00;

(b)      Loss of income damages are awarded to the plaintiff in the amount of R1, 106,897.39;

(c)      It is recorded that the defendant shall provide the plaintiff with an undertaking for 60% future medical expenses in terms of s17(4)(a) of the Road Accident Fund Act 56 of 1996, as amended;

(d)       The defendant is ordered to pay the plaintiff the costs of this suit;

(e)      All the amounts awarded are subject to 60% apportionment."

[13]  According to the appellant's application for leave to appeal, this appeal was triggered by the following circumstances.  Following the said court order, the respondents duly paid the applicant 60% of the damages awarded.  On 12 September 2013, the appellant's bills of costs were taxed and allowed in the sum of R14,827.29 in respect of the appellant's local correspondent attorneys and R429,926.48 in respect of the instructing attorneys.  Copies of these bills of costs were forwarded to the respondents for payment but the respondent neglected or failed or delayed to effect payment in respect of the bills as a result of which on 23 September 2013, the appellant caused to be issued a writ of execution to recover the costs taxed and allowed.

[14] After the sheriff of the court had served a copy of the writ of execution on the respondent, the respondent, it is not clear who precisely did so,

contacted the appellant's attorneys of record and informed him that the respondent had to pay only 60% of the total costs. The respondent contended that the costs awarded were apportioned on a 60 to 40 % scale and they would comply with the order as set out.

[15] The matter is before us because during subsequent negotiations between the parties to get clarity of the court order the parties could not reach any agreement. As a result of their failure to resolve the dispute the respondent paid the sum of R266,852.26 being 60% of the total costs taxed and allowed.

[16] The question on appeal before us is a simple one.  The order quoted in para 12 above states in the last paragraph that "all the amounts awarded are subject to 60% apportionment".  An award of costs is not an amount until it has been taxed or agreed upon, but that is just a question of time.

[17] I therefore do not agree with my colleague that the order is crystal clear. I find that the order is at least ambiguous. What is crucial to me is that the trial judge by granting leave to appeal, in fact found that her order may have been wrong i.e. that there was a reasonable possibility that another court may come to another conclusion on this specific issue.

[18] If she realised, during the hearing of the application for leave to appeal, that she had made a simple mistake, I have no doubt that she would there and then have rectified it and therefore have saved all the parties and this court the time and expense of hearing an appeal.  This she did not do.

[19] Thus, the order being at most ambiguous, I find the ambiguity to have been resolved by the trial judge in granting leave to appeal.

[20] A successful party is obviously entitled to his costs.  In Merber  v Merber [1] Greenberg JA stated:

"[111/]hen a successful party has been deprived of his costs in the trial court, an appeal court will enquire whether there were any grounds for this departure from the general rule and if there are no such grounds, then ordinarily it will interfere".

[21] There was no reason, and none was argued before us on appeal, for depriving the appellant of any part of the costs he is entitled to. The appeal has to succeed.

[22] I therefore do not agree that the appeal should be dismissed.

[23] I propose the following order:

1.       The appeal is upheld with costs.

2.       Paragraph 28 e of the order of the court a quo is set aside and substituted with the following:

"The defendant is ordered to pay the costs of the action"

_____________________

A.A. LOUW

Judge of the High Court

I agree

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N.P. MNGQIBA-THUSI

Judge of the High Court

MABUSE J:

[1] I have read the judgment by my brother Louw J and sister Mngqibisa-Thusi J. Their judgment calls for comments and I do so in the later part of this judgment. Even then I will only comment on the two aspects which, in my view, constitute the core aspects of their judgment. These aspects appear in paragraphs 17 and 19 of their judgment. This matter came before us as an appeal directed against a costs order made by Kubushi J sitting as the court a quo. Leave to appeal was granted by the court a quo on 29 November 2013.

[2] From the records placed before  us, the appellant had  instituted an action against the respondent in which he had claimed payment of an amount of money and further ancillary relief. The appellant's claim had arisen from a motor collision that took place on 14 April 2006.

[3] The said matter came before court for hearing on 7 June 2013 before Kubushi J. The appellant, as it is in this appeal, was represented in the court a quo by Adv. MS Mphahlele while the respondent, the defendant in the court a quo, was represented by Adv. J Libel.

[4] Right at the inception of the trial the parties, through their counsel, informed the court that the issues regarding the merits of the matter had been settled and that the respondent had conceded 60% of the merits in favour of the plaintiff. This was confirmed by the order of Court granted by Ishmael J. on 1 November 2012. That in effect meant that the respondent would be liable for 60% of the plaintiff's proven or agreed damages. Furthermore the court was informed that the parties' battlefield was quantum. In respect of quantum, the appellant had claimed separately certain amounts in respect of:

(a)        future medical expenses;

(b)        loss of income; and,

(c)        general damages.

[5] With regard to the appellant's claim for further medical expenses, the parties informed the court that they had agreed that the respondent would furnish the appellant with an undertaking in terms of s. 17(4) of the Road Accident Fund Act No. 56 of 1996 ("the Act"). With regard to appellant's claim for loss of income, the court a quo was informed that the appellant would use, in support of such a claim, the following documents:

5.1          the Joint Minutes of the orthopaedic surgeons;

5.2          the Joint Minutes of the Industrial Psychologists; and,

5.3          an  actuarial  calculation  based  on the  Joint  Minutes  of  the  industrial Psychologists.

[6] The parties placed on record furthermore that the actuarial report had been prepared at the instance of the appellant's legal team and that the respondent had accepted unreservedly the actuarial calculations; that the parties were ad idem with regard to the contingencies to be applied both in respect of pre-

morbid calculation which was agreed at 7% and the post-morbid contingency which was agreed at 20%.

[7] It was agreed by the parties and placed by them on record that the nett amount due and payable by the respondent to the appellant in respect of loss of income after the deductions of the contingencies was R1,106,897.39, which amount the parties agreed was fair and reasonable in the circumstances of the case.

[8] There was a disagreement with regard to the manner in which the amount of R1,106,897.39, should be paid, with the respondent's counsel arguing that it should be paid in instalments while the appellant's counsel strongly argued for one lump sum payment in terms of s 17(4) (b) of the Act.

[9] After counsel had ventilated the issues and made their submissions, in some respects with reference to relevant authorities, the court reserved judgment and promised to inform the parties when such was ready.

[10] On 12 June 2013 the court a quo handed down its written judgment. The order of the said court read as follows:

"(a)       General  damages  are  awarded  to  the plaintiff  in  the  amount  of R1, 100,000.00;

(b)       Loss of income damages are awarded to the plaintiff in the amount of R1, 106,897.39;

(c)       It is recorded that the defendant shall provide the plaintiff with an undertaking for 60% future medical expenses in terms of s. 17(4)(a) of the Road Accident Fund Act 56 of 1996, as amended;

(d)       The defendant is ordered to pay the plaintiff the costs of this suit,·

(e)       All the amounts awarded are subject to 60% apportionment."

[11] According to the appellant's application for condonation for the late filing of the record of appeal, this appeal was triggered  by the following circumstances. Following the said court order, the respondents duly paid the applicant 60% of the general damages awarded. On 12 September 2013, the appellant's bills of costs were taxed and allowed in the sum of R14,827.29, in respect of the appellant's local correspondent attorneys and, R429,926.48, in respect of the instructing attorneys. Copies of these bills of costs were forwarded to the respondents for payment but the respondent neglected or failed or delayed to effect payment in respect of the bills as a result of which on 23 September 2013, the appellant caused to be issued a writ of execution to recover the costs taxed and allowed.

[12] After the sheriff of the court had served a copy of the writ of execution on it, the respondent, it is not clear who precisely did so,  contacted the appellant's attorneys of record and duly informed him that the respondent had intended to pay only 60% of the total taxed costs. The respondent contended that the costs awarded were apportioned on a 60% to 40 % scale and they would comply with the order as set out.

[13] The matter is before us because during subsequent negotiations between the parties to get clarity of the court order the parties could not reach any agreement. As a result of their failure to resolve the dispute the respondent paid the sum of R266,852.26 being 60% of the total costs taxed and allowed.

[14] According to Mr Mphahlele's heads of argument the issue before us concerns the proper interpretation of the order of the court a quo. According to him this court is required, in its interpretation of the said court order, to decide whether the costs payable to the appellant should, according to such order, be apportioned; or secondly, whether the costs should be apportioned on the 60% to 40% scale.

[15]  In the first place, there is no doubt in our mind that the order of the court a quo is clear an unambiguous. The order in (d) in paragraph 10 supra, stands alone and is clear that the respondent was ordered to pay the plaintiff's costs of the action. It will be noted that in respect of the orders in (a) and (b) of paragraph 10 supra the awards were mentioned and these were R1,100,000.00 in respect of the order in (a) and R1,106,897.29 in respect of the order in (b). It is also clear that in respect of the order in (c) paragraph 10 supra the court expressly stated 60% of the future medical expenses.

[16] In respect of the order in (d), no award was made or amount referred to. If the court a quo had intended ordering the costs of the action to be apportioned it would have expressly stated it so in (d). Accordingly it is as clear as crystal that the court a quo never had intended that the order costs be apportioned in any manner whatsoever. Iam fortified, in my view, that it never was the intention of the court a quo to order an apportionment of the costs by the fact that neither of the counsel raised this issue in their arguments and submissions and secondly by the fact that in its judgment the court a quo never referred to it nor hinted in any way that it would deprive the appellant of part of his costs. The general rule with regards to costs is that costs should follow the event, which means that the successful party is entitled to the costs. A successful party may only be deprived of his costs in the trial only when some recognised principle or rule in the award of costs has been violated. Even if the Court a quo did not refer to it I have found no reason in the proceedings or the reasoning of the court a quo that would have justified such an order. There must be sufficient legal grounds for doing so. The Court a quo has not referred to any such grounds.

[17] Secondly, assuming for a moment that the order was ambiguous, with which I do not agree, the appellant should have dealt with this matter in accordance with the provisions of Rule 42(1) (b) of the Uniform Rules of Court. Generally speaking and specifically where the matter is covered by Rule 42 the application procedure after notice to all the parties whose interests may be affected is the appropriate one. The said Rule provides as follows:

''The court may in addition to any powers it may have mero motu or upon application of any party affected, rescind or vary -

(b)  an order orjudgment in which there is ambiguity; or a patent error or omission, but only to the extent of such ambiguity, error or omission."

[18] There is no doubt in my mind that had the appellant approached the matter in accordance with the aforementioned Rule, the court a quo would mero motu have resolved the issue if the order did not reflect the true intention of Kubushi J or she would have done so on application by either of the parties. Under the provisions of Rule 42(1) (b) a court possesses the power to mero motu or on application by any party affected, to vary or rescind its order or judgment if such order or judgment does not reflect its true intention. Accordingly a pronouncement by a Judge of a final order does not render him or her functus officio in a matter which is accessory to or consequential on such an order and which the Judge might have overlooked when he or she pronounced the order.

[19] During argument Mr Mphahlele submitted that the appellant understood the order and that it was clear and not confusing. Under these circumstances I see no reason why the appellants noted and appeal against the order of the court a

quo.   He argued that despite the fact that the order was  clear  it was  the respondent who interpreted it differently by insisting that the court had ordered that it was only responsible for 60% of the appellant's costs of the action. The respondent followed this interpretation up by paying only 60% of the costs and refusing, on its own interpretation of the court order, to pay the balance. This is precisely  what  triggered  this  appeal.    Accordingly  this  appeal  is,  strictly speaking, aimed not at the court order but instead at the respondent's interpretation of the court order. That that is so is clear from the following factors. After the written judgment that contained the relevant order was handed down on 12 June 2013, the appellant did not note any appeal against the order of costs, a clear indication that the appellant was satisfied with the order of costs. The decision to note an appeal was only taken, according to the affidavit of attorney Abel Mokgehle Mammile in the application for condonation for the late filing of the appeal record, on 15 October 2015 after they had understood the interpretation of the said costs order by the respondent. Paragraphs 5.10 to 5.13 of the said affidavit, in my view, encapsulate the way in which the appellant understood the respondent's interpretation of the costs order.  It states as follows:

"5. 10     The respondent failed to pay the bill and on 23 September 2013 a Writ of Execution on costs was issued and served on the Respondent.

5.11       Subsequent to serving the Writ of Execution the Respondent contacted me and informed me that they intend to pay the costs as apportioned in terms of the judgment of the Honourable Madam Justice Kubushi.

5.12       The implication of the decision is that they intend to pay the applicant 40% of the taxed bill of costs.

5.13       On 7 October 2013 I phoned Mr Molepo of Tsebane Molaba Attorneys, the Respondent's attorney of record, inquiring if the Respondent will be amenable to payment of the Applicant's taxed bill of costs or whether I should appeal against the judgment of the Honourable      Madam        Justice    Kubushi.                       (my     own  underlining).

[20] If the appellant was unhappy with the costs order of the court a quo the unhappiness should have arisen as soon as the appellant's legal team had perused the judgment of the court a quo. They would and should certainly have taken steps immediately thereafter to express their discontent with the order of the court a quo by noting an appeal. This was quite clearly the fundamental reason the said appeal was brought only in November 2014.

[21] The appellant's first ground of appeal was that the learned Judge erred in law and in fact in finding that the applicant was entitled to costs of the suit equal to the apportionment agreed upon or that the costs awarded are subject to 60% apportionment. For the following two reasons, this ground is flawed. The Court a quo never made a finding on costs. I already have pointed out in paragraph 16 supra the court a quo never considered the issue of costs in the judgment. Secondly, the court a quo never stated that the costs awarded were subject to apportionment.

[22] In paragraph 17 of the judgment by Louw J and Mngqibisa-Thu'si J, it is stated that:

''l therefore do not agree with my colleague that the order is crystal clear. "

Even Mr. Mphahlele conceded during argument that as far as the appellant was concerned the order was clear and unambiguous.

[23] Still in paragraph 17 they had the following to say:

'l find that the order is at least ambiguous. "

They repeat the same view in paragraph 19 where they state that:

"Thus, the order being at most ambiguous, I find the ambiguity to have been resolved by the trial judge in granting leave to appeal."

Now it is not the purpose of an appeal to correct ambiguities in the court orders, especially the cost order of a judgment. Ambiguities in court orders are dealt with in terms of Rule 42(1) of the Uniform Rules of Court. The said rule provides as follows:

"The Court may, in addition to any other power it may have mero motu or upon the application of any party, rescind or vary -

(b)     an order or judgment in which there is ambiguity ... but only to the extent of such ambiguity ... "

Section 42(1) prescribes two methods by which an ambiguous order maybe corrected. Firstly, the party who is affected by such an order may approach the presiding judge, point out what purports to be the ambiguity in the order to the Judge and give Judge an opportunity to clarify the order. This, in my view, is cost effective. Secondly, the party concerned may apply to Court to vary the order so as to obtain clarity. See in this regard the following paragraph from Estate Garlick v Commissioner for Inland Revenue 1934 AD 499, 502:

"This point is that by Roman Dutch Law the order of Court, once it has been pronounced by the word of mouth of the Judge, cannot as a rule be thereafter altered or amended by that Judge. There can be no doubt that the rule was as stated Thus Vamhouder (Practyck in Civile Zaken,  Ch. 219 and 220)  lays down that all final judgments must be pronounced by word of mouth of the Judge, or of one Judge on behalf of the majority of the Court and that such judgment must be pronounced properly, in the day-time, and in the presence of the parties  or at any rate after due notice to the parties, and that the Judge, once having so altered a definitive judgment, is thereupon functus officio, so that he cannot thereafter alter, supplement, amend or correct the judgment ... To this general rule there are certain exceptions, which are stated by the writers referred to; for instance, an order after having been pronounced may be amended or added to where through some mistake it does not express the true intention and decision of the Court; or where it is ambiguous; or where the Court through an oversight has omitted to include in its order something which is accessory to the principle, such as interest, fruits, or costs. "

[24] Finally the fact that the court a quo granted leave to appeal where such was unnecessary does not take away the powers of this Court to decide whether on the facts of this matter then Court should treat it as such. This court must have regard to the manner in which this matter came before it; the reasons for bringing the matter before it as an appeal; the views of the parties before the provenance of the dispute and finally the nature of the order appealed against. If this court treats the matter as an appeal brought on proper grounds, in my view, it is tantamount to an emphasis by it that 'two wrongs make a right." Secondly it will create a bad precedence  that where an order of Court is ambiguous the proper step, in order  to obtain clarity, is to note an appeal against it. I have already stated somewhere supra that this is not the purpose of an appeal.

[25] In my view, the appellant in this matter should have approached this matter by way of s. 42(1) and not an appeal.

[26] I would have found the appeal to be unnecessary and would have dismissed it.

__________________________

P. M. MABUSE

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the applicant:                   Adv. MS Mphahlele

Instructed by:                                      AM Mammile Attorneys

Counsel for the respondents:             Adv. N Moses

Instructed by:                                     Tsebane Molaba Inc.

Date Heard:                                        4 November 2015

Date of Judgment:                              February 2016

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