IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

JUDGMENT

ALLIE, J

In this matter, I want to first state, before I give my ruling, that I have, after reading the papers this morning, offered Judge Veldhuizen, the presiding judge in the matter on 14 May 2008, who in fact made the draft order an order of court, an opportunity to hear this matter himself, given the fact that he was the presiding officer at the time.

However, I have also explained to counsel in chambers that Judge Veldhuizen seemed to have a very good recollection of the matter, I might add that he went so far as to be able to tell me exactly where the respondents were trading, and he certainly knew what had transpired in this matter and he was certainly of the view that he intended this matter to be referred for oral evidence and trial. I informed counsel of this before the hearing of this matter, and counsel was nevertheless prepared to allow me to proceed with the hearing of this matter

I mention this at the onset lest there be a situation where I am accused of having been prejudiced in this matter by the discussions I had with Judge Veldhuizen.

My ruling in this matter is as follows.

It is firstly necessary for me to determine whether the order granted on 14 May 2008 is clear and unambiguous.     I am certainly of the view that, from a procedural perspective, it is unclear, and therefore I am of the view that this Court has the authority to intervene in varying this order so as to make it clear for the purposes of regulating the further conduct of this matter and therefore for the purposes of regulating this Court's own procedure, which it has the authority to do. I am of the view that in an instance where the order is unclear, such as this, I may have regard to the record of the proceedings with a view to establishing what the presiding officer intended to order. On my reading of the record of the proceedings, I have been able to establish not only what the presiding officer intended to order, but also what the legal representatives of both parties were requested by the presiding officer to prepare as a draft order. I was also able to establish what the legal representatives, including the legal representative of the respondent intended to convey when presenting the draft order to the Court on 14 May, and I quote, the legal representative of applicant said:-

"The date of 8 September for the hearing of oral evidence has been obtained from the registrar."

This representation was made to the Court in the presence of the legal representative for the respondent. They both acquiesced in this representation being made to the Court, while it has subsequently transpired today, that the respondent argues that that was not what the draft order conveyed and was not what the draft intends to convey. So one of two things must have happened: either the legal representatives for the respondent and applicant deliberately sought to mislead the Court by stating that the draft order contained something which it did not contain, or there was a genuine and real error on the part of the legal representatives in drafting the order. In either event, whichever cause of conduct motivated the draftspersons of this order to draft that order the way it is, it is unclear. It is not in the interests of either party nor the administration of justice and the running of the matter that it be left in this unclear state.

As regards paragraph 5 of the notice of motion, namely that the costs of this application may either be determined by the trial court, unless it is opposed, in which case the respondents are ordered to pay the costs of this application jointly and severally