Ngede v Davey's Micro Construction CC (SA 51/2014) [2016] NASC 4 (27 October 2016);


Full judgment


CASE NO: SA 51/2014


In the matter between:














Heard: 17 October 2016


Delivered: 27 October 2016





SMUTS JA (HOFF JA and MOKGORO AJA concurring):


  1. This is an appeal against the dismissal by the High Court of an unusual application for rescission of judgment sought under the erstwhile rule 44(1) of the previously applicable High Court rules.


Background facts

  1. The appellant was the defendant in an action brought by the respondent as plaintiff against him. I refer to them in this judgment as plaintiff and defendant.


  1. The plaintiff claimed the sum of N$72 958,50 as the amount owing in respect of outstanding work done for the defendant in a building contract. The defendant denied it was payable, pleading that the works were defective and counterclaimed the sum of N$103 924,11, representing the costs to rectify the defective works and complete the project.


  1. At the close of the defendant’s case, the defendant successfully applied for absolution. The High Court declined to grant the defendant his costs when it granted absolution. The defendant at that time indicated that he would not pursue his counterclaim. The court granted him leave to withdraw his counterclaim but ordered that he pay the plaintiff’s costs occasioned by that withdrawal.


  1. When declining to grant the defendant his costs when granting absolution, the High Court gave the reason for this being the state of the pleadings but indicated that written reasons would be provided for that cost order as well as the cost order in favour of the plaintiff in respect of the defendant’s withdrawal of his counterclaim. During an exchange with counsel for the defendant when pressing the presiding judge for reasons for the latter cost orders, the court referred to the fact that the defendant had made use of materials left by the plaintiff on site in completing the building works without providing for any credit to the plaintiff in doing so. The court questioned the genuiness of the counterclaim.


  1. The High Court subsequently provided written reasons for absolution and both cost orders given. In its reasons, the court referred to the parlous manner in which the case had been pleaded, although much of the criticism was rightly directed at the plaintiff’s pleadings. When turning to the cost awards, the court referred to its wide discretion within the context of the general rule of a successful party being awarded his or her costs.


  1. With reference to the refusal to grant the defendant costs when succeeding with absolution, the court stated:


‘In the present matter, the only issue which the plaintiff failed to prove is the amount of N$72 958,50 which he claimed. There is evidence that, he left some material which he bought on the site, the evidence further indicates that, Simataa Building & Renovation used some of that material to complete the project. I am therefore of the view that, it is just fair and equitable not to mulct the plaintiff with a cost order’.


  1. The decision to direct the defendant to pay the plaintiff’s costs in respect of the withdrawal of the counterclaim was made with reference to the erstwhile rule 42(1) of the former High Court rules.


Application for rescission

  1. After these written reasons were provided, the defendant brought an application to rescind these cost orders, relying upon rule 44 in support of the application. In the founding affidavit deposed to by the defendant’s legal practitioner, reference was made to the reason orally given by the court for declining to award the defendant his costs upon successfully applying for absolution, being the state of pleadings. A different reason was however provided in the written reasons subsequently given. (That concerned the evidence that the plaintiff had left building materials on site which the defendant had utilised).


  1. With reference to the cost order given in respect of the withdrawal of the counterclaim, the rescission application refers to the exchange in court at the time of the withdrawal when the court questioned whether it was genuine or possibly frivolous. A different reason was given in the written reasons, being rule 42(1).


  1. The application concluded that the costs orders should be rescinded under rule 44(1)(b).


  1. The application for rescission in essence takes issue with these two reasons given, submitting that they did not constitute valid reasons to deprive the defendant of his costs.


  1. The rescission application was opposed by the plaintiff who took issue with the applicability of rule 44. The plaintiff pointed out that both parties were present and that there was no mistake common to them. The plaintiff also denied that the two cost orders were ambiguous or erroneous.


The approach of the High Court

  1. The High Court, after referring to authority, found that rule 44(1)(a) or (c) did not apply, and also found that there was no patent error, omission or ambiguity contemplated in rule 44(1)(b). The application was refused with costs. The defendant appeals against that judgment to this court.


Parties’ submissions

  1. Mr Grobler, who appeared for the defendant, said that the defendant wanted to appeal against the costs orders ‘but because of the ambiguity in the judgment of the court regarding the reasons as to why no costs order was made’ decided to apply for rescission under rule 44(1)(b). Counsel argued that that there was ambiguity regarding the costs orders because the High Court had given ‘two completely different reasons’ for each order. He submitted that the costs orders should have been rescinded as a consequence. When expanding upon this in oral argument, he contended that the court below had applied wrong reasons in making those costs orders. He relied upon Kamwi v Standard Bank Namibia Ltd 2015 (3) NR 678 (HC) para 29 where Van Niekerk, J stated the following with regard to rule 44(1):


‘It has been held that ambiguity required by Rule 44(1)(b) is an ambiguity as a result of which the judgement does not reflect the intention of the judicial officer pronouncing it: in other words the ambiguous language must be attributable to the court itself.’


  1. The plaintiff would not appear to have opposed the appeal. No heads were filed and it was not represented at the appeal hearing.


Rule 44(1)(b)

  1. The defendant relies upon rule 44(1)(b). It provides that the High Court ‘may, in addition to any other powers it may have, mero moto or upon the application of any party affected, rescind or vary any order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguous error or omission’.


  1. In dealing with the related rule 44(1)(a) which empowers the High Court to rescind an order or judgment ‘erroneously sought or erroneously granted in the absence of any party affected thereby’, the High Court in Jack’s Trading CC v Minister of Finance & another (Ohorongo Cement (Pty) Ltd Intervening) 2013 (2) NR 491 (HC) referred to the nature of applications under rule 44, following leading South African authority concerning the equivalent South African rule 42:


‘[30] The starting point in an analysis of this nature is the fundamental principle that once a court has pronounced a final judgment or order, it is functus officio. The background to the equivalent rule in South Africa in the context of this well-established principle was, with respect, lucidly set out and summarised by the South African Supreme Court of Appeal in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) where the court stated:


“[4] As I shall try to explain in due course, the common law before the introduction of Rules to regulate the practice of superior Courts in South Africa is the proper context for the interpretation of the Rule. The guiding principle of the common-law is certainty of judgments. Once judgment is given in a matter it is final. It may not thereafter be altered by the Judge who delivered it. He becomes functus officio and may not ordinarily vary or rescind his own judgment (Firestone SA (Pty) Ltd v Genticuro AG). That is the function of a Court of appeal. There are exceptions. After evidence is led and the merits of the dispute have been determined, rescission is permissible only in the limited case of a judgment obtained by fraud or, exceptionally, justus error. Secondly, rescission of a judgment taken by default may be ordered where the party in default can show sufficient cause. There are also, thirdly, exceptions which do not relate to rescission but to the correction, alteration and supplementation of a judgment or order. These are for the most part conveniently summarised in the headnote of Firestone SA (Pty) Ltd v Genticuro AG (supra) as follows:


"1. 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.


2. 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.


3. 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.


4. 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.''


'In the Genticuro AG case Trollip JA left open whether or not this list is exhaustive. The authorities also refer to an exceptional procedure under the common-law in terms of which a court may recall its order immediately after having given it, or within a reasonable time thereof, either meru motu or on the application of a party, which need not be a formal application (De Wet & Others v Western Bank Ltd (supra); First National Bank of South Africa Ltd v Jurgens & others; Tom v Minister of Safety & Security. This procedure has no bearing on this case.


[5] It is against this common-law background, which imparts finality to judgments in the interests of certainty, that Rule 42 was introduced. The Rule caters for mistake. Rescission or variation does not follow automatically upon proof of a mistake. The Rule gives the Courts a discretion to order it, which must be exercised judicially (Theron NO v United Democratic Front (Western Cape Region) and others) and Tshivhase Royal Council & Another v Tshivhase and Another; Tshivhase and Another v Tshivhase and Another.


[6] Not every mistake or irregularity may be corrected in terms of the Rule. It is, for the most part at any rate, a restatement of the common law. It does not purport to amend or extend the common law. That is why the common law is the proper context for its interpretation. Because it is a Rule of Court its ambit is entirely procedural.


[7] Rule 42 is confined by its wording and context to the rescission or variation of an ambiguous order or an order containing a patent error or omission (Rule 42(1)(b)); or an order resulting from a mistake common to the parties (Rule 42(1)(c)); or an order erroneously sought or erroneously granted in the absence of a party affected A thereby (Rule 42(1)(a)). In the present case the application was, as far the Rule is concerned, only based on Rule 42(1)(a) and the crisp question is whether the judgment was erroneously granted.'


[31] After this exposition of principle, the court in Colyn further stated that the trend of the courts is not to give a more extended application to the rule to include all kinds of mistakes or irregularities. The court further made it clear that the real issue is to determine the nature of the error in question and whether it amounted to an error in terms of the rule, regardless as to whether it manifested itself in the record of proceedings or not.’


  1. The court in Jack’s Trading referred to the fundamental purpose of rule 44 ‘is after all to expeditiously correct an obviously wrong judgment or order’.1


  1. The defendant contends that there is ambiguity in the order because of the different reasons given in the written judgment to those provided contemporaneously.


  1. But the cost orders themselves lack any ambiguity at all. They are clear. In the first instance, the defendant is denied the costs of absolution and secondly is directed to pay the costs occasioned by withdrawing the counterclaim.


  1. The defendant’s complaint is in essence directed at the cost orders themselves and why they were given. His remedy was to apply for leave to appeal against the cost orders. An appeal is after all directed against the result (in this instance, the cost orders) and not against the reasons given for them. As was stated by Nicholas AJA in Administrator, Cape & another v Ntshwaqela & others 1990 (1) SA 705 (A) at 715D:


‘there can be an appeal only against the substantive order made by a court, not against the reasons for judgment.’


See also: Western Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948 (3) 353 (A) at 355.


  1. The passage cited from Kamwi by defendant’s counsel does not assist the defendant. The ambiguity contended for in this matter does not result in the order not reflecting the intention of the court below. On the contrary, more reasons were supplied for the same order. The intention of the court below with regard to the two cost orders was clear and without any ambiguity at all.


  1. The inapplicability of the rule is also demonstrated by the relief contemplated by the rule where the court is empowered to rescind or vary the order ‘only to the extent of the ambiguity’. If the application were to succeed, the court below would then rescind or vary the order only to the extent of the ambiguity. The extent of the ambiguity contended for by counsel is that two different reasons were given for each cost order – which do not contradict themselves.


  1. Would the defendant want the court to remove one of the reasons to remove the perceived ambiguity? Clearly not. The complaint is with the orders


themselves, demonstrating that his remedy was to apply for leave to appeal against them.


  1. Given the lack of any ambiguity in the two cost orders, rule 44(1)(b) plainly cannot apply. The High Court was correct in refusing the application. Given that the appeal has not been opposed, an order as to the costs of the appeal would not arise.



  1. The following order is made:


The appeal is dismissed. No order is made as to the costs of the appeal.











Z Grobler Of Grobler & Co


No appearance


1 Para 32.