Asphalt Services (Pty) Ltd v Tarspay CC (2011/26870 ; 2012/34486 ; A5061/2016) [2023] ZAGPJHC 920 (14 August 2023)

Asphalt Services (Pty) Ltd v Tarspay CC (2011/26870 ; 2012/34486 ; A5061/2016) [2023] ZAGPJHC 920 (14 August 2023)

The court found that the full court's order dated 8 November 2017 contained a patent error regarding the scale of costs awarded. There were no reasons advanced in the appeal judgment for awarding punitive costs on an attorney and client scale, and both parties were partially successful in their respective appeals. The absence of reasoning and the context of the judgment indicated that the full court did not intend to grant a punitive costs order. Under Rule 42(1)(b), the court is empowered to vary its order to correct such an error, provided it does not alter the sense and substance of the judgment. The order was accordingly varied to reflect that costs are awarded on the ordinary party...

Citation
[2023] ZAGPJHC 920
Parties
Applicant: Asphalt Services (Pty) Ltd; Respondent: Tarspay CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 August 2023
Case Number
2011/26870
Procedural Posture
Review Application / Application to Interpret and Vary a Previous Full Court Order Under Rule 42(1)(b)
Outcome
Applicant's application dismissed with costs; respondent's counter-application granted; full court order varied to reflect costs on party and party scale.
Judges
Ford
Legal Topics
Costs Awards, Punitive Costs, Rule 42 Variation, Interpretation of Orders
Civil Procedure Costs Awards Punitive Costs Rule 42 Variation Interpretation of Orders

Case Brief

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Parties

Asphalt Services (Pty) Ltd

Applicant

Tarspay CC

Respondent

Procedural Posture

Review Application / Application to Interpret and Vary a Previous Full Court Order Under Rule 42(1)(b)

Legal Issues

  1. 1 Whether the full court's order dated 8 November 2017 contains a patent error or ambiguity regarding the scale of costs awarded.
  2. 2 Whether the order should be interpreted as awarding costs on a punitive attorney and client scale or on the ordinary party and party scale.
  3. 3 Whether a single judge may vary an order of a full court under Rule 42(1)(b).

Ratio Decidendi

The court found that the full court's order dated 8 November 2017 contained a patent error regarding the scale of costs awarded. There were no reasons advanced in the appeal judgment for awarding punitive costs on an attorney and client scale, and both parties were partially successful in their respective appeals. The absence of reasoning and the context of the judgment indicated that the full court did not intend to grant a punitive costs order. Under Rule 42(1)(b), the court is empowered to vary its order to correct such an error, provided it does not alter the sense and substance of the judgment. The order was accordingly varied to reflect that costs are awarded on the ordinary party...

Court Disposition

Applicant's application dismissed with costs; respondent's counter-application granted; full court order varied to reflect costs on party and party scale.

Orders

  • The applicant's application is dismissed with costs.
  • The respondent's late filing of its counter application and replying affidavit is condoned.