Blue Cell (Pty) v Blue Financial Services Limited and Others (3489/07 , 8456/07) [2014] ZAGPPHC 267 (16 May 2014)

Blue Cell (Pty) v Blue Financial Services Limited and Others (3489/07 , 8456/07) [2014] ZAGPPHC 267 (16 May 2014)

The court found that it retains an inherent jurisdiction to amend or supplement its own orders, particularly in relation to costs, where justice and necessity require it. The costs order previously granted was the result of fraud and misrepresentation, and it would be manifestly inequitable to enforce it. The omission of costs consequent upon employment of two counsel and reserved costs was inadvertent and should be corrected. The application for leave to appeal was dismissed as there was no reasonable prospect that another court would reach a different conclusion. The costs orders were clarified and altered to ensure justice between the parties.

Citation
[2014] ZAGPPHC 267
Parties
Applicant: Blue Cell (Pty) Ltd (in liquidation); Respondent: Blue Financial Services Limited; Respondent: Blue Employee Benefits (Pty) Ltd; Respondent: Van Niekerk, Dave; Respondent: Smit, Wessel; Respondent: Van der Westhuizen, Renier; Respondent: Mostert, Wayne Anton
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 May 2014
Case Number
3489/07 , 8456/07
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Variation of Costs Order
Outcome
Application for leave to appeal dismissed with costs; costs orders clarified and altered to include costs for two counsel and reserved costs.
Judges
K E Matojane
Legal Topics
Costs Orders, Functus Officio, Variation of Judgment, Inherent Jurisdiction, Fraud on Court
Civil Procedure Costs Orders Functus Officio Variation of Judgment Inherent Jurisdiction Fraud on Court

Case Brief

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Parties

Blue Cell (Pty) Ltd (in liquidation)

Applicant

Blue Financial Services Limited

Respondent

Blue Employee Benefits (Pty) Ltd

Respondent

Van Niekerk, Dave

Respondent

Smit, Wessel

Respondent

Van der Westhuizen, Renier

Respondent

Mostert, Wayne Anton

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Variation of Costs Order

Legal Issues

  1. 1 Whether the court has inherent jurisdiction to vary or supplement its own costs order after final judgment.
  2. 2 Whether the costs order granted against the applicant should be reconsidered due to fraud and misrepresentation.
  3. 3 Whether the omission of costs consequent upon employment of two counsel and reserved costs can be corrected.

Ratio Decidendi

The court found that it retains an inherent jurisdiction to amend or supplement its own orders, particularly in relation to costs, where justice and necessity require it. The costs order previously granted was the result of fraud and misrepresentation, and it would be manifestly inequitable to enforce it. The omission of costs consequent upon employment of two counsel and reserved costs was inadvertent and should be corrected. The application for leave to appeal was dismissed as there was no reasonable prospect that another court would reach a different conclusion. The costs orders were clarified and altered to ensure justice between the parties.

Court Disposition

Application for leave to appeal dismissed with costs; costs orders clarified and altered to include costs for two counsel and reserved costs.

Orders

  • The application for leave to appeal is dismissed with costs, including the costs of two counsel.
  • The two cost orders made in the two 2007 applications are set aside and substituted with an order that the first to fourth respondents jointly and severally pay the costs in respect of the two applications on a scale as between attorney and own client, including costs consequent upon employment of two counsel and...