Carstens v Carsten and Others (1519/2004) [2011] ZAECPEHC 25 (7 June 2011)

Carstens v Carsten and Others (1519/2004) [2011] ZAECPEHC 25 (7 June 2011)

The court found that the omission to address the costs of employing two counsel in the original judgment was a patent error, as the issue had been raised by the applicant and not opposed by the respondents. Rule 42(1)(b) permits the court to vary its order to correct such omissions. The delay in bringing the application was not fatal, as the rule does not prescribe a time period and the respondent did not advance any substantive reason for refusing relief apart from delay. Given the importance, complexity, and novelty of the matter, it was reasonable for the applicant to employ two counsel. The court therefore varied the original order to include costs for two counsel, and ordered that...

Citation
[2011] ZAECPEHC 25
Parties
Applicant: Brigid Mary Carstens (born O'Reilly); Respondent: Christiaan Louis Carstens; Respondent: Christiaan Louis Carstens N.O.; Respondent: Andries Johannes Daniel Bester N.O.; Respondent: Arno Strydom N.O.; Respondent: Vincent Cyril Tee N.O.; Respondent: Brigid Mary Carstens N.O.; Respondent: Neil Anthony Thomas N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
7 June 2011
Case Number
1519/2004
Procedural Posture
Civil Application / Application for Variation of Costs Order After Judgment on Point in Limine
Outcome
Application for variation of costs order granted; original judgment varied to include costs for employment of two counsel.
Judges
N Dambuza
Legal Topics
Variation of Judgment, Costs Order, Employment of Two Counsel, Divorce Proceedings
Civil Procedure Family and Children Variation of Judgment Costs Order Employment of Two Counsel Divorce Proceedings

Case Brief

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Parties

Brigid Mary Carstens (born O'Reilly)

Applicant

Christiaan Louis Carstens

Respondent

Christiaan Louis Carstens N.O.

Respondent

Andries Johannes Daniel Bester N.O.

Respondent

Arno Strydom N.O.

Respondent

Vincent Cyril Tee N.O.

Respondent

Brigid Mary Carstens N.O.

Respondent

Neil Anthony Thomas N.O.

Respondent

Procedural Posture

Civil Application / Application for Variation of Costs Order After Judgment on Point in Limine

Legal Issues

  1. 1 Whether the judgment and order on the respondents' point in limine should be varied to include costs for employment of two counsel.
  2. 2 Whether the delay in bringing the application for variation precludes the applicant from obtaining relief.
  3. 3 What is the appropriate costs order for the present application.

Ratio Decidendi

The court found that the omission to address the costs of employing two counsel in the original judgment was a patent error, as the issue had been raised by the applicant and not opposed by the respondents. Rule 42(1)(b) permits the court to vary its order to correct such omissions. The delay in bringing the application was not fatal, as the rule does not prescribe a time period and the respondent did not advance any substantive reason for refusing relief apart from delay. Given the importance, complexity, and novelty of the matter, it was reasonable for the applicant to employ two counsel. The court therefore varied the original order to include costs for two counsel, and ordered that...

Court Disposition

Application for variation of costs order granted; original judgment varied to include costs for employment of two counsel.

Orders

  • The judgment and order handed down on 11 January 2011 is varied to include that costs shall cover the employment of two counsel, payable by the defendants jointly and severally, the one paying the others to be absolved.
  • Each party shall pay its own costs in respect of this application.