Commissioner South African Revenue Services (Gauteng West) v Levue Investments (Pty) Ltd (14299/2005) [2007] ZAGPHC 215 (21 September 2007)

21

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Date delivered: 21 September 2007

CASE NUMBER: 14299/2005

In the matter between:

THE COMMISSIONER: SOUTH AFRICAN REVENUE

SERVICES (GAUTENG WEST) Applicant

and

LEVUE INVESTMENTS (PTY) LIMITED Respondent

JUDGMENT

R Du Plessis, AJ:

Background:

[1] During August 2005 the respondent brought an urgent application against the applicant to obtain a court order in terms of which the applicant was to refund to respondent an amount of R2 581 317,00 being VAT on a property transaction.

[2] The matter was comprehensively argued before Victor A.J., and on 5 August 2005 she made the following order:

1. The Respondent is to refund the amount of R2,581,317.00 (two million Five hundred and eighty one thousand and three hundred and seventeen Rand) to the applicant by 13h00 Friday, 12 August 2005.

2. The Respondent is to pay the costs of this application.

[3] The dispute between applicant and respondent pertaining to payment of VAT on the property transaction, is still pending.

[4] The respondent instituted alternative dispute resolution proceedings against the applicant, in terms of which a meeting was held on 9 May 2006, and a ruling by the chairman of applicant is still outstanding.

[5] During November 2005 the respondent brought a second application in terms of rule 49(11) of the High Court rules wherein it sought to enforce the judgment of Victor AJ. The application was dismissed by Malan J.

[6] On or about 19 December 2005, the applicant noted an appeal to the Supreme Court of Appeal against the judgment of Victor AJ.

[7] During June 2006 the respondent applied to this court for an order declaring the appeal noted by the applicant to have lapsed, and it sought to execute the order of Victor AJ. The application was opposed.

[8] The applicant was, at that stage, experiencing difficulties to have the record transcribed, and to secure records to file with the Supreme Court of Appeal. [9] The applicant applied for a stay of the application to execute the order pending an application in the Supreme Court of Appeal for condonation of the late filing of the copies of the record, and also sought reinstatement of the appeal. [10] At the same time, and on or about September 2006, the applicant made a substantial application to the Supreme Court of Appeal for condonation and reinstatement of the appeal that had lapsed. [11] The matter served before the Supreme Court of Appeal in February 2007. [12] The application was dismissed on 23 March 2007 because the Supreme Court of Appeal found that a too long period had expired before the application was brought. [13] That was supposed to have been the end of the road for the dispute pertaining to the order of Victor AJ, between the parties. The applicant did not comply with the court order. [14] The applicant then brought the current application on 29 August 2007, in terms of which the applicant seeks an order in the following terms: Variation of an order of a judgment delivered by the Honourable Ms Acting Justice Victor on 15 August 2005 by the addition of the following paragraph:   The applicant is ordered to furnish, a bank guarantee as security day rested innuendo to the respondent pending the finalization of the objection and appeal proceedings contemplated in part V of the Value Added Tax Act, 89 of 1991, read with sections 83 and 107(a) of the Income Tax Act, 58 of 1962. 2. Costs of this application, only in the event of same being opposed. 3. Further and/or alternative relief. [15] Before launching this application, and after the appeal in the Supreme Court of Appeal had lapsed, the applicant wrote letters requesting the respondent to provide it with acceptable security before it could pay the amount. The applicant contended that the respondent was in serious financial difficulties, and would not be in a position to pay the disputed amount should its appeal procedures in the Tax Court fail. [16] The respondent insisted on payment, as ordered by Victor AJ, and disputed the other allegations. The respondent pointed out that applicant was disregarding the court order of Victor AJ. [17] The respondent has produced a valuation of its properties, and respondent has argued that it is financially viable, and in a financial position to repay the amount.

[8] The applicant was, at that stage, experiencing difficulties to have the record transcribed, and to secure records to file with the Supreme Court of Appeal.

[9] The applicant applied for a stay of the application to execute the order pending an application in the Supreme Court of Appeal for condonation of the late filing of the copies of the record, and also sought reinstatement of the appeal.

[10] At the same time, and on or about September 2006, the applicant made a substantial application to the Supreme Court of Appeal for condonation and reinstatement of the appeal that had lapsed.

[11] The matter served before the Supreme Court of Appeal in February 2007.

[12] The application was dismissed on 23 March 2007 because the Supreme Court of Appeal found that a too long period had expired before the application was brought.

[13] That was supposed to have been the end of the road for the dispute pertaining to the order of Victor AJ, between the parties. The applicant did not comply with the court order.

[14] The applicant then brought the current application on 29 August 2007, in terms of which the applicant seeks an order in the following terms:

Variation of an order of a judgment delivered by the Honourable Ms Acting Justice Victor on 15 August 2005 by the addition of the following paragraph:

 

The applicant is ordered to furnish, a bank guarantee as security day rested innuendo to the respondent pending the finalization of the objection and appeal proceedings contemplated in part V of the Value Added Tax Act, 89 of 1991, read with sections 83 and 107(a) of the Income Tax Act, 58 of 1962.

2. Costs of this application, only in the event of same being opposed.

3. Further and/or alternative relief.

[15] Before launching this application, and after the appeal in the Supreme Court of Appeal had lapsed, the applicant wrote letters requesting the respondent to provide it with acceptable security before it could pay the amount. The applicant contended that the respondent was in serious financial difficulties, and would not be in a position to pay the disputed amount should its appeal procedures in the Tax Court fail.

[16] The respondent insisted on payment, as ordered by Victor AJ, and disputed the other allegations. The respondent pointed out that applicant was disregarding the court order of Victor AJ.

[17] The respondent has produced a valuation of its properties, and respondent has argued that it is financially viable, and in a financial position to repay the amount.

[18] The applicant, during the course of these proceedings, engaged the services of a valuator, who valued the respondents properties, to ascertain the respondents nett worth. [19] The applicant contends that the respondents financial position is still precarious, and that the respondent would probably not be able to repay the amount should it be paid by applicant to respondent. [20] The valuation report of the valuator of the applicant was only completed on or about 27 August 2007. [21] On 23 August 2007 the attorney of the applicant received a telephone call from the respondents attorney in which he was informed that the respondent would like to set the matter down for hearing. He advised the respondents attorney of record that the replying affidavit would be filed on 31 August 2007. [22] The replying affidavit was thereafter delivered to the respondent by Sheriff on 30 August 2007. [23] On 29 August 2007 the respondent set the matter down for hearing on the following Tuesday, 4 September 2007, on the opposed motion roll. [24] The applicant then brought an application on 3 September 2007, which application was heard and dealt with on 6 September 2007, for a postponement of the matter on the basis that the matter was intricate and difficult, that it involved three years of litigation before the current application, and that applicants senior counsel was not available to argue the matter on behalf of the applicant. [25] The respondent opposed this application, and argued that the availability of counsel is not a reason for seeking a postponement in the matter. [26] I heard argument on the application for postponement, and granted an order in terms of which the applicant was provided time to properly prepare to argue the matter, and to obtain the services of other counsel, if required, and that the matter would finally be heard and disposed of on Friday, 7 September 2007, at 14:00. [27] I therefore postponed the matter for hearing to that date and time, and provided the applicant time to properly prepare to argue the matter. [28] In the mean time, applicants senior counsel became available, as the matter he was involved with had been finalized. [29] This application was therefore argued in full on Friday, 7 September 2007, before me. The issues to be determined: [30] The applicant brought an application to have certain averments which were made in the affidavits of the respondent struck out on the basis that those statements referred to are privileged in terms of rule 7(6)(v) of the rules promulgated for alternative dispute resolution proceedings under section 107A of the Income Tax Act, nr 58 of 1962.

[18] The applicant, during the course of these proceedings, engaged the services of a valuator, who valued the respondents properties, to ascertain the respondents nett worth.

[19] The applicant contends that the respondents financial position is still precarious, and that the respondent would probably not be able to repay the amount should it be paid by applicant to respondent.

[20] The valuation report of the valuator of the applicant was only completed on or about 27 August 2007.

[21] On 23 August 2007 the attorney of the applicant received a telephone call from the respondents attorney in which he was informed that the respondent would like to set the matter down for hearing. He advised the respondents attorney of record that the replying affidavit would be filed on 31 August 2007.

[22] The replying affidavit was thereafter delivered to the respondent by Sheriff on 30 August 2007.

[23] On 29 August 2007 the respondent set the matter down for hearing on the following Tuesday, 4 September 2007, on the opposed motion roll.

[24] The applicant then brought an application on 3 September 2007, which application was heard and dealt with on 6 September 2007, for a postponement of the matter on the basis that the matter was intricate and difficult, that it involved three years of litigation before the current application, and that applicants senior counsel was not available to argue the matter on behalf of the applicant.

[25] The respondent opposed this application, and argued that the availability of counsel is not a reason for seeking a postponement in the matter.

[26] I heard argument on the application for postponement, and granted an order in terms of which the applicant was provided time to properly prepare to argue the matter, and to obtain the services of other counsel, if required, and that the matter would finally be heard and disposed of on Friday, 7 September 2007, at 14:00.

[27] I therefore postponed the matter for hearing to that date and time, and provided the applicant time to properly prepare to argue the matter.

[28] In the mean time, applicants senior counsel became available, as the matter he was involved with had been finalized.

[29] This application was therefore argued in full on Friday, 7 September 2007, before me.

The issues to be determined:

[30] The applicant brought an application to have certain averments which were made in the affidavits of the respondent struck out on the basis that those statements referred to are privileged in terms of rule 7(6)(v) of the rules promulgated for alternative dispute resolution proceedings under section 107A of the Income Tax Act, nr 58 of 1962.

[31] This application was dealt with and argued simultaneously with the main application. [32] The argument in respect of the main application turned on the question if the order of Victor AJ was interim or interlocutory in nature, and therefore susceptible to variation and amendment by the above Honourable Court. If it was final in nature it would not have been susceptible to variation or amendment. If it was interim or interlocutory it would be susceptible to variation or amendment should a case for amendment be made out. [33] The second issue entailed a consideration of the evidence placed before this court by the applicant to substantiate its argument that the order should be varied. [34] The parties were ad idem that there must have been changed circumstances and new facts before the court, before an interim or interlocutory order can be varied amended. The nature of the order of Victor AJ: [35] All the parties were ad idem that the order was meant to have been an order pending the outcome of the alternative dispute resolution proceedings launched by the respondent in terms of the Value Added Tax Act, as referred to above. [36] The alternative dispute resolution meeting was held on 9 May 2006. A ruling by the chairman of the applicant is still outstanding, and the matter cannot proceed to the Tax Court without such a ruling. [37] The parties accepted that the order of Victor AJ was to the effect that respondent was to obtain the interim or temporary benefit of the R2 581 317,00 pending the outcome of the alternative dispute resolution proceedings, and any procedures in the Tax Court. [38] The applicant sought to persuade me that the order was interim or interlocutory in nature, and susceptible to amendment or variation. [39] The respondent argued that the matter was final in nature, and not susceptible to amendment or variation, and that the applicants only remedy was an appeal, which had lapsed. [40] Both parties pointed out that in the various authorities dealing with interim and interlocutory applications, the words are used interchangeably, and that the authorities at times have been confusing pertaining to the meaning to be attached to interim and interlocutory. [41] The respondent, who was represented by mr Coetzee SC, argued that interim orders were orders pending events, which would not involve this court, whereas interlocutory orders were orders pending further proceedings in this court. [42] Mr Coetzee SC therefore argued that a distinction was to be made with reference to the entity responsible for final adjudication of the matter.

[31] This application was dealt with and argued simultaneously with the main application.

[32] The argument in respect of the main application turned on the question if the order of Victor AJ was interim or interlocutory in nature, and therefore susceptible to variation and amendment by the above Honourable Court. If it was final in nature it would not have been susceptible to variation or amendment. If it was interim or interlocutory it would be susceptible to variation or amendment should a case for amendment be made out.

[33] The second issue entailed a consideration of the evidence placed before this court by the applicant to substantiate its argument that the order should be varied.

[34] The parties were ad idem that there must have been changed circumstances and new facts before the court, before an interim or interlocutory order can be varied amended.

The nature of the order of Victor AJ:

[35] All the parties were ad idem that the order was meant to have been an order pending the outcome of the alternative dispute resolution proceedings launched by the respondent in terms of the Value Added Tax Act, as referred to above.

[36] The alternative dispute resolution meeting was held on 9 May 2006. A ruling by the chairman of the applicant is still outstanding, and the matter cannot proceed to the Tax Court without such a ruling.

[37] The parties accepted that the order of Victor AJ was to the effect that respondent was to obtain the interim or temporary benefit of the R2 581 317,00 pending the outcome of the alternative dispute resolution proceedings, and any procedures in the Tax Court.

[38] The applicant sought to persuade me that the order was interim or interlocutory in nature, and susceptible to amendment or variation.

[39] The respondent argued that the matter was final in nature, and not susceptible to amendment or variation, and that the applicants only remedy was an appeal, which had lapsed.

[40] Both parties pointed out that in the various authorities dealing with interim and interlocutory applications, the words are used interchangeably, and that the authorities at times have been confusing pertaining to the meaning to be attached to interim and interlocutory.

[41] The respondent, who was represented by mr Coetzee SC, argued that interim orders were orders pending events, which would not involve this court, whereas interlocutory orders were orders pending further proceedings in this court.

[42] Mr Coetzee SC therefore argued that a distinction was to be made with reference to the entity responsible for final adjudication of the matter.

[43] Mr Coetzee SC argued that orders pending events, which would not be determined finally by this court, were interim and not interlocutory. [44] Mr Coetzee SC argued further that such orders should normally be regarded as final and susceptible to appeal only and not to variation or amendment. [45] Interlocutory orders, pending further proceedings in this court, or in the same court, would not be final, and would not be susceptible to appeal. Such orders can be varied and amended by the same court that issued the order. [46] In Zweni v Minister of Law and Order, 1993 (1) SA 523 (AD), the Supreme Court of Appeal considered the meaning of a judgment or order as meant in section 20(1) of the Supreme Court

Act, nr 59 of 1959. The court considered when a decision is an appealable judgment or order, and considered the authorities which had been given over the years. The Supreme Court of Appeal gave a brief exposition and a critical review of some of the general propositions advanced in the decided cases, and summarized it as follows on page 531 H to 533 F: It should also be mentioned that the history of the matter has been subjected to a detailed analysis in a number or recent judgments, some of which by this Court. While any comprehensive re examination would serve little purpose, a proper perspective nevertheless requires a brief exposition and a critical review of some of the general propositions commonly (and sometimes loosely) advanced in the decided cases. I would summarise the matter as follows: 1. For different reasons it was felt down the ages that decisions of a preparatory or procedural character ought not to be appealable (per Schreiner JA in the Pretoria Garrison Institutes case supra at 868). One is that, as a general rule, piecemeal consideration of cases is discouraged. The importance of this factor has somewhat diminished in recent times (SA Eagle Versekeringsmaatskappy Bpk v Hartford [1992] ZASCA 42; 1992 (2) SA 786 (A) at 791B-D). The emphasis is now rather on whether an appeal will necessarily lead to a more expeditious and cost-effective final determination of the main dispute between the parties and, as such, will decisively contribute to its final solution (Priday t/a Pride Paving v Rubin 1992 (3) SA 542 (C) at 548H-I). 2. In order to achieve this result, a number of different legislative devices have been employed from time to time. The requirement of leave to appeal is one. Another is to prohibit appeals unless the order appealed against has the effect of a final judgment. And the Courts have, by way of interpretation, held consistently that rulings are not appealable decisions.

[43] Mr Coetzee SC argued that orders pending events, which would not be determined finally by this court, were interim and not interlocutory.

[44] Mr Coetzee SC argued further that such orders should normally be regarded as final and susceptible to appeal only and not to variation or amendment.

[45] Interlocutory orders, pending further proceedings in this court, or in the same court, would not be final, and would not be susceptible to appeal. Such orders can be varied and amended by the same court that issued the order.

[46] In Zweni v Minister of Law and Order, 1993 (1) SA 523 (AD), the Supreme Court of Appeal considered the meaning of a judgment or order as meant in section 20(1) of the Supreme Court

Act, nr 59 of 1959. The court considered when a decision is an appealable judgment or order, and considered the authorities which had been given over the years. The Supreme Court of Appeal gave a brief exposition and a critical review of some of the general propositions advanced in the decided cases, and summarized it as follows on page 531 H to 533 F:

It should also be mentioned that the history of the matter has been subjected to a detailed analysis in a number or recent judgments, some of which by this Court. While any comprehensive re examination would serve little purpose, a proper perspective nevertheless requires a brief exposition and a critical review of some of the general propositions commonly (and sometimes loosely) advanced in the decided cases. I would summarise the matter as follows:

1. For different reasons it was felt down the ages that decisions of a preparatory or procedural character ought not to be appealable (per Schreiner JA in the Pretoria Garrison Institutes case supra at 868). One is that, as a general rule, piecemeal consideration of cases is discouraged. The importance of this factor has somewhat diminished in recent times (SA Eagle Versekeringsmaatskappy Bpk v Hartford [1992] ZASCA 42; 1992 (2) SA 786 (A) at 791B-D). The emphasis is now rather on whether an appeal will necessarily lead to a more expeditious and cost-effective final determination of the main dispute between the parties and, as such, will decisively contribute to its final solution (Priday t/a Pride Paving v Rubin 1992 (3) SA 542 (C) at 548H-I).

2. In order to achieve this result, a number of different legislative devices have been employed from time to time. The requirement of leave to appeal is one. Another is to prohibit appeals unless the order appealed against has the effect of a final judgment. And the Courts have, by way of interpretation, held consistently that rulings are not appealable decisions.

3. The expression judgment or order in s. 20 (1) of the Act has a special, almost technical, meaning; all decisions given in the course of the resolution of a dispute between litigants are not judgments or orders (Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 35F-G, 42I). 4. The world judgment has (for present purposes) two meanings, first the reasoning of the judicial officer (known to American jurists as his opinion), and second, the pronouncement of the disposition (Garner A Dictionary of Modern Legal Usage sv Judgments, Appellate Court) upon relief claimed in a trial action. In the context of s 20(1) we are concerned with the latter meaning only. An order is said to be a judgment for relief claimed in application proceedings (Dickinson and Another v Fishers Executors 1914 AD 424 at 427; Administrator, Cape, and Another v Ntshwaquela and Others 1990 (1) SA 705 (A) at 714I-715F). I would venture to suggest that the distinction between judgment and order is formalistic and outdated; it performs no function and ought to be discarded. 5. Section 20(1) of the Act no longer draws a distinction between judgments or orders on the one hand and interlocutory orders on the other. The distinction now is between judgments or orders (which are appealable with leave) and decisions which are not judgments and orders (Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A)). 6. Whether so-called simple interlocutory orders, ie all orders pronounced by the Court upon matters incidental to the main dispute preparatory to or during the progress of the litigation and not having a final or definitive effect, are either judgments or orders or simply rulings has not yet been decided by this Court (the Van Streepen & Germs (Pty) Ltd case supra at 583I-584D). 7. In determining the nature and effect of a judicial pronouncement, not merely the form of the order must be considered but also, and predominantly, its effect (South African Motor Industry Employers Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at 96H).

3. The expression judgment or order in s. 20 (1) of the Act has a special, almost technical, meaning; all decisions given in the course of the resolution of a dispute between litigants are not judgments or orders (Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 35F-G, 42I).

4. The world judgment has (for present purposes) two meanings, first the reasoning of the judicial officer (known to American jurists as his opinion), and second, the pronouncement of the disposition (Garner A Dictionary of Modern Legal Usage sv Judgments, Appellate Court) upon relief claimed in a trial action. In the context of s 20(1) we are concerned with the latter meaning only. An order is said to be a judgment for relief claimed in application proceedings (Dickinson and Another v Fishers Executors 1914 AD 424 at 427; Administrator, Cape, and Another v Ntshwaquela and Others 1990 (1) SA 705 (A) at 714I-715F). I would venture to suggest that the distinction between judgment and order is formalistic and outdated; it performs no function and ought to be discarded.

5. Section 20(1) of the Act no longer draws a distinction between judgments or orders on the one hand and interlocutory orders on the other. The distinction now is between judgments or orders (which are appealable with leave) and decisions which are not judgments and orders (Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A)).

6. Whether so-called simple interlocutory orders, ie

all orders pronounced by the Court upon matters incidental to the main dispute preparatory to or during the progress of the litigation

and not having a final or definitive effect, are either judgments or orders or simply rulings has not yet been decided by this Court (the Van Streepen & Germs (Pty) Ltd case supra at 583I-584D).

7. In determining the nature and effect of a judicial pronouncement, not merely the form of the order must be considered but also, and predominantly, its effect (South African Motor Industry Employers Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at 96H).

8. A judgment or order is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings (Van Streepen & Germs (Pty) Ltd case supra at 586I-587B; Marsay v Dilley [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief (Wilis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another [1991] ZASCA 163; 1992 (4) SA 202 (A) at 214D-G). 9. The fact that a decision may cause a party an inconvenience or place him at a disadvantage in the litigation which nothing but an appeal can correct, is not taken into account in determining its appealability (South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 550D-H). To illustrate: the exclusion of certain evidence may hamper a party in providing this case. That party may notionally be able to prove it by adducing other evidence. In that event an incorrect exclusion would not necessarily have an effect on the final result. In deciding upon the admissibility of evidence a court is not called upon to speculate upon or divine (with or without the assistance of the parties) the ultimate effect of its decision on the course of the litigation. Should it appear at the conclusion of the matter that an incorrect ruling amounted to an irregularity which may have had a material effect on its outcome, the Court of appeal may, in adjudicating the merits, set aside the final judgment on that ground and, in an appropriate case, remit it back to the trial Court (Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A); Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another [1990] ZASCA 47; 1990 (3) SA 547 (A) at 566C-D). [47] The following principles appear from the aforegoing, which are important and applicable for purposes of this matter: 1. Simple interlocutory orders are orders pronounced by a court upon matters incidental to the main dispute, and are preparatory to, or during, the process of the litigation. 2. Not merely the form of an order must be considered, but also predominantly its effect. 3. The decision must be final in effect, and not susceptible of alteration by the court of first instance, it must be definitive of the rights of the parties, and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. 4. A distinction must be made between a judgment and order on the one hand, which is normally appealable, and a ruling which is not appealable. 5. A decision which is res iudicata between the parties and where the court of first instance is not entitled to reconsider it, constitutes an order and not a ruling. 6. A non-appealable decision, (a ruling), is a decision which is not final because the court of first instance is entitled to alter it. 7. A ruling is not definitive of the rights of the parties. 8. A ruling does not have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

8. A judgment or order is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings (Van Streepen & Germs (Pty) Ltd case supra at 586I-587B; Marsay v Dilley [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief (Wilis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another [1991] ZASCA 163; 1992 (4) SA 202 (A) at 214D-G).

9. The fact that a decision may cause a party an inconvenience or place him at a disadvantage in the litigation which nothing but an appeal can correct, is not taken into account in determining its appealability (South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 550D-H). To illustrate: the exclusion of certain evidence may hamper a party in providing this case. That party may notionally be able to prove it by adducing other evidence. In that event an incorrect exclusion would not necessarily have an effect on the final result. In deciding upon the admissibility of evidence a court is not called upon to speculate upon or divine (with or without the assistance of the parties) the ultimate effect of its decision on the course of the litigation. Should it appear at the conclusion of the matter that an incorrect ruling amounted to an irregularity which may have had a material effect on its outcome, the Court of appeal may, in adjudicating the merits, set aside the final judgment on that ground and, in an appropriate case, remit it back to the trial Court (Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A); Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another [1990] ZASCA 47; 1990 (3) SA 547 (A) at 566C-D).

[47] The following principles appear from the aforegoing, which are important and applicable for purposes of this matter:

1. Simple interlocutory orders are orders pronounced by a court upon matters incidental to the main dispute, and are preparatory to, or during, the process of the litigation.

2. Not merely the form of an order must be considered, but also predominantly its effect.

3. The decision must be final in effect, and not susceptible of alteration by the court of first instance, it must be definitive of the rights of the parties, and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

4. A distinction must be made between a judgment and order on the one hand, which is normally appealable, and a ruling which is not appealable.

5. A decision which is res iudicata between the parties and where the court of first instance is not entitled to reconsider it, constitutes an order and not a ruling.

6. A non-appealable decision, (a ruling), is a decision which is not final because the court of first instance is entitled to alter it.

7. A ruling is not definitive of the rights of the parties.

8. A ruling does not have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

[48] Thereafter, the Supreme Court of Appeal had another opportunity to consider the meaning of judgment or order, and the appealability of a judgment, including the finality thereof, in Knox DArcy Ltd & Others v Jamieson & Others, [1996] ZASCA 58; 1996 (4) SA 348 (AD). [49] In that matter, an amti-dissipation interdict based on the so-called Mareva injunction in modern English practice, was granted by Stegmann J in the WLD. On the return day, the interlocutory order, as amended from time to time, was discharged. Leave to appeal was refused, and an application for leave to appeal was made to the Supreme Court of Appeal. [50] The question that arose in that matter was if the discharge of the interlocutory order was a final order or not, and if it was appealable or not. [51] Grosskopf JA said the following on page 357 A to D: In applying these principles one must first have clarity as to what the main proceedings are to which reference is made. If one regards the application for an interim interdict as merely a procedural step in the action for damages, and that the action for damages constitutes the main proceedings, then the grant or refusal of an interdict would clearly not affect the outcome of the main proceedings. On that assumption a decision on such an application would then, applying the passage from Zwenis case, not be appealable. In my view that would, however, be a wrong way of looking at it. Although associated with a main action, the application for an interim interdict seeks to secure relief which is separate from that claimed in the action (see Bekker NO v Total South Africa (Pty) Ltd 1990 (3) SA 159 (T) at 164D-G). Its cause of action is different (as will be shown hereafter) and it may introduce additional parties. In its separateness it is analogous to the review dealt with in Trakman NO v Livshitz and Others 1995 (1) SA 282 (A) at 289G-290A and the application for recusal considered in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service (AD), unreported, judgment delivered 22 February 1996). [52] It was argued that the application in that matter was refused by the court in the exercise of its discretion. It was argued that the grounds of refusal were essentially procedural. It was further argued that the application could therefore be renewed before the court a quo, and that the case could be reconsidered on its merits. The Supreme Court of Appeal said the following pertaining to this argument on page 357 I to 358 B:

[48] Thereafter, the Supreme Court of Appeal had another opportunity to consider the meaning of judgment or order, and the appealability of a judgment, including the finality thereof, in Knox DArcy Ltd & Others v Jamieson & Others, [1996] ZASCA 58; 1996 (4) SA 348 (AD).

[49] In that matter, an amti-dissipation interdict based on the so-called Mareva injunction in modern English practice, was granted by Stegmann J in the WLD. On the return day, the interlocutory order, as amended from time to time, was discharged. Leave to appeal was refused, and an application for leave to appeal was made to the Supreme Court of Appeal.

[50] The question that arose in that matter was if the discharge of the interlocutory order was a final order or not, and if it was appealable or not.

[51] Grosskopf JA said the following on page 357 A to D:

In applying these principles one must first have clarity as to what the main proceedings are to which reference is made. If one regards the application for an interim interdict as merely a procedural step in the action for damages, and that the action for damages constitutes the main proceedings, then the grant or refusal of an interdict would clearly not affect the outcome of the main proceedings. On that assumption a decision on such an application would then, applying the passage from Zwenis case, not be appealable. In my view that would, however, be a wrong way of looking at it. Although associated with a main action, the application for an interim interdict seeks to secure relief which is separate from that claimed in the action (see Bekker NO v Total South Africa (Pty) Ltd 1990 (3) SA 159 (T) at 164D-G). Its cause of action is different (as will be shown hereafter) and it may introduce additional parties. In its separateness it is analogous to the review dealt with in Trakman NO v Livshitz and Others 1995 (1) SA 282 (A) at 289G-290A and the application for recusal considered in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service (AD), unreported, judgment delivered 22 February 1996).

[52] It was argued that the application in that matter was refused by the court in the exercise of its discretion. It was argued that the grounds of refusal were essentially procedural. It was further argued that the application could therefore be renewed before the court a quo, and that the case could be reconsidered on its merits. The Supreme Court of Appeal said the following pertaining to this argument on page 357 I to 358 B:

In my view this argument cannot be sustained. The grounds for refusing the application were not as limited as suggested by counsel. In the next section of this judgment I discuss the basis upon which interim interdicts are granted or refused, and the sense in which this exercise may be described as discretionary. For purposes of the present argument it is sufficient to say that the learned Judge a quo based his decision on a full conspectus of all the factors which are, or may be, relevant in an application of this kind. He did not confine himself to the point of non-disclosure. His decision was not based on a procedural irregularity which would permit a new application if the procedural effect were remedied. To sum up: the application for an interim interdict was a procedure separate from the action for damages; the application was refused on its merits and this refusal could not be reconsidered by the Court a quo. In my view the refusal amounted to a judgment or order within the meaning of the Act. [53] The court then considered the granting and refusal of interim interdicts in general. The court first discussed the refusal of interim interdicts, and thereafter the granting of interim interdicts. The Supreme Court of Appeal indicated that an order granting an interim interdict is normally an interlocutory order, and that consequently there is normally no appeal.1 [54] The court then distinguished between the granting and the refusal of a temporary interdict, with reference to the finality of the decision. As a general rule, the refusal of a temporary interdict is appealable. The granting of a temporary interdict is normally not appealable, but it depends on the circumstances of the case. The court left open the issue of appealability of the grant of an interim interdict as it did not arise pertinently in that matter. [55] None of the abovementioned cases considered the finality and appealability of the granting of a temporary interdict pending proceedings, not in the same court, but in another forum. [56] Respondent relied in this regard on the decision of Metlika Trading Ltd v Commissioner, SARS,2 and the remarks of Streicher JA at 11 C to 12 H: [19] The first question that arises is whether, in the light of the decision in Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd [1996] ZASCA 38; 1996 (3) SA 686 (A), the order is appealable. Cronshaw, who was employed by Fidelity Guards, was formerly employed by Coin Security subject to a restraint of trade. Pending an action for an order restraining him from being so employed, an interdict to that effect was granted against him. This Court, relying on Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-J as to the meaning of judgment or order in s 20(1) of the Supreme Court Act 59 of 1959, held that the order granting an interim interdict was not appealable in that it was not final in effect and was susceptible of alteration by the court of first instance. As to the finality of the order, Schutz JA held that the question was decided adversely to the appellant, Cronshaw, in African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA at 690C. [20] In the African Wanderers Football Club (Pty) Ltd case, 

In my view this argument cannot be sustained. The grounds for refusing the application were not as limited as suggested by counsel. In the next section of this judgment I discuss the basis upon which interim interdicts are granted or refused, and the sense in which this exercise may be described as discretionary. For purposes of the present argument it is sufficient to say that the learned Judge a quo based his decision on a full conspectus of all the factors which are, or may be, relevant in an application of this kind. He did not confine himself to the point of non-disclosure. His decision was not based on a procedural irregularity which would permit a new application if the procedural effect were remedied.

To sum up: the application for an interim interdict was a procedure separate from the action for damages; the application was refused on its merits and this refusal could not be reconsidered by the Court a quo. In my view the refusal amounted to a judgment or order within the meaning of the Act.

[53] The court then considered the granting and refusal of interim interdicts in general. The court first discussed the refusal of interim interdicts, and thereafter the granting of interim interdicts. The Supreme Court of Appeal indicated that an order granting an interim interdict is normally an interlocutory order, and that consequently there is normally no appeal.1

[54] The court then distinguished between the granting and the refusal of a temporary interdict, with reference to the finality of the decision. As a general rule, the refusal of a temporary interdict is appealable. The granting of a temporary interdict is normally not appealable, but it depends on the circumstances of the case. The court left open the issue of appealability of the grant of an interim interdict as it did not arise pertinently in that matter.

[55] None of the abovementioned cases considered the finality and appealability of the granting of a temporary interdict pending proceedings, not in the same court, but in another forum.

[56] Respondent relied in this regard on the decision of Metlika Trading Ltd v Commissioner, SARS,2 and the remarks of Streicher JA at 11 C to 12 H:

[19] The first question that arises is whether, in the light of the decision in Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd [1996] ZASCA 38; 1996 (3) SA 686 (A), the order is appealable. Cronshaw, who was employed by Fidelity Guards, was formerly employed by Coin Security subject to a restraint of trade. Pending an action for an order restraining him from being so employed, an interdict to that effect was granted against him. This Court, relying on Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-J as to the meaning of judgment or order in s 20(1) of the Supreme Court Act 59 of 1959, held that the order granting an interim interdict was not appealable in that it was not final in effect and was susceptible of alteration by the court of first instance. As to the finality of the order, Schutz JA held that the question was decided adversely to the appellant, Cronshaw, in African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA at 690C.

[20] In the African Wanderers Football Club (Pty) Ltd case, 

[21] As in African Wanderers Football Club Ltd, the issues in the interdict proceedings in Cronshaw were the same as the issues which were to be decided in a trial. Schutz JA stated that, intrinsically difficult as it was to decide whether a decision was interlocutory or final, there had to be a rule and that rule was stated by Schreiner JA in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 870 to be a preparatory or procedural order is a simple interlocutory order and therefore not appealable unless it is such as to dispose of any issue or any portion of the issue in the main action or suit or, which amounts, I think, to the same thing, unless it irreparably anticipates or precludes some of the relief which would or might be given at the hearing. [22] The present case is distinguishable from African Wanderers Football Club Ltd and Cronshaw. Whether or not the aircraft should be returned to South Africa and whether or not the other orders relating to the aircraft should be granted is not an issue in the action pending which the interdict was granted. In these circumstances, coupled with the fact that an application for an interim interdict is a proceeding separate from the main proceedings pending the determination of which it was granted (see Knox DArcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) at 359H read with 357C), the test in Pretoria Garrison is wholly inappropriate to determine whether the present order granted is final in effect and thus appealable. [23] In determining whether an order is final, it is important to bear in mind that not merely the form of the order must be considered but also, and predominantly, its effect (South African Motor Industry Employers Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at 96H, and Zweni at 532I).

[21] As in African Wanderers Football Club Ltd, the issues in the interdict proceedings in Cronshaw were the same as the issues which were to be decided in a trial. Schutz JA stated that, intrinsically difficult as it was to decide whether a decision was interlocutory or final, there had to be a rule and that rule was stated by Schreiner JA in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 870 to be

a preparatory or procedural order is a simple interlocutory order and therefore not appealable unless it is such as to dispose of any issue or any portion of the issue in the main action or suit or, which amounts, I think, to the same thing, unless it irreparably anticipates or precludes some of the relief which would or might be given at the hearing.

[22] The present case is distinguishable from African Wanderers Football Club Ltd and Cronshaw. Whether or not the aircraft should be returned to South Africa and whether or not the other orders relating to the aircraft should be granted is not an issue in the action pending which the interdict was granted. In these circumstances, coupled with the fact that an application for an interim interdict is a proceeding separate from the main proceedings pending the determination of which it was granted (see Knox DArcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) at 359H read with 357C), the test in Pretoria Garrison is wholly inappropriate to determine whether the present order granted is final in effect and thus appealable.

[23] In determining whether an order is final, it is important to bear in mind that not merely the form of the order must be considered but also, and predominantly, its effect (South African Motor Industry Employers Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at 96H, and Zweni at 532I).

[24] The order that steps be taken to procure the return of the aircraft to South Africa, as well as the other orders relating to the aircraft, were intended to have immediate effect, they will not be reconsidered at the trial and will not be reconsidered on the same facts by the Court a quo. For these reasons, they are in effect final orders. Some support for this conclusion is to be found in Phillips and Others v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) in paras [17]-[22] in which it was held that a restraint order in terms of the Prevention of Organised Crime Act 121 of 1998 which was considered to be analogous to an interim interdict for attachment of property pending litigation, was final in the sense required by the case law for appelability. [57] It is important to note the following principles highlighted in this matter: 1. Orders for interim interdicts which were held not appealable, and which were held to have been not final in effect, were all orders issued by a court where the same issues were to be decided by the same court in a trial, or during later proceedings. 2. An order which is granted, which is not an issue in the action pending which the interdict was granted, and which is a proceeding separate from the main proceedings, should be considered on a different footing from the authorities applicable, such as the African Wanderers Football Club Ltd case, the decision in Cronshaw & Another v Fidelity Guards Holdings (Pty) Ltd,3 and the decision in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd.4 3. If such an interim interdict will not be reconsidered at the trial, and will not be reconsidered on the same facts by the court a quo, it becomes a final order that is susceptible to an appeal. 4. The issue that was to be determined in the Metlika matter was distinguished from African Wonderers Football Club Ltd and the Cronshaw decision. 5. The application for an interim interdict was regarded as a proceeding separate from the main proceedings pending the determination of the disputes between the parties. 6. Therefore, the interdict in the Metlika Trading matter, pertaining to the return of the Falcon aircraft to South Africa, was regarded as having been of a final nature, and susceptible to an appeal. [58] Conradie JA held as follows in South African National defence Union v Minister of Defence and Others; Minister of Defence and Others v South African National Defence Union and Others:5 [37] The first order is specific and interim in nature, interim in the sense that it is to fall away on the occurrence of a certain event. 

[24] The order that steps be taken to procure the return of the aircraft to South Africa, as well as the other orders relating to the aircraft, were intended to have immediate effect, they will not be reconsidered at the trial and will not be reconsidered on the same facts by the Court a quo. For these reasons, they are in effect final orders. Some support for this conclusion is to be found in Phillips and Others v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) in paras [17]-[22] in which it was held that a restraint order in terms of the Prevention of Organised Crime Act 121 of 1998 which was considered to be analogous to an interim interdict for attachment of property pending litigation, was final in the sense required by the case law for appelability.

[57] It is important to note the following principles highlighted in this matter:

1. Orders for interim interdicts which were held not appealable, and which were held to have been not final in effect, were all orders issued by a court where the same issues were to be decided by the same court in a trial, or during later proceedings.

2. An order which is granted, which is not an issue in the action pending which the interdict was granted, and which is a proceeding separate from the main proceedings, should be considered on a different footing from the authorities applicable, such as the African Wanderers Football Club Ltd case, the decision in Cronshaw & Another v Fidelity Guards Holdings (Pty) Ltd,3 and the decision in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd.4

3. If such an interim interdict will not be reconsidered at the trial, and will not be reconsidered on the same facts by the court a quo, it becomes a final order that is susceptible to an appeal.

4. The issue that was to be determined in the Metlika matter was distinguished from African Wonderers Football Club Ltd and the Cronshaw decision.

5. The application for an interim interdict was regarded as a proceeding separate from the main proceedings pending the determination of the disputes between the parties.

6. Therefore, the interdict in the Metlika Trading matter, pertaining to the return of the Falcon aircraft to South Africa, was regarded as having been of a final nature, and susceptible to an appeal.

[58] Conradie JA held as follows in South African National defence Union v Minister of Defence and Others; Minister of Defence and Others v South African National Defence Union and Others:5

[37] The first order is specific and interim in nature, interim in the sense that it is to fall away on the occurrence of a certain event. 

[39] SANDUs contention that the first order is not appealable is misconceived. The order is not interim in the sense that its fate depends upon the final resolution of a dispute by the Court that granted it. It is temporary in nature, that is true, intended to fall away on the happening of a certain event, an award by the MAB, but it is not an interim order in the sense that it governs issues that will arise in a pending action and which would entitle the Court which granted it to reconsider it. [59] From the aforegoing, the following principles appear, with reference to the current application: 1. The order of Victor AJ is not interim in the sense that its fate depends upon the final resolution of the dispute by this Court which granted it. 2. The payment of VAT in respect of the property transaction in this matter depends on a final resolution through the alternative dispute resolution procedures in terms of the Value Added Tax Act, and the procedures in the Tax Court. 3. It is an order pending procedures in a different court, and pending other procedure, and not a trial procedure or application procedures in this Court. 4. There is no basis or reason why this Court should be entitled to reconsider the order that has been granted by this Court, and there is no procedure in terms of which this Court can and should reconsider the order. 5. The order cannot therefore be an interlocutory order pending proceedings in this Court even though the order is an interim order pending the dispute proceedings between the parties in a different forum. 6. Therefore, for purposes of this Court, the dispute between the parties in this Court, and the effect of the interim interdict granted in this Court, it is a final order, in effect, and is not susceptible of alteration by this Court, because this Court is the Court of first and only instance. It will not have the opportunity to reconsider the order, and to alter, vary, or amend it. 7. This case must be distinguished on the same basis as the Metlika Trading decision, from African Wonderers Football Club Ltd and the Cronshaw decision. 8. The application for the interim interdict is a proceeding separate from the main proceedings pending the determination of which it was granted, as meant in Knox DArcy Ltd & Others v Jamieson & Others.6 9. The predominant effect of the order is that of a final order in this Court. 10. The current decision is a decision which is final because this Court is not entitled to alter it in further proceedings, it is definitive of the rights of the parties in proceedings before this Court, and it disposes of at least a substantial part of the relief claimed in the proceedings in this Court. [60] I am therefore of the view that the decision by Victor AJ was final in nature, and the only avenue open for the applicant to have dealt with such a decision was the appeal, which had lapsed. It is also for this reason that the applicant in fact filed an appeal which, because of the applicants own dilatoriness, eventually lapsed.

[39] SANDUs contention that the first order is not appealable is misconceived. The order is not interim in the sense that its fate depends upon the final resolution of a dispute by the Court that granted it. It is temporary in nature, that is true, intended to fall away on the happening of a certain event, an award by the MAB, but it is not an interim order in the sense that it governs issues that will arise in a pending action and which would entitle the Court which granted it to reconsider it.

[59] From the aforegoing, the following principles appear, with reference to the current application:

1. The order of Victor AJ is not interim in the sense that its fate depends upon the final resolution of the dispute by this Court which granted it.

2. The payment of VAT in respect of the property transaction in this matter depends on a final resolution through the alternative dispute resolution procedures in terms of the Value Added Tax Act, and the procedures in the Tax Court.

3. It is an order pending procedures in a different court, and pending other procedure, and not a trial procedure or application procedures in this Court.

4. There is no basis or reason why this Court should be entitled to reconsider the order that has been granted by this Court, and there is no procedure in terms of which this Court can and should reconsider the order.

5. The order cannot therefore be an interlocutory order pending proceedings in this Court even though the order is an interim order pending the dispute proceedings between the parties in a different forum.

6. Therefore, for purposes of this Court, the dispute between the parties in this Court, and the effect of the interim interdict granted in this Court, it is a final order, in effect, and is not susceptible of alteration by this Court, because this Court is the Court of first and only instance. It will not have the opportunity to reconsider the order, and to alter, vary, or amend it.

7. This case must be distinguished on the same basis as the Metlika Trading decision, from African Wonderers Football Club Ltd and the Cronshaw decision.

8. The application for the interim interdict is a proceeding separate from the main proceedings pending the determination of which it was granted, as meant in Knox DArcy Ltd & Others v Jamieson & Others.6

9. The predominant effect of the order is that of a final order in this Court.

10. The current decision is a decision which is final because this Court is not entitled to alter it in further proceedings, it is definitive of the rights of the parties in proceedings before this Court, and it disposes of at least a substantial part of the relief claimed in the proceedings in this Court.

[60] I am therefore of the view that the decision by Victor AJ was final in nature, and the only avenue open for the applicant to have dealt with such a decision was the appeal, which had lapsed. It is also for this reason that the applicant in fact filed an appeal which, because of the applicants own dilatoriness, eventually lapsed.

[61] I therefore find that there is no basis upon which the applicant is entitled to seek a variation of the order of Victor AJ in this matter. Court functus officio: [62] Once this court has spoken its final word in a matter, it becomes functus officio and its order can only be altered under special circumstances, none of which are present in this case. [63] Trollip JA held as follows in Firestone SA (Pty) Ltd v Genticuro AG:7 The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. See  There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this Court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter, or supplement it in one or more of the following cases: (i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the Court overlooked or inadvertently omitted to grant  (ii) 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  (iii) The Court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention 

[61] I therefore find that there is no basis upon which the applicant is entitled to seek a variation of the order of Victor AJ in this matter.

Court functus officio:

[62] Once this court has spoken its final word in a matter, it becomes functus officio and its order can only be altered under special circumstances, none of which are present in this case.

[63] Trollip JA held as follows in Firestone SA (Pty) Ltd v Genticuro AG:7

The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. See 

There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this Court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter, or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the Court overlooked or inadvertently omitted to grant 

(ii) 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 

(iii) The Court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention 

(iv) 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  [64] Kirk-Cohen J, (Strydom J and Swart J concurring) held as follows in Transvaal Canoe Union v Butgereit & Another:8 A Court which is called upon to decide an issue or lis becomes functus officio when judgment thereon is delivered. The inherent powers of a Court, and those referred to in s 19 of Act 59 of 1959, are powers which may be exercised before the delivery of a final judgment, ie while the issue or lis is pendens.  Once a Court is functus officio its powers are limited to certain incidental matters, for example, those referred to in Rule of Court 42. In this regard I refer to Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306F where Trollip JA said: The general principle, now well-established in our law, is that, once a Court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.  The exceptions referred to in that judgment do not apply in the present matter. [65] I therefore come to the conclusion that this Court has become functus officio and cannot alter the decision of Victor AJ. Amendment of the order: [66] If I am wrong, this Court has the power to vary the order of Victor AJ, it must be considered if there are grounds to do so. [67] In Mostert v Cape Town City Council9 the following considerations were stipulated as being considerations to be taken into account where a party applies to present further evidence in a matter: 1. The reason why the evidence was not led timeously. 2. The degree of materiality of the evidence. 3. The possibility that it may have been shaped to relieve the pinch of the shoe. 4. The balance of prejudice, for example the prejudice to the applicant if the application is refused, and the prejudice to the respondent if it is granted. 5. The healing balm of an appropriate order as to costs. 6. The general need for finality in judicial proceedings. 7. The appropriateness, or otherwise, in all the circumstances, of visiting the remissness of the attorney upon the head of his client.

(iv) 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 

[64] Kirk-Cohen J, (Strydom J and Swart J concurring) held as follows in Transvaal Canoe Union v Butgereit & Another:8

A Court which is called upon to decide an issue or lis becomes functus officio when judgment thereon is delivered. The inherent powers of a Court, and those referred to in s 19 of Act 59 of 1959, are powers which may be exercised before the delivery of a final judgment, ie while the issue or lis is pendens. 

Once a Court is functus officio its powers are limited to certain incidental matters, for example, those referred to in Rule of Court 42. In this regard I refer to Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306F where Trollip JA said:

The general principle, now well-established in our law, is that, once a Court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. 

The exceptions referred to in that judgment do not apply in the present matter.

[65] I therefore come to the conclusion that this Court has become functus officio and cannot alter the decision of Victor AJ.

Amendment of the order:

[66] If I am wrong, this Court has the power to vary the order of Victor AJ, it must be considered if there are grounds to do so.

[67] In Mostert v Cape Town City Council9 the following considerations were stipulated as being considerations to be taken into account where a party applies to present further evidence in a matter:

1. The reason why the evidence was not led timeously.

2. The degree of materiality of the evidence.

3. The possibility that it may have been shaped to relieve the pinch of the shoe.

4. The balance of prejudice, for example the prejudice to the applicant if the application is refused, and the prejudice to the respondent if it is granted.

5. The healing balm of an appropriate order as to costs.

6. The general need for finality in judicial proceedings.

7. The appropriateness, or otherwise, in all the circumstances, of visiting the remissness of the attorney upon the head of his client.

[68] The following arguments were presented to me as reasons why further evidence for purposes of amendment of the order of Victor AJ should not be allowed: 1. Applicant was ordered approximately two years ago to pay the R2 581 317,00 to respondent. 2. That order was on the basis that Victor AJ found that the matter was urgent. 3. Applicant had not complied with that order for more than two years. The conduct of applicant was so dilatory that the Supreme Court of Appeal refused to reinstate its lapsed appeal. 4. The status of the alternative dispute resolution proceedings is that a meeting was held on 9 May 2006 and a ruling by the chairman of applicant is still outstanding. The dispute could therefore not proceed. 5. There are no valid grounds why applicant should be allowed to reopen its case. 6. The issue which applicant seeks to revisit was considered by this Court, per Victor AJ. 7. That consideration was on the basis of the evidence which the parties, (including applicant), at the time chose to place before the Court. [69] Originally, applicant based its contentions regarding impecuniousity on the statements made in the earlier litigation by the respondent, and certain further observations and facts referring to the condition of the property concerned, (the Kragbron Township), and the failure by the respondent to pay the Municipality. [70] Furthermore, the applicant contended that there is a dispute of fact on the papers as to the true worth of respondent which cannot be resolved without oral evidence. [71] The applicant referred to a valuation of Haacke Associates, which was annexed to the applicants replying affidavit, and on the basis of which the applicant contended that the respondent was insolvent. [72] The applicant did not give any reasons why such a valuation was not presented earlier, and why the valuation was, for instance, not annexed to the founding affidavit. [73] Furthermore, the best the applicant could do to persuade me that there are further facts and changed circumstances to be taken into account, was reference to the new valuation which was annexed to the replying affidavit. [74] In my view, the applicant has not made out any case whatsoever to persuade me that the applicant could not have presented such evidence previously, and that the facts and circumstances have changed to such an extent since the order of Victor AJ was granted, that this Court should now reconsider that order and grant a different order. [75] It is clear that Victor AJ considered the issue of security after full argument, and that she decided not to grant such an order. She also gave reasons for her decision.

[68] The following arguments were presented to me as reasons why further evidence for purposes of amendment of the order of Victor AJ should not be allowed:

1. Applicant was ordered approximately two years ago to pay the R2 581 317,00 to respondent.

2. That order was on the basis that Victor AJ found that the matter was urgent.

3. Applicant had not complied with that order for more than two years. The conduct of applicant was so dilatory that the Supreme Court of Appeal refused to reinstate its lapsed appeal.

4. The status of the alternative dispute resolution proceedings is that a meeting was held on 9 May 2006 and a ruling by the chairman of applicant is still outstanding. The dispute could therefore not proceed.

5. There are no valid grounds why applicant should be allowed to reopen its case.

6. The issue which applicant seeks to revisit was considered by this Court, per Victor AJ.

7. That consideration was on the basis of the evidence which the parties, (including applicant), at the time chose to place before the Court.

[69] Originally, applicant based its contentions regarding impecuniousity on the statements made in the earlier litigation by the respondent, and certain further observations and facts referring to the condition of the property concerned, (the Kragbron Township), and the failure by the respondent to pay the Municipality.

[70] Furthermore, the applicant contended that there is a dispute of fact on the papers as to the true worth of respondent which cannot be resolved without oral evidence.

[71] The applicant referred to a valuation of Haacke Associates, which was annexed to the applicants replying affidavit, and on the basis of which the applicant contended that the respondent was insolvent.

[72] The applicant did not give any reasons why such a valuation was not presented earlier, and why the valuation was, for instance, not annexed to the founding affidavit.

[73] Furthermore, the best the applicant could do to persuade me that there are further facts and changed circumstances to be taken into account, was reference to the new valuation which was annexed to the replying affidavit.

[74] In my view, the applicant has not made out any case whatsoever to persuade me that the applicant could not have presented such evidence previously, and that the facts and circumstances have changed to such an extent since the order of Victor AJ was granted, that this Court should now reconsider that order and grant a different order.

[75] It is clear that Victor AJ considered the issue of security after full argument, and that she decided not to grant such an order. She also gave reasons for her decision.

[76] To a large extent, the founding affidavit, and the replying affidavit, in this matter, is a repetition and a rehash of the arguments and facts which were already considered by Victor AJ. [77] In fact, the deponent of the applicant relies on the valuation obtained by the applicant, which was filed with the replying affidavit, to dispute the valuation presented by the respondent previously. I did not find any new facts in either the founding affidavit, or replying affidavit, of the applicant, indicating new facts or changed circumstances which should persuade me to grant a variation of the order of Victor AJ. In fact, the only changed circumstance of any relevance and importance that applicant relies on is the valuation which applicant has obtained, and which applicant has annexed to the replying affidavit in this application. [78] The judgment of the Supreme Court of Appeal was given on 23 March 2007. [79] The applicant inspected the township on 7 April 2007, and presented evidence in the founding affidavit of the township allegedly being in a dilapidated state. [80] The applicant also presented evidence that the local municipality has resolved to institute legal action against the respondent for the collection of monies owned to it by the respondent. There is no evidence of the reason why funds are owing and it is not clear from the affidavits exactly what this dispute entails. [81] The applicant also alleges that the respondent owes applicant VAT, and that the respondent has failed to submit its income tax returns since 2004. [82] The only other new facts apart from the valuation presented by the applicant were therefore the evidence of the inspection in loco, the fact that the Municipality contended that respondent owns them money, and facts pertaining to the respondents tax affairs which were not new facts. None of these facts, in my view, constitute changed circumstances and new facts that would warrant a variation of the order. [83] Apart therefrom, the applicant only sought to rely on the valuation annexed to the replying affidavit. [84] In my view, the facts presented as changed circumstances warranting a variation of the court order, are simply not enough to persuade me to amend the court order. A valuation could have been presented to this Court at the hearing of the matter by Victor AJ, or thereafter, and could have, and should have, formed part of the founding affidavit of the applicant. [85] The evidence presented in the founding affidavit of changed circumstances is simply not enough to warrant the variation of the order at all. [86] Therefore, even if I would have been incorrect in my finding above that I am not in a position to have vary the court order, the evidence is simply not enough to persuade me to do so.

[76] To a large extent, the founding affidavit, and the replying affidavit, in this matter, is a repetition and a rehash of the arguments and facts which were already considered by Victor AJ.

[77] In fact, the deponent of the applicant relies on the valuation obtained by the applicant, which was filed with the replying affidavit, to dispute the valuation presented by the respondent previously. I did not find any new facts in either the founding affidavit, or replying affidavit, of the applicant, indicating new facts or changed circumstances which should persuade me to grant a variation of the order of Victor AJ. In fact, the only changed circumstance of any relevance and importance that applicant relies on is the valuation which applicant has obtained, and which applicant has annexed to the replying affidavit in this application.

[78] The judgment of the Supreme Court of Appeal was given on 23 March 2007.

[79] The applicant inspected the township on 7 April 2007, and presented evidence in the founding affidavit of the township allegedly being in a dilapidated state.

[80] The applicant also presented evidence that the local municipality has resolved to institute legal action against the respondent for the collection of monies owned to it by the respondent. There is no evidence of the reason why funds are owing and it is not clear from the affidavits exactly what this dispute entails.

[81] The applicant also alleges that the respondent owes applicant VAT, and that the respondent has failed to submit its income tax returns since 2004.

[82] The only other new facts apart from the valuation presented by the applicant were therefore the evidence of the inspection in loco, the fact that the Municipality contended that respondent owns them money, and facts pertaining to the respondents tax affairs which were not new facts. None of these facts, in my view, constitute changed circumstances and new facts that would warrant a variation of the order.

[83] Apart therefrom, the applicant only sought to rely on the valuation annexed to the replying affidavit.

[84] In my view, the facts presented as changed circumstances warranting a variation of the court order, are simply not enough to persuade me to amend the court order. A valuation could have been presented to this Court at the hearing of the matter by Victor AJ, or thereafter, and could have, and should have, formed part of the founding affidavit of the applicant.

[85] The evidence presented in the founding affidavit of changed circumstances is simply not enough to warrant the variation of the order at all.

[86] Therefore, even if I would have been incorrect in my finding above that I am not in a position to have vary the court order, the evidence is simply not enough to persuade me to do so.

Application to strike out: [87] The applicant brought an application to strike out certain evidence from the answering affidavit on the basis that the evidence was privileged in terms of rule 7(6)(p) of the rules promulgated for alternative dispute resolution proceedings under section 107A of the Income Tax Act, nr 58 of 1962. [88] I have come to the conclusion that it is not necessary to consider that application, or to make any finding in respect thereof. I have not taken into account, and need not take into account, the evidence in those paragraphs in respect of any finding made in this matter. I therefore do not make any finding pertaining to the striking-out application. [89] I am of the view that such evidence is in any event irrelevant for purposes of adjudication of this matter. Conclusion: [90] In the light of the aforegoing, I am therefore of the view that the applicant has not made out a case for variation of the court order of Victor AJ, and that the application should be dismissed with costs. Costs: [91] The respondent sought a punitive costs order on the basis that the applicant did not comply with the court order of Victor AJ immediately after the judgment of the Supreme Court of Appeal on 23 March 2007. [92] It is common cause that the applicant did not comply with the court order of Victor AJ after the Supreme Court of Appeal gave the order that the appeal had lapsed, which order was given on 23 March 2007. Therefore, from that date onwards, the applicant has knowingly not complied with the court order. The applicant attempted instead to force the respondent through negotiation to provide security. When the applicant was not successful therewith, the applicant brought the current application only in August 2007. [93] I am not aware of any authority in this country allowing a party to refuse to comply with a court order pending negotiations for the variation of a court order, or for suspending a court order pending application for variation of the court order. [94] It is a well-known fact that government entities, and various arms of government, have lately treated court orders with contempt, probably as a result of the courts finding that precious little could be done about such government departments, or the government itself being in contempt of an order of court.10

Application to strike out:

[87] The applicant brought an application to strike out certain evidence from the answering affidavit on the basis that the evidence was privileged in terms of rule 7(6)(p) of the rules promulgated for alternative dispute resolution proceedings under section 107A of the Income Tax Act, nr 58 of 1962.

[88] I have come to the conclusion that it is not necessary to consider that application, or to make any finding in respect thereof. I have not taken into account, and need not take into account, the evidence in those paragraphs in respect of any finding made in this matter. I therefore do not make any finding pertaining to the striking-out application.

[89] I am of the view that such evidence is in any event irrelevant for purposes of adjudication of this matter.

Conclusion:

[90] In the light of the aforegoing, I am therefore of the view that the applicant has not made out a case for variation of the court order of Victor AJ, and that the application should be dismissed with costs.

Costs:

[91] The respondent sought a punitive costs order on the basis that the applicant did not comply with the court order of Victor AJ immediately after the judgment of the Supreme Court of Appeal on 23 March 2007.

[92] It is common cause that the applicant did not comply with the court order of Victor AJ after the Supreme Court of Appeal gave the order that the appeal had lapsed, which order was given on 23 March 2007. Therefore, from that date onwards, the applicant has knowingly not complied with the court order. The applicant attempted instead to force the respondent through negotiation to provide security. When the applicant was not successful therewith, the applicant brought the current application only in August 2007.

[93] I am not aware of any authority in this country allowing a party to refuse to comply with a court order pending negotiations for the variation of a court order, or for suspending a court order pending application for variation of the court order.

[94] It is a well-known fact that government entities, and various arms of government, have lately treated court orders with contempt, probably as a result of the courts finding that precious little could be done about such government departments, or the government itself being in contempt of an order of court.10

[95] In N & Others v Government of Republic of South Africa (NO3)11 the court considered the effect of a court order against the Government of the Republic of South Africa which was not complied with, and in respect of which the government was in contempt. [96] Nicholson J made the following remarks on page 584 F to I: [32] The effect of the above highlighted passage is that unless and until s 3 of the State Liability Act is declared unconstitutional, there is no legal mechanism such as incarceration to enforce the court decrees. Should that situation continue, then the effect of a court order would be what the law calls a brutum fulmen, in other words  a useless thunderbolt. Perhaps this is what Sophocles had in mind more than 2 000 years ago when he warned, in his play Antigone, that his heroine had gone to the uttermost limit of daring, and stumbled against Law enthroned. Authority cannot afford to connive at disobedience. [33] If the refusal to comply does not result from instructions from the first respondent, the Government of the Republic of South Africa, then the remaining respondents must be disciplined, either administratively or in a employment context, for their delinquency.

If the Government of the Republic of South Africa has given such an instruction, then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers. Should that continue, the members of the Judiciary will have to consider whether their oath of office requires them to continue on the Bench. [97] This issue has been of considerable concern in South Africa lately, as also appears from the unreported judgment of Davis AJ, in the Transvaal Provincial Division, in the matter between Dingaan Hendrik Nyati v The MEC for the Department of Health, Gauteng & The Minister of Justice and Constitutional Development, which judgment was handed down by the Pretoria High Court on 30 March 2007. In the judgment section 3 of the State Liability Act, nr 20 of 1957, was declared unconstitutional. That judgment is currently subject to constitutional validation. At this point in time, the Constitutional Court has not given an order in respect of that matter. [98] Davis AJ in that judgment said the following in paragraph 12 of that judgment:

[95] In N & Others v Government of Republic of South Africa (NO3)11 the court considered the effect of a court order against the Government of the Republic of South Africa which was not complied with, and in respect of which the government was in contempt.

[96] Nicholson J made the following remarks on page 584 F to I:

[32] The effect of the above highlighted passage is that unless and until s 3 of the State Liability Act is declared unconstitutional, there is no legal mechanism such as incarceration to enforce the court decrees. Should that situation continue, then the effect of a court order would be what the law calls a brutum fulmen, in other words  a useless thunderbolt. Perhaps this is what Sophocles had in mind more than 2 000 years ago when he warned, in his play Antigone, that his heroine had gone to the uttermost limit of daring, and stumbled against Law enthroned. Authority cannot afford to connive at disobedience.

[33] If the refusal to comply does not result from instructions from the first respondent, the Government of the Republic of South Africa, then the remaining respondents must be disciplined, either administratively or in a employment context, for their delinquency.

If the Government of the Republic of South Africa has given such an instruction, then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers. Should that continue, the members of the Judiciary will have to consider whether their oath of office requires them to continue on the Bench.

[97] This issue has been of considerable concern in South Africa lately, as also appears from the unreported judgment of Davis AJ, in the Transvaal Provincial Division, in the matter between Dingaan Hendrik Nyati v The MEC for the Department of Health, Gauteng & The Minister of Justice and Constitutional Development, which judgment was handed down by the Pretoria High Court on 30 March 2007. In the judgment section 3 of the State Liability Act, nr 20 of 1957, was declared unconstitutional. That judgment is currently subject to constitutional validation. At this point in time, the Constitutional Court has not given an order in respect of that matter.

[98] Davis AJ in that judgment said the following in paragraph 12 of that judgment:

From a reading of all of the abovementioned cases, and the numerous instances referred to therein, it is sadly, however, quite clear that the State and its officials all to often as a result of pure negligence, incompetence or laziness fail to honour their constitutional obligations, as well as the aforesaid moral obligations (which must certainly still exist) and fail to comply with court orders, be they orders ad factum praestandum or more often ad pecuniam solvendam. [99] The approach and the attitude of the applicant in this matter is disconcerting to say the least. The applicant could have launched an urgent application to seek the relief it has sought in this application when it became necessary to comply with the court order, or it could have complied with the court order as it was bound to do. The applicant was simply not concerned about the court order, and eventually brought this application at its leisure approximately five months after it had to comply with the court order, and then it still dragged its heals with filing of affidavits. [100] The whole history of this matter is an example of a litigant dragging its heals literally to the extent that the Supreme Court of Appeal found that the applicant deliberately caused the appeal to have lapsed. [101] Actions and behaviour, such as this, cause our democracy to be negatively affected and prejudiced. [102] Section 1(d) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides that the Republic of South Africa is a democratic state founded on certain values. It lists certain values, including universal adult suffrage, a national common voters roll, regular elections, and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. [103] The last-mentioned requirement, namely accountability, responsiveness and openness, is certainly one of the foundations of our Constitution. [104] South Africas Pre-Transition constitutional law was understood to be a part of its common law. The twin pillars of that constitutional common law were the principles of legality and of parliamentary supremacy. [105] The Constitution has now been pronounced as the supreme law, and constitutional supremacy now incorporates the rule of law and the principle of legality.12 [106] Therefore, the rule of law is a founding value of the Republic of South Africa, together with the principle of legality. [107] Contempt of court, and contempt of a court order, and refusal to comply with the court order, is a disregard of these foundational principles of our Constitution, and in particular of the rule of law.

From a reading of all of the abovementioned cases, and the numerous instances referred to therein, it is sadly, however, quite clear that the State and its officials all to often as a result of pure negligence, incompetence or laziness fail to honour their constitutional obligations, as well as the aforesaid moral obligations (which must certainly still exist) and fail to comply with court orders, be they orders ad factum praestandum or more often ad pecuniam solvendam.

[99] The approach and the attitude of the applicant in this matter is disconcerting to say the least. The applicant could have launched an urgent application to seek the relief it has sought in this application when it became necessary to comply with the court order, or it could have complied with the court order as it was bound to do. The applicant was simply not concerned about the court order, and eventually brought this application at its leisure approximately five months after it had to comply with the court order, and then it still dragged its heals with filing of affidavits.

[100] The whole history of this matter is an example of a litigant dragging its heals literally to the extent that the Supreme Court of Appeal found that the applicant deliberately caused the appeal to have lapsed.

[101] Actions and behaviour, such as this, cause our democracy to be negatively affected and prejudiced.

[102] Section 1(d) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides that the Republic of South Africa is a democratic state founded on certain values. It lists certain values, including universal adult suffrage, a national common voters roll, regular elections, and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

[103] The last-mentioned requirement, namely accountability, responsiveness and openness, is certainly one of the foundations of our Constitution.

[104] South Africas Pre-Transition constitutional law was understood to be a part of its common law. The twin pillars of that constitutional common law were the principles of legality and of parliamentary supremacy.

[105] The Constitution has now been pronounced as the supreme law, and constitutional supremacy now incorporates the rule of law and the principle of legality.12

[106] Therefore, the rule of law is a founding value of the Republic of South Africa, together with the principle of legality.

[107] Contempt of court, and contempt of a court order, and refusal to comply with the court order, is a disregard of these foundational principles of our Constitution, and in particular of the rule of law.

[108] All law, including the common law, derives its force from the Constitution, according to the Pharmaceutical Manufacturers case. [109] The Constitution provides the force of law to statutes enacted, and to common law and customary law doctrines, that emanate from sources authorized by the Constitution to pronounce and develop common law and customary law.13 [110] To ignore a court order granted by a court of the Republic of South Africa, and to refuse to comply therewith, is to negate adherence to the supremacy of the Constitution and the rule of law. It is an act of defiance of those principles which are the foundation of South African society today. [111] In my view, such an approach and attitude by any party, and in particular by a government institution, will cause a constitutional crisis, and it is a serious threat to the doctrine of the separation of powers. [112] I am therefore of the view that the non-compliance with the court order by the applicant should be sanctioned with a punitive costs order. [113] Apart from the fact that the whole history of this matter indicates an intention on behalf of the applicant to drag the matter out as long as possible, and to buy time for the applicant, for whatever reason, the mere fact that the court order was ignored, as it was by the applicant, justifies the granting of attorney and client costs. [114] The applicants attitude towards the court order of Victor AJ was deplorable, and in my view, highly contemptuous.14 [115] I therefore find that that the reprehensible conduct of the applicant in this matter should be sanctioned with a punitive costs order on the basis of attorney and client. Order: [116] I therefore make the following order: The application of the applicant is dismissed. The applicant is ordered to pay the costs of the application, including the costs of the application for postponement, on an attorney and client scale, which costs shall include the costs of senior counsel. SIGNED at JOHANNESBURG on this day of SEPTEMBER 2007

[108] All law, including the common law, derives its force from the Constitution, according to the Pharmaceutical Manufacturers case.

[109] The Constitution provides the force of law to statutes enacted, and to common law and customary law doctrines, that emanate from sources authorized by the Constitution to pronounce and develop common law and customary law.13

[110] To ignore a court order granted by a court of the Republic of South Africa, and to refuse to comply therewith, is to negate adherence to the supremacy of the Constitution and the rule of law. It is an act of defiance of those principles which are the foundation of South African society today.

[111] In my view, such an approach and attitude by any party, and in particular by a government institution, will cause a constitutional crisis, and it is a serious threat to the doctrine of the separation of powers.

[112] I am therefore of the view that the non-compliance with the court order by the applicant should be sanctioned with a punitive costs order.

[113] Apart from the fact that the whole history of this matter indicates an intention on behalf of the applicant to drag the matter out as long as possible, and to buy time for the applicant, for whatever reason, the mere fact that the court order was ignored, as it was by the applicant, justifies the granting of attorney and client costs.

[114] The applicants attitude towards the court order of Victor AJ was deplorable, and in my view, highly contemptuous.14

[115] I therefore find that that the reprehensible conduct of the applicant in this matter should be sanctioned with a punitive costs order on the basis of attorney and client.

Order:

[116] I therefore make the following order:

The application of the applicant is dismissed. The applicant is ordered to pay the costs of the application, including the costs of the application for postponement, on an attorney and client scale, which costs shall include the costs of senior counsel.

SIGNED at JOHANNESBURG on this day of SEPTEMBER 2007

_____________________________ ROELOF DU PLESSIS ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA WITWATERSRAND LOCAL DIVISION

_____________________________

ROELOF DU PLESSIS

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

WITWATERSRAND LOCAL DIVISION

1 African Wonderers Football Club (Pty) Ltd v Wanderers Football Club, 1977 (2) SA 38 (A) at 46 H to 47 A

2 2005 (3) SA 1 (SCA)

3 [1996] ZASCA 38; 1996 (3) SA 686 (A)

4 1948 (1) SA 831 (A)

5 2007 (1) SA 402 (SCA) at 419 F to 420 C

6 [1996] ZASCA 58; 1996 (4) SA 348 (A) at 359 H, read with 357 C

7 1977 (4) SA 298 (A) at 306 F to 307 H

8 1990 (3) SA 398 (T) at 403 E to I

9 2001 (1) SA 105 (SCA) at 121 F

10 York Timers Ltd v Minister of Water Affairs & Forestry & Another, 2003 (4) SA 477 (T); Jayiya v Member of the Executive Council for Welfare, Eastern Cape & Another, 2004 (2) SA 611 (SCA); Kate v MEC for the Department of Welfare, Eastern Cape, 2005 (1) SA 141 (SE)

11 2006 (6) SA 575 (D&CLD)

12 Ex Parte President of the Republic of South Africa : in re Pharmaceutical Manufacturers Association of South Africa[2000] ZACC 1; , 2000 (2) SA 674 (CC)

13 Woolman & Others, Constitutional Law of South Africa, second edition, volume 1, at 11-42

14 Caluza v Minister of Justice, 1969 (1) SA 251 (N); Hayes v Baldachin, 1980 (2) SA 589 (R); Positioning Corp. Underwriters & Insurance Consultants (Pty) Ltd v Mail & Guardian, 2005 (6) SA 394 (T); Victoria Park Rate Payers Ass. v Greyvenouw CC, (2004) 3 All SA 623 SE