Ellison v Breytenbach N.O and Others (Amendment to Leave to appeal) (84994/2019) [2022] ZAGPPHC 770 (14 October 2022)
The court found that the original costs order, which granted leave to appeal 'with costs', was a patent error as contemplated by Rule 42(1)(b). The proper order should have been 'costs in the appeal', which is the standard approach when granting leave to appeal. Both parties agreed to the correction, and the court...
Source-derived case information.
- Citation
- [2022] ZAGPPHC 770
- Parties
- Applicant: Clive Malcolm Ellison; Respondent: Marhinus Jacobus Dewald Breytenbach N.O.; Respondent: Richrd Hicken N.O.; Respondent: City of Tshwane
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 84994/2019
- Procedural Posture
- Leave to Appeal / Amendment of Costs Order Post Leave to Appeal
- Outcome
- The costs order is amended to read 'costs in the appeal'.
- Judges
- Collis C
- Legal Topics
- Leave to Appeal, Costs Award, Rule 42 Patent Error
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clive Malcolm Ellison
Applicant
Marhinus Jacobus Dewald Breytenbach N.O.
Respondent
Richrd Hicken N.O.
Respondent
City of Tshwane
Respondent
Procedural Posture
Leave to Appeal / Amendment of Costs Order Post Leave to Appeal
Legal Issues
- 1 Whether the costs order granted with leave to appeal constituted a patent error under Rule 42(1)(b).
- 2 Whether the costs order should be amended to reflect 'costs in the appeal'.
Ratio Decidendi
The court found that the original costs order, which granted leave to appeal 'with costs', was a patent error as contemplated by Rule 42(1)(b). The proper order should have been 'costs in the appeal', which is the standard approach when granting leave to appeal. Both parties agreed to the correction, and the court exercised its discretion to amend the order accordingly.
Court Disposition
The costs order is amended to read 'costs in the appeal'.
Orders
- The costs order granted on 3 October 2022 is corrected to read 'costs in the appeal'.
Full Case Text
Judgment text and source record
44 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 84994/2019
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES:NO
REVISED
14 October 2022
In the matter between: -
CLIVE MALCOLM ELLISON Applicant
And
MARHINUS JACOBUS DEWALD BREYTENBACH N.O. First Respondent
RICHRD HICKEN N.O.
(In their capacity as Joint Trustees of
CLIVE MALCOLM ELLISON) Second
Respondent
CITY OF TSHWANE Third
Respondent
This judgment is issued by the Judge whose name is reflected herein and is submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of this matter on CaseLines by the Judge or her Secretary. The date of this judgment is deemed to be 14 October 2022.
AMENDED RULING ON COSTS IN THE APPLICATION FOR
LEAVE TO APPEAL
[1] On 3 October 2022, I granted the applicant leave to appeal to the Full Court of the Gauteng Division.
[2] The order I made at the time read as follows:
“10.1 Leave to appeal is granted to the Full Court of the Gauteng Division with costs.”
[3] In granting the applicant leave to appeal, I should have awarded costs to read “costs in the appeal” instead of granting leave “with costs.”
[4] The costs so awarded by me, was clearly a patent error in terms of Rule 42(1)(b) and same at the request of the applicant and by agreement with the respondent is accordingly corrected in terms of the rule.
[5] Annexed, please find a copy of the amended Judgment.
COLLIS C
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
APPEARANCES
Counsel for Applicant :
Adv. CB Ellis
Instructed by :
Jacobson and Levy Inc. Attorneys
Counsel for Respondents :
Adv. L Hollander
Instructed by :
Serfontein, Viljoen
and Swart Attorneys
Date of Hearing :
07 September 2022
Date of Ruling :
14 October 2022