N.P.S obo A.S v Member of the Executive Council for Health, Gauteng (Variation) (55763/2020) [2024] ZAGPPHC 271 (18 March 2024)
- Citation
- [2024] ZAGPPHC 271
- Status
- Order
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- NN Bam
- Case number
- 55763/2020
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- NN Bam
- Case number
- 55763/2020
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the omission of costs for the qualifying, preparation and reservation fees of Professor Lotz, Dr Lombard, and Dr Weitz in the original order constituted a patent error. In terms of Rule 42(1)(b), the court is empowered to correct such errors. The variation does not affect the substance of the judgment but ensures that the plaintiff is properly compensated for the expert costs incurred. The order is varied to include these costs, subject to any objection by affected parties within five days.
Court disposition
Order varied to include costs for qualifying, preparation and reservation fees of specified expert witnesses.
Orders
- The defendant shall pay the reasonable qualifying costs of preparation and reservation fees in respect of Professor Lotz (on the basis that he was excused on 23 August 2023), Dr Lombard and Dr Weitz (who both testified at the trial).
- Any party whose interests may be affected may object within five days from the date of signature of this variation; failing which, the order shall be so amended.
- The defendant must pay the plaintiff’s proved or agreed damages.
- The defendant must pay the plaintiff’s costs, including the costs occasioned by the employment of two counsel, on a scale as between attorney and client.
- The question of liability is separated from the quantum of the plaintiff’s damages.
02
Material facts
Parties
N[...] P[...] obo A[...] S[...]
Plaintiff Counsel: Adv JF Mullins SC with Adv LA EastMember of the Executive Council for Health, Gauteng
Defendant Counsel: Adv M Botma and Adv MH Mhambi03
Procedural history
Posture
Variation Application / Post Judgment Correction Under Rule 42(1)(b)
04
Questions and positions
Legal issues
- 01
Whether the original order omitted to grant costs for qualifying, preparation and reservation fees for certain expert witnesses.
- 02
Whether the omission constitutes a patent error or omission justifying variation under Rule 42(1)(b).
Party arguments
- Applicant
- The plaintiff submitted that the original order failed to include the reasonable qualifying, preparation and reservation fees for Professor Lotz, Dr Lombard, and Dr Weitz, despite these experts being involved in the trial. The omission was a patent error and should be corrected under Rule 42(1)(b).
- Respondent
- The defendant did not raise substantive opposition to the correction, but parties were given five days to object if they wished, as required by Rule 42(2) and (3).
05
Court’s reasoning
Legal principles
- 01
Rule 42(1)(b) of the Uniform Rules of Court
A court may vary an order or judgment to correct a patent error or omission, but only to the extent of such error or omission.
- 02
Rule 42(2) and (3) of the Uniform Rules of Court
All parties whose interests may be affected by a variation must be given notice and an opportunity to object.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the omission of costs for the qualifying, preparation and reservation fees of Professor Lotz, Dr Lombard, and Dr Weitz in the original order constituted a patent error. In terms of Rule 42(1)(b), the court is empowered to correct such errors. The variation does not affect the substance of the judgment but ensures that the plaintiff is properly compensated for the expert costs incurred. The order is varied to include these costs, subject to any objection by affected parties within five days.
Obiter and limits
- The court emphasized the importance of clarity and completeness in cost orders, especially where expert witnesses play a significant role in the proceedings.
- The procedure under Rule 42 ensures fairness by allowing affected parties to object before a variation takes effect.
Court disposition
Order varied to include costs for qualifying, preparation and reservation fees of specified expert witnesses.
- The defendant shall pay the reasonable qualifying costs of preparation and reservation fees in respect of Professor Lotz (on the basis that he was excused on 23 August 2023), Dr Lombard and Dr Weitz (who both testified at the trial).
- Any party whose interests may be affected may object within five days from the date of signature of this variation; failing which, the order shall be so amended.
- The defendant must pay the plaintiff’s proved or agreed damages.
- The defendant must pay the plaintiff’s costs, including the costs occasioned by the employment of two counsel, on a scale as between attorney and client.
- The question of liability is separated from the quantum of the plaintiff’s damages.
Source and reliance status
North Gauteng High Court, Pretoria
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Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Order
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:55763/2020
DOH: 28 August – 05 September &
06 October 2023
1. REPORTABLE: NO/YES
2. OF INTEREST TO OTHER JUDGES: NO/YES
3. REVISED.
DATE: 18 MARCH 2024
SIGNATURE:
In the matter of:
S[...] N[...] P[...]
Plaintiff
Obo A[...] S[...]
AND
MEMBER
OF THE EXECUTIVE COUNCIL
Defendant
FOR HEALTH, GAUTENG
JUDGMENT
VARIATION OF JUDGMENT IN TERMS OF RULE 42 (1) (b)
Bam J
1. This is a variation of the order granted by this court on 14 March 2024 to correct a patent error or omission. In her draft order, the plaintiff prays for the reasonable qualifying, preparation and reservation fees in respect of Professor Lotz (on the basis that he was exceed on 23 August 2023, Dr Lombard and Dr Weitz (who both testified at the trial)[1].
2. The court in its final order made an error and omitted to grant the said costs.
3. In terms of Rule 42 (1) (b) of the Uniform Rules of Court:
‘(1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;
(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;
(c) an order or judgment granted as the result of a mistake common to the parties.
(2) Any party desiring any relief under this rule shall make application therefor upon notice to all parties whose interests may be affected by any variation sought.
(3) The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.
4. Accordingly, this court hereby varies its order as follows:
By adding the following paragraph, after paragraph 41.2:
41.3: The defendant shall pay the reasonable qualifying costs of preparation and reservation fees in respect of Professor Lotz (on the basis that he was exceed on 23 August 2023, Dr Lombard and Dr Weitz (who both testified at the trial).
5. In the event and unless any party whose interests may be affected raises an objection stating their reason/s within FIVE (5) days from date of signature of this variation, the order shall be so amended. The whole order shall after the variation read:
Order
40. The question of liability is hereby separated from the quantum of the plaintiff’s damages.
41. The Plaintiff’s case is upheld.
41.1 The defendant must pay the plaintiff’s proved or agreed damages.
41.2 The defendant must pay the plaintiff’s costs, including the costs occasioned by the employment of two counsel, on a scale as between attorney and client.
41.3 The defendant shall pay the reasonable qualifying costs of preparation and reservation fees in respect of Professor Lotz (on the basis that he was excused on 23 August 2023), Dr Lombard and Dr Weitz (who both testified at the trial).
NN BAM
JUDGE OF THE HIGH COURT, PRETORIA
Date of Hearing:
28 August – 05 September &
06 October 2023
Date of Judgment:
12 March 2024
Date judgment varied:
18 March 2024
Appearances:
For Plaintiff: Adv JF Mullins SC with Adv LA East Instructed by Paul du Plessis and Associates c/o KMG & Associates Rietondale, Pretoria For the Defendant: Adv M Botma and Adv MH Mhambi Instructed by: State Attorney, Pretoria
[1] Caselines V2:36 with reference to Caselines 04:2 paragraph 2.2.
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