Westerhuis and Another v Westerhuis and Others (A276/2017) [2018] ZAWCHC 85 (27 June 2018)
The court found that the original order omitted to expressly deal with the respondents' cross appeal and the qualifying expenses of the handwriting expert, Dr Rosa. These omissions could affect the parties' ability to recover costs. Exercising its powers under Rule 42(1)(b), the court varied the order to grant the...
Source-derived case information.
- Citation
- [2018] ZAWCHC 85
- Parties
- Appellant: Frederick Westerhuis; Appellant: Catherine Westerhuis; Respondent: Jan Lambertus Westerhuis; Respondent: Jan Lambertus Westerhuis N.O. (Executor in the Estate of the late John Westerhuis); Respondent: Derick Alexander Westerhuis N.O. (Estate of the late John Westerhuis); Respondent: Estate of the late Hendrikus Westerhuis; Respondent: Patricia Westerhuis; Respondent: Marelize van der Mescht
- Court
- Western Cape High Court, Cape Town
- Jurisdiction
- South Africa
- Case Number
- A 276/2017
- Procedural Posture
- Civil Appeal / Variation of Order Post Judgment
- Outcome
- Order varied to grant the cross appeal with costs and to include the qualifying expenses of Dr Rosa in the costs award.
- Judges
- Gamble, Erasmus, Parker
- Legal Topics
- Variation of Court Order, Costs Award, Cross Appeal, Expert Evidence Expenses
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frederick Westerhuis
Appellant
Catherine Westerhuis
Appellant
Jan Lambertus Westerhuis
Respondent
Jan Lambertus Westerhuis N.O. (Executor in the Estate of the late John Westerhuis)
Respondent
Derick Alexander Westerhuis N.O. (Estate of the late John Westerhuis)
Respondent
Estate of the late Hendrikus Westerhuis
Respondent
Patricia Westerhuis
Respondent
Marelize van der Mescht
Respondent
Procedural Posture
Civil Appeal / Variation of Order Post Judgment
Legal Issues
- 1 Whether the omission to deal expressly with the cross appeal in the original order requires correction.
- 2 Whether the costs order should include the qualifying expenses of the handwriting expert, Dr Rosa.
- 3 Whether the court is empowered to vary its order under Rule 42(1)(b) of the Uniform Rules.
Ratio Decidendi
The court found that the original order omitted to expressly deal with the respondents' cross appeal and the qualifying expenses of the handwriting expert, Dr Rosa. These omissions could affect the parties' ability to recover costs. Exercising its powers under Rule 42(1)(b), the court varied the order to grant the cross appeal with costs and to include the qualifying expenses of Dr Rosa in the costs award. The variation ensures clarity and proper costs recovery, correcting the oversight in the original judgment.
Court Disposition
Order varied to grant the cross appeal with costs and to include the qualifying expenses of Dr Rosa in the costs award.
Orders
- The order of 27 June 2018 is varied to insert in paragraph A the phrase 'and the cross appeal is granted with costs' after the first reference to 'costs'.
- The order is further varied to add the phrase 'as well as the qualifying expenses of Dr.C.Rosa' after the word 'declaration' at the end of paragraph 5 of the substituted order.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: A 276/2017
In the matter between:
FREDERICK WESTERHUIS First Appellant
CATHERINE WESTERHUIS Second Appellant
and
JAN LAMBERTUS WESTERHUIS First Respondent
JAN LAMBERTUS WESTERHUIS N.O.
(In his capacity as the Executor in the
Estate of the late John Westerhuis) Second Respondent
DERICK ALEXANDER WESTERHUIS N.O.
Estate of the late John Westerhuis) Third
Respondent
Estate of the late Hendrikus Westerhuis) Fourth
Respondent
PATRICIA WESTERHUIS Fifth Respondent
MARELIZE VAN DER MESCHT Sixth Respondent
VARIATION OF ORDER OF 27 JUNE 2018 IN TERMS OF RULE 42(1)(b)
GAMBLE, J:
[1] After handing down judgment in this matter on behalf of the Full Bench on Wednesday 27 June 2018 it appeared to me that there are 2 omissions in the order which occurred as a consequence of an oversight.
[2] Firstly, the order failed to formally deal with the first, second, fifth and sixth respondents’ cross appeal lodged on 4 July 2017. While the Full Bench order, in setting aside the order of the trial court and replacing it with the relief sought in the declaration, implicitly upholds the cross appeal, it is preferable to deal therewith expressly as there may be costs implications for the parties.
[3] Secondly, in ordering the appellants to bear the costs in the trial court, the Full Bench order failed to expressly grant the qualifying expenses of the handwriting expert who testified on behalf of the plaintiffs, Dr Rosa, and whose evidence this court has found to be convincing and material. The cross appeal expressly sought such costs and insofar as they might not be recoverable before the Taxing Master without an express direction in that regard (South African Forestry Co. Ltd v York Timbers Ltd 2001 (4) SA 884 (T) at 888B-H), it is necessary to correct para 5 of the order which this court substituted in place of the order of the trial court.
[4] In so varying the order, this court mero motu exercises its powers under Rule 42(1)(b) of the Uniform Rules.
ORDER OF COURT
IN THE CIRCUMSTANCES, THE ORDER OF THIS COURT HANDED DOWN ON 27 JUNE 2018 IS VARIED AS FOLLOWS:
A. By the insertion in para A thereof of the phrase “and the cross appeal is granted with costs,” after the first reference to the word “costs” therein.
B. By the addition of the phrase “as well as the qualifying expenses of Dr.C.Rosa” after the word “declaration” at the end of para 5 of the order made in substitution of the order of the trial court
__________________
GAMBLE, J
I AGREE.
IT IS SO ORDERED.
____________________
ERASMUS, J
I AGREE
PARKER, J