[16]
It is a well established rule of law that the principles involved in the interpretation of a judgment or order are essentially the same
as those applicable to the construing of documents. As it was further pointed out in Firestone South Africa (Pty) Ltd v Gentiruco AG case:
"[T]he court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to
the usual, well-known rules. Thus, as in the case of a document, the judgement or order and the court’s reasons for giving
it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgement or order is clear
and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, it was common
cause that in such a case not even the court that gave the judgment or order can be asked to state what its subjective intention
was in giving it. Of course, different considerations apply when, not the construction, but the correction of a judgment or order
is sought by way of an appeal against it or otherwise. But if any uncertainty in meaning does emerge, the extrinsic circumstances
surrounding or leading up to the court’s granting the judgment or order may be investigated and regarded in order to clarify
it; for example, if the meaning of a judgment or order granted on an appeal is uncertain, the judgment or order of the court a quo and its reasons therefor, can be used to elucidate it. If, despite that, the uncertainty still persists, other relevant extrinsic
facts or evidence are admissible to resolve it. [Reference to authorities omitted].
[17]
The application for a contribution towards costs was instituted in terms of Rule 43 of the Rules of the High Court. Sub-rule (7) of Rule 43 of the Rules
of the High Court, as amended, provides as follows:
“(7)
Unless the court otherwise directs counsel in a case under this rule shall not charge a fee –
(a)
of more than N$450 for appearance if the claim is defended or N$200 if it is undefended;
(b)
of more than N$450 for any other services rendered in connection with the claim.”
[18]
Counsel for the appellant in the court a quo in the interchange with the learned Judge recounted in paragraph [4] above evidently was desirous of the costs higher than the amounts
prescribed in the sub-rule. It will be recalled that counsel gave two reasons for the request for the order, namely “because
of the opposition and what [had] happened this morning.” The real question in this appeal is whether the learned Judge had
acceded to counsel’s prayer or not.
[19]
In her ruling on the application for clarification of the order the learned Judge held that the intention was not to depart from the normally permissible order in the
Rule 43 proceedings and that what the court had in mind was an award of costs that limited counsel’s fees in Rule 43 proceedings.
[20]
The phrase that calls for interpretation is “costs at a normal rate”. To break it up, taking the word “costs” first, the word “costs” when used in a court order does not give any difficulty
of interpretation. It means party and party costs. As was pointed out by Searle J in Francis v Dutch Reformed Church, George, and Another :
“When costs are mentioned, generally, party and party costs are meant.”
[21]
It follows that the scale of the costs in the order is not an issue. It is on a party and party scale. Viewed in this context, therefore, the order as pronounced by the learned
Judge essentially reads that “the respondent is to pay the costs on a party and party scale at a normal rate”. As previously
observed, the party and party scale of an application in terms of Rule 43 is prescribed in the Rule 43(7).
[22]
What does “normal rate” as used in the order mean? At best for the respondent, the order can be said to be equivocal: it may mean
that the costs are to be paid at the rates prescribed by Rule 43(7); or it may mean that the rates applicable to ordinary opposed
applications applied. In the Administrator, Cape, and Another case (supra), it was reiterated that where the order is ambiguous, the circumstances leading to the Court granting the judgment or order may be
investigated so as to ascertain whether at least a reasonably certain meaning could be given to the judgment or order and that the order must be read as part of the entire judgment and not as a separate document.
[23]
To help understand the context in which the order was made and the expression “normal rate” used, it becomes necessary therefore
to resort to the discussion that preceded the pronouncement of the order, in particular to the reasons advanced by counsel for the
appellant in the court a quo for a prayer for the costs order on a scale higher than the prescribed scale as well as to the learned Judge’s own impression
of the respondent’s legal practitioner’s attempt to oppose the application.
[24]
What counsel summarised as “the opposition and what happened this morning” essentially amounted to the conduct of respondent’s legal practitioner
wanting to defend the matter when he did not file the necessary papers timeously and for causing the matter that must have surely
seemed unopposed to stand down until the end of the roll. The learned Judge had also earlier censured the respondent’s legal
practitioner, who is not the same counsel who argued the appeal in this Court, when the legal practitioner attempted to oppose the
application. When the respondent’s legal practitioner attempted to “hand up” the application for condonation from
the bar the Judge reacted as follows:
“No, I won’t accept it in these proceedings. You should know the Rules or your senior fellow practitioner’s instructing
attorneys will have drawn your attention to it. I‘m afraid there is no application for condonation. So I won’t deal with
the matter. I will rather accept your attempt to intervene and oppose the application.”
[25]
When the respondent’s legal practitioner tried to explain further, the learned Judge interposed and said:
“Well it isn’t before me and I can’t take cognisance of it. It’s not there. You haven’t sought condonation
and you are out of time and you are late sir...”
[26]
A reading of the record of proceedings as a whole makes it clear that although not expressly stated, the above concerns expressed by the learned Judge and as summarised by counsel
for the respondent in the Court a quo were palpably the reasons for an award of costs of an ordinary application, which the learned Judge characterised in the order as
“normal rate”. The learned Judge appears to have qualified the prescribed scale by ordering that the scale should be
on a “normal rate”. It may well be that the learned Judge had regarded the application before her to have been an “exceptional
one” so as to warrant a costs order on the basis of an ordinary opposed application.
[27]
As far as I was able to ascertain, the word “normal” in the context used by the learned Judge does not appear to be a term of art and so it should be given
its ordinary meaning. The Concise Oxford English Dictionary, 10th edition, defines “normal” as “conforming to a standard; usual; typical, or expected”. Understood in this
context, therefore, the phrase “normal rate” essentially means that the costs to be paid should be on the usual rate.
This obviously refers to the rates usually applicable in other opposed motions. In the view I take of the matter, in all probabilities
by employing the phrase “normal rate”, the learned Judge agreed with counsel for the appellant that the respondent should
be ordered to pay party and party costs and that these costs should not be limited “to the fees laid down in the Rules”.
The order formulated and signed by the Registrar should have embodied the phrase “normal rate” so as to give effect to
the learned Judge’s intention not to restrict the costs to rates applicable to Rule 43 applications.
[28]
It is undoubtedly so that the order pronounced by the learned Judge could have been stated more clearly; but even in the less than perfect manner in which it has
been expressed, its import is clear: it was meant to exclude the limitations placed on costs in Rule 43 applications. It follows
then that the appeal should succeed with costs.
[29]
In the result, the following order is made:
1.
The appeal succeeds.
2.
The respondent is ordered to pay the appellant’s taxed costs both in this Court and in the High Court.
3.
The order of the Court a quo dismissing the application is set aside and there is substituted the following order:
“That the respondent/plaintiff pay the costs of these proceedings from the date of the institution of the Rule 43 application proceedings
until 23 February 2004 on the basis of normal party and party costs and for this purpose the court directs that Rule 43(7) of the
Rules of Court shall not apply to such party and party Bill of Costs”.
_____________
SHIVUTE, CJ
I agree.
____________
O’ LINN, AJA
I agree.
_____________
CHOMBA, AJA
COUNSEL ON BEHALF OF THE APPELLANT:
Instructed by: |
MR. R. HEATHCOTE
Basil Bloch Attorney |
COUNSEL ON BEHALF OF THE RESPONDENT
Instructed by: |
MR. J.A.N. STRYDOM
P.F. Koep & Co. |
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