Reportable
Case No: 622/98
In the matter between:
DESMOND JAMES THOMPSON
Applicant/Appellant
and
SOUTH AFRICAN BROADCASTING CORPORATION      Respondent
Coram:
GROSSKOPF, HARMS, OLIVIER, ZULMAN JJA and
MTHIYANE AJA
Heard:
IN CHAMBERS
Delivered:
8 MARCH 2001
Subject:
Reconsideration of a costs order made by the SCA
JUDGMENT
HARMS JA/

HARMS JA:
[1] The applicant appealed against an order of the Cape High
Court in a trial action in which he was ordered to pay damages to the
respondent (the plaintiff) and costs.  His appeal was allowed on 29
November 2000 with costs and the order of the Court a quo was set aside
and replaced with an order of absolution from the instance, but no order
was made as to costs in the High Court.  This means that the applicant had
to pay his own trial costs.
[2] Being dissatisfied with the fact that he had been disallowed
costs, the applicant applies for the reconsideration of this part of the order.
His case is that since costs were not argued during the appeal, the costs
order was a provisional one and open to reconsideration (Estate Garlick v
Commissioner for Inland Revenue 1934 AD 499 505).  The applicant

accepted that this application could be dealt with in chambers by this Court
on written submissions from both sides without the necessity of oral
argument.  Full argument was filed by both parties and we are indebted to
counsel for their assistance.
[3] The adverse costs order had as its antecedent the following
statement in the main judgment (per F H Grosskopf JA at par 14):
“The court a quo found the appellant to be 'a very unreliable and dishonest witness'. . . .   I
fully agree with that conclusion.  The appellant committed fraud and then relied on spurious
defences.  In my view this court should indicate its displeasure by making no order as to costs
in the court a quo.”
The finding of the High Court is reported: South African Broadcasting
Corporation v Thompson and another [1998] 3 All SA 586 (C) par 16.
[4] Although the finding of the Court a quo was attacked by the
applicant when applying for leave to appeal, it is noteworthy that in the

heads of argument filed on his behalf, it was not alluded to at all.  Instead,
the argument focussed on legal issues.  This Court was therefore justified
in assuming that the applicant accepted these findings.     Factual findings
of trial courts are in any event presumed to be correct unless shown
otherwise.  At the hearing in this Court the argument was directed towards
the legal issues.
[5] The applicant does not submit that the costs order was
unjustified if the correctness of Grosskopf JA's factual findings were
accepted.  Instead, the argument is that the factual findings were incorrect
and should be reconsidered.  In this regard there appears to be a
misunderstanding about the power of a court to amend or supplement its
findings in contradistinction to its orders.   The correct position was spelt
out in Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298
(A) 307C-G:

“The Court may correct a clerical, arithmetical or other error in its judgment or order so as to
give effect to its true intention . . .. This exception is confined to the mere correction of an error
in expressing the judgment or order; it does not extend to altering its intended sense or
substance. KOTZÉ, J.A., made this distinction manifestly clear in [ West Rand Estates Ltd
v New Zealand Insurance Co Ltd 1926 AD 173 at 186 - 7], when, with reference to the
old authorities, he said:
'The Court can, however, declare and interpret its own order or sentence, and likewise
correct the wording of it, by substituting more accurate or intelligent language so long as the
sense and substance of the sentence are in no way affected by such correction; for to interpret
or correct is held not to be equivalent to altering or amending a definitive sentence once
pronounced.'”
And in S v Wells 1990 (1) SA 816 (A) 820C-F the matter was dealt with in
these words:
“The more enlightened approach, however, permits a judicial officer to change, amend or
supplement his pronounced judgment, provided that the sense or substance of his

judgment is not affected thereby (tenore substantiae perseverante ). . . . According to
Voet a Judge may also, on the same day, after the pronouncement of his judgment add
(supplere) to it all remaining matters which relate to the consequences of what he has already
decided but which are still missing from his judgment. He may also explain (explicare) what
has been obscurely stated in his judgment and thus correct (emendare) the wording of the
record provided that the tenor of the judgment is preserved.”
(Emphasis added.)
[6] It is also necessary to have regard to the object of the rule
permitting a party to have the costs order reconsidered if costs were not
argued at the oral hearing.  This appears also from Firestone at 307G-H:
“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 (see Estate Garlick's case, supra, 1934 AD
499). The reason is (see pp. 503 - 5) that in such a case the Court is always regarded as

having made its original order 'with the implied understanding' that it is open to the mulcted
party (or perhaps any party 'aggrieved' by the order - see p. 505) to be subsequently heard
on the appropriate order as to costs.”
(My emphasis.)  As I understand the words emphasised, they imply that the
argument relating to costs should be based upon the findings of the court
and not upon an argument that the court was wrong in it findings (cf the
approach in Pogrund v Yutar 1968 (1) SA 395 (A) 397G - 398C and in Ex
parte Barclays Bank 1936 AD 481).
[7] There is an underlying assumption in the applicant's
submissions to the effect that unless something was raised or dealt with
during oral argument, the matter can be reopened and that the court can
amend its judgment in relation thereto.  This is a misconception.  The
function of oral argument, especially in a court of appeal, is supplementary
to the written argument.  If a party chooses not to raise an obvious issue in

his heads, he does so at his peril.  The court is entitled to base its judgment
and to make findings in relation to any matter flowing fairly from the record,
the judgment, the heads of argument or the oral argument itself.   If the
parties have to be forewarned of each and every finding, the court will not
be able to function.
[8] In a case such as this, the trial judge had a discretion relating
to costs exercisable on the basis of his judgment.  Disallowing the
applicant's costs in the light of the factual finding of dishonesty would have
been a proper exercise of the discretion.  In upholding the appeal, this Court
had to place itself in the position of the trial judge and make any order that
the trial judge justifiably could have made, which it did.
[9] I may add in conclusion and ex abudante cautela that in
preparing the appeal we had to consider the credibility issue, not only
because it formed part of the reasoning of the trial judge but also because

the respondent in its heads of argument had dealt with the matter
extensively. Notwithstanding the applicant's present submissions, which I
have considered carefully, I am satisfied that our findings upon which the
order was based, were fully justified.
[10] The employment of two counsel by the respondent for the
limited purpose of preparing argument on costs was not reasonably
necessary.   In the result the application is dismissed with costs.
___________________
LTC HARMS
JUDGE OF APPEAL
AGREE:
GROSSKOPF JA
OLIVIER JA
ZULMAN JA
MTHIYANE AJA