Estate Garlick v Commissioner for Inland Revenue

• Jurisdiction: South Africa
• Judge: Stratford ACJ, Beyers JA and De Villiers JA
• Judgment Date: 12 January 1934
• Citation: 1934 AD 499
• Court: Appellate Division

De Villiers, J.A.:

The appeal case of Commissioner for Inland Revenue v Estate Garlick [*] was heard on the 5th October last by this Court, constituted for the occasion, of five Judges, in which number were included two Acting Judges of Appeal. The appeal was against a judgment of the Cape Provincial Division, and both parties were represented by Cape Town counsel. In their arguments on the merits, counsel on both sides refrained from dealing with the question of the general costs of the appeal, and therein they probably acted wisely, for in the circumstances of the case it would have been very difficult to argue on the costs until it was known what the Court's decision was, and (even more important) until it was known on what grounds the decision was based. After hearing the arguments on the merits, the Court announced that it would take time to consider its judgment, whereupon counsel of both parties returned to Cape Town. The Court gave judgment on the appeal on the 25th October, both parties being represented on this occasion by Bloemfontein counsel appearing to note judgment. After giving judgment on the merits the Court ordered the Estate Garlick to pay the costs of the appeal. Upon this order of costs being pronounced, counsel who was present in Court on behalf of Estate Garlick did not raise any objection, or request to be heard in argument as to the costs. On the same day, however, the Cape Town attorneys of the Estate Garlick telegraphed certain instructions to the Bloemfontein attorneys of the estate, and on the following day (26th October) the Bloemfontein attorneys, in pursuance of these telegraphic instructions, applied to the 'Registrar of this Court to arrange for the hearing of an application praying the Court to stay the issue of the order as to costs until such time as the Court could be reconstituted as composed when the appeal was heard, in order that the Estate Garlick might then be heard on the question of costs. The application to stay the issue of the

De Villiers, J.A.

order of costs was heard on the 29th October. (I must interpolate here, that the order as to costs had not yet been issued by the Registrar when the application was made, and has not been issued at any time since that date). I am now giving judgment on the application to stay the issue of the order of costs. Now Mr. Hoexter on behalf of the Commissioner for Inland Revenue takes the point that no useful purpose would be served by staying the issue of the order, inasmuch as the Court, even upon being reconstituted as previously composed, would have no power to alter the order of costs. His point is that by the Roman-Dutch law an order of Court, once it has been pronounced by the word of mouth of the Judge, cannot as a rule be thereafter altered or amended by that Judge. There can be no doubt that the rule was as stated. Thus Damhouder (Practyck in Civiele Zaken, Ch. 219 and 220) lays down that all final judgments must be pronounced by word of mouth of the Judge, or of one Judge on behalf of the majority of the Court, and that such judgment must be pronounced publicly, in the daytime, and in the presence of the parties or at any rate after due notice to the parties, and that the Judge, once having so uttered a definitive judgment, is thereupon functus officio, so that he cannot thereafter alter, supplement, amend, or correct the Judgment. The rule is similarly stated by Wassenaar (Jud. Pract. Pt. 1, Ch. 21, par. 21 (p. 272) ); by Vromans (de Foro Comp. Bk. 4, Ch. 1, par. 6 (p. 378) ); by Huber Hed. Rechtsg. Bk. 5, Ch. 37, par. 2 (p. 835) ); by Voet (42.1.27), and byvan der Linden (Jud. Pract. Bk. 3, Ch. 5, par. 10). To this general rule there are certain exceptions, which are stated by the writers referred to; for instance, an order after having been pronounced may be amended or added to where through some mistake it does not express the true intention and decision of the Court; or where it is ambiguous; or where the Court through an oversight has omitted to include in its order something which is accessory to the principal, such ail interest, fruits, or costs. The subject has also been considered by this Court in the case of West Rand Estates v New Zealand Insurance Co. (1926 AD 178), and in other cases there referred to. I need not analyse these cases, for there can be no doubt that by the Roman-Dutch law the Court's order (save in the excepted cases) became final and unalterable at the moment of its pronouncement by the Judge. In the English law a different rule prevails, the

De Villiers, J.A.

Court's order only becoming unalterable when issued by the Registrar to the party uplifting it. Mr. Beck, who appears for the Estate Garlick herein, admits the rule of the Roman-Dutch law but contends, if I understand him correctly, that South African practice has departed from the Roman-Dutch rule and has followed the English rule. He refers to the cases of Dewar v Sondheim (1906 T.H. 232); O'Neill v O'Neill (1910 T.P.D. 186); and to a dictum by INNES, C.J., in Randfontein Estates v Robinson (1921 AD 518), viz., that a Court cannot alter an order once duly made "and accurately drawn up." Now I must say it hardly seems to me that these cases per se sufficiently show the existence of a South African practice of such volume and continuity as could be held to abrogate the Roman-Dutch rule, but it may well be that such a practice does exist and that upon enquiry it would be found that the Roman-Dutch rule has been superseded by a practice modelled upon the English rule. In the view however which I take of the case it is unnecessary to decide the point or discuss the matter further upon these lines, for it seems that there is a broader ground which may and should form the basis of a decision in the present application. In dealing with this ground of decision I must, first of all, refer to the practice of South African Courts generally in making orders of costs, and I must particularly consider the position which arises when a Court hears argument on the merits and then adjourns in order to consider...