West Rand Estates Ltd v New Zealand Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 29 January 1926
• Citation: 1926 AD 173
• Hearing Date: 13 October 1925
• Court: Appellate Division

Innes, C.J.:

I agree that this application should be granted. I think, for the reasons given by my brother SOLOMON, that the respondent company was in mora from the date of receipt of the letter of demand. But, in view of the importance of the point of practice involved, I desire to state why I consider that this Court has jurisdiction to supplement its order in manner proposed. The general principle that a judge has no authority to amend his own order, duly pronounced, was well recognised by the civil law.

Ulpian, who lived before the final abolition of the formulary procedure with its narrow conception of the judicial office, stated the rule in rigid terms: "Judex posteaquam semel sententiae dixit, postea judex esse desinit; et hoc jure utimur, ut judex qui semel vel pluris vel minoris condemnavit amplius corrigere sententiam suam non possit; semel enim seu male sou bene officio functus est." (Dig. 42.1.55). No correction of a judgment once given was permissible for the simple reason that the judex had ceased to function. In the same title, however, there is another lex which shows that a relaxation of the strict rule was allowed under special circumstances. "Paulus respondit rescindere quidem sententiam suam praecedentem Praetorem non posse; reliqua autem quae ad consequentiam quidem jam statutorum pertinent, priori tamen sententiae desunt, circa condemnandum reum vel absolvendum debere supplere, scil, eodem die." (Dig, 42.1.42.) The note of Gothofredus on the word relliqua in the above passage is "ut taxationes expensarum." So that although the main judgment could not be altered it might be timeously supplemented in respect of consequential matters, such as the award of costs, for which no provision had been made. And Roman-Dutch practice was based on that principle. Voet (ad Pand. 42.1 par. 27) adopts the language of Paulus, but adds that the judge may explain obscurities, and may for that purpose amend the language of his decree while preserving its effect. Van der Linden (Jud. Pract. III, par. 10) also lays stress upon the power of interpretation as distinct from alteration. What the Court is asked to do in this instance, is not to interpret, but to supplement its judgment, and the reason why we are entitled, in my opinion, to grant the application is because the interest now claimed may be properly regarded as included in the reliqua quae ad consequentiam pertinent of the civil law rule. That that would have been the view

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of the Dutch Courts is fairly clear. Wassenaar (Praxis Judiciaria I, 21, sec. 9) after stating that the fruits of property claimed are included in the award, remarks that if the judge has forgotten or neglected to include them, the plaintiff nevertheless retains his right to them in a real action, irrespective of whether he had claimed them or not; but in a personal action only if he had asked for them. Merula (Manier van Procederen, bk, 4, tit. 90, c. 1, par. 1) qualifies the general rule that a judgment duly pronounced cannot be recalled or amended, as follows: "ten ware belangende 't geen toevallig is, als kosten, vruchten, en diergelijke, doch op stande voet en ten zelven dage - Vromans (de For. Comp. 4.1, par. 6) has the following note to his statement of the general principle: "Dog belangende het gene aan de principale saak toevallig is, als kosten, vrugten, en diergelijke, then aangaande vermag den Rechter sijne sententie veranderen, "dog sulks moet op staande voets ende ten selven dage geschieden." Interest in this connection stands on the same footing as fruits; they are both consequential or accessory matters, and there is ample authority for the proposition that in a case of inadvertent omission the trial Court would, under Dutch procedure, have had jurisdiction, if timeously approached, to supplement its order so as to grant to the party entitled the necessary relief. And, subject to what will be presently said as to the operation of a time limit, the present controversy may be settled on that principle. I do not propose, therefore, to investigate the res judicata test, about which there is considerable discussion in the books. A distinction is there drawn between a claim for fruits founded upon a specific under taking to render them (ex conventione) and a similar claim which depends merely upon the award of the judge (ex officio judicis). In cases of inadvertent omission, it is said that a plaintiff retains his rights in respect of the former class, even though he did not claim them, because the obligation was a principle matter, and there had been no adjudication upon it. Whereas in respect of the latter class the matter was accessory, and the fruits awardable only ex officio judicis; the right to claim such fruits was only retained by the plaintiff if covered by his plaint. See Faber (Code 7.18 par. 67); Carpzovius, Juris Forens. (pt. II, cons. 30, def. 13 and 47, etc.). The authorities are more fully referred to in the reasons of my brother KOTZÉ; some of them push the doctrine that a plaintiff retains his right to demand interest which has

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been neither awarded nor claimed to an extent hardly consistent with another well recognised doctrine which prohibits the splitting of claims. I desire to guard myself against expressing any opinion upon the effect of the authorities upon the above points. It is enough to say that a judge is not by our law regarded as functus officio in respect of accessory or consequential matters overlooked in pronouncing judgment, and that the present claim for interest is such a matter.

Nor in applying the above doctrine are we bound to confine ourselves to the time limit which the Courts of Holland took over from the Civil Law, for that is a matter not of principle but of mere procedure. The reason on which the general rule prohibiting the alteration of a judgment by the authority which pronounced it rested was that the judge who had once given a final order was functus officio. His jurisdiction having, been fully exercised his authority over the subject-matter ceased. And the recognition of power in a Court to supplement, in respect of consequential or accessory omissions, an order duly promulgated, was a variation of the general rule so important as to constitute a principle. As such it passed into the body of our common law. But the time limit imposed upon its exercise was a non-essential rule of procedure which the Courts of Holland might have qualified, in accordance with circumstances, and which we are in like manner entitled to qualify. The successive stages of present day litigation are marked by less formality than prevailed in earlier times; and there seems no sufficient reason for confining the rectification of an omission in a judgment to cases where application is made within a definite time.

There is no need to discuss the English cases. The general principles which they adopt are in substantial agreement with our own law. But the matter has been there dealt with by a rule of court which provides that clerical mistakes or errors arising in a judgment from any accidental slip or omission may be rectified by the Court concerned. And most of the cases have come under those provisions.

The South African decisions on the point are few, but reference to some of them is necessary. In East London Harbour Board v Caledonia Company and Another (23 S.C., p. 17) the respondent, in whose favour judgment had been entered without any reference to interest, made a cross application for an amendment of the order

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in that particular. DE VILLIERS, C.J., remarked that the Court's attention had not been drawn specially to the matter, and it was not prepared to alter the judgment. Thereafter the application was renewed, but it was again refused. The CHIEF JUSTICE said that "the rule is that when once the Court has pronounced final judgment it has no power to alter its own decree. . . . It often happens that before the registrar draws the formal order, the Court has to be consulted as to its precise terms, but when once that order has been drawn and delivered to the parties, the only mode of amendment is b way of appeal to a higher Court" (24 S.C., p. 434). The question of the power to supplement a judgment in respect of consequential or accessory omissions does not appear to have been argued, nor were the authorities on that point brought to the notice of the Court. Had that been done I make no doubt that the law would not have been so widely stated. In Brits v Engelbrecht (1907, T.S p. 876) the Court was asked to amend its order as to costs; there was no question there as to supplementing the judgment on a point on which it was silent. The application was for an alteration of an award deliberately made, and of course the Court had no jurisdiction to entertain it. This Division, in the case of Wessels & Co. v de Beer (1919, A.D., p. 172) pointed out that it was competent for a Court to rectify a clerical error in its order so as to give effect to its true intention - a point which admits of no doubt. The application made to us in Randfontein Estates v Robinson (1921, A.D., p. 515) was not to supplement our order in respect of a consequential omission, but to amend an unambiguous portion of it, and thus substantially alter the decree. The following extract from our judgment dismissing the application may be quoted: - "It is sufficient for the purposes of this case to say that a judge may explain his order if ambiguous, or may correct an error, or add a supplementary detail so as to give effect to his true intention, but cannot alter an order once duly made and accurately drawn." That statement may now be amplified on a point not then raised by saying that when interest claimed in an action or any other consequential or accessory matter so claimed is inadvertently omitted from an award in favour of the claimant, the omission may be rectified by the trial Court so as to...