Martin Jongwe (2) Felix Dzingo v National Foods Limited

### Preamble
Judgment No. SC 91/25
1
Chamber Application No. SCB 32/25
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REPORTABLE   (91)

MARTIN     JONGWE     (2)     FELIX     DZINGO

v

NATIONAL     FOODS     LIMITED

SUPREME COURT OF ZIMBABWE

HARARE: 14 APRIL 2025 & 30 SEPTEMBER 2025

The applicants in person

A. K Maguchu, for the respondent

CHAMBER APPLICATION

UCHENA JA:

[1]   This is a chamber application for condonation and extension of time within which to note an application for correction of a judgment of this Court, handed down under SC 80/24. The applicants intend to make the application in terms of r 29 (2) of the High Court Rules 2021, as read with r 73 of the Supreme Court Rules, 2018.

THE FACTS

[2]   The applicants are former employees of the respondent.  The respondent is National Foods (Pvt) Limited, a company registered in terms of the laws of Zimbabwe.  On a date which has not been established but in the early 2000s, the respondent undertook a job                                 re-evaluation exercise as a result of which it increased the salaries of its secretaries but omitted to do the same for its artisans and journeymen.

[3]   As a result the artisans and journeymen, who were of a higher grade than the secretaries, were now earning less than the secretaries.  Dissatisfied by that development, the artisans and journeymen demanded an increment commensurate with their grade.  They took the respondent to the Labour Court.  In 2008 the dispute was settled in favour of the artisans and journeymen.

[4]  The respondent requested that the judgment be stayed pending the determination of a then pending Supreme Court appeal on whether workers should then be paid in United States dollars.  The Supreme Court ruled that workers ought to be paid in United States Dollars.  The respondent settled with the rest of its workforce and paid the increments in United States dollars.  The applicants did not accept the offer that was extended to them to be paid in United States Dollars.

[5]   They sought to be paid what had been quantified to be due to them by the Labour Court. However, this was no longer possible because the amounts had been eroded by inflation.  They engaged the services of an actuary to quantify the amounts they were owed.  Although the parties agreed on the amount owed in ZWL terms, the applicants sought that the amounts owed be converted to the then current applicable ZWL currency.

[6]   At the hearing of the appeal before the Labour Court, Mr Muswere, an actuary, gave expert evidence based on his findings.  Although the respondent accepted that Mr Muswere was an expert, it was not satisfied by his calculations.  The court a quo acknowledged that the conversion done by Mr Muswere was authentic but that it could result in unrealistic figures as the first applicant could not have been earning the equivalent of US $2 000.00 per month during the 2002 to 2008 period.

[7] The court a quo then did its own research and found a site that assists with currency conversions.  It thereafter evaluated the amounts using both the unofficial and official rates.  It reasoned that both rates would provide realistic figures and a true value of the increment per month depending on the grade of the recipient.  In the result, it ordered that the first applicant be awarded the sum of ZWL11 417 548.17 and that the second applicant be awarded the sum of ZWL2 951 701.67.  It ordered the amounts to be backdated increments on the salaries earned during the period 2002 to 2008 inclusive of interest at 5% for 14 years.

[8]   Aggrieved by the decision of the court a quo, the respondent noted an appeal before this Court under SCB 18/23.  The first and second applicants also noted cross-appeals against the court a quo’s judgment.  The respondent submitted that only one witness was called to prove the applicants’ case a quo that is, Mr Muswere, an expert.  It submitted that having disregarded the conclusions of that expert, and, there being no other witness or evidence, the court a quo should have dismissed the appeal.  The respondent also submitted that it was improper for the court a quo to singularly source expert evidence from a website and rely on such evidence in arriving at a decision, without allowing the parties to be heard on such evidence.

[9]   Per contra, the applicants supported the reasoning and decision of the court a quo.  The first applicant, however, stated that his cross appeal was against the part of the judgment of the court a quo pertaining to the application of the RBZ bank rate.  He also submitted that the court a quo should have, in addition, ordered payment of damages in terms of                            s 5 (4) (a) of the Labour Act [Chapter 28:01].  The second applicant also submitted that his cross-appeal was against the Labour Court’s failure to apply the RBZ bank rate to the amount it awarded to him and to order the main appellant to pay damages in terms of                            s 5 (4) (a) of the Labour Act.

[10] This Court ruled that the evidence which the court a quo relied on had not been part of the parties’ pleadings, nor was it part of the evidence adduced before the court a quo at the hearing.  It reasoned that the court a quo should have brought such fresh evidence to the attention of the parties and invited submissions thereon before proceeding to determine the appeal.  It found that the fact that the court a quo relied on the internet to find its evidence does not detract from the correctness of a finding that the court had no evidence to rule in favor of the applicants.  Consequently, the court allowed the appeal and dismissed the cross-appeal.  It made the following order:

“Accordingly it is ordered as follows:

The appeal be and is hereby allowed with costs.

The order of the court a quo be and is hereby set aside and, in its place, substituted (sic) the following:

‘The application be and is hereby dismissed with costs.’

The cross-appeal be and is hereby dismissed.’”

[11]  Aggrieved by the decision of this Court, in SC 80/24 the applicants unsuccessfully applied for rescission of the judgment.  Thereafter, the applicants pursued futile applications, until they eventually filed the present application for condonation and extension of time within which to file an application for correction of this Court’s judgment in SC 80/24.

RELIEF SOUGHT

[12]   The applicants seek the following relief:

1. The application for condonation and non-compliance with r 29 (2) of the High Court Rules, 2021 is hereby granted.

2. Application for extension of time within which to note an application for correction of judgment in SC 80/24 be and is hereby granted.

3. Applicants shall file the court application for correction under r 29 (1) (b) of the High Court Rules, 2021 within 5 days of this order.

4. There is no order (sic) to costs if the application is not opposed.

PRELIMINARY ISSUE

[13]  In his answering affidavit, the first applicant raised a point in limine to the effect that the respondent’s opposing affidavit was vague and embarrassing, alleging that the deponent raised irrelevant matters at the expense of material facts.  The first applicant contended that the respondent failed to address the application in a detailed, paragraph-by-paragraph manner and thereby evaded the core averments made in the founding affidavit.

[14]  The respondent opposed the preliminary issue arguing that its opposing affidavit was not vague and embarrassing.

[15]  I should point out that litigants should be discouraged from raising preliminary points for the sake of it.  It has been consistently held that points in limine should only be taken where they have merit and are capable of disposing issues before the Court.  In Telecel Zimbabwe (Pvt) Ltd v Potraz 2015 (1) ZLR 651 (H) at p 659 C-D, the Court held that:

“We are spending a lot of time determining points in limine which do not have the remotest chance of success at the expense of the substance of a dispute. Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion. A preliminary point should only be taken where, firstly, it has merit and, secondly, it is likely to dispose of the matter.”

I associate myself with the position taken by the court in the above-mentioned case.

The first applicant’s preliminary point is accordingly dismissed.

CONTENTIONS BY THE PARTIES

[16]  Both the first and second applicants deposed to affidavits in support of the application. The second applicant indicated that he fully associated himself with the contents of the first applicant’s founding affidavit.  He however added that his cross appeal was not taken into consideration nor determined in the Court’s judgment SC 80/24.

[17]  The explanation for the delay, tendered by the applicants is that from 1 August 2024 to 14 November 2024, they acted within the prescribed time by filing an application for rescission under case number SCB 89/24.  This was done under the impression that, in terms of r 29 (10) (a) of the High Court Rules, 2021, the phrase "in the absence of the affected party" did not refer strictly to physical or actual absence, but rather encompassed broader considerations of notice and participation.  It was submitted that the time lapse between the filing and the consideration of that application, culminating on 23 November 2024, should not be held against them.

[18]  The period from 14 November 2024 to 17 March 2025 was explained as having been induced by the applicants’ pursuit of their right to a fair trial.  The first applicant stated that once the bench was constituted, he promptly took steps to seek recusal of Judges to ensure that his interests were protected.  It was further submitted that court applications of this nature are not ordinarily heard virtually, and the applicants were required to await the court's sitting on circuit in Bulawayo.

[19]  For the final period, from 18 March 2025 to 24 March 2025, the applicants averred that they acted diligently and within a 30 day period from the date when it became feasible for them to proceed.

[20]  Regarding prospects of success, the first applicant submitted that the judgment contains patent errors and omissions which are readily apparent from the record.  It was contended that the infractions of the rules are manifest, for instance, the date on which leave to appeal was granted in the notice of appeal was recorded as 13 March 2013, when it should be 13 March 2023. They contented that this was contrary to the provisions of r 59 (3) (f) of the Supreme Court Rules 2018, which provides that:

“The notice of appeal shall state-

‘(f) if leave to appeal was granted, the date of such grant.’”

It was further submitted that the Court misconstrued the factual matrix of the case, and that the quantum is reflected in the draft order filed on 8 December 2020.  In addition, it was argued that the appellants in the main appeal, had agreed that the question of damages should be remitted to the Labour Court for a determination of the quantum.

[21]   Both applicants annexed to their affidavits a detailed list of the corrections they seek to have effected to the judgment of the Court, should the present application succeed.  They rely on the same grounds for correction.  As also reflected in the first applicant’s founding affidavit, the second applicant’s principal grievance lies in the alleged omission of his cross-appeal from the court’s judgment.  In this regard, he included in his affidavit a proposed redraft setting out how he believes the judgment ought to be corrected to reflect his position.

[22]   The respondent opposed the present application on several grounds.  It was its contention that the true purpose of the application and indeed of several other applications previously filed by the applicants was not to correct any patent error within the contemplation of the rules, but rather to express dissatisfaction with the judgment of this Court and to invite the court to revisit its findings.  The respondent submitted that the applicants are merely seeking to re-argue the case under the guise of procedural remedies, invoking inapplicable rules in a bid to have the Supreme Court reach a different finding.

[23]   Regarding the delay, the respondent argued that the application was filed approximately seven months after the judgment was handed down.  It was further argued that this delay is grossly inordinate, particularly in circumstances where the applicants have failed to provide a reasonable or satisfactory explanation for their tardiness.  The respondent asserted that it is impermissible for litigants to proceed on a trial-and-error basis, filing successive applications in the hope that one might eventually succeed.  To permit such conduct, it was argued, would defeat the principle of finality to litigation.

[24] Turning to the question of prospects of success, the respondent contended that the applicants’ application is without merit.  It was argued that the applicants have misconstrued the meaning and scope of a “patent error.” In this respect, it was argued that a patent error, for the purposes of correction, refers to a manifest error or omission that causes the judgment or order as recorded to fail to reflect the intention of the judicial officer who delivered it.  It was argued that no such defect is present in the judgment of this Court, and what the applicants now complain of are mere disagreements with the court’s reasoning and conclusions, issues which are properly ventilated through an appeal, not through a correction application. The respondent further submitted that the judgment being that of the Supreme Court cannot be subject to an appeal

[25]   Regarding the applicants’ complaints about costs and the treatment of the cross-appeals, the respondent submitted that there is no ambiguity in the judgment.  It was further submitted that the operative part of the order is clear, and the disposition of the cross-appeal followed logically upon the upholding of the main appeal, and nothing further arose for determination in that regard.

[26]   Finally, the respondent submitted that the balance of convenience weighs heavily in favour of bringing the disputes between the parties to finality.  It was argued that the litigation between the parties has been protracted and has spanned several years.  It was the respondent’s further argument that the issues in dispute were conclusively settled by this Court in its judgment handed down in SC80/24 and the matter should be put to rest.

ISSUE FOR DETERMINATION

[27] Whether or not the applicants have satisfied the requirements for the granting of condonation?

THE LAW

[28] The requirements to be satisfied in an application of this nature have been articulated in many a precedent.  In essence, an applicant seeking the indulgence of the Court must candidly explain the reasons for their non-compliance with the rules and, in addition demonstrate that they have reasonable prospects of success on the merits.

[29]   In Maheya v Independent African Church 2007 (2) ZLR 319 (S) at p 323 B-C, this Court held that:

“In considering the application for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply the established principles bearing in mind that it has to do justice. Some of the relevant factors that has to be considered and weighed one against the other are; the degree of non-compliance; the explanation therefor; the prospects of success on appeal ; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience of the court and avoidance of unnecessary delays in the administration of justice. Bishi v Secretary for Education 1989 (20 ZLR (H) at 242D-243C.”

Further, in Lunat v Pate & Anor SC 142/21 at pp 5–6, this Court, commenting on the requirements and considerations applicable in an application for condonation, made the following remarks:

“In considering an application for condonation, the court is engaged in the exercise of judicial discretion, that is, whether to grant the indulgence of condonation or not.  In doing so it has regard to the reasons or explanation advanced by the applicant for the infraction.  In order to succeed the applicant must satisfy the established requirements which motivate the court to extend an indulgence.  The extent of the delay and the reasonableness of the explanation for such delay as well as the prospects of success on appeal are the relevant considerations…”

[30]  In respect of the correction of court orders, it is a settled principle of law that courts have within prescribed circumstances authority to correct their judgments at their own instance and at the instance of an aggrieved party.  The correction can only be done to ensure that the judgment or order spells out the correct intention of the Court which handed down the judgment.

[31] The authors Herbstein & Van Winsen in The Civil Practice of the High Courts of South Africa Fifth Edition Volume I at pp 926 to 927 say:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it …

There are however, a few exceptions to that rule, which are mentioned in the old authorities and have been authoritatively accepted by our courts. Thus, provided that the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt that the court overlooked or inadvertently failed to grant.

The court may clarify its judgment or order if on a proper interpretation the meaning of it remains obscure, ambiguous or otherwise uncertain so as to give effect to its true intention, provided that it does not thereby alter the essence and substance’ of the judgment or order. The order and the court’s reasons for giving it must be read as a whole; if uncertainty on the meaning of the order still persists, extrinsic circumstances leading up to the court’s judgment may be investigated in order to clarify it.

…

This list of exceptions is not considered to be exhaustive. The general rule is departed from when it is in the interests of justice to do so and where there is a need to adapt the common law to changing circumstances to meet modern exigencies. What is just and equitable will ordinarily be in the interests of justice.”

[32]   The law does not therefore allow the unrestricted rewriting of the Court’s judgment at the instance of an aggrieved party.  Corrections are intended to bring out the intention of the Court in handing down the judgment or order in accordance with the pleadings of the parties, the evidence lead and submissions made by the parties before it.

[33]   In this jurisdiction the correction of judgments and orders of the High Court is regulated by r 29 which provides as follows:

“Rule 29 (1) of the High Court Rules, 2021 provides as follows:

(1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary-

An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby, or

(b) An order or judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) An order or judgment granted as a result of a mistake common to the parties.

(2) Any party desiring any relief under this rule may make a court application on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment.”

[34]  In the case of this Court the High Court Rules are made applicable by r 73 of the Supreme Court Rules 2018 which provided as follows:

“In any matter not dealt with in these rules, the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the court or a judge, follow, as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.”

It therefore follows that any correction of a judgment of this Court must be in compliance with r 29 (1) (b) of the High Court Rules 2021.

[35]  What constitutes a patent error for purposes of r 29 (1) (b) must be a mistake by the court, in pronouncing its intended judgment or order.  This was clarified by Dube J (as she then was) in Hopcik Investments (Pvt) Ltd v Minister of Environment, Water and Climate and City of Harare HH 336/16 at pp 4 to 5 of the judgment as follows:

“Coming to the nature of the error made, Herbstein and Van Winstein in The Civil Practice of the High Courts of South Africa, 5th ed at p 934,  describe a  ‘patent error or omission’ as:

‘An error or omission as a result of which the judgment or order granted does not reflect the intention of the judicial officer pronouncing it.’

The authors state that the patent error or omission must be attributable to the court itself and that relief will only be accorded where the terms of the judgment or order do not reflect the true intention of the presiding judge.  In  the  Firestone  case, Trollip J held at p 304 DH, that in a case involving correction of an order  in terms of r 42 of the Uniform Court Rules of South Africa  which is identical to our own r 449,  that the court has the power to  clarify  its own judgments or orders  so as to give effect to their true meaning and  true intention of the court for as long as it does not alter the ‘sense and substance’ of the judgment or order. Further that the court’s intention is to be ascertained primarily from the language or order as construed according to the usual rules. The same reasoning was followed in Faheem Investsments Pty Ltd v The Attorney General & Ors 2010 1 BLR 675 HC. A patent error in the context of r 444 is apparent or clear from either the judgment or order.  A court may only correct its judgment or order moru motu where it has made a patent error or omission as envisaged in terms of r 449.  It is permissible for a judge who has made a patent error or omission in a judgment or order to clarify his order or judgment, of his own free will or motion by correcting it so that it reflects the true intention of the court in circumstances where the error is evident from the face of the judgment or order.  The court should endeavor to do so without altering the ‘sense or substance’ of the judgment or order and must ensure that it does not admit a different interpretation to the judgment or order. Consequently, this exception is limited only to the correction of the order.  The r 449 (1) (b) (2) caters for mistakes attributable to the court. The correctness of the order or judgment originally issued is not an issue but rather whether the court made a patent error or omission and in addition whether the order granted reflects the true intention of the court.  The court may not substitute its judgment or order for another one completely different. The rule is meant merely to facilitate clarification of orders or judgments.’” (Emphasis added)

[36]   I now proceed to consider the present application in light of the foregoing principles and authorities.

APPLICATION OF THE LAW TO THE FACTS

Extent of delay and explanation thereof.

[37]	In casu, the judgment which the applicants seek to correct was handed down on 31 July 2024.  In terms of r 29 (2) of the High Court Rules, 2021, any application for correction must be filed within thirty days, that is, by no later than 30 August 2024.  However, the present application was only filed on 25 March 2025, about seven months out of time.  As alluded to above, the applicants attribute the delay to the fact that they had, within the prescribed time, filed a court application which did not find favour with the Court.  The crux of the explanation for the delay, in my view, is in para 8 of the founding affidavit, which reads, in relevant part as follows:

“I filed a court application within (sic) stipulation of time as contemplated by the rules.  Regardless of that initial compliance, I find myself pegged back because that court application did not engage the court. The court declined jurisdiction citing it was functus officio to hear the application under r 29 (10 (a) of High Court Rules 2021. In essence there is nothing before the court since 31 July 2024. In order to engage the court I require to purge the breach by seeking condonation and extension of time within which to note a proper application…”

[38]  In my view the applicants’ application in which this Court declined jurisdiction explains the major part of a delay of seven months before this application was made. The applicants could not have made this application during the pendency of that application. That period accounts for the major part of the delay. They thereafter made other unsuccessful applications but for a much shorter period before they made this application. I am therefore of the view that the delay was not inordinate and has been reasonably explained.  I now turn to consider the prospects of success of the intended application for correction of SC 80/24.

PROSPECTS OF SUCCESS

[39]  The applicable test for prospects of success was clearly articulated in Essop v S (31/2016) [2016] ZASCA 114, where the court held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.  In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorized as hopeless.  There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[40] In seeking to establish their prospects of success, the applicants’ contention was to the effect that judgment number SC 80/24 was granted in error.  They alleged, in particular, that the judgment failed to acknowledge an award premised on the relief prayed for.  Additionally, they argued that the judgment is vitiated by certain procedural omissions, namely, the failure to correctly record the date on which their application for leave to appeal was filed, that the second applicant filed a cross appeal and the failure to set out the grounds upon which they sought to cross-appeal.

[41]   A reading of r 29 (1) (b) (supra) establishes that a party may apply for the correction, of a judgment or order that was erroneously granted.  It permits correction of a judgment where there is a patent error or omission that renders the judgment unclear or ambiguous.

[42]  After an extractive engagement with the applicants who are self-actors to establish the essence of their application it became clear that the applicants’ prospective grounds for correction establishes that most of what is being pursued goes beyond the narrow scope permitted by r 29 (1) (b) of the 2021 High Court Rules.

[43]  The applicants seek, inter alia, the correction of what they allege to be omissions by the court to pronounce on a preliminary objection relating to the order of costs; the alleged omission to reflect that the date on which leave to appeal was granted is 13 March 2023, not 13 March 2013 as stated in the judgment; the failure to cite the first and second respondents’ second and third grounds of cross-appeal as amended; and the omission to refer to the second respondent’s grounds of cross-appeal.  In respect of the second applicant an issue is raised about the Court’s judgment’s failure to pronounce a decision on his cross appeal.

[44] In the present application, I do not understand the applicants to be arguing that the judgment and order of the court contain patent errors or omissions which lead to a complete failure to reflect the true intention or reasoning of the court.  I am also inclined to agree with the respondent’s submission that, through the intended application for correction, the applicants are, in effect, seeking to alter the entire reasoning of this Court in SC 80/24, a course which cannot be pursued by way of a correction of a judgment.

[45] This is evident from the manner in which the applicants seek to substitute substantial portions of the judgment with their own words, reasoning, and legal conclusions.  Indeed, the applicants undertake a paragraph-by-paragraph revision of the court’s judgment, replacing its language and analysis with their preferred formulations. A striking illustration appears on p 22 of the consolidated record, where they propose the following extensive corrections:

“ANALYSIS

The entire paragraph is deleted substituted by the following, “The documents on pp 197-643 of record are not in substantiation of appellant’s grounds of appeal and heads of argument went outside the grounds of appeal which they shouldn’t have done. The objection is upheld.

DETERMINATION OF PRELIMINARY POINTS

The first respondent challenges several defects on the notice of appeal. Notable is that the notice of appeal does not comply with r 59 (3) (f) of Supreme Court Rules, 2018 in that the date leave to appeal was granted is not exact. The appellant cited the date as 13 March 2013 which predates the appeal itself by 10 years. Rule 59 (3) is couched in peremptory terms and the defect cannot be amended; see Tendai Bonde v National Foods Ltd & 2 Others SC 11/21; Martin Jongwe v National Foods Ltd &Anor SC 33/21.

DISPOSITION

The contents under disposition are deleted and substituted by the following:

‘The appeal is struck off the roll with costs. In the circumstances, the first & second cross appeal succeeds and costs shall follow the cause.’”

[46]  While the first applicant contends, at paras 23 to 28 of the answering affidavit, that the intended application seeks only to correct patent errors that are readily apparent and not open to interpretation or debate, the founding affidavit tells a different story.  As demonstrated in the above excerpt, the applicants are not only seeking the correction of incidental or clerical errors which do not reflect the court’s true intention.  Rather, they are attempting a wholesale substitution of the court’s judgment, including its reasoning, structure and conclusions.  The main trust of the intended application is, in substance and effect, an appeal disguised as a correction.  This is impermissible.

[47]  In determining the case before it this Court in SC 80/24 said:

“However, our finding that the court a quo ventured into the internet to find its own evidence does not detract from the correctness of a finding that it had no evidence to find for the respondents.  That is so because the court a quo disbelieved the evidence of the only witness before it and, as a result, no evidence was available to sustain its decision to find for the respondents”.

This demonstrates that the court clearly intended to allow the appeal as it could not have done otherwise when there was no evidence which could enable the Labour Court to find for the applicants.  There is therefore nothing to correct in paras 1 and 2 of the Court’s judgment in terms of the rules.  I therefore find that the applicants’ intended application for the correction of this Court’s judgment in SC 80/24’s paras 1 and 2 has no prospects of success.

[48]  	However in para 3 of its order the court said:

“The cross appeal be and is hereby dismissed.”

[49]  This may not be the Court’s intended order as there were two cross-appeals before it.  The applicants’ intended application for correction against the court’s order in para 3 therefore has prospects of success.  The applicants’ application for condonation and extension of time within which to apply for correction of the Court’s judgment should be granted.

COSTS

[50]	 The respondent sought an award of costs on the legal practitioner and client scale, arguing that it has been compelled to incur unnecessary legal expenses in defending a matter that, in its view, had long been finalised.  It was submitted that the continued litigation by the applicants constitutes an abuse of both the respondent and the court’s processes, and that the applicants should be ordered to pay such costs before being permitted to bring any further applications.

[51]  	Per contra, the first applicant argued in his answering affidavit that costs are an order of the court and that the respondent disproportionately pleaded for costs in disregard of the material facts.  The first applicant cited the case of Trope & Ors v South African Reserve Bank 1993 [3] SA 264 A at 273A.

[52] 	In Nel v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597 at 607, Tindal JA stated that:

“The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts in case considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .”

Furthermore, AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which the court would be justified in awarding costs as between attorney and client as follows:

“(a)Vexatious and frivolous proceedings

(b) Dishonesty or fraud of litigant

(c) Reckless or malicious proceedings

(d) Litigant’s deplorable attitude towards the court

(e) Other circumstances”

[53] 	It is clear, in light of the above authorities, that courts should award costs on a higher scale only in exceptional circumstances.  The mere fact that the successful party has requested costs on a higher scale does not, in itself, justify such award.  The imposition of costs on a higher scale should not become a deterrent to access to justice, particularly for future litigants with bona fide claims that may warrant judicial scrutiny or correction. In awarding costs on a punitive scale, courts must therefore exercise heightened caution and ensure that the facts of the case truly merit such an exceptional remedy.   Accordingly, and taking into account that the applicants have acted without legal representation throughout, and have prospects of success in respect of part of the judgment.  I take the view that each party should bear its own costs.

DISPOSITION

[54]  	In light of the foregoing considerations, the present application for condonation and extension of time should be allowed with each party bearing its own costs.

[55]   It is therefore ordered as follows:

“1. The applicants’ application for condonation and extension of time within which to apply for correction of judgment in SC 80/24 be and is hereby granted with no order as to costs.”

2.  The applicants shall file their applications for correction of the judgment within five (5) days of the date of this order.”

Maguchu & Muchada Legal Practitioners, respondent’s legal practitioners.