Body Corporate of Merriman Court and Others v Greeff

This is an application for variation of a judgment under Rule 42(1)(b) of the Uniform Rules of Court. The substantive matter was a Full Bench Appeal before the Western Cape Division, Cape Town. The Appellants (Body Corporate of Merriman Court and four individual appellants) appealed against orders granted by the court a quo in favour of the respondent, Johannes Wessel Greeff. The Full Bench delivered a judgment on 13 February 2024 upholding the appeal and setting aside the orders of the court a quo, but the order omitted to make a ruling on the costs of the appeal. The Appellants' Heads of Argument had sought the setting aside of the court a quo's orders and dismissal of the application but did not expressly address appeal costs. The court identified this as an error that required correction.

• Whether the court's failure to include an order for the costs of the appeal in the original judgment constituted an error correctable under Rule 42(1)(b) of the Uniform Rules of Court.
• Whether the successful appellants were entitled to costs of the appeal.

The order of the judgment delivered on 13 February 2024 was varied by the addition of a paragraph 4, reading: 'The respondent shall bear the costs of the appeal.' The complete corrected order is: (1) The appeal is upheld; (2) The orders of the court a quo dated 15 September 2021 and 16 March 2022 are set aside; (3) The respondent's application is dismissed with costs; (4) The respondent shall bear the costs of the appeal.

Under Rule 42(1)(b) of the Uniform Rules of Court, a court may vary an order that contains a patent error or omission. Where a successful party fails to obtain a costs order in a judgment due to an oversight, the court is entitled to correct the judgment by adding the appropriate costs order, applying the principle that costs follow the result.

No material obiter dicta are discernible from this judgment. The court's reasoning is confined to the application of Rule 42(1)(b) and the principle that costs follow the result.

This case illustrates the application of Rule 42(1)(b) of the Uniform Rules of Court as a mechanism for correcting patent errors or omissions in judgments, specifically the omission of a costs order. It confirms that where a party is entirely successful on appeal and the court inadvertently omits to make a costs order, the principle that costs follow the result will be applied to correct the error.