Desmond James Thompson v South African Broadcasting Corporation

The applicant (Thompson) appealed against an order of the Cape High Court in which he was ordered to pay damages to the respondent (SABC) and costs. The High Court found Thompson to be "a very unreliable and dishonest witness" and concluded he had committed fraud and relied on spurious defences. The Supreme Court of Appeal (SCA) allowed the appeal on 29 November 2000, setting aside the High Court order and replacing it with an order of absolution from the instance. However, the SCA made no order as to costs in the High Court, meaning Thompson had to pay his own trial costs. The SCA indicated its displeasure with Thompson's dishonest conduct by disallowing him costs. Thompson then applied for reconsideration of the costs order, arguing it was provisional because costs were not argued during the appeal hearing.

• Whether a costs order made by the SCA without oral argument on costs is provisional and open to reconsideration
• Whether the SCA can reconsider factual findings underlying a costs order
• The scope of the court's power to amend or supplement its findings versus its orders
• Whether the SCA was entitled to make a costs order based on findings of dishonesty when this was not specifically argued during the appeal

The application for reconsideration of the costs order was dismissed with costs. The original costs order stood: Thompson had to pay his own trial costs in the High Court.

The binding legal principles established are: (1) The power to reconsider costs orders under the Estate Garlick principle exists to allow parties to be heard on the appropriate costs order based on the court's findings, but does not extend to challenging or reconsidering the factual findings themselves upon which the costs order is based. (2) A court may only correct, amend or supplement its judgment where the tenor or substance of the judgment is preserved (tenore substantiae perseverante); it cannot alter the intended sense or substance of its findings. (3) Where a party has been found to have committed fraud or acted dishonestly, a court may properly exercise its discretion to disallow that party costs even when granting substantive relief in their favour. (4) Courts are entitled to make findings on any matter flowing fairly from the record, the judgment a quo, written heads of argument or oral argument itself, and parties cannot reopen issues simply because they were not addressed during oral argument if they could have been raised in written submissions.

The Court made the following non-binding observations: (1) Factual findings of trial courts are presumed to be correct unless shown otherwise. (2) The function of oral argument, especially in courts of appeal, is supplementary to written argument, and parties who fail to raise obvious issues in their heads of argument do so at their peril. (3) If parties had to be forewarned of each and every finding, the court would not be able to function. (4) The Court noted ex abundante cautela (out of an abundance of caution) that it had carefully considered the credibility issue when preparing the appeal, both because it formed part of the trial judge's reasoning and because the respondent had dealt with it extensively in written argument, and remained satisfied that the findings were fully justified. (5) The employment of two counsel by the respondent for the limited purpose of preparing argument on costs was not reasonably necessary.

This case clarifies important principles regarding the reconsideration of costs orders in appellate courts. It establishes clear boundaries between reconsidering costs orders (permissible under the Estate Garlick principle when costs were not argued) and challenging the factual findings underlying such orders (impermissible). The judgment reinforces that courts retain discretion to disallow costs to successful parties based on their dishonest conduct, even when granting substantive relief. It also clarifies the limited scope of the court's power to amend judgments under the tenore substantiae perseverante principle - corrections are permitted only where the sense and substance of the judgment is preserved. The case emphasizes the supplementary nature of oral argument to written submissions in appellate proceedings and confirms that parties cannot reopen issues simply because they were not addressed in oral argument if they could have been raised in written heads of argument.