“(i) That the Respondent/Plaintiff pay the costs of these proceedings from the date of institution of the Rule 43 application proceedings until the 23rd February 2004 on a basis of normal party/party costs and for this purpose this Honourable Court directs that Rule 43(7) of the Rules of Court shall not apply to such party/party Bill of Costs.”
Having heard argument, the learned Judge dismissed the application with costs. It is against such dismissal that the present appeal is directed.
In this Court counsel for the respondent took the point in limine that the order of the High Court was not subject to appeal since, so it was contended, the appeal related to a Rule 43 application which was interlocutory in nature and that the judgment sought to be appealed against was essentially an order as to costs, which in terms of section 18(3) of the High Court Act, No 16 of 1990 was not appealable, save with the leave of the Court. Subsection (3) of section 18 provides:
“(3) No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.”
Counsel for the respondent therefore submitted that the appeal should be dismissed on that ground.
I do not agree. It is indeed so that the appellant had neither sought nor obtained leave of the High Court to appeal against the judgment. However, the judgment appealed against is essentially the decision clarifying the order. The application in the High Court was decided on its merits which concerned the question whether or not the costs order granted by the Judge entitled counsel for the appellant in the Court a quo to charge a fee higher than the maximum prescribed by Rule 43(7). The appeal concerns the correctness or otherwise of the Court a quo’s interpretation of its order. In other words, far from being an appeal against the order itself, the appeal is essentially against the judgment clarifying the order. To that extent, therefore, the appeal does not run foul of section 18(3) of the High Court Act and is properly before this Court.