It is appropriate to award qualifying fees when qualified expert witnesses assist the Constitutional Court.   Today the Constitutional Court refused to vary a costs order granted in Glenister v President of the Republic of South Africa and Others on 17 March 2011.   Although the appellant was successful and costs were granted in his favour no provision was made for any qualifying fees of any expert witness even though they were asked for by the applicant.   The Court is empowered by Rule 42(1) of the Uniform Rules of Court to rescind or vary an order or judgment erroneously sought or granted, in which there is an ambiguity or a patent error or omission, or in which there is a common mistake by the parties.   There is no doubt that a court may clarify its order to give effect to its true intention.

In Glenister v President of the Republic of South Africa case CCT28/13 dated 14 June 2013 the application in terms of Rule 42 was refused because its requirements had not been met.   The Court referred to the function of an expert witness as follows:

“In essence, the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide.   It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable.   Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is in principle inadmissible because of its irrelevance”.

The Court held that the witness in question had not been qualified as such before the Court and did not have any ‘specialised knowledge that would have assisted the Court in deciding the issues’.   It was also held that the ‘probative weight of the expert evidence was negligible as this Court did not rely on any expert testimony in its determination’.

Extracts from the judgment with footnotes omitted

[7] In essence, the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide.   It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable.   Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is in principle inadmissible because of its irrelevance.   The rule was crisply stated in Gentiruco A.G. v Firestone S.A.  (Pty) Ltd:

“[T]he true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive ‘appreciable help’ from that witness on the particular issue”.

Expert witness testimony on an ultimate issue will more readily tend to be relevant when the subject is one upon which the court is usually quite incapable of forming an unassisted conclusion.   On the other hand the opinion of the witness is excluded not because of a need to preserve or protect the fact-finding duty of the court, but because the evidence makes no probative contribution.

[8] In addition to the above, the Court in Ferreira posited the rule that in certain circumstances, only with the assistance of an expert witness could the Court give proper effect to a constitutional right.    We were, however, not faced with those circumstances in Glenister II.   The application before us and the issue upon which we were called to adjudicate was the constitutional validity of impugned statutes.   The determination of constitutional validity is well within the competence of this Court.   This Court sought no assistance from an expert in reaching its conclusions nor was the expert witness testimony required to give effect to the litigant’s constitutional rights.   The applicant’s expert was therefore of no “appreciable help” on the particular issue of constitutional validity with which the Court was seized.

[9] Furthermore, the applicant’s expert witness was not qualified as such before this Court, having no specialised knowledge that would have assisted the Court in deciding the issues.   The probative weight of the expert evidence was negligible as this Court did not rely on any expert testimony in its determination.   Were a qualified expert to provide assistance to the Court, indeed qualifying costs would be appropriate.   That is not the case here.   In the light of this conclusion, there was no reason why qualifying costs should have been afforded to the applicant.   Ordinarily, this Court would have dismissed this application without further reasons because Rule 42(1) has not been properly engaged in the sense that its requirements have not been met.   However, it is important, to address the aspect regarding the costs of an expert with which Glenister II did not deal.