2

parties
at the trial as being due, although payment of this was not ordered
by the Court a quo. It is common cause that all that
was required,
was quantification of the amount due to be paid by respondent. That
has now been done by the parties, in the agreed
sum of M4812-54.

It was
also clear, however, that appellant has never sought to recover this
agreed amount from the respondent. Neither did he seek
to rectify the
judgment in terms of Rule 45 (1). The rule reads as follows and is
applicable to the present set of facts:

"45. (1) The court may, in addition to any other powers it may
have mero motu or upon the application of any party affected,
rescind
or vary —

1. an
   order or judgment erroneously sought or erroneously granted in the
   absence of any party affected thereby,

   
   

2. 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;

   
   

3. an
   order or judgment granted as a result of a mistake common to the
   parties."

   
   

Instead
of taking one of these two steps, appellant has appealed against the
whole of the High Court judgment and sought - without
any merit - to
prosecute an appeal in which he sought an order for payment of
M121,478.93. This appeal in turn led to the preparation
of a record
of more than 250 pages. All these costs have therefore been
needlessly incurred.

3

In the
circumstances, and save that the agreement of the respondent to pay
appellant the agreed amount of M4812-54 is recorded and
confirmed,
the appeal is dismissed with costs.

J.H.
STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree:

L. VAN
DEN HEEVER

JUDGE OF
APPEAL

I agree:

D.
SHEARER

ACTING
JUDGE OF APPEAL

Delivered
at Maseru this 31st day of July 1998.

For
appellant :

For
respondents :