Summary of Judgment

Introduction

The matter concerned a rescission application in the Gauteng Division of the High Court, Pretoria. The applicants sought the rescission and setting aside of an amended order granted by Baqwa J on 1 December 2021 under case number 28465/2011.

The applicants were Martin Jan Scheffer (first applicant) and Dina Maria Gobey N.O. (second applicant), acting as executrix of the estate of the late Edward Charles Gobey. The respondents were Office Installations (SA) (Pty) Ltd (first respondent) and Hernani Fernando Vieira de Oliveira Ferreira (second respondent).

The procedural history reflected that Baqwa J had delivered a substantive judgment on 26 June 2020 in favour of the respondents. Leave to appeal and cross-appeal was granted on 4 August 2020. Thereafter, the respondents launched a Rule 42(2) application on 22 November 2021 seeking rectification and inclusion of amounts said to have been omitted from the earlier judgment (in relation to claim 4). The applicants delivered a notice of intention to oppose on 24 November 2021. The applicants’ attorneys received an email on 2 December 2021 attaching the amended order, indicating that the order had been granted on 1 December 2021.

The general subject-matter of the dispute was whether the amended order of 1 December 2021 was procedurally and substantively susceptible to rescission under Rule 42(1)(a) and/or Rule 42(1)(b) of the Uniform Rules of Court, alternatively under the common law.

Material Facts

It was common cause (or treated as established for purposes of the decision) that Baqwa J’s original judgment of 26 June 2020 was in favour of the respondents, and that leave to appeal and cross-appeal had been granted on 4 August 2020. It was also accepted that the respondents later sought to correct or include omitted amounts by way of a Rule 42(2) rectification application filed on 22 November 2021, relating to the monetary amounts awarded in respect of claim 4.

The court treated as material that the applicants opposed the rectification process by filing a notice of intention to oppose on 24 November 2021. The amended order was nevertheless granted on 1 December 2021, and the applicants’ attorneys only became aware of it when they received an email attaching the amended order on 2 December 2021.

The judgment identified several factual features surrounding the granting of the amended order which were central to the rescission enquiry. The rectification application and the notice to oppose were stated not to have been uploaded on Caselines. The amended order was granted before the time-period (“dies”) for delivery of the applicants’ answering affidavit had lapsed. The rectification application was not enrolled for hearing in open court, and the amendment was granted in chambers without the applicants’ knowledge.

The court further treated as material that the purported “rectification” did not merely involve a mechanical correction such as a straightforward arithmetical error or oversight, but rather dealt with an issue relating to claim 4 that was also implicated in the respondents’ cross-appeal.

On the respondents’ side, it was stated that they had been legally represented at the trial, but were not legally represented when they sought the rectification of amounts. The court also recorded that there was correspondence with the registrar’s office, and that the registrar’s office corresponded with one party without copying the other side, despite being aware of the other party and/or its legal representatives.

Legal Issues

The central legal questions were whether the applicants had satisfied the requirements for rescission in terms of Rule 42(1)(a) and/or Rule 42(1)(b) of the Uniform Rules of Court, alternatively whether they had shown “sufficient” or “good cause” for rescission under the common law.

More specifically, the dispute required determination of whether the amended order of 1 December 2021 was “erroneously sought or erroneously granted in the absence of any party affected thereby” within the meaning of Rule 42(1)(a), and/or whether it contained an ambiguity, patent error, or omission capable of correction under Rule 42(1)(b) (and, if so, whether the extent of the variation was permissible).

The issues were primarily questions of law and the application of legal standards to procedural facts, namely whether the circumstances under which the amended order was obtained constituted an “error” for purposes of Rule 42, and whether the order was granted “in the absence” of an affected party in the sense contemplated by the rule. The matter also involved a discretionary component, because even where Rule 42 requirements are met, the court retains a discretion whether to rescind, to be exercised judicially with reference to fairness and justice.

Court’s Reasoning

The court began by identifying the applicable legal framework. It reaffirmed that a court may rescind or vary an order under Rule 42(1)(a) where it was erroneously sought or granted in the absence of a party affected, and under Rule 42(1)(b) where there is an ambiguity, patent error, or omission, but only to the extent of that defect. The court also noted that under the common law, rescission requires proof of sufficient cause or good cause.

In addressing the nature of Rule 42, the court relied on the Constitutional Court’s explanation that Rule 42 is an empowering provision and does not compel rescission; it confers a discretion on the court to be exercised judicially. The court also referred to authority indicating that where an order is shown to have been erroneously granted in the absence of an affected party, rescission should follow without an extended enquiry into further considerations.

The court articulated the two core requirements for Rule 42(1)(a) rescission: the applicant must show both that the impugned order was granted in their absence, and that it was erroneously granted or sought. It explained that an “erroneous” grant is generally established where, at the time the order was made, there existed a fact which—had the court been aware of it—would have led the court not to grant the order. The court treated the absence from Caselines of the rectification application and the notice to oppose as significant in understanding how the order could have been granted without proper appreciation of the procedural posture.

Applying these principles to the facts, the court concluded that the amended order of 1 December 2021 had been granted in error and in the absence of the applicants as affected parties. The reasoning rested on a combination of procedural irregularities and contextual considerations. The applicants had delivered a notice of intention to oppose, the time for filing an answering affidavit had not yet expired, the matter was not enrolled and heard in open court, and the amendment was made in chambers without the applicants’ knowledge despite their interest being directly affected. The court also placed weight on the fact that the rectification of the amounts was already implicated in the pending cross-appeal, and that nothing suggested these factors were drawn to Baqwa J’s attention when the amended order was granted.

The court separately considered the conduct of the respondents and declined to infer mala fides from their conduct. It accepted that the respondents were unrepresented during the rectification application and appeared not to have received proper advice, and it also criticised the registrar’s office for corresponding with one party without copying the other where the other party’s involvement was known. These observations did not displace the central conclusion that the order had been granted in circumstances amounting to an error for Rule 42 purposes, but they were relevant to the court’s evaluative assessment of blameworthiness.

On the totality of these considerations, the court held that the applicants had met the requirements for rescission under Rule 42(1)(a), and also stated that they met the requirements under Rule 42(1)(b) or, alternatively, under the common law. The court accordingly exercised its discretion to rescind the amended order.

Outcome and Relief

The court granted the rescission application. The amended order granted on 1 December 2021 was rescinded and set aside (as captured in the court’s order that the rescission application succeeds).

The respondents were ordered to pay the costs of the rescission application on a party-and-party scale.

Cases Cited

Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (2021) ZACC 28.

Tshabalala v Peer 1979 (4) SA 27 (T).

Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd (128/06) 2007 (6) SA 87 (SCA).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 42(1)(a).

Uniform Rules of Court, Rule 42(1)(b).

Uniform Rules of Court, Rule 42(1)(c).

Uniform Rules of Court, Rule 42(2).

Uniform Rules of Court, Rule 42(3).

Held

The court held that the amended order granted on 1 December 2021 was granted erroneously and in the absence of the applicants as affected parties, in circumstances where the rectification application was opposed, the matter had not been properly enrolled, the time for filing an answering affidavit had not lapsed, and the amendment was granted without the applicants’ knowledge. These circumstances satisfied the requirements for rescission under Rule 42(1)(a) (and, as stated by the court, also under Rule 42(1)(b) or the common law), and the court exercised its discretion to rescind the order.

LEGAL PRINCIPLES

Rule 42(1)(a) rescission requires proof that the order was granted in the absence of an affected party and was erroneously sought or granted; where an order is erroneously granted in the absence of an affected party, rescission should follow in accordance with the applicable authority.

An order is “erroneously granted” where, at the time it was made, there existed a fact which—had it been brought to the court’s attention—would have resulted in the order not being granted, including circumstances where procedural prerequisites such as proper notice and proper procedural placement before the court were not met.

Rule 42 is empowering rather than peremptory: even where the requirements for rescission are established, the court retains a discretion to rescind or not rescind, which must be exercised judicially with regard to fairness and justice.

Under the common law, rescission requires good cause or sufficient cause, though in this matter the court found the Rule 42 requirements satisfied and granted rescission on that basis (also recording satisfaction under Rule 42(1)(b) or the common law).