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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 58351/2017
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 1 7/02/2025
SIGNATURE:
In matter between
LATEGAN PHILIP FREDERICK Applicant
and
THE PEACANWOOD ESTATE HOMEOWNWERS Respondent
ASSOCIATION NPC
In re
LATEGAN PHILIP FREDERICK Applicant
and
THE PEACANWOOD ESTATE HOMEOWNWERS Respondent
ASSOCIATION NPC
Delivered : This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand -down is deemed to be 17 February 2025.
JUDGMENT
LESUFI AJ
Introduction
[1] The Applicant brought an application to rescind and/ or vary a court order
granted on the 3 December 2018 in this court by Stoop AJ, in terms of common law,
namely justus error and/or justa causa . The Applicant also seeks an order that th e
Respondent pays for the costs of this application. The application is opposed by the
Respondent.
[2] The order sought to be rescinded reads as follows:
1. The Applicant’s application is withdrawn.
2. The Applicant is to pay the taxed party and party costs of the
application, inclusive of only the appearance costs for counsel for 8 May 2018
and 3 December 2018 and excluding the costs of preparation for 3 December
2018.
3. The Applicant tenders to pay the Respondent’s counsel’s invoice of 25
August 2018 subject to the Applicant being entitled to challenge this account
on taxation.
Parties
[3] The Applicant is a businessman currently residing at […] S[…] Close,
Bryanston. The Respondent is The Pecanwo od Estate Homeowners Association
NPC, a non -profit company duly registered and incorporated in terms of the
company laws of South Africa, and its registered address is situated at R512,
Provincial Road, Broederstroom, North West Province.
Background and fa cts
[4] The parties have a long history of litigation and there has been various
correspondences changed between the parties and their legal representatives. I do
not intent to rehash the points raised verbatim but only the crux thereof.
[5] The Applicant’ s family Trust, known as the BPKA Lategan Family Trust (‘’the
Trust’’), was previously the registered owner of 1 […] C[…] Drive, Pecanwood,
described as Erf 1 […] Pecanwood (‘’the Pecanwood property ‘’) described as Erf
1[…] Pecanwood(‘the Pecanwood pro perty’’) . The Applicant is the Trustee of the
property. The property is situated within the Pecanwood Estate. The property was
subjected to the rules and management of the Respondent.
[6] During 2017 a dispute arose between a consortium of approximately f ifteen to
twenty homeowners and the Applicant agreed to lead as a spokesperson. Amongst
other things, in respect of the voting of a new Memorandum of Incorporation (MOI) in
respect of the Pecanwood Estate.
The 2017 interdict proceedings
[7] In the light of the dispute mentioned above, on the 18 August 2017,
consortium felt compelled to institute an interdict application to stop objectionable
against the Respondent MOI drafted from being adopted. The matter was brought on
an urgent basis. The urgent applicat ion was launched at Mafikeng High Court in
North West under case number M388/2017 on the assumption that the address on
the Respondent‘s website was correct and under the jurisdiction of the Mafikeng
High Court in North West. The Respondent raised an argum ent in point in limine that
the Mafikeng High Court lacked jurisdiction. As a result, the application was removed
and re -issued under the jurisdiction of the Pretoria High Court. However, the
Applicant was later advised to not to proceed with the applicati on at the Pretoria High
Court before the Annual General Meeting (AGM) has taken place. Consequently, the
application was removed from the urgent roll and according to the applicant, no
wasted costs were tendered because costs for an identical application w ere
tendered and the Applicant would have been justified to bring the application on
behalf of the consortium given their issues against the MOI.
Applicant’s submissions
[8] The Applicant submits, on 26 August 2017, an AGM took place and it was
confirmed t hat the vote on the issue of the MOI will be removed from the agenda and
that a committee will be formed to draft a new acceptable MOI. A settlement was
also reached to allow the matter to be settled without further recourse of litigation,
and an agreement to withdraw the pending litigation, and for each party to bear their
own cost and wave any claim for costs against each other.
[9] The Applicant submits that despite the settlement reached between the
parties on the 26 August 2017 as mentioned above, on t he 3 December 2018,
Gildenhuys Malatji (the Respondent’s Attorney) continued with the urgent application
persisting in seeking a tender for costs against the Applicant. Given that although a
settlement existed between the parties, they had to finalise th e and conclude the
matter before the court and agree to a draft order because when the matter was
withdrawn the issue of costs was not mentioned in the notice of withdrawal.
According to the Applicant the notice of withdrawal failed to mention costs or som e
similar formality which required his consent.
[10] It would appear that at the time the Applicant was represented by Mr Burrows
from Thomson Winks Attorneys whom according to the Applicant was not fully
familiar with the fact that the parties have entere d in to a settlement agreement
where the parties agreed to pay their own legal costs for the urgent application. The
Applicant at the time gave instructions to Mr Burrows to enter into an agreement and
consent to draft order regarding the notice of withdra wal. Mr Burrow filed a
confirmatory affidavit. He therefore did not factually believe he was consenting to an
order which required him to pay those costs. He contends that the draft order did not
represent the true facts and agreement and therefore the cou rt order even though it
was by consent, it was flawed. According to the Applicant he was under the
impression that the issue of costs for the urgent application was settled at the AGM
meeting where it was agreed that each party will pay own costs.
Responde nt’s contentions
[11] The application is being opposed by the Respondent. The Respondent’s
contention is that the Applicant’s application is without merit and that there is no
material and /or reasonable error that gave rise to the order of 3 December 2018 .
There is no just cause and reliance that can be placed to seek rescission of that
order. Firstly, the order is four years old, the order was negotiated and brokered by
the Applicant who was also assisted by legal team. The Respondent denies that the
issue of costs was settled during AGM meeting held on the 26 of August 2018,
instead it was reserved for adjudication thereof. Consequently, the issue of costs
was only settled by means of consent order of 3 December 2018. According to the
Respondent, the Appl icant was being assisted by two Counsel of which one was
Senior Counsel. The Respondent moves for a dismissal of the application with costs.
Issues
[12] The main issue for contention is whether the costs and order of the 3
December 2018 was granted by er ror, hence the application for the rescission of the
order.
The Law
[13] In its application as stated above the Applicant is basing its application to
rescind and /or vary the judgment on the common law ground of justus error and/or
justus causa . At comm on law, an application to set aside a judgment must be
brought within reasonable time.
[14] In MEC for Economic Affairs, Environment and Tourism v Kruisenga and
Another1 the court as per Van Zyl J citing the Childerley Estate Stores v Standard
Bank , 1924 OPD, De Vos v Calitz and De Villiers 1916 CPD 465 and Gollach &
Gomperts v Universal Mil ls & Produce Co 1978 (1) SA 914 (A)said that:
“Except for fraud, 'judgments by consent may be set aside under certain
circumstances on the ground of justus error’ . In De Vos the court recognised
that any order or judgment made by consent may, generally spe aking, be set
aside upon any ground which would invalidate an agreement between the
parties, and that a mistake of fact may provide a ground for relieving a litigant
from a judgment entered into by the attorney's consent. A consent judgment
could be set as ide on grounds that would justify rescission of the agreement
to consent to judgment. The principle to be extracted from this is twofold: the
first is that a consent judgment is founded on contract, and like any other
contract, defects such as fraud and er ror would entitle an innocent party to
avoid the agreement because his consensus, though real, was improperly
obtained. For this reason, cases where a party to a consent judgment seeks
to resile therefrom on the ground that consensus was induced by error, must
be approached along the same lines and judged according to the same
principles as cases where a party may resile from an agreement on the
ground of justus error . Secondly, and flowing from this, is that the absence of
a valid agreement between the par ties to support the judgment, is capable at
law of constituting a lawful ground or reason ( iusta causa ) which justifies an
order of restitution in respect of the judgment.”2 (Own emphasis )
1 2008 (6) SA 264 (CK).
2 Id at 283 -284.
[15] The court in Deary v Deary3 citing Childerley Estate Stores v Standard Bank ,
1924 OPD 163 at 168 and 169 said that:
“This Rule does not alter the common law to the effect that a non -fraudulent
misrepresentation inducing justus error on the part of the Court is not a
ground for setting aside a judgment induced by such error.”
[16] The court in Freedom Stationery (Pty) Ltd and Others v Hassam And Others4
further held that:
“The requirements for relief under these exceptions depend on whether the
judgment was given on the m erits of the dispute between the parties after
evidence had been led or whether the order was made in default of
appearance of the party that seeks to have it rescinded. In respect of the first
category the test is stringent. Such judgment can only be set aside on the
ground of fraud or, in exceptional circumstances, on the grounds of justus
error or the discovery of new documents.”5
[17] Ultimately, the common law principle of justus error and/or justus causa sets
out the grounds for rescinding or varying a judgment, especially in cases where a
consent judgment was entered into due to a mistake of fact or misrepresentation.
The courts have established that a consent judgment may be set aside where the
grounds justify rescission of an agreement, including fr aud, error, or absence of a
valid agreement. The courts' approach to rescinding or varying judgments in terms of
the common law principle as alluded to above will be guided by the principles of
justice and fairness.
[18] In these circumstances, the Applica nt avers that when he consented to the
draft order, he was of the bona fide mistaken belief that the draft order was a mere
formality because the notice of withdrawal did not mention costs. That the draft order
was intended to deal with the notice of withd rawal. He did not factually believe that
3 1971 (1) SA 227 (C) at 230.
4 2019 (4) SA 459 (SCA).
5 Id at para 465D.
by consenting to the draft order, he would be required to pay the costs that were
settled. Further he was unaware that the full import of the draft order did not
represent true facts of the alleged agreement. In my view, the judgement cannot be
set aside on the basis that the Applicant relies on his own mistake. The averment
that at the time of the draft order, he was represented by someone who was not
familiar with the settlement agreement cannot be accepted by this court. The
Applicant has not demonstrated the exceptional basis before the court enough to
warrant the rescission or varying of the order under justus error . As was expounded
in Slabbert v MEC for Health and Social Development of Gauteng Provincial
Government ,6 the court held that:
“The compromise agreement thus cannot be set aside on the basis of a
mutual error as there was no mutual error. The MEC cannot rely on her own
mistake to avoid a contract which was in any event initiated by her. This
unilateral mistake accordingly did not amount to a justus error . As stated by
Christie:
‘However material the mistake, the mistaken party will not be able to
escape from the contract if his mistake was due to his own fault. This
principle will apply whether his fault lies in not carrying out the
reasonably necessary investigations before committing himself to the
contract that is, failing to do his homework’.”7 (Footnote omitted.)
[19] The H igh Court has limits in granting the rescission based on the interest of
justice with regards to consent orders as was clearly expressed by the SCA in
Slabbert above, the inherent discretion cannot be exercised against the recognised
principles of substant ive law. Accordingly, there is no basis to grant the relief claimed
in the interests of justice. The circumstances in this matter do not warrant this
outcome. The alleged averments that a settlement agreement pertaining to costs
and the Applicant’s suppose d bona fide mistake that he agreed to the draft order
because some sort of formality was required fails to find application on this ground.
6 [2016] ZASCA 157.
7 Id at para 15.
He had legal representation to explain the contents and the meaning of the draft
order.
[21] Erasmus8 further provid es that “a consent judgment (including a
compromise/transaction) cannot arbitrarily be repudiated or withdrawn.” The
following factors must be present for a judgment given by consent to be set aside, to
wit:
“(i) the reasonableness of the explanation proff ered by the applicant of the
circumstances in which the consent judgment was entered;
(ii) the bona fides of the application for rescission;
(iii) the bona fides of the defence on the merits of the case which prima
facie carries some prospect of success; a balance of probability need not be
established. All these factors must be viewed in conjunction with each other
and with the application as a whole. A very strong defence on the merits may
strengthen an unsatisfactory explanation.”9
[22] The factors proffered to warrant a rescission of a judgment under the
circumstances before the court were not satisfied. The Applicant’s explanation
pertaining to the consent judgment cannot be sustained. Further, the application to
rescind is not bona fide given the litigious history against the Applicant to avoid
liability, and the Applicant’s failure to file an affidavit to this application regarding the
alleged settlement agreement that excluded costs for the urgent application this
issue remains uncontested. Lastly, the application before this court concerns the
order related to costs and therefore the merits concerning the urgent application
cannot be considered. Therefore, the merits before this court have no prospect of
success.
[23] Regarding the delay, the application in this proceeding was brought 4 years
after the consented order was granted. The Applicant’s first basis for condonation is
8 Erasmus: Superior Court Practice RS 23, 2024, D1 Rule 42 -12.
9 See Erasmus above.
that from the 3 December 2018 to February 2020, a period of more than a year he
had nothing about this matter, he continued in his bona fide mistaken belief that the
matter had been settled. Therefore, there has never been any suggestion that he
should be liable for the costs. In my view, it is not necessary to decide whether the
application to set aside a judgment on the ground of justus error was brought
timeously as this judg ment cannot be set aside on this ground.
[24] Finally, as to costs, there is no reason to depart from the usual principle that
costs should follow the result. The Applicant has been unsuccessful and the
application stands to be dismissed with costs.
Order
[25] Accordingly the following order is made
1. The application to rescind and/ vary the order dated 3 December 2018
is dismissed.
2. Costs follow suit.
B LESUFI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPE ARANCES:
For the Applicant Adv Sarita Liebenburg
Instructed by: Shaban Clark Coetzee Attorneys
For the Respondent Adv Lia Kotze
Instructed by: GMI Attorneys
Date of the hearing: 25 October 2024
Date of judgement: 17 February 2025