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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 36073/2022
In the matter between:
In the matter between:
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
and
KAMOGELO LEGARI Respondent
In re:
KAMOGELO LEGAR I Applicant
and
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
11 May 2025 _________________________
DATE SIGNATURE
CITY OF TS HWANE METROPOLITAN MUNICIPALITY First
Respondent
DIVISION HEAD: LABOUR RELATIONS MANAGEMENT ,
TSHWANE METROPOLITAN MUNICIPALITY Second Respondent
SENIOR STRATEGIC EXECUTIVE SUPPORT SPECIALIST :
HUMAN RESOURCES, TSHWANE METROPOLITAN
MUNICIPALITY Third Respondent
DIRECTOR: HUMAN CAPITAL PROVISION AND
MAINTENANCE Fourth Respondent
MEMBER OF THE MAYORAL COMMITTEE CITY OF
TSHWANE SOCIAL DEVELOPMENT Fifth Respondent
ACTING GROUP HEAD: COMMUNITY AND SOCIAL
DEVELOPMENT, TSHWANE METROPOLITAN
MUNICIPALITY Sixth Respondent
HUMAN RESOURCES DEPARTMENT HEAD :
TSHWANE METROPOLITAN MUNICIPALITY Seventh Respondent
JUDGMENT
DOMINGO, AJ
Introduction
[1] This is an opposed rescission application in which the the applicant, City of
Tshwane Metropolitan Municipality seek s an order rescinding the order granted
by Kooverjie J, on 12 July 2022, (“the Ko overjie J Order”). This application is
made in terms of Rule 42 (1)(a) of the Uniform Rules of Court, alternatively the
common law .
[2] At the time of the hearing counsel on behalf of the applicant , withdrew the
application made in terms of Rule 31(2)(b) of the Uniform Rules of Court, and
submitted that the applicant would no longer proceed with that application.
Background
[3] This rescission application emanates from an urgent application brought by the
respondent on the 6 July 2022, in which the respondent sought an order
compelling the applicant to pay the respondent his monthly salary from 1 April
2022 to 30 June 2022.
[4] The application was served on the applicant on or about 8 July 2022. The
application was set down on 12 July 2022 and w as unopposed as there was no
answering affidavit filed on record and no appearance made on behalf of the
applicant.
[5] The order was accordingl y granted on an unopposed basis, The order granted
by Kooverjie J, reads as follows:
“1. That the application is enrolled as an urgent application and that the
forms and service provided for in the rules of Court be dispensed with
as provided for within t he provisions of Rule 8 of the Rules of this
Honourable Court.
2. That the merits of the Application together with the above issue of
urgency are dealt with, considered and heard simultaneously .
3. That the First Respondent an/or its designated official(s) is ordered to
immediately pay the Applicant namely Kaogelo Legar i…with employee
number 1[...], his monthly salary les any statutory and/or mandated
deductions from 1 April 2022 up to and includin g 30 June 2022.
4. That if any of the Respondents fail to pay the Applicant his salary as
granted in prayer 3 above, the Applicant is granted leave to approach
this Honourable court on the same and /or supplemented papers for
contempt proceedings.
5. That the Respondent is ordered to pay the costs of this application on a
party and party basis. ”
[6] In May 2023, the respondent in this matter brought an application to vary the
above judgement as the Koorverjie J order did not state the monthly amount of
the sala ry to be pa id to the respondent.
[7] On the 27 September 2023, Ntuli AJ, granted a variation of the Koorverjie
order . The order granted by Ntuli AJ, reads as follows:
“Having read the papers in the matter, Paragraph 3 of the Order granted on 12
July 2022 is va ried to read as follows:
1. That the first respondent and/or its designated official(s) is ordered to
immediately pay the Applicant’s monthly salary, in the sum R 23
980.00 per month, less any statutory and/or mandated deductions for
the months from 1 April 2022 up to an including April 2023 which total
sum is R287 760.00.
2. No order as to costs. ”
[8] On the 12 Septemb er 2023, the applicant launched these rescission
proceedings in terms whereof the applicant seeks to rescind and set aside the
Koorverjie J order dated 12 July 2022. The applicant has not included the Ntuli
AJ order in its application for rescission.
Issue s
[9] The issues to be determined are as follows:
9.1 The issue for determination is whether the jurisdictional requirements in
terms of Rule 42(1)(a) of the Uniform Court Rules or the common law
have been met to have the Koorverjie J order rescinded.
9.2 Whether the applicant has made out a case for the condonation for the
late filing of the rescission application.
9.3 Whether the respondent has made out a case for condonation for the
late filing of respondent’s answering affidavit .
Legal Framework
[10] Rule 42(1)(a) of the Uniform Court Rules provides that the court may rescind
“an order or judgment erroneously sought or granted in the absence of any
party affected thereby.” On relying on this rule , the applicant must show that the
order sought to be rescind ed was granted in their absence (first ground) and
that it was erroneously granted or sought (second ground). Thus, both grounds
must be shown to exist and if these requirements are met, a court is merely
endowed with a discretion, which must be influenced by considerations of
fairness and justice and is not compelled to rescind an order.1 “Generally, a
judgment/order would have been erroneously granted if there existed at the
time of its issue, a fact which the court was not aware of, which would have
precluded the granting of the judgment/order and which would have induced
the court, if aware of it, not to grant such a judgment/order.”2
[11] The common law , two-part test for re scission sets out that the applicant must
firstly, provide a reasonable and satisfactory explanation for its absence or
default and secondly, the applicant must show that it has a bona fide defence
which exhibit reasonable prospects of success in the matte r. Both requirements
must be met before a court can rescind an order.3
Point in Limine
[12] The respondent raised a point in limine that the Koorverjie J order had no force
or effect and therefore wa s incapable of being rescinded in that the Koorverjie
1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture and Frau d
in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZA CC 28; 2021 (11)
BCLR 1263 (CC) ( 17 September 2021) at para 53.
2 South African Human Rights Commission and Others v Madibeng Local Municipality and Others
(21099/2017 ) (17 January 2024) ; supra.
3 See supra note 1 above.
order w as varied by the order of Ntuli AJ and it is the order of Ntuli AJ that has
the final and binding effect.
[13] The respondent submitted that in the case of Zweni v Minister of Law and
Order of the Republic of South Africa4 the court informs us that a decision is
final in nature if it resolves the substantial portion of a dispute. A decision must
have three attributes: namely; (a) must be final; (b) must not be susceptible of
alteration and must be definitive of the rights of the parties; and (c) must h ave
the effect of disposing of at least a substantial p ortion of the relie f claimed.
[14] It is averred by the respon dent that whilst it may be accepted that the order of
Koorverjie J was final, its legal effect or finality was subsequently denuded by
the Ntuli AJ order . It is submitted by the respondent that the Ntuli AJ order
meets the hallmark or attributes of a final judgment or order as stated in the
Zweni5 case. The respondents further averred that what amplifies their
proposition is the fact that the Koo verjie J order could not be properly executed
and complied with by the applicant in that no amounts due to the respondent
were stated therein. It is the order of Ntuli AJ that communicated the true
intention of the order of Kooverjie J.
[15] In the alternative the respondent submit ted that the applicant ought to have
sought to rescind both the orders (Koorverjie J and Ntuli AJ orders) .
[16] Ordinarily, it would have been expected that the respondents would have
sought to have rescinded the Koorverjie J and Ntuli AJ orders. However, in the
present matter the rescission application is to rescind the initial order, which is
the Koorverjie, J order. The question the court faces in this respect is whether
the variation order (Ntuli AJ order) exists independently of the initial/main order
(Kooverjie J order) it was intended to vary.
From the evidence presented in this case, I am of the opinion that the Ntuli AJ
order was made as a consequence of the Kooverjie J order. The two orders are
intrinsically linked , thus if the Koorverjie J order is rescinded, it would follow that
4 [1993] AII SA 365 (A).
5 Supra .
the variation order of Ntuli AJ would become inoperative ; as the Ntuli AJ order
varies paragraph 3 of the Kooverjie J order , by providing the sum of the
monthly salary amount due to the re spondent .
[17] In the premises , I find that the point in limine raised by t he applicant is without
success.
Respondent’s oppositio n
[18] The respondent oppose d the rescission application on three grounds:
18.1 First, the respondent contended that the order sought is incompetent in
that the order of Koorverjie J has since been varied by that of Ntul i AJ;
no rescission relief had been sought against the Ntuli AJ order.
18.2 Second, the respondent contended that the Koorverjie J ord er was not
erroneously granted in that there were no apparent errors on the record
which, ha d the court took cognisance of, would not have granted the
order.
18.3 Third, the respondent contended that the order was not granted in the
absence of the a pplicant because the applicant was served with the
application , was legally represented, entered a notice to oppose,
allegedly appeared in the wrong court and/or failed to appear before
Kooverjie J.
Rule 42(1)(a)
a) Erroneously sought or granted
[19] The applic ant submitted that it is common cause that during December 2021
the respondent assumed the occupation as PR Counsellor while in the employ
of the applicant. This admission is made by the respondent in paragraph 7 of
the founding affidavit in support of the urgent application.
[20] The applicant submitted tha t the Koorverjie J court erred by not considering
Regulation 3(5) of the Regulations Regarding the Participation of Municipal
Staff Members in Elections, read also with section 21(2) of the Local
Government: Municipal Structures Act, 1998.
[21] Regulation 5 states that subject to section 21(2) of the Local Government:
Municipal Structures Act, 1988 :
“[A] staff member who has been elected as a member of the National
Assembly, a provincial legislature or a municipal council shall be deemed to
have resigned from the employer concerned with effect from the date
immediately before the date she or he assumes office. ”
[22] The applicant averred had the Kooverjie J court considered the aforementioned
provisions , it would not have granted an order stating that the respondent must
receive his salary for the months of April until end of June 2022 because he
was deemed to have resigned.
[23] The respondent contends that the applicant’s basis for rescission, other than
wilful failure to oppose, is that it has a strong defence and if such defence was
presente d before the Koorverjie J court the respondent’s application would not
have been granted. The respondent directed the court to the case of Lodhi 2
Properties Investment s CC v Bonde v Development (Pty) Ltd6 where the court
held as follows:
“A court which grants a judgment by default li ke the judgment we are presently
concerned with, does not grant the judgment on the basis that the defendant
does not have a defence: it gr ants the judgment on the basis that the defendant
has been notified of the plaintiff’s claim as required by the rules, that the
defendant, not having given notice of an intention to defend, is not defending
the matter and that the plaintiff is in terms of the rules entitled to the order
sought. The existence or non -existence of a defence on the merits, is an
6 2007 (6) SA 87 (SCA) at para 27.
irrelevant consideration and, if subsequently disclosed, cannot transform a
validly obtained judgment into an erroneous judgment.”
[24] I am of the view that the Koorverjie J court could not have erred by not
considering Regulation 3(5) of the Regulations Regarding the Participation of
Municipal Staff Members in Elections, read with section 21(2) of the Local
Government Municipal Structures Act, 1988, if thes e provision were not placed
before the court at the time of the issue of the order as averred by the
applicant. Instead the question to be determined is whether, if at the time of the
issue of the order , if the Kooverjie J court was aware of the regulation read
together with the Act, would it have precluded the court from granting the order
and induced the court not to grant the order . If answered in the affirmative,
then the judgment/order would have been granted erroneous ly.
[25] Having read the files on record and particularly the respondents founding
affidavit in respect of the urgent application sought, the Kooverjie J court was
made aware by the respondent , that in and during December 2021, he
commenced the process of decl aring that notwithstanding his position as an
employee of the applicant, he held a separate and political post as a PR
Councillor with the Rustenberg Local Municipality. In furtherance of such
declaration, the respondent in his founding affidavit states that he enquired
from the Human Resources Of fice of the applicant as to whether his position in
the Rustenberg Local Municipality compromised and/or was unlawful
considering his emp loyment with the applicant. The respondent was then
informed by a n official o f the applicant that his engagement and services with
the Rustenberg Local Municipality did not contravene any policy, procedure,
and/or regulation of the applicant and was accordingly permissible. This
correspondence was provided to the Koorverjie J court . The following is extract
of that correspondence that l ends itself to an interpretation of Regulation 3(5)
read with section 21 (2) of the Local Government Municipal Structures Act,
1988 :
“As to the issue of councillors working full or part time, Mr [M] explained that
once the IEC had declared and individual a full-time councillor the council of
origin could no longer employ him or her. A full-time councillor would not be
allowed to hold any other work. On ann ouncement from the IEC the person
would cease to be on leave and would ta ke up his or her new position. In terms
of a part time councillor, Mr [M] explained that should a staff member win an
election in another municipality he or she would be allowed to be a councillor in
one municipality and work in another. He would not be allowed to work and be
a councillor for the same municipality but only for two different municipalities.”
[26] In the premises, I am of the opinion that the applicant in this matter seeks to
raise a defence against the aforementioned correspondence provided by its
own official(s) to the respondent. If the Koorverjie J court was provided explicitly
with the Regulation 3(5) read with section 21(2) of the Local Government
Municipal Structures Act, 1988, I am not convinced that it would have precluded
and induced the court to not grant the order. Instead, taking into account the
totality of evidence it would have allowed th e court an opportunity to engage
with an interpreta tion of the Regulations together with the Act in the context of a
staff member , winning an e lection as a part time councillor in one municipality
and working in another municipality. As quoted earlier, in the Lodhi 2 Properties
Investment CC7 case “ [t]he existence or non -existence of a defence on the
merits is an irrelevant consideration and, if subsequently disclosed, cannot
transform a validly obtained judgement into an erroneous judgment.”
Furthermore, I am of the view that an application for resc ission is not for
debating and revisiting all the merits . I am in agreement with the respondent
that a rescission application is not for the applicant to contend that it has a
strong defence and that if such defence was presented before the Kooverjie J
court the respondent’s application would not have been granted. Thus, the
applicant fails to meet the first jurisdictional requirement of Rule 42(1)(a).
b) Absence of the other party
[27] It is submitted by the applicant that the respondent gave the applicant only a
period of one day to file a notice of intention to oppose the urgent application
7 Supra.
and also file an answering affidavit, which was extremely unreasonable . The
applicant submitted that fortunatel y, it managed to file a notice of intention to
oppose but could not file an answering affidavit because consultation could not
be held within 24 hours with all the cited respondents at the time and the legal
representatives.
[28] The applicant further submitte d that the court roll for urgent matters, which was
accessible to the applicant’s legal representatives for the hearing on that
particular dat e was that of Judge B am, which indicated that matters would be
heard virtually. Unfortunately, the matter was not on that roll. It is submitted by
the applicant that on the morning of the hearing, the applicant’s attorney
contacted Judge Bam’s secretary to confirm that the matter was on the roll, in
order to enter an appearance and confirm that the matter was defended . The
Judge’s secretary informed her that the matter was on another Judge’s court
roll, being Judge Kooverjie and that the matter was to be hear d in an open
Court in the Palace. The applicant submitted that the applicant’s legal
representatives could not m ake it to court on such short notice.
[29] In the Zuma8 case the court held that the requirement and meaning of the word
“absence” in Rule 42(1)(a) “exist[s] to protect litigants whose presence was
precluded, not those whose absence was elected.” The court further stated
that, “ a decision by a party not to participate in proceedings where they have
received notices of those proceedings and being given the opportunity to do so
does not qualify as that party having been absent for the purposes of Rule
42(1)(a). ”
[30] In this matter, the applicant was correctly invited to participate in the
proceedings according to the rules of court. The applicant duly entered a notice
of intention to defend. It is submitted by the respondents that on the 8 July 2022
the appli cant’s attorneys of record addressed correspondence to the
respondent in which they communicated the ir appointment as attorneys of
record and also attached a notice of intention to oppose in the same
8 Supra note 1 above.
correspondence. For these reasons, I find that the order was not granted in the
absence of the applicant . The applicant thus fails to meet the second
jurisdictional requirement of Rule 42(1)(a).
Common Law
a) Default or absence
[31] As stated in the preceding paragraphs, the applicant submitted it could not
consult timeously due to the urgent application time constraints and was
therefore unable to submit an answering affidavit. Furthermore, the applicant’s
legal representatives could not make an appearance in court because they
found out on the morning of the hearin g that the matter was not being heard
virtually by Judge Bam and that the matter had moved to the roll of Judge
Koorverjie .
[32] It is contended by the respondent that the explanation that the applicant could
not consult timeously does not constitute a reasonable explanation for the
default, especially where legal representatives were appointed at least four
days before the hearing (including a weekend). It submitted by the respondent
that the applicant fails to explain why the relevant employees could not be
consulted from 08 July 2022 to 12 July 2022 other than that one employee was
on suspension or leave.
[33] It is averred by the respondent that more worryingly is the explana tion by the
applicant of the events of the day of the hearing. The respondent submitted that
from the applicant’s explanation it can be deduced that the applicant had legal
representation on the day of the hearing; the legal representatives were
informed t hat matter was on the roll , they knew the matter was on the roll, they
nonetheless failed to appear . It is submitted by the respondent that accordingly
the default was wilful.
[34] It is also alarming to me that , after discovering the matter had been moved to
Judge Kooverjie, the applicant’s legal representatives did not attempt to remedy
the situation but simply re signed themselves to the belief that they could not
make it to court on such short notice, despite knowing the legal cons equences
of no t appearing.
[35] In the premises, I am not convinced the applicant has provided a reasonable
and satisfactory explanation for their default or absence.
b) Bona fide defence and reasonable prospect of success
[36] It is submitted by the applicant that in terms of Regulation 3(5) of the
Regulations Regarding the Participation of Municipal Staff Members in
Elections, read with se ction 21(2) of the Local Government Municipal
Structures Act, the respondent was deemed to have resigned from his
employment with the applicant because he took occupation in a different
municipality as a PR Councillor, therefore he was no longer entitled to his
salary from January 2022. It is further submitted by the applicant that even
though the respondent declared to his superiors that he is occupying another
positio n in another municipality; the aforementioned legislation and regulations
remained in full force.
[37] It is averred by the applicant that though in South Africa ignorance of the law i s
a defence9, the ignorance must be genuine or bona fide . The applicant directed
the court to S v Waglines (Pty) Ltd and Another10 where this principle has been
articulated by the court as follows:
“[I]gnorance of or a mistake about the law is indeed an excuse cognisable by
our courts. The excuse does not always amount, however, to an acceptable
one. That the ignorance or mistake must first be both genuine and material
goes without saying, Less obviously, but in principle not less necessarily, it has
to be reasonable in addition whenever culpa enters the reckoning, whenever
that serves as mens rea . It cuts no ice otherwise, since the unlawful act which it
explains is then committed through culpa . The question ther efore posed by
9 See S v De Blom 1977 (3) SA 513 (A).
10 1986 (4) S A 1135 (N) at 1145 paras H/I to 1146 C/D.
such a case is whether the person concerned should reasonably have realised
that what he was doing or about to do might well be unlawful. And the answer
depends largely on the care he took or did not take to acquaint himself with the
true le gal position. The duty to investigate this is clear, to speak generally at all
events and not of any area where the law’s reach is suspected so little that the
possibility of trouble and the consequent need for cau tion would never occur to
a prudent mind. Strong demands are placed, by comparison, on all those
engaged in trades, occupations or activities which are legally regulated and
known by them to be. They are expected to learn the rules and obliged to make
the effort .
Sometimes, to be sure, the duty to investigate will be performed satisfactorily
when advice on the lawfulness or otherwise of the cour se envisaged is
obtained from a source o stensibly qualified to furnish such, and to think it lawful
will be reasonable once the assurance has thus been giv en that it is”
[38] The applicant contends that the respondent went through a tireless process of
campaigning and securing votes in his favour to be appointed as a PR
Councillor in terms of the Local Government: Municipal Electoral Act, 2000 (Act
27 of 2000) bu t failed to acquaint himself with the consequences of his
appointment. Thus, it is averred by the applicant that the respondent’s
ignorance of the consequences that comes with being appointed as PR
Councillor of one municipality whilst in the employment of the other municipality
was indeed wilful and unpardonable.
[39] As a result, the applicant contend ed that it ha d a bona fide intention to prevent
a miscarriage of justice wherein an individual is unduly rewarded for the
ignorance of the law.
[40] Taking into account the totality of evidence, I am of the opinion as articulated in
the Waglines11case cited extensively above, that the applicant undertook to
investigate the lawfulness of his appointment as as PR Councillor of one
municipality whilst being employed in another municipality . He sought advice
11 Supra.
from the applicant’s Human Resources Departm ent, who furnished him with
reasons on which he relied as they are ostensibly qualified to provide such
information .
[41] The respondent contended that the applicant’s application was not brought
bona fide. They averred that it was brought to simply avoid the execution of the
court order. The respondent submitted that the applicant had knowledge of the
respondent’s application and the Kooverjie J order as far back as 12 July 2022.
However, the rescission application was only brought in September 2022 after
the Sheriff attempted to execute the court order.
[42] The respondent furthermore contended that the applicant’s prospects of
success are outweighed by the lack of explanation of the default and the
apparent wilful or neglect failure to oppose the respondent’s urg ent application.
[43] In the premises, I am not satisfied that the applicant has shown a bona fide
defence which exhibits reasonable prospects of success.
Condonation of the late filing of the rescission application
[44] The applicant sought condonation for the filing of the rescission application.
The applicant submitted it became aware of the order on 12 July 2022 and filed
a rescission application on 12 September 2022. It is submitted by the applicant
that the delay was caused by the process of having to secure counsel to attend
to the brief, agree on a date for consultation with all the relevant employees of
the applicant and have a date that is suitable for all the participants.
[45] The respondent submit ted that the while the applicant did submit their
rescission application in September 2022, the applicant did nothing to bring the
rescission application to finality until almost a year and half later. This thus
fortifies the respondent’s belief that the rescission applicat ion was brought by
the plaintiff merely for the purposes of frustrating the execution of the order.
Furthermore, it is averred by the respondent that what compounds the
applicant’s case is that the Ntuli AJ order is not challenged at all by the
applicant. The respondent has not made an application for the resci ssion of the
Ntuli AJ order.
[46] In the South African Human Rights Commission12 case the court stated:
“The first principle that applies in an application for rescission under Rule 42(1)
and the common la w is that the application must be brought without delay
within a reasonable time. Even more so is the principle applicable to
applications for condonation where a party seeks the court’s indulgence.
Significant with a determination of such applications is that condonation cannot
be had for the mere asking, and a party seeking condonation must make out a
case entitling it to the court’s indulgence by showing sufficie nt cause and giving
a full detailed and accurate account of the cause of the delay. In the end, the
explanation must be reasonable enough to excuse the default. ”
[47] I am satisfied that the applicant has provided a reasonable and satisfactory
explanation for t he late filing of the rescission application . Taking into account
the explanation provided by the respondent, a two-month delay is not an
excessive delay in filing the application. However, the applicant does not
provide an explanation why it took almost t wo and half years to bring the
rescission application to finality. The condonation application deals with the late
filing and not the delay in bringing the matter to finality, in the premises I grant
the condonation of the late filing of the rescission app lication .
Condonation of the respondent’s answering affidavit
[48] The respondent seeks condonation for the filing of his answering affidavit which
should have been filed 15 days from the receipt of the rescission application.
The dies expired in November 2022 and the respondent filed his answering
affidavit on 21 June 2024 , almost two years later.
12 Supra note 2 above at para 28. See also Nair v Telkom SOC Ltd and Others (JR59/2020) [2021]
ZALC JHB 449 at para 19 (7 December 2021).
[49] The respondent submitted that his failure to oppose the application was that his
erstwhile legal representative did not inform him of the receipt of the rescission
application. To his knowledge, the enforcement and/or execution of the
Koorverjie J order was underway. Moreover, he was informed by his erstwhile
legal representative that the Kooverjie J order had been varied by the Ntuli AJ
order in September 2023. That was the l ast communication he had with his
legal representative.
[50] The respondent submitted that he only beca me aware of the rescission
application when he received the notice of set down in May 2024 , that the
matter was set down on the unopposed motion roll for 25 June 2024. Having
learned of the set down, he immediately contacted his erstwhile legal
representative on his cell phone on numerous occasions without success. The
respondent submitted that he then approached his current attorneys of record
on 4 May 2024 and instructed them to oppose the rescission application. They
only managed to engage the services of counsel on 8 May 2024. Thus, the
respondent contends that the late opposition of this application was not wilful.
[51] I am satisfied that the respondent has provided a reasonable and satisfactory
explanation for the delay in fil ing his answering affidavi t. In the interest of justice
and because the applicant will not suffer any undue prejudice, I grant the
condonation of the l ate filing of the respondent ’s answering affidavit.
Conclusion
[52] Having regard to all of the above, having read all the papers filed on record and
having heard counsel of both parties ; I am of the view that the applicant has
failed to satisfy and meet the jurisdictional requirement s of a rescission
application under Rule 42(1)(a) and the applicant has failed to meet the
requirements of a rescission application under the common law . Acco rdingly,
the applicant's rescission application under Rule 42(1)(a) and the common law
falls to be dismissed.
Order
[53] In the circumstances, the following order is made:
53.1 Condonation of the late filing of the applicant’s rescission
application is granted.
53.1 Condonation for the late filing of the respondent’s
answering affidavit is granted .
53.2 The applicant’s application to rescind the court order
granted on 12 July 2022 under Rule 42(1)(a) is
dismissed.
53.3 The applicant’s application to rescind the court order
granted on 12 July 2022 under the common law is
dismissed.
53.4 The applicant is ordered to pay the costs of this application
on a party and party scale .
___________ ________________
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name
reflected and is handed down electronically by circulation to the parties’ legal
representatives by email and uploading it to the electronic file of this matter on
CaseL ines. This matter was heard in open court on the 11 February 2025. The date
for hand -down is deemed 11 May 2025.
APPEARANCES
For the Applicant: ADVOCATE P.P BALOYI instructed by LEEPILE
ATTORNEYS INC
For the Respondent: ADVOCATE MUNTU SITHOLE instructed by
GARDEE GODRICH ATTORNEYS