REPUBLIC OF SOUTH AFRICA
IN THE HGH COURT OF SOUTH AFRICA
HELD AT PRETORIA
1) REPOR TAB LE: N O
2) OF IN TEREST TO O TH ER JUDG ES: NO
3) REV ISED .
SIG NATU RE
In the matter between:
05 .Decem ber .2025
DA TE
MINISTER OF CORRECTIONAL SERVICES
And
OBED MAMOGOBA
NATIONAL COUNCIL OF CORRECTIONAL
CASE NO: 079635/2024
DOH: 24 June 2025
DECIDED: 05 December 2025
Applicant
First Responden t
SERVICES Second Respondent
CORRECTIONAL SUPERVISION AND PAROLE BOARD Third Responden t
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This judgment has been handed down remotely and shall be circulated to the parties by
way of email / uploading on Caselines. The date of hand down shall be deemed to be 05
December 2025.
________________________________________________________________
ORDER
1. The application for rescission succeeds.
2. Each party pays their own costs.
________________________________________________________________
JUDGMENT
Bam J
Introduction
1. This application for rescission came before me as an urgent motion during the
urgent court week of 24 June 2025. The order sought to be rescinded was
granted in default of the applicant on 2 June 2025 by Nthambeleni AJ (the
order). In his Notice of Motion, the applicant prays that:
(i) The non-compliance with the rules relating to forms, service and time
period as provided for in the Uniform Rules be condoned and that the
application be heard as one of urgency.
(ii) The order of 2 June 2025 be and is hereby rescinded.
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(iii) Alternatively, and in the event the court does not grant prayer (ii), that
execution of the order be and is hereby suspended, pending finalization
of the rescission.
2. The rescission, according to the founding papers, is based on common law
while the heads of argument suggest that the recission is founded on Rule
42(1) (a) of the Uniform Rules. The latter rule provides for rescission of an
order sought or granted erroneously. First respondent opposed the application
urging that the court find that the applicant had failed to make a case for
urgency. As to the merits, first respondent submitted that the applicant had
not properly explained his default and had failed to plead facts establishing a
bona fide defence. First respondent submits that on the applicant’s version,
he poses no risk to society. He claims he has been before the Parole Board
on various occasions and he has been recommended for parole. First
respondent suggests that the applicant has no basis to refuse parole and has
accordingly failed to meet the requirement of a bona fide defence.
Background
3. The application arises from the following common cause facts: First
respondent was convicted of murder of a 10 months’ old baby. He was
sentenced to life imprisonment in 2004. In July 2024, when he had served a
period of 19 years, he brought an urgent motion seeking an order that the
applicant consider him for parole. On 1 November 2024, the applicant decided
not to release first respondent on parole. He advised him to undergo further
psychometric assessment. First respondent was aggrieved by the applicant’s
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decision. Thus, on or about 4 December 2024, he instituted proceedings to
review and set aside the applicant’s decision to refuse him parole.
4. On 21 February 20251 first respondent launched an application to compel the
applicant to furnish him with a record of his decision, as envisaged in Rule 53
(1) (b) of the Rules. According to the deponent of the applicant’s affidavit, Ms
Ndivhuo Nesamari, a legal manager employed by the department of
Correctional Services, the applicant, through his office, instructed the office of
the State Attorney to oppose the review application. It appears from the record
that the State Attorney failed to oppose the application. It is alleged in the
founding affidavit that although the State Attorney had been furnished with the
record prior to the hearing of the application to compel, it failed to file the
record and also failed to oppose the application to compel. The application to
compel as a result was granted unopposed on 9 April 2025 against the
applicant, the second and third respondents.
5. On 2 June, the application for review was granted. The court not only set aside
the applicant’s decision, but it also substituted the applicant’s decision
refusing first respondent parole and authorized that first respondent be
released within 10 days from date of the order. Such a step is authorized in
terms of Section 8 (1) (ii) (c) (aa) of PAJA, where exceptional circumstances
exist. Further, the applicant, together with the second and third respondents,
were mulcted in costs on an attorney client scale. When the applicant
1 All dates from this point onwards are in the year 2025 unless otherwise specified.
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received the court order on 5 June 2025, he gave instructions to have the
order rescinded. The present application was launched on 17 June.
Issues
6. The following issues are to be decided:
(i) Whether the application is urgent.
(ii) Whether the applicant has met the requirements of Rule 42 (1) (a).
(iii) In the event the court does not grant the rescission, whether the
applicant has made out a case for the suspension of execution of the
order.
Urgency
7. Having carefully considered the application, I was of the view that the
applicant would certainly not be afforded substantial redress in the event the
matter were to be heard in the ordinary course. My views took into account,
firstly, the trite principle that a court order is binding and must be complied
with, until it has been set aside by a competent authority. Based on first
respondent’s averments in his answering affidavit, it was clear to me that
unless this court comes to the assistance of the applicant, first respondent
would undoubtedly press for his release in terms of the court order. Thus, in
order to address the urgency, immediately after briefly hearing the parties, I
issued an order directing that execution of the order be suspended pending
my decision on the matter. I further invited the parties to file supplementary
heads dealing with the issue of ‘exceptional circumstances’ which
underscores the principle of separation of powers. Those submissions have
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been taken into account in the preparation of this judgment. This court thanks
the parties for their supplementary submissions.
Applicable legal principles
8. The relevant rule dealing with rescission or variation of orders is Rule 42(1).
The Rule reads:
‘(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:
(a) an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b) 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;’
9. Rule 31 (2) (b) on the other hand, deals with rescission of a judgment granted
by default and it requires the applicant to establish facts demonstrating good
cause. In Government of the Republic of Zimbabwe v Fick and Others2, the
court described the elements of good cause thus:
‘At common law the requirements for rescission of a default judgment are twofold.
First, the applicant must furnish a reasonable and satisfactory explanation for its
default. Second, it must show that on the merits it has a bona fide defence which
prima facie carries some prospect of success. Proof of these requirements is
taken as showing that there is sufficient cause for an order to be rescinded. A
failure to meet one of them may result in refusal of the request to rescind.’
2 (CCT 101/12) [2013] ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR 1103 (CC) (27 June 2013),
paragraph 85.
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10. On the other hand, an applicant who pursues their rescission application on
the basis of Rule 42 (1) (a) need not demonstrate good cause but must show,
‘that the judgment against which they seek a rescission was erroneously
granted because “there existed at the time of its issue a fact of which the
Judge was unaware, which would have precluded the granting of the
judgment and which would have induced the Judge, if aware of it, not to
grant the judgment’ Zuma v Secretary of the Judicial Commission of
Inquiry3
11. In FirstRand Bank Limited t/a First National Bank v Shabalala, this court, with
reference to Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E)
interpreted that the words,
‘ ”erroneously granted” to mean “the error committed by the Court which granted
the order must be in the form of a mistake in law which appears on the record of
the proceedings itself. It follows, so he continued, that a Court in deciding whether
a judgment was erroneously granted is, like a Court of appeal, confined to the
record of proceedings” ’4.
12. In Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape it was said
that:
‘The rule caters for mistake. Rescission or variation does not follow automatically
upon proof of a mistake. The rule gives the courts a discretion to order it, which
must be exercised judicially …’
3 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 (CCT 52/21) [2021] ZACC 28; 2021 (11)
BCLR 1263 (CC) (17 September 2021.
4 (23762/2013) [2016] ZAGPJHC 9 (5 February 2016), paragraph 33.
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Summary of the parties’ submissions
13. The applicant points out that at the time the court made the order substituting
the decision of the applicant with that of its own, the court did not have access
to the record of the decision (the record) as it has not been filed. The applicant
submits that this is common cause if one has regard to respondent’s
application to compel, which was granted unopposed. On this basis, the
applicant submits that the court had nothing before it to establish the
exceptional circumstances called for in Section 8 (1) ( c) (ii) (aa) of PAJA.
14. The applicant further submits that had the court been placed in possession of
the record, it would not have granted the order. This, according to the
applicant, is based on the fact that it was not brought to the court’s attention
that in the reports of the two professionals, namely the Social Worker and
Psychologist, first respondent’s version of how the offence was committed
varies materially. The applicant further points out that the two versions vary
from the version placed before the court which convicted first respondent. On
this basis, the applicant submits that first respondent was not candid with the
review court. On this ground alone, the applicant submits that he has made
a case for rescission on the basis of Rule 42 (1) (a).
15. First respondent vigorously resisted the applicant’s assertion that the
application is urgent. Given my ruling that the applicant had made a case for
urgency, nothing further need be said regarding urgency. As to the merits, first
respondent avers that the applicant has failed to explain his failure to oppose
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the review application. First respondent states that the applicant’s reference
to the failures by the State Attorney without an affidavit from the relevant
person from that office falls short of the requirement for the applicant to set
out a case explaining their default.
16. On the requirement of a bona fide defence, first respondent submits that the
applicant has no defence at all. He criticizes the applicant’s choice of isolating
the part dealing with conflicting versions of how the offence was committed
instead of accepting that neither report characterizes him as a danger to
society. He submits that the two reports convey a positive message about
him and on that basis, he should be released.
Analysis
17. The applicant points out that at the time the review court made its decision to
substitute his decision, it had not been placed in possession of the record. A
court can only substitute its own decision with that of the administrator upon
identifying exceptional circumstances. The relevant parts of Section 8 (1) of
PAJA dealing with remedies in proceedings for judicial review reads: The
court or tribunal, in proceedings for judicial review in terms of section 6 (1),
may grant any order that is just and equitable, including orders-
‘(c) setting aside the administrative action and-
(i) remitting the matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional cases-
(aa) substituting or varying the administrative action or correcting a defect
resulting from the administrative action;’
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18. In Gauteng Gambling Board v Silverstar Development Ltd and Others, the
court reasoned:
‘An administrative functionary that is vested by statute with the power to consider
and approve or reject an application is generally best equipped by the variety of
its composition, by experience, and its access to sources of relevant information
and expertise to make the right decision. The court typically has none of these
advantages and is required to recognize its own limitations. See Minister of
Environmental Affairs & Tourism and Others v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs & Tourism and Others v Bato Star Fishing (Pty)
Ltd 2003 (6) SA 407 (SCA) at paras [47] to [50], and Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) at paras [46]
to [49]. That is why remittal is almost always the prudent and proper course.’5
‘
19. In Trencon Construction (Pty) Limited v Industrial Development Corporation
of South Africa Limited and Another, the Constitutional Court had the following
to say:
‘[42] The administrative review context of section 8(1) of PAJA and the wording under
subsection (1)(c)(ii)(aa) make it perspicuous that substitution remains an
extraordinary remedy. Remittal is still almost always the prudent and proper course.
[43] In our constitutional framework, a court considering what constitutes exceptional
circumstances must be guided by an approach that is consonant with the
Constitution. This approach should entail affording appropriate deference to the
administrator. Indeed, the idea that courts ought to recognise their own limitations
still rings true. It is informed not only by the deference courts have to afford an
administrator but also by the appreciation that courts are ordinarily not vested with
the skills and expertise required of an administrator.’6
5 (80/2004) [2005] ZASCA 19; 2005 (4) SA 67 (SCA) (29 March 2005), paragraph 29.
6 [2015] ZACC 22.
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20. First respondent’s reliance on Walus v Minister of Justice and Correctional
Services and Others is of no assistance to him. In that case, after perusing
the record of decision, the court was satisfied that it was in as good a position
as the Minister to determine whether the applicant be released on parole. In
this regard the court noted:
‘[86] It is important to emphasise that courts only substitute their decisions for
those of government functionaries in exceptional cases. It is not something the
courts do lightly nor should they.
[91] In my view, this Court is in as good a position as the Minister to determine
whether the applicant should be released on parole. [92] The other factor that
should be taken into account in deciding whether to remit the matter to the
Minister or to order the Minister to place the applicant on parole is the history of
this matter. That history reveals that not only has the applicant served 28 years
of imprisonment of his life imprisonment sentence but he has also complied with
all that the various Ministers of Correctional Services and the Parole Board have
required him to do in order to improve his prospects of being granted parole.’7
21. In the present case, the court substituted its decision for that of the
administrator without the benefit of the record. Accordingly, it could neither
establish exceptional circumstances nor could it satisfy itself that it was in as
good a position as the applicant to release the first respondent. I am satisfied
that the order was erroneously granted. The rescission application must
therefore be granted.
7 [2022] ZACC 39.
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Costs
22. It is trite that the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others8. Although the applicant has
been successful, it is in the interests of justice that each party pays their own
costs.
Order
1. The applicant’s non-compliance with the rules relating to forms, service
and time period as provided for in the Uniform Rules is condoned and
that the application is heard as one of urgency
2. The application for rescission succeeds.
3. Each party pays their own costs.
——
BAM J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, GAUTENG
DIVISION, PRETORIA
Date of Hearing: 24 June 2025
Date of Judgment: 05 December 2025
8 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995), paragraph 3.
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Appearances:
Counsel for the Applicant Adv D Mosoma
Instructed by: State Attorney
Pretoria
Counsel for the First Respondent: Adv D.B Melaphi
Instructed by: M.E Makgopa Attorneys
Pretoria