THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: 20/2023
In the matter between:
GEORGE LOUIS CORNER
JOFFIE MEYER
and
THOMAS MEYER
In re:
THOMAS MEYER
and
GEORGE LOUIS CORNER
JOFFIE MEYER
MEYERS FAMILY COMMUNAL PROPERTY ASSOCIATION
In the matter between:
MEYERS FAMILY COMMUNAL PROPERTY ASSOCIATION
and
THOMAS MEYER
1st Applicant
2nd Applicant
Respondent
Applicant
1st Respondent
2nd Respondent
3rd Respondent
Applicant
1st Respondent
JOHANNES MEYERS
JERMAN MOSINKI
SNEEL MEYERS
JACK MOSINIKI
DAVID BASIE
LARGA MEYERS
JOHANNES PETERSON
VICTOR MEYERS
MICHAEL TITIES
STEPHEN BOTHA
MINISTER: DEPARTMENT OF LAND REFORM
AND RURAL DEVELOPMENT
DIRECTOR-GENERAL: DEPARTMENT OF LAND
REFORM AND RURAL DEVELOPMENT
REGIONAL LAND CLAIMS COMMISSIONER:
NORTHERN CAPE
2
2nd Respondent
3rd Respondent
4th Respondent
51h Respondent
6th Respondent
7th Respondent
8th Respondent
9th Respondent
10th Respondent
11th Respondent
12th Respondent
13th Respondent
14th Respondent
Neutral citation: Corner and Another v Meyer (20/2023) (24 April 2026).
Coram: Tyuthuza AJ.
Heard: 17 October 2025.
Delivered: 24 April 2026.
Summary: Practice - Rescission - Rule 42(1)(a) of the Uniform Rules of Court
- Joinder of applicants and ancillary relief - Whether order erroneously granted in
absence of applicants - Applicants had notice of proceedings - Filed notice of
intention to oppose application - Failed to file answering affidavits - Elected not to
further participate in proceedings - Order not granted in applicants' absence -
application dismissed with costs.
ORDER
1. The application in terms of Rule 42(1)(a) to rescind the court order granted on
30 June 2023 is dismissed.
2. The applicants are ordered to pay the costs of this application on a party and
party scale B.
JUDGMENT
Tyuthuza AJ
INTRODUCTION
[1] This is an opposed rescission application in which the first and second
applicants seek an order rescinding the order granted by Coetzee AJ on 30
June 2023. This application is made in terms of Rule 42(1 )(a) of the Uniform
Rules of Court.
BACKGROUND
[2] On 10 January 2023, the Meyers Family Communal Property Association
launched an application under the above case number wherein it sought certain
declaratory relief against the first respondent, Thomas Meyer and other
respondents (the main application). The main application was opposed by the
first to tenth respondents on 31 January 2023.
[3] On 17 February 2023, the first respondent in the main application- Thomas
Meyer, filed his answering affidavit, together with a counter application wherein
he sought the joinder of the first and second applicants herein to the main
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proceedings in terms of Rule 10(3) of the Uniform Rules and ancillary relief.
The applicant's erstwhile attorneys filed a notice of opposition to the counter
application on 17 May 2023.
[4] On 19 May 2023, Phatshoane DJP postponed the matter to 9 June 2023. The
postponement was coupled with an order directing that the applicant in the main
application (Meyers Family Communal Property Association) file its answering
affidavit to the counter application on or before 2 June 2023, and that the first
respondent file his replying affidavit therein on or before 7 June 2023. It is
common cause that no answering affidavit to the counter application was filed .
[5] On 6 June 2023, the Meyers Family CPA (the applicant in the main application)
withdrew the main application. On 9 June 2023, the matter was postponed to
30 June 2023 for the adjudication of the counter application. On 12 June 2023,
Thomas Meyer (the first respondent in the main application who is also the
applicant in the counter application) filed a notice in terms of Rule 10(3) of the
Uniform Rules of Court, wherein he sought the joinder of the first and second
applicants herein to the counter application. The notice directed the applicants
to file their notice to oppose and answering affidavit, but no opposition was filed
thereto. The application was served on the applicants' erstwhile attorneys.
[6] On 28 June 2023, the applicants' current attorneys filed a notice of appointment
as attorneys of record, a notice to oppose the counter application, a Rule 10(3)
notice, and a notice in terms of Rule 30 and Rule 30A.
[7] On 30 June 2023, the counter application was heard by Coetzee AJ, who
granted an order in the following terms:
7.1. George Louis Corner be joined as the second applicant in the counter
application.
7.2. Joffie Meyers be joined as the third applicant in the counter application.
7.3. The twelfth to the fourteenth respondents be compelled to resolve the
impasse and dispute regarding the two CPA's namely Meyers Family
impasse and dispute regarding the two CPA's namely Meyers Family
CPA and Grootfontein Family CPA.
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7.4. The deponents to the main application hand over the bank accounts and
management of finances to the relevant treasurer elected for the Meyers
Family CPA within five days of this order.
7.5. An auditor be appointed by the Meyers Family CPA to audit the finances
and the records.
7.6. The applicants (second and third) and any other respondent opposing,
pay the costs of this counter-application.
[8] On 11 July 2023, the first and second applicants launched an application in two
parts. Part A was heard on an urgent basis on 28 July 2023, wherein Williams J
ordered that the execution or the operation of the order of Coetzee AJ be
suspended in terms of Rule 45A pending the finalisation of Part B of the
application. This application deals with Part B of the application, wherein the
applicants seek the rescission of the order granted by Coetzee AJ.
Applicants ' version
[9] The first and second applicants premised their Rule 42(1)(a) rescission
application on the following grounds:
9.1. They were not parties to the main application and were not served with
the counter application and the Rule 10(3) notice by the sheriff.
9.2. They were under the mistaken belief that the counter-application would
not succeed as the main application was withdrawn, and were only
informed on 26 June 2023 that the application would proceed on 30 June
2023.
9.3. They were not advised that they would have to file opposing papers and
only learnt on 28 June 2023, that their erstwhile attorneys did not file
opposing papers.
9.4. They were not advised that they would be held personally liable for the
costs, and were only advised by their current attorneys of record that
costs would be sought from them personally.
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9.5. They were not represented personally by their erstwhile attorneys and
their erstwhile attorneys did not have authority to accept the pleadings
on their behalf.
9.6. The notice to oppose the counter application filed in May 2023 was filed
by the Meyers Family CPA and not the applicants.
9.7. Despite the presence of their current attorneys of record at Court on 30
June 2023, the applicants were not granted an audience. Thus, their
rights in terms of section 34 of the Constitution of the Republic of South
Africa, 1996 were violated.
Respondent's version
[1 OJ The respondent opposes the application on the following grounds:
10.1. The applicants have failed to show good cause as to why the Coetzee
AJ order should be rescinded. They failed to provide a reasonable
explanation for the default, after having been served with the counter
application on 17 February 2023.
10.2. The applicants' failure to oppose the application was wilful.
10.3. The first and second applicants were deponents to the founding affidavit
and confirmatory affidavits, respectively, in the main application. The
answering affidavit and the counter-application were properly served on
the applicants' erstwhile attorneys of record.
10.4. The applicants were at all times represented.
10.5. The applicants have failed to show grounds as envisaged in Rule 42.
10.6. The applicants' attorneys of record filed a notice of appointment, notice
to oppose the joinder and the counter claim, and a Rule 30 notice on 28
June 2023, whilst there was still another attorney on record.
10.7. The erstwhile attorney's notice of withdrawal was only served on 3 July
2023.
RESCISSION
Legal principles
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[11] Rule 42(1)(a) of the Uniform Rules of Court provides that:
"Variation and Rescission of Orders
(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."
(12) A party who seeks to succeed with a rescission application in terms of Rule
42(1)(a) must satisfy two grounds; firstly, that the judgment was erroneous ly
sought or erroneously granted and secondly, that such judgment was granted
in the absence of the affected party.
[13) The purpose of Rule 42(1) is to expeditiously correct a wrong judgement/order.
When relying on this rule, both requirements must be met and, once that is
done, the court is merely endowed with a discretion whether to grant the
rescission. This is because the precise formulation of the rule postulates that a
court "may", not "must", rescind or vary its order. As such, the rule is merely an
empowering provision which does not compel the court to set aside or rescind
its order.1 Of importance is that the court must exercise this discretion judicially
and be influenced by considerations of fairness and justice, having regard to all
the facts and circumstances of the particular case.2 It is so that rescission may
be refused if undesirable consequences would follow. 3
[14) In 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 ('Zuma"),4 the Constitutional Court stated the following when
explaining what it means for an order to have been granted in the absence of
the affected party in the context of Rule 42( 1 )( a):
1 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 (Council for the Advancement of the South
African Constitution and Anothe r as amici curiae) [2021] ZACC 18; 2021 (11) BCLR 1263 (CC); 2021
JDR 2069 (CC) para 53.
2 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 761 D.
3 Naidoo and Another v Mat/ala N.O and Others 2012 (1) SA 143 (GNP) para 4.
4 Supra fn 1 para 56.
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" ... [T]he words 'granted in the absence of any party affected thereby', as they exist
in rule 42(1)(a), exist to protect litigants whose presence was precluded, not those
whose absence was elected. Those words do not create a ground of rescission for
litigants who, afforded procedurally regular judicial process, opt to be absent."
[15] In Zuma,5 the Constitutional Court continued:
" ... As I see it, the issue of presence or absence has little to do with actual, or physical,
presence and everything to do with ensuring that proper procedure is followed so that
a party can be present, and so that a party, in the event that they are precluded from
participating , physically or otherwise, may be entitled to rescission in the event that an
error is committed. I accept this. I do not, however, accept that litigants can be allowed
to butcher, of their own will, judicial process which in all other respects has been carried
out with the utmost degree of regularity, only to then, ipso facto (by that same act),
plead the 'absent victim'. If everything turned on actual presence, it would be entirely
too easy for litigants to render void every judgment and order ever to be granted, by
merely electing absentia (absence)."
[16) In Freedom Stationery (Ply) Ltd and Others v Hassam and Others,6 the
Supreme Court of Appeal held that where an affected party took the considered
decision not to participate, they reconciled themselves with the reasonable
prospect that a court could make an adverse order against them.
[17] It is trite that Rule 42(1)(a) operates where the court was unaware of the facts
relating to the procedural error, and therefore granted an order or judgment to
which the plaintiffs were not procedurally entitled, and which the court would
not have granted had it known of those facts.7 In Naidoo and Another v Mat/ala
N. 0 . and Others, 8 Southwood J puts it in the following terms:
"In general terms a judgment is erroneously granted if there existed at the time of its
"In general terms a judgment is erroneously granted if there existed at the time of its
issue a fact of which the judge was unaware, which would have precluded the granting
5 Zuma para 60.
6 2019 (4) SA 459 (SCA) para 32.
7 Nyingwa v Moo/man N.O. 1993 (2) SA 508 (Tk) at 510G.
8 2012 (1) SA 143 (GNP) para 6:
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of the judgment and which would have induced the judge, if aware of it, not to grant
the judgment. .. "
[18] The importance of proper service in the context of Rule 42( 1) was expressed in
the following terms in Lodhi 2 Properties Investments CC and Another v Bondev
Developments (Pty)LtcP:
" .. . Where notice of proceedings to a party is required and judgment is granted against
such party in his absence without notice of the proceedings having been given to him
such judgment is granted erroneously. That is so not only if the absence of proper
notice appears from the record of the proceedings as it exists when judgment is
granted but also if, contrary to what appears from such record, proper notice of the
proceedings has in fact not been given."
[19] Rule 4(1) (aA) of the Uniform Rules of Court provides that "[w]here the person to
be served with any document initiating application proceedings is already represented
by an attorney of record, such document may be served upon such attorney by the
party initiating such proceedings."
[20] In relation to the standard of compliance with the Uniform Rules of Court,
Rampai J in Louw v Grob/er and Another 10 stated as follows:
"The purpose of the uniform court rules is to regulate the litigation process, procedures
and the exchange of pleadings. The entire process of litigation has to be driven
according to the rules. The rules set the parameters within the course of litigation has
to proceed. The rules of engagement, must, therefore, be obeyed by the litigants.
However, dogmatically rigid adherence to the uniform court rules is as distasteful as
their flagrant disregard or violation. Dogmatic adherence, just like flagrant violation,
defeats the purpose for which the court rules were made. The prime purpose of the
court rules is to oil the wheels of justice in order to expedite the resolution of disputes.
Quibbling about trivial deviations from the court rules retards instead of enhancing the
civil justice system."
civil justice system."
9 2007 (6) SA 87 (SCA) para 24.
10 [2016] ZAFSHC 206 (15 December 2016) para 18.
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Analysis
[21] In the founding affidavit, the first applicant makes the following averments:
21.1. "I am also the First Applicant in the current application.11
21.2. The Second Applicant and I were not parties to the main application and merely
acted on behalf of the Third Respondent in the main application.12
21 .3. The erstwhile attorneys of the Third Respondent, Mr. Reetsang brought the
Second Applicant and myself under the mistaken belief that the counter
application brought by the First Respondent would not succeed as the main
application was withdrawn ... This is the first time that the Second Applicant
and I heard that the matter will proceed in Court on the 30th of June 2023.13
21.4. Myself and the Second Applicant are not familiar with court proceedings and
this is the first time that we have been engaged in such a litigious and complex
matter. The said attorney representing the third respondent ensured us that the
litigation was under control. We were never advised that opposing papers had
to be filed and we have recently learned on 28 June 2023 from our current
attorneys of record that no opposing papers to the counter application under
rule 10(3) application were filed.14
21.5. Alarm bells started ringing on 26 June 2023 when Mr. Reetsang informed me
that the third respondent should just concede to the relief in the counter
application, and the said attorney also informed me that he was unable to
source an advocate for the case.15
21 .6. The firm Towell and Groenewaldt Attorneys was instructed to defend the matter
on behalf of the Third Respondent. 16
11 Para 1.1 of the founding affidavit.
12 Para 8.1 of the founding affidavit.
13 Para 12 of the founding affidavit.
14 Para 13 of the founding affidavit.
15 Para 14 of the founding affidavit.
16 Para 17 of the founding affidavit.
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21.7. The failure to participate in the proceedings is not of the First and Second
Applicant's own making ... 17"
[22] The first applicant, Mr Corner, is the deponent to the founding affidavit in the
main application. He serves as a member of the executive committee of the
Meyers Family CPA and was authorised to depose to the papers and launch
the main application on behalf of the applicant. The second applicant, Mr Joffie
Meyer, also serves as a member of the executive committee of the Meyers
Family CPA and was also authorised to depose to the papers in the main
application.
[23] The applicant in the main application, Meyers Family CPA, was at all times
represented by EB Reetsang Incorporated and filed a notice of opposition to
the counter-application. On 19 May 2023, the matter was postponed and the
parties were ordered to file further papers. The applicants, instead of filing an
answering affidavit to the counterclaim, withdrew the main application in June
2023. The erstwhile attorneys were served with the notice in terms of Rule 10(3)
on 12 June 2023, and no opposition or answering affidavit was filed thereto.
Since the launch of the counter application in February 2023, the applicants
only filed a notice to oppose and, despite representation, did nothing further
except for ultimately withdrawing the main application. Again, on 28 June 2023,
instead of filing an answering affidavit to respond to the allegations in the
counter application, the applicants opted to again file a notice of opposition and
therewith a notice in terms of Rule 30 and 30A. In my view, there was ample
time granted to the applicants to file their answering affidavit to the counter
application and defend those proceedings in terms of the rules, but the
applicants elected not to do so despite being legally represented.
[24] The applicants were given notice of the proceedings launched against them.
They were therefore aware of the relief sought against them and as such,
They were therefore aware of the relief sought against them and as such,
instructed the erstwhile attorneys to defend the proceedings on behalf of the
Meyers Family CPA. The applicants had the requisite notice and knowledge
17 Para 26 of the founding affidavit.
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and elected not to participate in the proceedings. The failure to participate in
the proceedings is their own doing, Rule 42(1)(a) does not permit a party to
circumvent the principle of finality in litigation by seeking another opportunity to
enter appearance and obtain another bite to the cherry.
{25] I am convinced that the court on 30 June 2023 was apprised of the relevant
facts, considered the submissions and, in its discretion, granted the counter
application. As such, I am not inclined to rescind the order granted on 30 June
2023. It bears emphasis that the applicants have previously failed to fully
ventilate the counter application and have done nothing since receiving the
notices. This Court is of a considered view that it would not be in the interests
of justice to rescind the impugned order.
[26] For these reasons, I am of the view that the applicants have failed to satisfy
and meet the jurisdictional requirements of a rescission application under Rule
42(1 )(a). Accordingly, the applicants' rescission application under Rule 42(1 )(a)
must be dismissed.
Costs
[27] Costs are within the Court's discretion. In exercising my judicial discretion, there
is no reason why the general principle, that costs follow the result, should not
be applied in casu. I therefore grant an order that the applicants pay the costs
of the application on a party and party scale B.
[28] As a result, I make the following order:
1. The application in terms of Rule 42(1 )(a) to rescind the court order granted
on 30 June 2023 is dismissed.
2. The applicants are ordered to pay the costs of this application on a party
and party scale B.
Appearances
For the Applicants:
Instructed by:
For the Respondent:
Instructed by:
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ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Mr S Groenewaldt
Towell & GroenewaldtAttorneys
Adv MS Tshabalala
Mthembu Sibanda Malau & Associates
c/o Mosikare Attorneys.