De Beer N.O. v Smith N.O. and Others - Addendum to Judgment (524.2020) [2024] ZAFSHC 135 (16 May 2024)

De Beer N.O. v Smith N.O. and Others - Addendum to Judgment (524.2020) [2024] ZAFSHC 135 (16 May 2024)

The omission of Portion 1 of Erf No: 4[…], Bethlehem, Free State Province from the original order was a patent clerical error as envisaged by Rule 42(1)(b). The order should have included this property as executable in favour of the first plaintiff, as indicated in the notice of motion. The judgment is amended to...

Source-derived case information.

Citation
[2024] ZAFSHC 135
Parties
Applicant: Jacobus Frederik De Beer N.O.; Respondent: Eurich Ruwayne Smith N.O.; Respondent: Eugene Januarie N.O.; Respondent: Elzana Lourens N.O.; Respondent: Elrich Ruwayne Smith N.O.; Respondent: Dislhad Ismail N.O.; Respondent: Johanna Jacoba Lourens; Respondent: Elizabeth Jacoba Pretorius; Respondent: Lizette van Tonder (nee Pretorius); Respondent: Elizabeth Jacoline de Wet; Respondent: Cornela (Corrie) S.A. Bekker; Respondent: S-Bro Mekelaars/Finansiële Adviseurs (Pty) Ltd; Respondent: The Master of the Free State High Court; Respondent: Nicolaas Michael Smith N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 May 2024
Case Number
524/2020
Procedural Posture
Civil Application / Addendum to Judgment Correcting Clerical Error Under Rule 42(1)(b)
Outcome
Application for rescission dismissed; order amended to include omitted property as executable.
Judges
Mhlambi
Legal Topics
Rescission of Judgment, Declaration of Executability, Rule 42 Clerical Error, Estate Property Execution
Civil Procedure Land and Property Rescission of Judgment Declaration of Executability Rule 42 Clerical Error Estate Property Execution

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Parties

Jacobus Frederik De Beer N.O.

Applicant

Eurich Ruwayne Smith N.O.

Respondent

Eugene Januarie N.O.

Respondent

Elzana Lourens N.O.

Respondent

Elrich Ruwayne Smith N.O.

Respondent

Dislhad Ismail N.O.

Respondent

Johanna Jacoba Lourens

Respondent

Elizabeth Jacoba Pretorius

Respondent

Lizette van Tonder (nee Pretorius)

Respondent

Elizabeth Jacoline de Wet

Respondent

Cornela (Corrie) S.A. Bekker

Respondent

S-Bro Mekelaars/Finansiële Adviseurs (Pty) Ltd

Respondent

The Master of the Free State High Court

Respondent

Nicolaas Michael Smith N.O.

Respondent

Procedural Posture

Civil Application / Addendum to Judgment Correcting Clerical Error Under Rule 42(1)(b)

Legal Issues

  1. 1 Whether the omission of the third property from the original order was a clerical error subject to correction under Rule 42(1)(b).
  2. 2 Whether the order should be amended to include Portion 1 of Erf No: 4[…], Bethlehem, Free State Province as executable in favour of the first plaintiff.

Ratio Decidendi

The omission of Portion 1 of Erf No: 4[…], Bethlehem, Free State Province from the original order was a patent clerical error as envisaged by Rule 42(1)(b). The order should have included this property as executable in favour of the first plaintiff, as indicated in the notice of motion. The judgment is amended to correct this error and declare the property executable.

Court Disposition

Application for rescission dismissed; order amended to include omitted property as executable.

Orders

  • The application for the rescission of judgment is dismissed with costs.
  • The first plaintiff's failure to execute against the movables that may still vest in the Deceased Estate: Late EJ Bekker (ID: 1[…]); with Estate Number 7442[…], who died on 20 November 2003, is condoned.