Gobo Gcora Construction & Project and Others v Nelson Mandela Bay Municipality and Another ; Nelson Mandela Bay Municipality v Public Protector of the Republic of South Africa and Others (992/16; 1414/2016) [2019] ZAECPEHC 40 (2 July 2019)

Gobo Gcora Construction & Project and Others v Nelson Mandela Bay Municipality and Another ; Nelson Mandela Bay Municipality v Public Protector of the Republic of South Africa and Others (992/16; 1414/2016) [2019] ZAECPEHC 40 (2 July 2019)

The court held that the applicants failed to establish any error or mistake as envisaged by Rule 42(1)(b) or (c). The alleged errors related to the reasoning and findings of the previous judgments, which are not grounds for rescission under Rule 42 or the common law. The applicants' remedy lay in appeal, which they had already pursued unsuccessfully. The precedent in Occupiers, Berea v de Wet NO and Another was distinguished, as the present judgments were not consent judgments or granted by default, but delivered on the merits after hearing all parties. Rule 42 cannot be used to re-litigate matters already decided on the merits or to revive failed arguments. The court found no reasonable...

Citation
[2019] ZAECPEHC 40
Parties
Applicant: Gobo Gcora Construction & Project; Applicant: SIPHO GCORA; Applicant: KHUSELWA GOBO-GCORA; Respondent: Nelson Mandela Bay Municipality; Respondent: Public Protector of the Republic of South Africa; Applicant: Management CC; Respondent: Member of the Executive Council for Human Settlements, Eastern Cape Provincial Government; Respondent: W K Construction SA (Pty) Ltd; Respondent: W K Pipelines (Pty) Ltd
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 July 2019
Case Number
992/16; 1414/2016
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Applications
Outcome
Application for leave to appeal dismissed. No order as to costs.
Judges
D Van Zyl
Legal Topics
Rule 42 Rescission, Error of Law, Ultra Vires, Remedial Action, Maladministration
Civil Procedure Rule 42 Rescission Error of Law Ultra Vires Remedial Action Maladministration

Case Brief

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Parties

Gobo Gcora Construction & Project

Applicant

SIPHO GCORA

Applicant

KHUSELWA GOBO-GCORA

Applicant

Nelson Mandela Bay Municipality

Respondent

Public Protector of the Republic of South Africa

Respondent

Management CC

Applicant

Member of the Executive Council for Human Settlements, Eastern Cape Provincial Government

Respondent

W K Construction SA (Pty) Ltd

Respondent

W K Pipelines (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Applications

Legal Issues

  1. 1 Whether the applicants established grounds under Rule 42(1)(b) or (c) for rescission of the previous judgments.
  2. 2 Whether alleged errors in the previous judgments constituted errors as envisaged by Rule 42 or the common law.
  3. 3 Whether the applicants' remedy lay in appeal rather than rescission under Rule 42.

Ratio Decidendi

The court held that the applicants failed to establish any error or mistake as envisaged by Rule 42(1)(b) or (c). The alleged errors related to the reasoning and findings of the previous judgments, which are not grounds for rescission under Rule 42 or the common law. The applicants' remedy lay in appeal, which they had already pursued unsuccessfully. The precedent in Occupiers, Berea v de Wet NO and Another was distinguished, as the present judgments were not consent judgments or granted by default, but delivered on the merits after hearing all parties. Rule 42 cannot be used to re-litigate matters already decided on the merits or to revive failed arguments. The court found no reasonable...

Court Disposition

Application for leave to appeal dismissed. No order as to costs.

Orders

  • The application for leave to appeal is dismissed.
  • There is no order as to costs.