Lovius Block Incorporated v Makae and Others (1279/2021) [2021] ZAFSHC 230 (8 October 2021)

Lovius Block Incorporated v Makae and Others (1279/2021) [2021] ZAFSHC 230 (8 October 2021)

The third respondent, after granting a final order dismissing the rescission application with costs, was functus officio and lacked authority to alter the order except in cases of patent error, which was not present. The subsequent alteration of the order, made in chambers and in the absence of the applicant or its...

Source-derived case information.

Citation
[2021] ZAFSHC 230
Parties
Applicant: Lovius Block Incorporated; Respondent: B P Makae; Respondent: KZ Makae; Respondent: Magistrate L Mzana
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 October 2021
Case Number
1279/2021
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; altered order set aside; original order restored; costs awarded against first and second respondents.
Judges
Mathebula, De Kock
Legal Topics
Magistrates Court Review, Gross Irregularity, Functus Officio, Variation of Orders
Civil Procedure Administrative Law Magistrates Court Review Gross Irregularity Functus Officio Variation of Orders

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Parties

Lovius Block Incorporated

Applicant

B P Makae

Respondent

KZ Makae

Respondent

Magistrate L Mzana

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the third respondent's alteration of the original court order constituted a gross irregularity.
  2. 2 Whether the third respondent was functus officio after granting the initial order.
  3. 3 Whether the applicant was prejudiced by the alteration of the order without proper application or notice.

Ratio Decidendi

The third respondent, after granting a final order dismissing the rescission application with costs, was functus officio and lacked authority to alter the order except in cases of patent error, which was not present. The subsequent alteration of the order, made in chambers and in the absence of the applicant or its representatives, constituted a gross irregularity and prejudiced the applicant. The conduct of the third respondent and the attorney for the first and second respondents was improper and contrary to procedural fairness. The original order stands, and the altered order is set aside. Costs are awarded against the first and second respondents on the ordinary scale.

Court Disposition

Application for review granted; altered order set aside; original order restored; costs awarded against first and second respondents.

Orders

  • The order of the third respondent dated 19 February 2021 postponing the matter to 5 March 2021 is reviewed and set aside.
  • The aforementioned order of the court a quo is substituted with: 'The application is dismissed with costs.'