Marogoa v Malgas and Others (2155/2022) [2024] ZAFSHC 105 (18 April 2024)

Marogoa v Malgas and Others (2155/2022) [2024] ZAFSHC 105 (18 April 2024)

The court found that the present applicant was not the decision maker in the impugned administrative process and was therefore not competent to be called upon to despatch the record under Rule 53(1)(b). The review applicant was aware of this, as the notice of motion identified the actual decision makers. The order compelling the present applicant to produce the record was erroneously sought and granted in his absence. Accordingly, the requirements for rescission under Rule 42(1) were met, and the order against the applicant must be set aside. The application to compel the applicant to comply with Rule 53(1)(b) was without merit, and the rescission succeeds as far as it pertains to the...

Citation
[2024] ZAFSHC 105
Parties
Applicant: O. C. Marogoa; Respondent: Nobelxolisi Christinah Malgas; Respondent: The MEC: Free State Department of Police, Roads and Transport; Respondent: The Registrar: Free State Operating, Licensing and Permit Board; Respondent: The Chairperson: Greater Bloemfontein Taxi Association
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 April 2024
Case Number
2155/2022
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Prior Court Order
Outcome
Application for rescission succeeds as far as it pertains to the 4th Respondent; the prior order is set aside and substituted.
Judges
Loubser
Legal Topics
Rescission of Judgment, Rule 42, Rule 53, Default Judgment, Review Proceedings
Civil Procedure Rescission of Judgment Rule 42 Rule 53 Default Judgment Review Proceedings

Case Brief

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Parties

O. C. Marogoa

Applicant

Nobelxolisi Christinah Malgas

Respondent

The MEC: Free State Department of Police, Roads and Transport

Respondent

The Registrar: Free State Operating, Licensing and Permit Board

Respondent

The Chairperson: Greater Bloemfontein Taxi Association

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Prior Court Order

Legal Issues

  1. 1 Was it competent for the review applicant to call upon the present applicant, who was not the decision maker, to despatch the record under Rule 53(1)(b)?
  2. 2 Was the order granted against the present applicant on 27 July 2023 erroneously sought and granted?
  3. 3 Is the present applicant entitled to rescission of the order under Rule 42(1) and/or the common law?

Ratio Decidendi

The court found that the present applicant was not the decision maker in the impugned administrative process and was therefore not competent to be called upon to despatch the record under Rule 53(1)(b). The review applicant was aware of this, as the notice of motion identified the actual decision makers. The order compelling the present applicant to produce the record was erroneously sought and granted in his absence. Accordingly, the requirements for rescission under Rule 42(1) were met, and the order against the applicant must be set aside. The application to compel the applicant to comply with Rule 53(1)(b) was without merit, and the rescission succeeds as far as it pertains to the...

Court Disposition

Application for rescission succeeds as far as it pertains to the 4th Respondent; the prior order is set aside and substituted.

Orders

  • The application for rescission of the Court Order under case number 2155/2022 and dated 27 July 2023 succeeds as far as it pertains to the 4th Respondent.
  • The said Court Order is set aside and substituted by the following: The 3rd Respondent is directed to comply with Rule 53(1)(b) within ten days after this order has been served on the Respondent.