Proud Heritage Properties (Pty) Ltd and Another v Transnet Limited and Another (405/08) [2008] ZAECHC 155 (5 September 2008)

Proud Heritage Properties (Pty) Ltd and Another v Transnet Limited and Another (405/08) [2008] ZAECHC 155 (5 September 2008)

The application for rescission fails because, although there was a common mistake regarding the ownership of erf 854, this mistake was not causative of the order granted in the main judgment. The right established by the first respondent was not dependent on ownership of the property but on its lawful occupation and statutory obligations under the National Ports Act. The requirements of Rule 42(1)(c) are not met, as there is no causal link between the mistake and the judgment. Rescission under the common law principle of justus error is also not available, as the case does not fall within the recognized exceptions to the functus officio doctrine. The affidavits of Mr Frahm and Mr Friedman...

Citation
[2008] ZAECHC 155
Parties
Applicant: Proud Heritage Properties (Pty) Ltd; Applicant: Shockproof Investments 73 (Pty) Ltd; Respondent: Transnet Limited; Respondent: Nelson Mandela Bay Municipality
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
5 September 2008
Case Number
405/08
Procedural Posture
Rescission Application / Application for Rescission of Judgment Under Rule 42(1)(c) and Common Law
Outcome
Application for rescission of the main judgment dismissed with costs. Affidavits of Mr Frahm and Mr Friedman struck out; applicant to pay costs of the striking out application.
Judges
Chetty
Legal Topics
Rescission of Judgment, Rule 42 1 C, Common Mistake, Justus Error, Striking Out Affidavits
Civil Procedure Rescission of Judgment Rule 42 1 C Common Mistake Justus Error Striking Out Affidavits

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Proud Heritage Properties (Pty) Ltd

Applicant

Shockproof Investments 73 (Pty) Ltd

Applicant

Transnet Limited

Respondent

Nelson Mandela Bay Municipality

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Judgment Under Rule 42(1)(c) and Common Law

Legal Issues

  1. 1 Whether the main judgment should be rescinded under Rule 42(1)(c) due to a common mistake regarding ownership of erf 854.
  2. 2 Whether rescission is available under the common law principle of justus error.
  3. 3 Whether the affidavits of Mr Frahm and Mr Friedman should be admitted or struck out.

Ratio Decidendi

The application for rescission fails because, although there was a common mistake regarding the ownership of erf 854, this mistake was not causative of the order granted in the main judgment. The right established by the first respondent was not dependent on ownership of the property but on its lawful occupation and statutory obligations under the National Ports Act. The requirements of Rule 42(1)(c) are not met, as there is no causal link between the mistake and the judgment. Rescission under the common law principle of justus error is also not available, as the case does not fall within the recognized exceptions to the functus officio doctrine. The affidavits of Mr Frahm and Mr Friedman...

Court Disposition

Application for rescission of the main judgment dismissed with costs. Affidavits of Mr Frahm and Mr Friedman struck out; applicant to pay costs of the striking out application.

Orders

  • The application for rescission of the main judgment is dismissed with costs.
  • The affidavits of Mr Hans Jurgen Frahm and Mr Gerald Jack Friedman are struck out.