Scheffer and Another v Office Installations (SA) (Pty) Ltd and Another (28465/2011) [2022] ZAGPPHC 790 (14 October 2022)

Scheffer and Another v Office Installations (SA) (Pty) Ltd and Another (28465/2011) [2022] ZAGPPHC 790 (14 October 2022)

The court found that the amended order was granted in error and in the absence of the applicants. The application to rectify was properly opposed, the dies for filing the answering affidavit had not lapsed, and the application was never enrolled for hearing. The order was made in chambers without the applicants' knowledge, and the rectification of amounts was already the subject of a cross-appeal. These procedural irregularities were not brought to the attention of the judge who granted the order. Accordingly, the requirements for rescission under Rule 42(1)(a), Rule 42(1)(b), or the common law were met, and the order should be rescinded.

Citation
[2022] ZAGPPHC 790
Parties
Applicant: Martin Jan Scheffer; Applicant: Dina Maria Gobey N.O. as executrix of the late estate of Edward Charles Gobey; Respondent: Office Installations (SA) (Pty) Ltd; Respondent: Hernani Fernando Vieira De Oliveira Ferreira
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 October 2022
Case Number
28465/2011
Procedural Posture
Rescission Application / Judgment on Rescission Application
Outcome
The rescission application is granted; the amended order of 1 December 2021 is rescinded and set aside.
Judges
Mazibuko
Legal Topics
Rescission of Judgment, Rule 42 Uniform Rules, Common Law Rescission, Procedural Irregularity
Civil Procedure Rescission of Judgment Rule 42 Uniform Rules Common Law Rescission Procedural Irregularity

Case Brief

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Parties

Martin Jan Scheffer

Applicant

Dina Maria Gobey N.O. as executrix of the late estate of Edward Charles Gobey

Applicant

Office Installations (SA) (Pty) Ltd

Respondent

Hernani Fernando Vieira De Oliveira Ferreira

Respondent

Procedural Posture

Rescission Application / Judgment on Rescission Application

Legal Issues

  1. 1 Whether the amended order made on 1 December 2021 should be rescinded under Rule 42(1)(a), Rule 42(1)(b), or the common law.
  2. 2 Whether the order was erroneously granted in the absence of the applicants.
  3. 3 Whether procedural irregularities occurred in the granting of the amended order.

Ratio Decidendi

The court found that the amended order was granted in error and in the absence of the applicants. The application to rectify was properly opposed, the dies for filing the answering affidavit had not lapsed, and the application was never enrolled for hearing. The order was made in chambers without the applicants' knowledge, and the rectification of amounts was already the subject of a cross-appeal. These procedural irregularities were not brought to the attention of the judge who granted the order. Accordingly, the requirements for rescission under Rule 42(1)(a), Rule 42(1)(b), or the common law were met, and the order should be rescinded.

Court Disposition

The rescission application is granted; the amended order of 1 December 2021 is rescinded and set aside.

Orders

  • The rescission application succeeds.
  • The respondents are to pay the costs of this application on a party and party scale.