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 27; [2019] 3 All SA 172 (ECP) (16 April 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 27; [2019] 3 All SA 172 (ECP) (16 April 2019)

The court held that the applicants failed to establish any basis for rescission under rule 42. The judgments in question were made after contested hearings and reflected the intention of the presiding judges. The alleged errors were in the reasoning and findings of fact or law, which do not qualify as patent errors or omissions under rule 42(1)(b), nor were the judgments granted as a result of a mistake common to the parties under rule 42(1)(c). The applicants had already exhausted their appeal remedies, and the rescission applications amounted to an impermissible attempt to appeal under the guise of rescission. The court further found that the Public Protector acted ultra vires in...

Citation
[2019] ZAECPEHC 27
Parties
Applicant: Gobo Gcora Construction & Project Management CC; Applicant: Sipho Gcora; Applicant: Khuselwa Gobo-Gcora; Respondent: Nelson Mandela Bay Municipality; Respondent: The Public Protector of the Republic of South Africa; Respondent: The 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
16 April 2019
Case Number
992/16; 1414/2016
Procedural Posture
Review Application / Application for Rescission of Three Prior Judgments
Outcome
Both applications for rescission are dismissed with costs.
Judges
Van Zyl DJP
Legal Topics
Rescission of Judgment, Ultra Vires, Locus Standi, Remedial Action, Public Protector Powers, Intergovernmental Relations
Civil Procedure Administrative Law Rescission of Judgment Ultra Vires Locus Standi Remedial Action Public Protector Powers Intergovernmental Relations

Case Brief

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Parties

Gobo Gcora Construction & Project Management CC

Applicant

Sipho Gcora

Applicant

Khuselwa Gobo-Gcora

Applicant

Nelson Mandela Bay Municipality

Respondent

The Public Protector of the Republic of South Africa

Respondent

The 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

Review Application / Application for Rescission of Three Prior Judgments

Legal Issues

  1. 1 Whether the three prior judgments of the Eastern Cape High Court can be rescinded under rule 42 of the Uniform Rules of Court.
  2. 2 Whether the judgments contain a patent error, omission, or were granted as a result of a mistake common to the parties.
  3. 3 Whether the applicants had locus standi to bring the rescission applications.

Ratio Decidendi

The court held that the applicants failed to establish any basis for rescission under rule 42. The judgments in question were made after contested hearings and reflected the intention of the presiding judges. The alleged errors were in the reasoning and findings of fact or law, which do not qualify as patent errors or omissions under rule 42(1)(b), nor were the judgments granted as a result of a mistake common to the parties under rule 42(1)(c). The applicants had already exhausted their appeal remedies, and the rescission applications amounted to an impermissible attempt to appeal under the guise of rescission. The court further found that the Public Protector acted ultra vires in...

Court Disposition

Both applications for rescission are dismissed with costs.

Orders

  • The applications for rescission of the three prior judgments are dismissed.
  • The applicants are ordered to pay the costs of the applications.