South Africa Case Law

Frankel Engelbrecht N.O and Another v Mokitimi and Others (CA & R: 44/2024)

Frankel Engelbrecht N.O and Another v Mokitimi and Others (CA & R: 44/2024) [2025] ZANCHC 23 (19 March 2025)

Court

Northern Cape High Court, Kimberley

Case number

CA & R: 44/2024

Judges

Tlaletsi JP, Phatshoane DJP, Mamosebo J

The Full Court found that the court a quo erred in rescinding the interim interdict (rule nisi) granted by Lever J, as the requirements for rescission under Rule 42 were not met. The main application was not before the court on 10 March 2023, and the affected parties were not given notice or an opportunity to be heard, violating the audi alteram partem rule and the constitutional right to a fair hearing. The existence of statutory remedies under the Administration of Estates Act did not preclude the need for immediate interim relief to protect estate assets. The court a quo exceeded its autho…

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• Contempt Of Court
• Interim Interdict
• Administration Of Estates Act
• Audi Alteram Partem
• Rule 42 Rescission

Visage v Intalian Fresh Produce (Pty) Ltd and Another (083584/2024)

Visage v Intalian Fresh Produce (Pty) Ltd and Another (083584/2024) [2024] ZAGPPHC 897 (6 September 2024)

Court

North Gauteng High Court, Pretoria

Case number

083584/2024

Judge

Mkhabela

The court recalled a business rescue order after finding Standard Bank, an affected creditor, had not been notified and was denied a right to participate.

• Business Rescue
• Affected Party Notice
• Audi Alteram Partem
• Rule 42 Rescission
• Business-rescue
• Affected-party-notice

Maseloa and Another v Nyandu and Others (3835/2022)

Maseloa and Another v Nyandu and Others (3835/2022) [2023] ZAFSHC 82 (22 March 2023)

Court

Free State High Court, Bloemfontein

Case number

3835/2022

Judge

Daniso

The court found that the applicants lacked locus standi to seek rescission of the order confirming the sale in execution, as they were not parties to the original proceedings and did not have a direct and substantial legal interest in the subject matter. The sale in execution and the court order were granted in accordance with the procedural requirements of rule 46A, and the applicants' offer to purchase, made after the property was sold and attached, was invalid and unenforceable. The judgment debtors, as owners and affected parties, did not raise any prejudice nor were they joined in these…

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• Sale In Execution
• Rule 42 Rescission
• Rule 46a Procedure
• Locus Standi
• Attachment In Execution

Phepha MV Security Services v Collins Sebola Financial Services (Pty) Ltd and Others (21375/2020)

Phepha MV Security Services v Collins Sebola Financial Services (Pty) Ltd and Others (21375/2020) [2022] ZAGPPHC 633 (24 August 2022)

Court

North Gauteng High Court, Pretoria

Case number

21375/2020

Judge

de Vos

The applicant's challenge to service is purely legal, not factual. The court finds that service by email was permitted under the Judge President's Directive during the COVID-19 lockdown, and the applicant does not dispute receipt of the application. The Directive does not require agreement for electronic service in urgent matters, nor does Rule 6(12) impose such a requirement. The applicant has not made out a case that service was ineffective or that it did not receive the application. The court exercises its discretion to find that service was effective and legally permissible. There is no f…

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• Service Of Process
• Electronic Service
• Urgent Application
• Condonation
• Rule 42 Rescission
• Covid19 Directives

Boerdery v Matsepe N.O and Another (A79/21)

Boerdery v Matsepe N.O and Another (A79/21) [2022] ZAWCHC 49 (19 April 2022)

Court

Western Cape High Court, Cape Town

Case number

A79/21

Judges

DM Thulare, V Saldanha, E T Steyn

Full court appeal on Rule 30A and Rule 37 was upheld: the rescission order was granted, the striking out of the defence was set aside, and costs went against the respondents.

• Uniform Rules Of Court
• Rule 30a Non Compliance
• Rule 37 Pre Trial Conference
• Rule 42 Rescission
• Striking Out Defence
• Punitive Costs

N.M v T.M (Born S) (10393/2017)

N.M v T.M (Born S) (10393/2017) [2020] ZAGPPHC 57 (14 February 2020)

Court

North Gauteng High Court, Pretoria

Case number

10393/2017

Judge

Conradie

The High Court dismissed an application to partially rescind a default divorce order, holding that the settlement agreement remained enforceable and the applicant showed no bona fide defence.

• Rule 42 Rescission
• Settlement Agreement
• Maintenance Of Children
• Default Judgment
• Divorce Order
• Rule-42-rescission

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)

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 40 (2 July 2019)

Court

Eastern Cape High Court, Port Elizabeth

Case number

992/16; 1414/2016

Judge

D Van Zyl

The court dismissed leave to appeal against a rescission judgment, holding that alleged mistakes in prior reasoning were not Rule 42 errors and that the matter had to be pursued by appeal.

• Rule 42 Rescission
• Error Of Law
• Ultra Vires
• Remedial Action
• Maladministration
• Rule-42-rescission

Office of the Public Protector v Otshinga and Others (50385/2013)

Office of the Public Protector v Otshinga and Others (50385/2013) [2016] ZAGPPHC 843 (15 September 2016)

Court

North Gauteng High Court, Pretoria

Case number

50385/2013

Judge

R G Tolmay

The court found that the order of 10 December 2015 was erroneously sought and granted in the absence of the Public Protector, as Mr Otshinga failed to disclose that the matter was opposed and had been removed from the roll by his attorneys. The agreements made by Mr Otshinga's attorneys regarding procedural matters were binding on him, as their authority was apparent and no limitation was communicated to the applicant's attorneys. The Public Protector complied with the court order of 30 June 2014 by issuing the closing report, which was validly signed under delegated authority. The writs of a…

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• Rule 42 Rescission
• Contempt Of Court
• Delegation Of Authority
• Costs Punitive
• Execution Of Judgments

Nkabinde and Another v Judicial Service Commission and Others (CCT122/16)

Nkabinde and Another v Judicial Service Commission and Others (CCT122/16) [2016] ZACC 25; 2016 (11) BCLR 1429 (CC); 2017 (3) SA 119 (CC) (24 August 2016)

Court

Constitutional Court

Case number

CCT 122/16

Judges

Mogoeng, Cameron, Froneman, Khampepe, Madlanga, Mbha, Mhlantla, Musi, Zondo

The application for rescission is dismissed because Rule 42(1)(a) does not apply to orders made at Conference where litigants have no right to be present. The applicants were aware of the procedure and the principle established in Hlophe, which dictates that where the Court lacks a quorum due to disqualification of its members, the application must be dismissed and cannot be left pending. The applicants' right of access to court was not infringed, as the procedure followed is consistent with the Constitution and the Rules of the Court. The suggestion that disqualified Justices participated ir…

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• Judicial Recusal
• Access To Court
• Rule 42 Rescission
• Quorum Requirements
• Judicial Service Commission Act

Tshwane University of Technology v Dladla (8104/2014)

Tshwane University of Technology v Dladla (8104/2014) [2015] ZAGPPHC 68 (4 March 2015)

Court

North Gauteng High Court, Pretoria

Case number

8104/2014

Judge

N Kollapen

The court found that the proceedings did not constitute a class action in the strict sense, as the relief sought was interdictory and limited to a defined group of students, with no damages claimed. Even if the proceedings were considered a class action, the requirements for certification were met, and the court was procedurally competent to deal with the matter. Regarding service and notification, the court held that the respondent took reasonable steps to notify the applicant, and the applicant's failure to respond was due to its own inaction. The urgency of the matter justified dispensing…

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• Rule 42 Rescission
• Urgent Interdict
• Service Of Process
• Standing Public Interest