The Long and Often Winding Road of Rescission of Judgement Applications

by | Sep 2, 2021 | Civil Litigation and Alternative Dispute Resolution, News, Publications | 0 comments

Generally, Rule 42 of the Uniform Rules of Court deals with the Variation and rescission of court orders. In case of the service of a debt (i.e. that the judgement amount is paid) or by consent rule 23A applies.

Rule 42 provides:

“(1)   The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

   (a)   An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

   (b)   an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

   (c)   an order or judgment granted as the result of a mistake common to the parties ….”

According to Erasmus,[1] the general, well-established rule is that once a court has duly pronounced a final judgment or order, it has itself no authority to set it aside or to correct, alter or supplement it.

Furthermore, that the reasons are twofold: first, the court becomes functus officio and its authority over the subject-matter ceases;  secondly, the principle of finality of litigation expressed in the maxim interest rei publicae ut sit finis litium (it is in the public interest that litigation be brought to finality) dictates that the power of the court should come to an end.

Rule 42 makes provision for the following distinct procedures:

(a) based on error where an order was granted in the absence of any party affected thereby;

(b)    if  there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c)    where judgment granted as the result of a mistake common to the parties.

In most instances, applications are brought under rule 42 are based on error. However, error in this context has a very narrow interpretation as was illustrated in Daniel v President of the Republic of South Africa 2013 JDR 1439 (CC). The Applicant seeking rescission of order on ground that it was erroneously granted because President’s failure to appoint commission constituted failure to fulfil constitutional obligation. The application was dismissed because the court found that this did not constitute an error.

The result is that rescission applications are notoriously difficult and it is therefore critical to obtain sound legal advice and assistance during litigation. Contact us for assistance.

[1] Erasmus: Superior Court Practice 2019 – Second Edition: Revision Service 13 (Vol 1), Revision Service 15 (Vol 2), Revision Service 14 (Vol 3).

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