NT Makhubele Enterprises CC and Another v Business Partners Limited and Another

The applicants, NT Makhubele Enterprises CC and Nathaniel Tsakani Makhubele, applied to rescind a judgment and order granted by Cowen AJ on 16 January 2019. In that earlier judgment, Cowen AJ dismissed with costs the applicants' application for a postponement and/or temporary stay of proceedings and also dismissed with costs their application to rescind an earlier order of Lamont J dated 6 February 2018. The applicants contended that Cowen AJ's order had been granted in their absence and by default because, according to them, the court found that no proper notice of motion and founding affidavit had been filed for the postponement application, and because the court allegedly failed to consider their founding affidavit when the second applicant did not address the court on the merits. The record before Dreyer AJ showed that, before the hearing on 22 November 2018, there had been a Rule 10 and 11 application for consolidation and a Rule 6(11) notice seeking leave to file further affidavits. An email dated 21 November 2018 from the second applicant to the registrar and the first respondent's attorneys attached a document headed 'Postponement and/or Stay Application' stating that affidavits filed in the Rule 6(11) and Rule 10 and 11 applications would be used in support of the postponement/stay request. Cowen AJ's judgment reflected that she had considered the information in the Rule 10 and 11 founding affidavit relevant to the postponement request, noted that the Rule 6(11) application had no supporting affidavit, and considered the written submissions and affidavits before refusing the postponement/stay and dismissing the rescission application.

• Whether the judgment and order of Cowen AJ were 'erroneously sought or erroneously granted in the absence of' the applicants for purposes of Uniform Rule 42(1)(a)
• Whether the applicants had shown any procedural irregularity justifying rescission under Rule 42(1)(a)
• Whether, alternatively, any basis had been established for rescission at common law
• Whether the complaint raised by the applicants was in substance an appeal issue rather than a rescission issue

The application for rescission was dismissed with costs.

A court will not rescind an order under Uniform Rule 42(1)(a) unless the applicant proves that the order was erroneously sought or erroneously granted in the absence of the affected party. Where the prior judgment shows that the court considered the affidavits and written submissions relied on by the applicant, and no procedural irregularity is established, Rule 42(1)(a) does not apply. Complaints that the earlier judge erred in deciding the matter are matters for appeal, not rescission. In addition, common-law rescission cannot succeed where no factual or legal grounds for such relief are advanced.

The court observed that even if the applicants' 'Postponement and/or Stay Application' had not been formally drawn to Cowen AJ's attention, the relevant information contained in the Rule 10 and 11 founding affidavit was in fact considered. The court also remarked that the applicants had filed no affidavit in support of the Rule 6(11) relief and that the second applicant elected not to address the court on the merits after the postponement/stay request was refused. No substantial separate obiter discussion appears in the judgment.

The case reaffirms the narrow scope of rescission under Uniform Rule 42(1)(a) in South African civil procedure. It illustrates that rescission is not available merely because a party believes the court reached the wrong conclusion or inadequately appreciated its case; the applicant must show that the order was procedurally or factually erroneously sought or granted in the party's absence. The judgment also underscores the distinction between rescission and appeal: alleged judicial error on the merits is generally for appeal, not rescission.