Rescission of court orders and the status of orders taken by consent: Occupiers of Erven 87 & 88 Berea v C F de Wet N.O. [2017] ZACC 18


Generally speaking, once a court has pronounced upon a matter finally it has no authority to alter its own order. There are, however, three grounds on which an order of the High Court can be rescinded: those set out in Rule 31(2)(b) and Rule 42 of the Uniform Rules of Court and the common law.


Briefly, Rule 31(2)(b) makes provision for the setting aside of a default judgment in cases where the claim is not for a debt or liquidated demand. The application for rescission must be delivered within 20 days after the applicant became aware of the judgment and he must show good cause as to why the judgment should be rescinded, namely a) he must give a reasonable explanation of his default, b) the application must be bona fide and c) he must have a prima facie bona fide defence to the claim against him.


Rule 42 provides for three distinct rescission or variation procedures, including instances in which a judgment was erroneously sought or erroneously granted in the absence of any party affected thereby (Rule 42(1)(a)). In general terms, a judgment will have been erroneously granted if there existed at the time of its issue a fact of which the court was unaware, which fact would have induced the court not to grant the judgment.


At common law, a judgment can be set aside on grounds of fraud, iustus error, if new documents come to light and in the case of default and consent judgments where good cause for rescission is shown (requirements for good cause as discussed above).


In the recent Constitutional Court case of Occupiers of Erven 87 & 88 Berea, the Court had to decide whether an eviction order may be rescinded at the instance of occupiers who had purportedly consented to it. The factual background is as follows: an eviction notice was served on 184 occupiers of a Johannesburg property. At the hearing in the court a quo, four of the occupiers appeared without legal representation. Counsel for the property owner conferred with them, and then handed up a draft order to which, he submitted, the occupiers had consented. The order, evicting all 184 occupiers from the property, was granted.


Two of the issues on which the Court was called upon to pronounce were those of consent, waiver and mandate, and rescission.


At the time when the order was granted, the occupiers were not legally represented. Only four of them were present, and their only mandate from the 180 other occupiers was to request a postponement to enable all the occupiers to obtain legal representation. Although the Court found that these four had factually consented to the draft order, it also found that this consent was not legally effective as it was not freely and voluntarily given with full awareness of the rights being waived (informed consent). It was also given without a mandate.


The Court considered the issue of rescission on two bases: with regards to the 180 absent occupiers it applied Rule 42(1)(a), and with regards to the four present occupiers it applied the common law.


For the purposes of Rule 42(1)(a), the Court held that, given the socio-economic rights in question, the court a quo had a duty to enquire into all of the relevant circumstances before granting the order, which it had failed to do. This resulted in it being unaware of essential issues of fact - the lack of informed consent and mandate - which in turn led to the erroneous granting of the order in the absence of the 180 occupiers.


For the purposes of the common law, the Court held that the lack of informed consent on the part of the four present occupiers meant that the order was granted in error. Once this was established, it was necessary to enquire whether there was good and sufficient cause for the rescission of the order. The Court considered the requirements set out above, and concluded that these had been fulfilled. The eviction order was accordingly set aside.


It is clear from a consideration of this judgment that, when dealing with an unrepresented lay litigant, or indeed one’s own client, particularly in matters where socio-economic rights are in issue (such as, for instance, an eviction order or order declaring property executable), it will not be sufficient to simply obtain factual consent to the relief sought. One risks being faced with, or being made party to, an application for rescission which may very well succeed if one has not properly explained the person’s rights to them, and the effect that his consent to the relief sought would have on those rights, before alleging that an order is taken “by consent”.


Contributor: TAMSIN JONES (Associate) (Umhlanga Office) (Litigation Department)
Tel:  031 – 566 2207