05/07/2021
There is obviously uncertainty in our law, particularly with regards to whether or not an order is automatically stayed by the bringing of a rescission application.
In Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ)
Notshe AJ was of the view that r 49(11) did provide for a rule of procedure, as opposed to a substantive rule of law, and was not satisfied with Roux J’s conclusion that there is no common law supporting an automatic suspension of an order on the bringing of an application for rescission.
In paragraph 28 of the judgment Notshe AJ stated as follows:
‘An applicant for a rescission of an order would be irreparably prejudiced if the order were allowed to operate despite the application. This is no different from a situation where a notice of application for leave to appeal is delivered. In the circumstances, the rule that applies to the noting of appeals would be extended to noting of the rescission application as well.’
Notshe AJ’s sentiments were later echoed by Vally J in Peniel Development (Pty) Ltd and Another Pietersen and Others [2014] 2 All SA 219 (GJ) para 14.
