IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED DATE 08 November 2022 SIGNATURE
Appeal case number : A85/19
In the matter between:
JACOB ERASMUS COETZER FIRST APPELLANT
JACON ERASMUNS COETZER N.O. SECOND APPELLANT
ANNEKE COETZER N.O. THIRD APPELLANT
and
ANNEKE COETZER RESPONDENT
REASONS FOR VARIATION OF ORDER IN TERMS OF RULE 42(1)(b) OF THE
RULES OF COURT
MADIBA AJ
[1] The court delivered judgment on 19 August 2022 in the above appeal. The
appeal was upheld. Subsequently a letter was addressed by attorneys of the appellant
to the judges who sat in the appeal, drawing their attention to an error in the order that
was finally granted. The appeal order upheld the appeal with costs without
pronouncing on the order of the court a quo in case 57431/2011, by setting such order
aside and substituting it with an order of the appeal court. A patent error was therefore
committed which in our view can be corrected without the necessity of the parties
engaging further costly processes.
[2] Rule 42 of the Rules of Court 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:
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
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;
An order or judgment granted as a result of a mistake common to the
parties;
[3] While it is trite that the court is now functus officio, no prejudice will befall the
respondent in that the patent error or omission does not go into the merits of the
case. Exceptional circumstances prevail, why a route which will obviate costs to the
litigants is preferred and is in the interests of justice. The correction in no manner
interferes with or detracts from the findings of this court. Rule 42 (1)(b) is in the
circumstance most appropriate.
[4] It was common cause that the respondent amended certain prayers in her
declaration and that the claims adjudicated upon are such as appears in paragraph
[3] of the judgement of the court a quo. As stated in the heads of argument of
counsel for the appellant:
“The Court a quo dismissed most of the relief sought by the respondent, it held that
the trust is not the alter ego of the first appellant but granted an order setting aside a
part of the settlement agreement relating to the trust and ordered the first respondent
to make payment to the respondent of an accrual claim based on the equity in the
trust.”
Counsel for the Respondent also stated:
“The Court a quo ordered that the respondent is entitled to share in the accrual of the
estate of the first appellant only in respect of the equity of the JAC Family Trust that
excludes the loan account of the appellant”
[5] Leave was granted by the Court a quo to appeal the whole judgment in case
57431/2011. The Order appealed against appears at Volume 9 of the record pages
848 and 849.
[6] The following order is granted:
The Order made in this appeal on 19 August 2022 is varied and is
substituted by the following order:
The appeal is upheld with costs;
1.2 The order of the court a quo is set aside and is substituted with the
following:
‘All the plaintiff’s claims are dismissed with costs
______________________
MADIBA S S
(ACTING JUDGE OF THE HIGH COURT)
I agree,
NDLOKOVANE N
(ACTING JUDGE OF THE HIGH COURT)
I agree and, it is so ordered
___________________________
TLHAPI V V
(JUDGE OF THE HIGH COURT)