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Rule 49
In terms of rule 49(11) of the Uniform Rules of Court:
‘Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs’
On its plain wording the rule clearly provides that once an application for rescission has been made, the court order in question is suspended and cannot be executed on.
However, in the case of United Reflective Converters (Pty) Ltd v Levine 1988 (4) SA 460 (W), Roux J held that there is no substantive rule of law that an application to vary or rescind an order automatically suspends its operation.
According to van Kerckhoven[1] practise developed that a party seeking the rescission of an order of court would urgently seek an undertaking from the party (in whose favour the order was granted) that they would not execute on this order pending the finalisation of the intended rescission application. Failing which, they would bring an urgent application seeking to suspend the effect of the order and execution thereon pending the determination of a rescission application.
However, two more recent judgements disagreed with the approach of Roux J. In Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ), Notshe AJ stated that:
‘An application 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 recession application as well.’
According to van Kerckhoven,[2] Notshe AJ’s sentiments were later echoed by Vally in Peniel Development (Pty) Ltd and Another Pietersen and Others [2014] 2 All SA 219 (GJ).
The new Rule 18
On 23 August 2013 the Superior Courts Act 10 of 2013 (the Act) came into effect and the relevant provisions of rule 18, read as follows:
Subject to subsection (2) and (3), and unless the court under exceptional circumstances orders otherwise,
[1] Michael van Kerckhoven, De Rebus September 2016: http://www.derebus.org.za/rescission-applications-suspension-orders/
[2] Michael van Kerckhoven, De Rebus September 2016: http://www.derebus.org.za/rescission-applications-suspension-orders/