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Is Rescission Appealable?

It is not always easy to reconcile decisions of the Courts. Just when it seems that a definite decision has been made on a particular point of law, a conflicting decision comes along. When it is the same Court, in quick succession, it is more confusing. One case closed the door to appeals against the granting of rescission. The second left open the question: Is Rescission appealable?

In Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd [2019] ZASCA 61 the Supreme Court of Appeal decided that an order granting rescission is not appealable. The rationale is that it is not a final order.

In Bayport Securitisation RF Ltd v Sakata [2019] ZASCA 73 the Court upheld an appeal against a decision of the High Court where it granted rescission in upholding an appeal from a magistrates’ court which had refused to rescind a default judgement granted by the clerk of that court.

The Court clearly wished to correct an incorrect decision in the Eastern Cape High Court in Bayport and therefore heard (and upheld) the appeal. However, it did not expressly state that it was making an exception to the rule in Crockery Gladstone Farm.

It has regrettable consequences for parties when the Courts give conflicting judgements. Some legal representatives will jump at the opportunity to use the conflicting judgements to further muddy the waters. There won’t be any certainty as to whether to appeal the granting of rescission or not. Cases will be potentially delayed for months or years while parties seek to appeal based on Crockery Gladstone Farm only to find that the Court applies Bayport.

Eastern Cape High Court was clearly wrong and had created precedent which needed rectification. However, the SCA could have stated that it was only hearing the appeal because of the exceptional circumstances.

So, that leaves the question: Is rescission appealable?

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