When A Party Delays Its Own Justice
The Supreme Court of Appeal has now settled that the granting (as opposed to the refusal) of an application for rescission is not appealable.
This was confirmed in Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd  ZASCA 61 handed down on 20 May 2019.
History of the Matter
The matter began with an application in the Limpopo High Court, Polokwane, in June 2016 for an order declaring the termination of a contract null and void. The parties entered into settlement negotiations. While these were proceeding, the matter was set down for hearing on the unopposed motion roll. However, the Crockery’s attorneys indicated to the Rainbow’s attorneys that the matter will be ‘sorted out’. Despite this, Rainbow briefed counsel to attend at court and ensure the matter was postponed. Crockery’s counsel opposed any postponement and obtained an order in the absence of an answering affidavit.
Rainbow applied for rescission, which was opposed. The Court refused rescission on the basis that it was not a default judgement because Rainbow was represented by counsel when the order was granted.
Appeal Against Granting of Rescission
Rainbow appealed to the Limpopo Full Bench. That Court upheld the appeal in October 2017 and granted Rainbow leave to defend the matter. Not satisfied, Crockery appealed to the Supreme Court of Appeal. The SCA heard the appeal on 20 May 2019 and handed down judgement the same day. It dismissed the appeal, ruling that the granting of rescission is not appealable.
The effect of this is that, nearly three years after the case commenced, it has not progressed beyond where it was when default judgement was taken. Presumably the contract has remained terminated.
Would it not have made a lot more sense for Crockery’s attorneys to have agreed to rescission and got on with the case? Sometimes because one can, doesn’t mean one should. This seems to be one of those cases.
This is classic case where a party has denied its own justice. Instead of appealing against the granting of rescission it should have proceeded with the case on the merits immediately.