By Robyn Shepherd 

Category: Civil Litigation

Introduction  

It is the task of a Magistrate or Judge to determine the outcome of a matter before a court. This decision will then be confirmed as an order of Court to ensure all relevant parties are made aware of the terms and conditions of the outcome and to ensure compliance with same. 

It may occur that one of the parties at a stage subsequent to the Court Order being granted, feels that the provisions in the Court Order has prejudiced them or that a certain clause in the Court Order requires clarification and/or alterations. The Court Order, in these instances, may be varied, elaborated on, changed or amended in these instances as requested. Only a final Court Order can be varied, and this does not extend to an interim order where the final order is still dependent upon the finalization of specific provisions. 

There are various grounds for a variation application, including but not limited to fraud, undue influence or excessive pressure to sign or agree to certain provisions. In the matter of Gollach & Gomperts v Universal Mills and Produce Co 1978 (1) SA 914 (AD) it was held that a reasonable mistake on the part of either party could be used as a valid ground for variation or rescission.1 

There Are Two Avenues Available Should One Wish To Vary And/Or Amend A Court Order: 

The first avenue available is by way of mutual consent.  This option is cost-effective as there is no formal Court application required. The consent and variation need only be placed in writing. 

Secondly, where the parties are not in agreement with regard to the variation of a provision, a formal Application for Variation will have to be made to Court. An example hereof would be in terms of a divorce settlement agreement where specific provisions were set in place, and the same now needs to be altered to proceed with the sale of immovable property.   

In terms of Rule 42(1) of the Uniform Rules of Court, the Court may vary or rescind the following: 

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 the result of a mistake common to the parties. 

Conclusion 

It is clear from those above that the Court is limited to amend or rescind Court Orders however there is no reference to any timeframes to which the interested parties should adhere when bringing such an application. 

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za    

Robyn Shepherd

Specialist Attorney Family Law, Civil Litigation and Dispute Resolution

SchoemanLaw Inc | www.schoemanlaw.co.za