Name:
Rule 49(11) in context of United Reflective Converters (Pty) Ltd v Levine 1988 (4) SA 460 (W).

Area of law:
Operation of Judgments and Court Orders, pending hearing of Rescission or variation application.

Summary:
Rule 49(11) of the Uniform Rules of Court state: “Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a 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.”

The above matter considered this Rule.

It was established that, whereas the substantive law recognises that the noting of an appeal automatically suspends the operation of the Order in question, there is no such equivalent substantive law, in relation to applications to rescind or vary an Order.

Accordingly, it was found that Rule 49(11), save where it deals with appeals, goes beyond laying down a rule for the conduct of proceedings and purports to create a substantive rule of law, which, therefore, makes it ultra vires.

Accordingly, the words “or to rescind, correct, review or vary”, as the appear in the Rule, are of no force or effect.

Importance/value:
A Court Order remains effective, pending the outcome of an application for rescission or variation. Should a party wish to have the Order suspended, pending the outcome of such application, then a separate application should be brought for such relief.

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