Can Rule 42 of the Uniform Rules of Court be used to correct a patent error in a criminal appeal ju

Short answer No — as a rule Rule 42 of the Uniform Rules of Court is not the proper or reliable vehicle to correct a patent error in a criminal appeal judgment. Criminal proceedings have their own statutory and statutory-adjacent remedies (and courts have limited common‑law/inherent power to correct clerical slips). You should ordinarily rely on the Criminal Procedure Act remedies (s 298, review or appellate procedures) or an application to the court that made the judgment to correct a purely clerical/arithmetical slip — not a Rule 42 application. (lawlibrary.org.za)

Legal framework — why Rule 42 is problematic in criminal matters

• Rule 42(1)(b) (Uniform Rules of Court) permits rescission or variation of an order or judgment “in which there is an ambiguity, or a patent error or omission” — but the Uniform Rules are primarily civil procedure rules and many sub‑rules expressly govern how criminal proceedings must be conducted. Courts have therefore been cautious about invoking Rule 42 in criminal matters. (lawlibrary.org.za)
• The Criminal Procedure Act, 1977 provides specific correction / supervisory mechanisms for criminal courts: section 298 permits a court to amend a sentence “when by mistake a wrong sentence is passed” but only “before or immediately after it is recorded”; reviews and appeals are governed by the review and appeal provisions (eg. s 304 and s 309), which are the usual routes where a later correction is needed. These bespoke statutory provisions make Rule 42 an inappropriate shortcut in most criminal cases. (lawlibrary.org.za)

Key authorities and principles

• Firestone (the classical authority): once a court has pronounced final judgment it is normally functus officio; exceptions allow only very narrow corrections (clerical/arithmetical errors or clarifications that do not change the substance). That principle applies with equal force in criminal matters. (saflii.org)
• High‑court practice in recent decisions: courts have expressed the view that Rule 42 is not generally applicable to criminal matters and that the Criminal Procedure Act’s remedies and the court’s inherent/limited power to correct clerical mistakes should be used instead. For instance, the Gauteng High Court in Mazibuko v S discussed the limited role of Rule 42 in criminal appeals and emphasised the statutory correction routes (and the narrow common‑law exceptions). (saflii.org)
• Where the error is a clear clerical or arithmetical slip which plainly does not affect the sense or substance of the decision, courts have corrected such mistakes (using statutory powers, common‑law/inherent power or by re‑pronouncement) — but that is different from using Rule 42 as a means to re‑open or alter the substance of a criminal judgment. See the discussion of s 298 and related case law. (www1.saflii.org)

Practical categories and the correct procedural route

1. Clerical / typographical / obvious arithmetic slip discovered immediately (or while the sentencing court still sits)

   • Use section 298 Criminal Procedure Act 51 of 1977: the sentencing court may amend a sentence “before or immediately after it is recorded.” This is the cleanest route where timing permits. (If corrected properly in open court the correction is uncontroversial.) (lawlibrary.org.za)

2. Obvious clerical/arithmetical/terminological error discovered after a short delay (but the error is demonstrably a slip and the correction does not change substance)

   • Approach the court that made the judgment (eg. the Full Court that handed down the appeal judgment) and ask it to correct a clerical slip or clarify an ambiguity under its inherent powers to give effect to its true intention. Courts have on occasion done this, but they will not permit alteration of the substance of the decision. Be prompt and provide the transcript, draft corrected order and evidence the correction reflects the court’s true intention. See the analysis in Mazibuko v S. (saflii.org)

3. Error that affects substance (wrong conviction, miscalculated sentence that alters effective sentence materially) or cannot be fixed by a narrow clerical correction

   • Do not attempt to use Rule 42. The proper remedies are:
     • Appeal (if within the appeal period) under the Criminal Procedure Act (s 309 and related provisions); or
     • A review application where appropriate (eg. s 304 review grounds), or other statutory remedies provided in the CPA; or
     • An urgent application to the making court only if the correction sought is truly clerical and can be shown on the face of the record to be a slip. (saflii.org)

What courts look for when correcting criminal appeal judgments

• The “error” must ordinarily be patent on the record and attributable to the court (not the parties). Rule 42/civil rescission jurisprudence stresses that correction is confined to ensuring the written order reflects the judicial officer’s real intention — it is not an invitation to re‑argue or introduce fresh evidence. The same caution applies in criminal matters. (saflii.org)

Practical checklist if you are trying to correct a patent error in a criminal appeal judgment

• Act quickly. Section 298 requires immediate correction if the sentencing court is to amend the sentence. If you wait, the sentencing court may be functus officio. (lawlibrary.org.za)
• Prepare: (a) a short, focused affidavit showing the transcript/order and the specific clerical/arithmetical inconsistency; (b) the transcript of what was pronounced in open court; (c) a draft corrected order and (d) confirm whether any party (eg. State, DCS) will be prejudiced and how prejudice can be remedied (costs/record amendment/postponement). (saflii.org)
• Approach the correct forum: first the court that made the order (make clear you seek correction of a clerical slip, not substantive rehearing). If that fails, use the statutory review/appeal routes. (saflii.org)

Conclusion — short practical answer again

• Rule 42 is a civil procedural device and is generally not the correct route to cure patent errors in criminal appeal judgments. Use s 298 where the mistake is discovered immediately; seek the making court’s narrow correction power (or its inherent power) for obvious clerical slips; and where the error is substantive or cannot be corrected under those narrow heads, pursue appeal or review in terms of the Criminal Procedure Act. Recent High Court authorities (e.g. Mazibuko v S) make this distinction clear. (lawlibrary.org.za)

If you want, I can:

• Draft a short corrigendum / form of order and affidavit to present to the court that made the appeal judgment (focused on proving a clerical slip); or
• Identify the best statutory route (s 298 / s 304 / s 309) in your particular factual scenario if you give me the key dates (date of judgment, date you discovered the error), the precise inconsistency (quote the sentence/order and the transcript), and whether an appeal has already been noted.

Disclaimer / recommendation This is general legal information based on South African law and recent High Court practice. Whether Rule 42 or any other remedy will succeed depends on the precise facts, timing and the text of the judgment/order and transcript. For a case‑specific application you should consult (or instruct) an advocate or attorney to draft and lodge the appropriate correction, review or appeal papers promptly.