Beukes and Others v City of Tshwane Metropolitan Muncipality (37742/2005) [2008] ZAGPHC 76 (29 February 2008)

Beukes and Others v City of Tshwane Metropolitan Muncipality (37742/2005) [2008] ZAGPHC 76 (29 February 2008)

The court found that the First Applicant was in wilful default and/or grossly negligent in failing to oppose the main application, having been aware of the proceedings and choosing not to file an answering affidavit or attend court. The explanation of lack of funds was not supported by contemporaneous evidence and only surfaced in the rescission application. The order granted on 21 June 2006 was not made in default or erroneously as contemplated by the relevant rules. The First Applicant failed to establish a bona fide defence, as the alleged approval of building plans was not substantiated and, even if approved in 1981, would have lapsed by 2003 when building operations commenced. The...

Citation
[2008] ZAGPHC 76
Parties
Applicant: Gertuida Johanna Beukes; Applicant: Adolph Charles Beukes; Applicant: Mokgabudi Meshack; Applicant: Narok Ondugani; Applicant: William Marabe Mokgabudi; Applicant: Tlou Victor Hopane; Applicant: Oupa Manas; Applicant: Ngoepe Joel Tjokotji; Applicant: Arthur Matlwayi; Applicant: Bhalile Johannes Mahlangu; Applicant: Bonang Elizabeth Musi; Respondent: City of Tshwane Metropolitan Municipality
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 February 2008
Case Number
37742/2005
Procedural Posture
Review Application / Application for Rescission of Judgment and Intervention/joinder
Outcome
Application for rescission and intervention dismissed with costs on an attorney and client scale.
Judges
L M Molopa
Legal Topics
Rescission of Judgment, Joinder of Parties, Building Regulations, Town Planning Scheme, Wilful Default, Condonation
Civil Procedure Land and Property Rescission of Judgment Joinder of Parties Building Regulations Town Planning Scheme Wilful Default Condonation

Case Brief

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Parties

Gertuida Johanna Beukes

Applicant

Adolph Charles Beukes

Applicant

Mokgabudi Meshack

Applicant

Narok Ondugani

Applicant

William Marabe Mokgabudi

Applicant

Tlou Victor Hopane

Applicant

Oupa Manas

Applicant

Ngoepe Joel Tjokotji

Applicant

Arthur Matlwayi

Applicant

Bhalile Johannes Mahlangu

Applicant

Bonang Elizabeth Musi

Applicant

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Review Application / Application for Rescission of Judgment and Intervention/joinder

Legal Issues

  1. 1 Whether the First Applicant has provided a reasonable explanation for her default in failing to oppose the main application.
  2. 2 Whether the First Applicant's application for rescission meets the requirements under Rule 31(2)(b) and/or Rule 42(1)(a) of the Uniform Rules of Court.
  3. 3 Whether the First Applicant has a bona fide defence to the Respondent's main claim regarding contraventions of building and planning legislation.

Ratio Decidendi

The court found that the First Applicant was in wilful default and/or grossly negligent in failing to oppose the main application, having been aware of the proceedings and choosing not to file an answering affidavit or attend court. The explanation of lack of funds was not supported by contemporaneous evidence and only surfaced in the rescission application. The order granted on 21 June 2006 was not made in default or erroneously as contemplated by the relevant rules. The First Applicant failed to establish a bona fide defence, as the alleged approval of building plans was not substantiated and, even if approved in 1981, would have lapsed by 2003 when building operations commenced. The...

Court Disposition

Application for rescission and intervention dismissed with costs on an attorney and client scale.

Orders

  • The application for rescission of judgment is dismissed.
  • The application for intervention/joinder of the second to eleventh Applicants is dismissed.