Bienose v 52 Hopkins Street CC and Another (11451/13) [2014] ZAGPJHC 422 (17 October 2014)
The court found that the notice of set down was properly served at the address appointed by the applicant, satisfying the requirement for proper service. The applicant failed to explain his lack of participation after filing a notice of intention to oppose and did not file an answering affidavit. The court further...
Source-derived case information.
- Citation
- [2014] ZAGPJHC 422
- Parties
- Applicant: Kelsey Bienose; Respondent: 52 Hopkins Street CC; Respondent: The City of Johannesburg Metropolitan Municipality
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 11451/13
- Procedural Posture
- Rescission Application / Judgment on Application for Rescission of Eviction Order
- Outcome
- Application for rescission dismissed with costs.
- Judges
- P L Carstensen
- Legal Topics
- Rescission of Judgment, Eviction, Proper Service, Prospects of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelsey Bienose
Applicant
52 Hopkins Street CC
Respondent
The City of Johannesburg Metropolitan Municipality
Respondent
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Eviction Order
Legal Issues
- 1 Whether the applicant received proper notice of set down for the eviction proceedings.
- 2 Whether the applicant's absence constituted wilful default.
- 3 Whether the applicant has shown prospects of success in defending the eviction order.
Ratio Decidendi
The court found that the notice of set down was properly served at the address appointed by the applicant, satisfying the requirement for proper service. The applicant failed to explain his lack of participation after filing a notice of intention to oppose and did not file an answering affidavit. The court further found that the applicant admitted the oral lease agreement with the correct legal owner, Fifty Two Hopkins Street CC, whose registration number was correctly used in the eviction application. The applicant failed to demonstrate any prospects of success in defending the eviction order. Accordingly, the application for rescission was dismissed with costs.
Court Disposition
Application for rescission dismissed with costs.
Orders
- The application for rescission is dismissed with costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 11451/13
DATE: 17 OCTOBER 2015
In the matter between:
KELSEY BIENOSE..................................................................................................................Applicant
..................................................................................................................
52 HOPKINS STREET CC….....................................................................................First Respondent
….....................................................................................
THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY.......Second Respondent
.......
JUDGEMENT
CARSTENSEN AJ:
1. The Applicant, Kelsey Bienose, seeks a rescission of judgement granted in the absence of the Applicant on the on the 29th of July 2013 in terms of which the Applicant was ordered to vacate residential premises.
2. The Applicant states that he did not receive the notice of set down in order to explain his absence of wilful default and also states that the owner of the premises is not 52 Hopkins Street CC, but rather Fifty Two Hopkins Street CC.
3. The judgement was indeed entered into the name of 52 Hopkins Street CC.
4. In the notice of intention to oppose the eviction application, the Applicant appointed an address of 21 Loriwa Court, 50 Esselent
Street, corner Court Street, Hillbrow, Johannesburg.
5. The notice of set down was indeed served by candidate attorney Surtee at that address. Consequently, there was proper service.
6. In addition, the Applicant does not explain why, after serving the notice of intention to defend, he did not file an answering affidavit in the eviction application from the 19th of April 2013 until the 9th of July 2013 when, on his version, he attended court.
7. In regards to the defence, the Applicant admits having entered into an oral agreement of lease with Fifty Two Hopkins Street CC, who is in fact the legal registered owner of the property with registration number 1991/0136618/23. This was the registration number used in the main application for eviction and consequently, I am satisfied that in the eviction application this would not have amounted to a defence.
8. Consequently, the Applicant has shown no prospects of success in respect of his defence.
9. In the premises, I make the following order:
9.1. the application for rescission is dismissed with costs.
P L CARSTENSEN
ACTING JUDGE OF THE HIGH COURT
HEARD: 13 OCTOBER 2014
DELIVERED: 17 OCTOBER 2014
COUNSEL FOR APPLICANT: IN PERSON
INSTRUCTED BY:
COUNSEL FOR RESPONDENT: ADV. G REBELO
INSTRUCTED BY: FULLARD MAYER MORRISON ATTORNEYS