Claasen and Another v Free State Law Society and Others (5940/2017) [2020] ZAFSHC 47 (28 February 2020)

Claasen and Another v Free State Law Society and Others (5940/2017) [2020] ZAFSHC 47 (28 February 2020)

The applicants failed to prove any fraud on the part of the respondents. The information allegedly withheld did not amount to fraudulent conduct, as investigations were ongoing and the Council was obliged to afford the Second Respondent an opportunity to respond before proceeding with suspension. The requirements for setting aside a judgment on the basis of fraud were not met. Furthermore, the application is barred by res judicata, as the same parties, cause of action, and relief are present. The applicants do not challenge the correctness of the original judgment, and the proper remedy would have been appeal. The application for rescission of the costs order must therefore fail.

Citation
[2020] ZAFSHC 47
Parties
Applicant: Anna Catharina Claasen; Applicant: Joluza Boerdery (Pty) Ltd; Respondent: The Free State Law Society; Respondent: Frederick Jacobus Senekal; Respondent: Matsepes Inc
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 February 2020
Case Number
5940/2017
Procedural Posture
Review Application / Application for Rescission of Costs Order
Outcome
Application dismissed with costs.
Judges
Molitsoane
Legal Topics
Rescission of Judgment, Fraud in Civil Procedure, Costs Award, Res Judicata
Civil Procedure Rescission of Judgment Fraud in Civil Procedure Costs Award Res Judicata

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Parties

Anna Catharina Claasen

Applicant

Joluza Boerdery (Pty) Ltd

Applicant

The Free State Law Society

Respondent

Frederick Jacobus Senekal

Respondent

Matsepes Inc

Respondent

Procedural Posture

Review Application / Application for Rescission of Costs Order

Legal Issues

  1. 1 Whether the costs order granted by Loubser, J on 12 April 2018 should be rescinded on grounds of alleged fraud.
  2. 2 Whether the requirements for setting aside a judgment on the basis of fraud have been met.
  3. 3 Whether the application is barred by the principle of res judicata.

Ratio Decidendi

The applicants failed to prove any fraud on the part of the respondents. The information allegedly withheld did not amount to fraudulent conduct, as investigations were ongoing and the Council was obliged to afford the Second Respondent an opportunity to respond before proceeding with suspension. The requirements for setting aside a judgment on the basis of fraud were not met. Furthermore, the application is barred by res judicata, as the same parties, cause of action, and relief are present. The applicants do not challenge the correctness of the original judgment, and the proper remedy would have been appeal. The application for rescission of the costs order must therefore fail.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.