Congress of the People and Others v Speaker, Eastern Cape Provincial Legislature, Mluleki George and Others (447/2011) [2012] ZAECBHC 8 (27 September 2012)

Congress of the People and Others v Speaker, Eastern Cape Provincial Legislature, Mluleki George and Others (447/2011) [2012] ZAECBHC 8 (27 September 2012)

The court found that Rule 42(1)(a) was not applicable, as the order was not erroneously granted in the procedural sense; the applicant in the main application was entitled to judgment by default. However, the court considered the rescission application at common law, noting that the applicants provided a reasonable explanation for their absence and set out sufficient grounds for a bona fide defence, particularly regarding the authority to institute proceedings and the membership status of Sam Kwelita. The court held that these disputes could not be resolved in the rescission application but warranted an opportunity for the applicants to oppose the main application. The application for...

Citation
[2012] ZAECBHC 8
Parties
Applicant: Congress of the People; Applicant: Mosiua Lekota; Applicant: Deidre Carter; Respondent: Speaker, Eastern Cape Provincial Legislature; Respondent: Secretary, Eastern Cape Provincial Legislature; Respondent: Mluleki George; Respondent: N C Siwisa; Respondent: Sam Kwelita
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
27 September 2012
Case Number
447/2011
Procedural Posture
Urgent Application / Application for Rescission of a Previous Order
Outcome
Application for rescission granted.
Judges
J M Roberson
Legal Topics
Rescission of Judgment, Locus Standi, Rule 42, Default Judgment, Party Authorisation
Civil Procedure Rescission of Judgment Locus Standi Rule 42 Default Judgment Party Authorisation

Case Brief

Summary, issues, holding and outcome

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Parties

Congress of the People

Applicant

Mosiua Lekota

Applicant

Deidre Carter

Applicant

Speaker, Eastern Cape Provincial Legislature

Respondent

Secretary, Eastern Cape Provincial Legislature

Respondent

Mluleki George

Respondent

N C Siwisa

Respondent

Sam Kwelita

Respondent

Procedural Posture

Urgent Application / Application for Rescission of a Previous Order

Legal Issues

  1. 1 Whether the order granted by Revelas J was erroneously made in the absence of the applicants.
  2. 2 Whether the applicants provided a sufficient explanation for their failure to oppose the main application.
  3. 3 Whether the applicants have set out a bona fide defence to the main application.

Ratio Decidendi

The court found that Rule 42(1)(a) was not applicable, as the order was not erroneously granted in the procedural sense; the applicant in the main application was entitled to judgment by default. However, the court considered the rescission application at common law, noting that the applicants provided a reasonable explanation for their absence and set out sufficient grounds for a bona fide defence, particularly regarding the authority to institute proceedings and the membership status of Sam Kwelita. The court held that these disputes could not be resolved in the rescission application but warranted an opportunity for the applicants to oppose the main application. The application for...

Court Disposition

Application for rescission granted.

Orders

  • The order granted by Revelas J under case number 377/2011 is rescinded.
  • The applicants are ordered to deliver their answering affidavits in the main application within 15 days of the date of this order.