Dlakavu and Another v Mthatha Nine (Pty) Ltd (1710/2019) [2022] ZAECMKHC 2 (19 April 2022)

Dlakavu and Another v Mthatha Nine (Pty) Ltd (1710/2019) [2022] ZAECMKHC 2 (19 April 2022)

The Second Applicant failed to discharge the onus required for rescission on the ground of fraud. The allegations of being misled into signing the option agreement and addenda are unsupported and implausible. The evidence shows that the agreements were reached after extensive negotiations, with the Second Applicant represented by attorneys and a business consultant. There is no indication of fraud or misrepresentation. Furthermore, the First Applicant lacks locus standi, as she was not a party to the main application and no proper application for joinder was made. The failure to notify interested third parties, such as Spar Group Limited and Standard Bank, is a fatal procedural defect. As...

Citation
[2022] ZAECMKHC 2
Parties
Applicant: Sinesipho Dlakavu; Applicant: Otto Curnick Dlakavu; Respondent: Mthatha Nine (Pty) Ltd
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
19 April 2022
Case Number
1710/2019
Procedural Posture
Rescission Application / Judgment on Application for Rescission and Removal
Outcome
The application for rescission is dismissed; the application for removal is dismissed; costs are awarded against the Second Applicant on a party-and-party scale, excluding the costs of the Respondent’s application for leave.
Judges
Laing
Legal Topics
Rescission of Judgment, Locus Standi, Option Agreement, Notarial Lease, Joinder of Parties
Civil Procedure Land and Property Rescission of Judgment Locus Standi Option Agreement Notarial Lease Joinder of Parties

Case Brief

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Parties

Sinesipho Dlakavu

Applicant

Otto Curnick Dlakavu

Applicant

Mthatha Nine (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission and Removal

Legal Issues

  1. 1 Whether the Second Applicant has satisfied the requirements for rescission of the order granted on 27 June 2019.
  2. 2 Whether the First Applicant has locus standi in the matter.
  3. 3 Whether, if rescission is granted, the matter should be removed to the High Court in Mthatha.

Ratio Decidendi

The Second Applicant failed to discharge the onus required for rescission on the ground of fraud. The allegations of being misled into signing the option agreement and addenda are unsupported and implausible. The evidence shows that the agreements were reached after extensive negotiations, with the Second Applicant represented by attorneys and a business consultant. There is no indication of fraud or misrepresentation. Furthermore, the First Applicant lacks locus standi, as she was not a party to the main application and no proper application for joinder was made. The failure to notify interested third parties, such as Spar Group Limited and Standard Bank, is a fatal procedural defect. As...

Court Disposition

The application for rescission is dismissed; the application for removal is dismissed; costs are awarded against the Second Applicant on a party-and-party scale, excluding the costs of the Respondent’s application for leave.

Orders

  • Leave is granted to the Respondent for the filing of its supplementary affidavit dated 26 January 2022.
  • The application for rescission of the judgment granted on 27 June 2019 is dismissed.