Dlamini v Glen Body Corporate Section Scheme SS109/2003 [2023] ZAGPPHC 515; 45744/17 (20 June 2023)

Dlamini v Glen Body Corporate Section Scheme SS109/2003 [2023] ZAGPPHC 515; 45744/17 (20 June 2023)

The court found that condonation for the late filing of the rescission application should be granted as the explanation covered the entire period of delay and no prejudice to the respondent was established. However, the application for rescission failed. The court held that there was no error in the proceedings or judgment as required by Rule 42(1)(a). The alleged fraud related to the applicant's attorney and not the respondent, and there was no evidence that the respondent was party to any fraud or that the false evidence diverged from the true facts to such an extent that a different judgment would have been given. The applicant failed to present the correct evidence to prove the...

Citation
[2023] ZAGPPHC 515
Parties
Applicant: Zodwa Dlamini; Respondent: Glenpark Body Corporate Sectional Scheme SS109/2003
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 June 2023
Case Number
45744/17
Procedural Posture
Rescission Application / Opposed Application for Rescission of Judgment Under Rule 42(1)(a) and Common Law
Outcome
Condonation granted; application for rescission dismissed with costs.
Judges
K Mogale
Legal Topics
Rescission of Judgment, Rule 42, Condonation, Misjoinder, Fraud in Affidavit
Civil Procedure Rescission of Judgment Rule 42 Condonation Misjoinder Fraud in Affidavit

Case Brief

Summary, issues, holding and outcome

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Parties

Zodwa Dlamini

Applicant

Glenpark Body Corporate Sectional Scheme SS109/2003

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of Judgment Under Rule 42(1)(a) and Common Law

Legal Issues

  1. 1 Whether the applicant is entitled to condonation for the late filing of the rescission application.
  2. 2 Whether there was a misjoinder of the second to fifth respondents.
  3. 3 Whether the judgment was erroneously sought or granted as contemplated in Rule 42(1)(a).

Ratio Decidendi

The court found that condonation for the late filing of the rescission application should be granted as the explanation covered the entire period of delay and no prejudice to the respondent was established. However, the application for rescission failed. The court held that there was no error in the proceedings or judgment as required by Rule 42(1)(a). The alleged fraud related to the applicant's attorney and not the respondent, and there was no evidence that the respondent was party to any fraud or that the false evidence diverged from the true facts to such an extent that a different judgment would have been given. The applicant failed to present the correct evidence to prove the...

Court Disposition

Condonation granted; application for rescission dismissed with costs.

Orders

  • Condonation for the late filing of the application is granted.
  • The application for rescission of judgment is dismissed with costs.