Dlamini v Moloisane (10/30611) [2015] ZAGPJHC 221 (23 September 2015)

Dlamini v Moloisane (10/30611) [2015] ZAGPJHC 221 (23 September 2015)

The court held that rescission of the eviction order was not permissible under either Rule 42(1)(c) or the common law. At the time of the eviction judgment, Mr Moloisane was the registered owner of the property, and both parties operated on the correct assumption regarding ownership. The subsequent review order, which retrospectively declared the transfer void, did not establish a causa for rescission because the ground relied upon did not exist at the time of judgment. The principle of finality of judgments prevails, and the applicant's remedy, if any, lies in seeking to prevent execution of the eviction warrant, not in rescission. The court also found no merit in the allegations of...

Citation
[2015] ZAGPJHC 221
Parties
Applicant: Nomsa Dlamini; Respondent: Brian Molefe Moloisane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 September 2015
Case Number
10/30611
Procedural Posture
Rescission Application / Final Judgment
Outcome
Application for rescission dismissed with costs.
Judges
R Keightley
Legal Topics
Rescission of Judgment, Eviction Order, Common Mistake, Fraud, Ownership Dispute
Civil Procedure Land and Property Rescission of Judgment Eviction Order Common Mistake Fraud Ownership Dispute

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 21 Party arguments 2
Sign in to unlock

Parties

Nomsa Dlamini

Applicant

Brian Molefe Moloisane

Respondent

Procedural Posture

Rescission Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to rescission of the eviction judgment and order granted on 9 December 2010.
  2. 2 Whether fraud or common mistake provides a valid ground for rescission under Rule 42(1)(c) or the common law.
  3. 3 Whether the retrospective effect of a subsequent review order establishes a causa for rescission.

Ratio Decidendi

The court held that rescission of the eviction order was not permissible under either Rule 42(1)(c) or the common law. At the time of the eviction judgment, Mr Moloisane was the registered owner of the property, and both parties operated on the correct assumption regarding ownership. The subsequent review order, which retrospectively declared the transfer void, did not establish a causa for rescission because the ground relied upon did not exist at the time of judgment. The principle of finality of judgments prevails, and the applicant's remedy, if any, lies in seeking to prevent execution of the eviction warrant, not in rescission. The court also found no merit in the allegations of...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.