Dlomo and Another v African Gospel Church and Others (4373/2019P) [2022] ZAKZPHC 39 (23 August 2022)

Dlomo and Another v African Gospel Church and Others (4373/2019P) [2022] ZAKZPHC 39 (23 August 2022)

The court found that there was no proper service of the main application or the notice of set down on First Respondent at the address stipulated in its constitution. The consent order of 12 November 2019 was granted in the absence of First Respondent, who was not aware of the proceedings and had not been served with the necessary papers and notices. The Rule 7(1) notice filed by Third and Fourth Respondents was irregular and out of time, and there was no legitimate interest shown in the representation of First Respondent. The conditional counter application by Second Applicant was not pursued and could be dealt with later after proper service. The court concluded that the consent order...

Citation
[2022] ZAKZPHC 39
Parties
Applicant: Reverend Maqhinga Ephraim Dlomo; Applicant: Reverend Isaac Sakhephi Ndaba; Respondent: African Gospel Church; Respondent: Reverend Alpha Mbili; Respondent: Reverend Nhlanhla Mhlongo; Respondent: Reverend Wiseman Ngcobo; Respondent: Reverend B J Burthelezi
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
23 August 2022
Case Number
4373/2019P
Procedural Posture
Urgent Application / Application for Rescission of Consent Order and Related Interlocutory Relief
Outcome
The application for rescission is granted; the consent order of 12 November 2019 is rescinded; First Respondent is granted leave to oppose the main application; the Rule 7(1) notice is set aside as irregular; the conditional counter application is dismissed.
Judges
Bezuidenhout
Legal Topics
Rescission of Judgment, Service of Process, Rule 42, Rule 7, Interim Interdict
Civil Procedure Rescission of Judgment Service of Process Rule 42 Rule 7 Interim Interdict

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 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Reverend Maqhinga Ephraim Dlomo

Applicant

Reverend Isaac Sakhephi Ndaba

Applicant

African Gospel Church

Respondent

Reverend Alpha Mbili

Respondent

Reverend Nhlanhla Mhlongo

Respondent

Reverend Wiseman Ngcobo

Respondent

Reverend B J Burthelezi

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Consent Order and Related Interlocutory Relief

Legal Issues

  1. 1 Whether the consent order dated 12 November 2019 should be rescinded due to lack of proper service and notice to First Respondent.
  2. 2 Whether the notice in terms of Rule 7(1) filed by Third and Fourth Respondents constitutes an irregular proceeding.
  3. 3 Whether First Respondent should be granted leave to oppose the main application.

Ratio Decidendi

The court found that there was no proper service of the main application or the notice of set down on First Respondent at the address stipulated in its constitution. The consent order of 12 November 2019 was granted in the absence of First Respondent, who was not aware of the proceedings and had not been served with the necessary papers and notices. The Rule 7(1) notice filed by Third and Fourth Respondents was irregular and out of time, and there was no legitimate interest shown in the representation of First Respondent. The conditional counter application by Second Applicant was not pursued and could be dealt with later after proper service. The court concluded that the consent order...

Court Disposition

The application for rescission is granted; the consent order of 12 November 2019 is rescinded; First Respondent is granted leave to oppose the main application; the Rule 7(1) notice is set aside as irregular; the conditional counter application is dismissed.

Orders

  • The notice in terms of Rule 7(1), filed by Third and Fourth Respondents, is set aside as an irregular proceeding with Third and Fourth Respondents to pay the costs of the application, jointly and severally, the one paying the other to be absolved.
  • The consent order made on 12 November 2019 is rescinded.