Eduard CIK N.O and Others v Abel and Others In Re: Abel and Others v Eduard CIK N.O and Others (76316/2017) [2018] ZAGPPHC 795 (1 October 2018)

Eduard CIK N.O and Others v Abel and Others In Re: Abel and Others v Eduard CIK N.O and Others (76316/2017) [2018] ZAGPPHC 795 (1 October 2018)

The application for rescission cannot succeed due to non-joinder of parties who have a direct and substantial interest in the matter. The applicants failed to cite all necessary parties, specifically those who were respondents in the main application and whose interests would be prejudiced by the outcome. The court found that the omission of these parties is fatal to the application, as established by precedent. Although the applicants argued that the order was erroneously granted due to lack of notice of set down, the court did not address the merits because the point in limine was dispositive. The application was therefore dismissed, and costs were awarded against the second applicant.

Citation
[2018] ZAGPPHC 795
Parties
Applicant: Eduard CIK N.O; Applicant: Eduard CIK; Respondent: Robert William Abel; Respondent: Cherisse Abel; Respondent: Jonathan Ferreira; Respondent: Genevieve Ferreira
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 October 2018
Case Number
76316/2017
Procedural Posture
Rescission Application / Application for Rescission of Default Order Under Rule 42(1)(u)
Outcome
Application dismissed due to non-joinder of necessary parties.
Judges
M.J. Mosopa
Legal Topics
Rescission of Judgment, Non Joinder, Notice of Set Down, Default Judgment, Practice Manual Compliance
Civil Procedure Rescission of Judgment Non Joinder Notice of Set Down Default Judgment Practice Manual Compliance

Case Brief

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Parties

Eduard CIK N.O

Applicant

Eduard CIK

Applicant

Robert William Abel

Respondent

Cherisse Abel

Respondent

Jonathan Ferreira

Respondent

Genevieve Ferreira

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Order Under Rule 42(1)(u)

Legal Issues

  1. 1 Whether the application for rescission can succeed in light of non-joinder of parties with a direct and substantial interest.
  2. 2 Whether the order was erroneously sought and granted due to lack of notice of set down to the applicants.

Ratio Decidendi

The application for rescission cannot succeed due to non-joinder of parties who have a direct and substantial interest in the matter. The applicants failed to cite all necessary parties, specifically those who were respondents in the main application and whose interests would be prejudiced by the outcome. The court found that the omission of these parties is fatal to the application, as established by precedent. Although the applicants argued that the order was erroneously granted due to lack of notice of set down, the court did not address the merits because the point in limine was dispositive. The application was therefore dismissed, and costs were awarded against the second applicant.

Court Disposition

Application dismissed due to non-joinder of necessary parties.

Orders

  • The application is dismissed.
  • The Second Applicant is ordered to pay the costs of the application.