Harinoro and Another v LG Maroncowitz and Sons (Pty) Ptd and Another (2879/17) [2018] ZAGPPHC 308 (2 May 2018)

Harinoro and Another v LG Maroncowitz and Sons (Pty) Ptd and Another (2879/17) [2018] ZAGPPHC 308 (2 May 2018)

The court found that the eviction order was erroneously sought and granted because the notice of set down was irregularly served at the premises rather than at the attorneys' address, and was applied for prematurely. The applicants provided a reasonable explanation for their default, as the main applicant was out of the country and acted promptly upon learning of the proceedings. The applicants also raised a bona fide defence based on their purchase agreement, which had not been cancelled. The procedural irregularities and the existence of a bona fide defence justified rescission of the eviction order.

Citation
[2018] ZAGPPHC 308
Parties
Applicant: Aimee Harinoro; Applicant: All occupiers of 238 Cornelis Street, Fairland, Johannesburg (also known as Erf Q92, Fairland, Johannesburg); Respondent: LG Maroncowitz and Sons (Pty) Ltd; Respondent: City of Johannesburg Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 May 2018
Case Number
2879/17
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Eviction Order
Outcome
Application for rescission granted; eviction order and writ of ejectment set aside; applicants permitted to file opposing affidavit; first respondent ordered to pay costs.
Judges
N.M Mavundla
Legal Topics
Rescission of Judgment, Eviction Proceedings, Irregular Service, Wilful Default, Bona Fide Defence
Civil Procedure Land and Property Rescission of Judgment Eviction Proceedings Irregular Service Wilful Default Bona Fide Defence

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Parties

Aimee Harinoro

Applicant

All occupiers of 238 Cornelis Street, Fairland, Johannesburg (also known as Erf Q92, Fairland, Johannesburg)

Applicant

LG Maroncowitz and Sons (Pty) Ltd

Respondent

City of Johannesburg Municipality

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Eviction Order

Legal Issues

  1. 1 Whether the eviction order granted on 10 March 2017 was erroneously sought and granted.
  2. 2 Whether the notice of set down was irregularly served and prematurely sought.
  3. 3 Whether the applicants were in wilful default in failing to file their notice to oppose and opposing affidavit.

Ratio Decidendi

The court found that the eviction order was erroneously sought and granted because the notice of set down was irregularly served at the premises rather than at the attorneys' address, and was applied for prematurely. The applicants provided a reasonable explanation for their default, as the main applicant was out of the country and acted promptly upon learning of the proceedings. The applicants also raised a bona fide defence based on their purchase agreement, which had not been cancelled. The procedural irregularities and the existence of a bona fide defence justified rescission of the eviction order.

Court Disposition

Application for rescission granted; eviction order and writ of ejectment set aside; applicants permitted to file opposing affidavit; first respondent ordered to pay costs.

Orders

  • The order granted on 10 March 2017 is rescinded and set aside.
  • The writ of ejectment issued in consequence of the aforesaid order is declared to be of no force and effect and is set aside.