Johan N.O and Another v Kensington Residents and Ratepayers Association NPC and Others (2019/2080) [2022] ZAGPJHC 88 (21 February 2022)

Johan N.O and Another v Kensington Residents and Ratepayers Association NPC and Others (2019/2080) [2022] ZAGPJHC 88 (21 February 2022)

The court found that a procedural irregularity occurred because the answering affidavit, which opposed the respondents' application, was served and filed but was not placed before the court when the final order was granted. The court was unaware of its existence and content, which may have influenced its decision. Additionally, the final order was granted on a date different from the designated return date, and the interim order had lapsed. These irregularities rendered the order of 21 May 2019 'erroneously sought or erroneously granted' under rule 42(1)(a), justifying rescission. However, the applicants did not establish a valid basis for varying the final order in the terms they sought.

Citation
[2022] ZAGPJHC 88
Parties
Applicant: Unoda Johan N.O; Applicant: Katja Dorothea Martini N.O; Respondent: Kensington Residents and Ratepayers Association NPC; Respondent: Corlia Roberts; Respondent: Johannesburg City Back Packers CC; Respondent: The City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 February 2022
Case Number
2019/2080
Procedural Posture
Review Application / Application for Rescission and Variation of Final Order
Outcome
Application for rescission granted; application for variation dismissed.
Judges
EF Dippenaar
Legal Topics
Rescission of Judgment, Procedural Irregularity, Rule 42 Application
Civil Procedure Rescission of Judgment Procedural Irregularity Rule 42 Application

Case Brief

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Parties

Unoda Johan N.O

Applicant

Katja Dorothea Martini N.O

Applicant

Kensington Residents and Ratepayers Association NPC

Respondent

Corlia Roberts

Respondent

Johannesburg City Back Packers CC

Respondent

The City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Review Application / Application for Rescission and Variation of Final Order

Legal Issues

  1. 1 Whether the final order granted on 21 May 2019 was erroneously sought or granted as envisaged by rule 42(1)(a).
  2. 2 Whether the applicants' absence on the return date and the court's lack of awareness of the answering affidavit constituted a procedural irregularity.
  3. 3 Whether the applicants established grounds for rescission and/or variation of the final order.

Ratio Decidendi

The court found that a procedural irregularity occurred because the answering affidavit, which opposed the respondents' application, was served and filed but was not placed before the court when the final order was granted. The court was unaware of its existence and content, which may have influenced its decision. Additionally, the final order was granted on a date different from the designated return date, and the interim order had lapsed. These irregularities rendered the order of 21 May 2019 'erroneously sought or erroneously granted' under rule 42(1)(a), justifying rescission. However, the applicants did not establish a valid basis for varying the final order in the terms they sought.

Court Disposition

Application for rescission granted; application for variation dismissed.

Orders

  • The order granted on 21 May 2019 is rescinded.
  • The first respondent is directed to pay the costs of the application.