Joseph v Joseph and Others (939/2014) [2020] ZAFSHC 146 (2 July 2020)

Joseph v Joseph and Others (939/2014) [2020] ZAFSHC 146 (2 July 2020)

The court found that the requirements for rescission under Rule 42(1)(a) were not met, as the judgment was not granted as a result of an error or fraudulent misrepresentation. The applicant failed to provide sufficient or acceptable reasons for the delay in bringing the application and did not demonstrate a bona fide defence with prospects of success. The evidence indicated that the applicant irregularly caused the property to be transferred into his name, contrary to the Intestate Succession Act, and was aware of the lack of legal basis for his defence. The application for rescission was therefore dismissed.

Citation
[2020] ZAFSHC 146
Parties
Applicant: Tshepo Godfrey Joseph; Respondent: Balantine Leomile Joseph; Respondent: Thabo Joseph; Respondent: Mothobeng Willemina Mthimkulu; Respondent: Phillys Seyoe; Respondent: Leabile Petersen; Respondent: Itumleng Petersen; Respondent: Rachel Tlhole; Respondent: Philip Boom; Respondent: Cynthia Varies; Respondent: Thabo Dominic Motseki Petersen; Respondent: Mangaung Metropolitan Municipality; Respondent: Registrar of Deeds, Bloemfontein; Respondent: Master of the High Court, Free State Division, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
2 July 2020
Case Number
939/2014
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of the court order dated 21 June 2018 is dismissed with costs.
Judges
Naidoo
Legal Topics
Rescission of Judgment, Default Judgment, Condonation, Intestate Succession, Transfer of Property
Civil Procedure Land and Property Rescission of Judgment Default Judgment Condonation Intestate Succession Transfer of Property

Case Brief

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Parties

Tshepo Godfrey Joseph

Applicant

Balantine Leomile Joseph

Respondent

Thabo Joseph

Respondent

Mothobeng Willemina Mthimkulu

Respondent

Phillys Seyoe

Respondent

Leabile Petersen

Respondent

Itumleng Petersen

Respondent

Rachel Tlhole

Respondent

Philip Boom

Respondent

Cynthia Varies

Respondent

Thabo Dominic Motseki Petersen

Respondent

Mangaung Metropolitan Municipality

Respondent

Registrar of Deeds, Bloemfontein

Respondent

Master of the High Court, Free State Division, Bloemfontein

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant has satisfied the requirements for rescission of the default judgment under Rule 42(1)(a).
  2. 2 Whether the applicant has provided sufficient explanation and prospects of success to justify condonation for the delay.
  3. 3 Whether the applicant has a bona fide defence to the main action regarding the transfer of the property.

Ratio Decidendi

The court found that the requirements for rescission under Rule 42(1)(a) were not met, as the judgment was not granted as a result of an error or fraudulent misrepresentation. The applicant failed to provide sufficient or acceptable reasons for the delay in bringing the application and did not demonstrate a bona fide defence with prospects of success. The evidence indicated that the applicant irregularly caused the property to be transferred into his name, contrary to the Intestate Succession Act, and was aware of the lack of legal basis for his defence. The application for rescission was therefore dismissed.

Court Disposition

Application for rescission of the court order dated 21 June 2018 is dismissed with costs.

Orders

  • The application for rescission of the court order dated 21 June 2018 is dismissed with costs.