K v S and Another (1609/04) [2005] ZANWHC 15 (17 February 2005)

K v S and Another (1609/04) [2005] ZANWHC 15 (17 February 2005)

The application was dismissed because the applicant failed to set out sufficient facts in his founding affidavit to justify the relief sought in both prayers. The applicant's attempt to rescind the order setting aside the part-heard proceedings before Mr H Monageng was an effort to resile from a prior election, which is not permitted in law. The applicant had previously agreed to have the matter referred to the Magistrate's Court to be heard de novo by another magistrate, and is bound by that election. Furthermore, the applicant did not provide any factual basis for setting aside the interdict granted by the Molopo Magistrate's Court. The court emphasized that it cannot correct, alter, or...

Citation
[2005] ZANWHC 15
Parties
Applicant: K K; Respondent: The State; Respondent: Ms G. I.
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 February 2005
Case Number
1609/04
Procedural Posture
Review Application / Unopposed Application for Rescission and Setting Aside of Prior Orders
Outcome
Application dismissed.
Judges
L T Sibeko
Legal Topics
Rescission of Judgment, Protection Order, Prevention of Family Violence Act, Motion Proceedings, Election and Approbation Reprobation
Civil Procedure Family and Children Rescission of Judgment Protection Order Prevention of Family Violence Act Motion Proceedings Election and Approbation Reprobation

Case Brief

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Parties

K K

Applicant

The State

Respondent

Ms G. I.

Respondent

Procedural Posture

Review Application / Unopposed Application for Rescission and Setting Aside of Prior Orders

Legal Issues

  1. 1 Whether the applicant has made out a case for rescission of the order setting aside the part-heard proceedings before Mr H Monageng.
  2. 2 Whether the applicant has provided sufficient factual basis for setting aside the interdict granted by the Molopo Magistrate's Court.
  3. 3 Whether the applicant is entitled to resile from his prior election to have the matter heard de novo.

Ratio Decidendi

The application was dismissed because the applicant failed to set out sufficient facts in his founding affidavit to justify the relief sought in both prayers. The applicant's attempt to rescind the order setting aside the part-heard proceedings before Mr H Monageng was an effort to resile from a prior election, which is not permitted in law. The applicant had previously agreed to have the matter referred to the Magistrate's Court to be heard de novo by another magistrate, and is bound by that election. Furthermore, the applicant did not provide any factual basis for setting aside the interdict granted by the Molopo Magistrate's Court. The court emphasized that it cannot correct, alter, or...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.