Kekana v Mogalakwena Local Municipality (3352/2016) [2018] ZALMPPHC 25 (16 May 2018)

Kekana v Mogalakwena Local Municipality (3352/2016) [2018] ZALMPPHC 25 (16 May 2018)

The court found that service of the application was proper and in compliance with Rule 4 of the Uniform Rules of Court, as persons at the applicant's residence refused to accept service and the Sheriff affixed the documents to the gate. The applicant's explanation for default was rejected as improbable and deliberately misleading. The court held that the applicant's default was wilful, as he had knowledge of the proceedings and consciously chose not to oppose. The applicant failed to disclose a bona fide defence in his founding affidavit and was not bona fide in bringing the rescission application, having abandoned it for nine months. Accordingly, the application for rescission was...

Citation
[2018] ZALMPPHC 25
Parties
Applicant: Shella William Kekana; Respondent: Mogalakwena Local Municipality
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
16 May 2018
Case Number
3352/2016
Procedural Posture
Rescission Application / Hearing of Rescission Application After Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
E M Makgoba
Legal Topics
Rescission of Judgment, Vexatious Litigant, Service of Process, Wilful Default
Civil Procedure Rescission of Judgment Vexatious Litigant Service of Process Wilful Default

Case Brief

Summary, issues, holding and outcome

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Parties

Shella William Kekana

Applicant

Mogalakwena Local Municipality

Respondent

Procedural Posture

Rescission Application / Hearing of Rescission Application After Default Judgment

Legal Issues

  1. 1 Whether the applicant has shown good cause for rescission of the default judgment.
  2. 2 Whether service of the application was proper and sufficient.
  3. 3 Whether the applicant's default was wilful.

Ratio Decidendi

The court found that service of the application was proper and in compliance with Rule 4 of the Uniform Rules of Court, as persons at the applicant's residence refused to accept service and the Sheriff affixed the documents to the gate. The applicant's explanation for default was rejected as improbable and deliberately misleading. The court held that the applicant's default was wilful, as he had knowledge of the proceedings and consciously chose not to oppose. The applicant failed to disclose a bona fide defence in his founding affidavit and was not bona fide in bringing the rescission application, having abandoned it for nine months. Accordingly, the application for rescission was...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission is dismissed.
  • The applicant is ordered to pay the costs of the application.