Khumalo and Another v Polkadots Property (Pty) Ltd (30023/2013) [2014] ZAGPJHC 294 (29 October 2014)

Khumalo and Another v Polkadots Property (Pty) Ltd (30023/2013) [2014] ZAGPJHC 294 (29 October 2014)

The court found that the applicant was not properly served with the section 4(2) PIE notice, as required by law, and her denial of service was credible given the circumstances. The Sheriff’s actions were inconsistent and did not establish proper service. The applicant was not in wilful default, and her personal circumstances, including being the head of a household with minor children, brought her within the protection of PIE and section 26(3) of the Constitution. The court granting the eviction order did not have all relevant information, nor was the municipality joined, depriving it of the opportunity to fulfil its constitutional and statutory mandate. Good cause for rescission was...

Citation
[2014] ZAGPJHC 294
Parties
Applicant: Mandisa Olive Khumalo; Applicant: All Other Unlawful Occupants of Portion 15 of Erf 899, 4 Mangeni Road, Paulshof; Respondent: Polkadots Property (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 October 2014
Case Number
30023/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Following Eviction Order
Outcome
Application for rescission granted. Default judgment rescinded. Applicant granted leave to oppose eviction.
Judges
Mosikatsana
Legal Topics
Prevention of Illegal Eviction Act, Service of Process, Rescission of Judgment, Section 26 Constitution, Municipality Joinder, Default Judgment
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Service of Process Rescission of Judgment Section 26 Constitution Municipality Joinder +1 more

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Parties

Mandisa Olive Khumalo

Applicant

All Other Unlawful Occupants of Portion 15 of Erf 899, 4 Mangeni Road, Paulshof

Applicant

Polkadots Property (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Following Eviction Order

Legal Issues

  1. 1 Whether the eviction order was erroneously sought or granted due to improper service of the section 4(2) PIE notice.
  2. 2 Whether the applicant was in wilful default at common law.
  3. 3 Whether the applicant has a bona fide defence to the eviction claim under PIE and the Constitution.

Ratio Decidendi

The court found that the applicant was not properly served with the section 4(2) PIE notice, as required by law, and her denial of service was credible given the circumstances. The Sheriff’s actions were inconsistent and did not establish proper service. The applicant was not in wilful default, and her personal circumstances, including being the head of a household with minor children, brought her within the protection of PIE and section 26(3) of the Constitution. The court granting the eviction order did not have all relevant information, nor was the municipality joined, depriving it of the opportunity to fulfil its constitutional and statutory mandate. Good cause for rescission was...

Court Disposition

Application for rescission granted. Default judgment rescinded. Applicant granted leave to oppose eviction.

Orders

  • The default judgment granted against the first applicant on 9 October 2013 is rescinded.
  • The first applicant is granted leave to oppose the application for her and her children’s eviction.