Kunene v Maupye (2015/24833) [2015] ZAGPJHC 196 (8 September 2015)

Kunene v Maupye (2015/24833) [2015] ZAGPJHC 196 (8 September 2015)

The court found that the applicant was present in court when the eviction order was granted and was afforded an opportunity to present his case. The requirements for rescission under Rule 42(1) were not met, as the judgment was neither granted in the absence of the applicant nor erroneously sought or granted. The respondent had locus standi as the registered owner of the property, and the applicant did not challenge ownership. The applicant's argument regarding the suspension of the judgment pending appeal was without merit, as noting an appeal automatically stays execution. The point in limine raised by the respondent was sufficient to dismiss the application for rescission.

Citation
[2015] ZAGPJHC 196
Parties
Applicant: Zacharia Dingindawo Kunene; Respondent: Phuthi Washington Maupye
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2015
Case Number
2015/24833
Procedural Posture
Urgent Application / Application for Rescission of Eviction Order
Outcome
Application for rescission dismissed with costs.
Judges
M A Makume
Legal Topics
Rescission of Judgment, Eviction Order, Rule 42 Uniform Rules, Locus Standi, Ownership Dispute
Civil Procedure Land and Property Rescission of Judgment Eviction Order Rule 42 Uniform Rules Locus Standi Ownership Dispute

Case Brief

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Parties

Zacharia Dingindawo Kunene

Applicant

Phuthi Washington Maupye

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Eviction Order

Legal Issues

  1. 1 Whether the eviction order granted on 18 August 2015 should be rescinded under Rule 42(1) of the Uniform Rules of Court.
  2. 2 Whether the order was erroneously sought or granted in the absence of the applicant.
  3. 3 Whether the respondent had locus standi to bring the eviction application.

Ratio Decidendi

The court found that the applicant was present in court when the eviction order was granted and was afforded an opportunity to present his case. The requirements for rescission under Rule 42(1) were not met, as the judgment was neither granted in the absence of the applicant nor erroneously sought or granted. The respondent had locus standi as the registered owner of the property, and the applicant did not challenge ownership. The applicant's argument regarding the suspension of the judgment pending appeal was without merit, as noting an appeal automatically stays execution. The point in limine raised by the respondent was sufficient to dismiss the application for rescission.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the respondent's taxed costs on a party and party scale.