Kwinana and Others v Ngonyama and Others (45883/2018) [2020] ZAGPJHC 370 (10 December 2020)

Kwinana and Others v Ngonyama and Others (45883/2018) [2020] ZAGPJHC 370 (10 December 2020)

The court found that the application for leave to appeal should not be delayed pending the joinder application, as such delay would be procedurally flawed and lead to inordinate delay. The court was persuaded that there were reasonable prospects of success on appeal, particularly regarding whether the pleadings sufficiently established the trustees' joint action and the plaintiff trust's capacity as shareholder at the relevant time. The court held that another court could reasonably find that default judgment was erroneously granted within the meaning of rule 42(1)(a). The matter was deemed sufficiently important and procedurally complex to warrant determination by the Supreme Court of...

Citation
[2020] ZAGPJHC 370
Parties
Applicant: Thabo Sindisa Kwinana; Applicant: Thabo Sindisa Kwinana N.O.; Applicant: Zolisile Mtetelel Mapipa N.O.; Respondent: Luluma Smuts Ngonyama; Respondent: Nokwazi Nokwazelela Ngonyama N.O.; Respondent: Khanya Malungelo Ngonyama N.O.; Respondent: Qhawe Hlomelo Ngonyama N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 December 2020
Case Number
45883/2018
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Leave to appeal granted to the Supreme Court of Appeal; application for intervention not enrolled; costs reserved.
Judges
Grenfell
Legal Topics
Leave to Appeal, Rescission of Judgment, Joinder of Parties, Shareholder Disputes, Default Judgment, Company Trusts
Civil Procedure Commercial and Corporate Leave to Appeal Rescission of Judgment Joinder of Parties Shareholder Disputes Default Judgment Company Trusts

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Parties

Thabo Sindisa Kwinana

Applicant

Thabo Sindisa Kwinana N.O.

Applicant

Zolisile Mtetelel Mapipa N.O.

Applicant

Luluma Smuts Ngonyama

Respondent

Nokwazi Nokwazelela Ngonyama N.O.

Respondent

Khanya Malungelo Ngonyama N.O.

Respondent

Qhawe Hlomelo Ngonyama N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the application for leave to appeal should be delayed pending the determination of the joinder application.
  2. 2 Whether the applicants have reasonable prospects of success on appeal.
  3. 3 Which court should hear the appeal.

Ratio Decidendi

The court found that the application for leave to appeal should not be delayed pending the joinder application, as such delay would be procedurally flawed and lead to inordinate delay. The court was persuaded that there were reasonable prospects of success on appeal, particularly regarding whether the pleadings sufficiently established the trustees' joint action and the plaintiff trust's capacity as shareholder at the relevant time. The court held that another court could reasonably find that default judgment was erroneously granted within the meaning of rule 42(1)(a). The matter was deemed sufficiently important and procedurally complex to warrant determination by the Supreme Court of...

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal; application for intervention not enrolled; costs reserved.

Orders

  • The application for leave to intervene is not enrolled.
  • The costs of the intervention are reserved for the court hearing the joinder application.