Magqabi S.Z Attorneys and Another v Ntantiso and Another (EL1685/2023) [2024] ZAECELLC 6 (23 February 2024)

Magqabi S.Z Attorneys and Another v Ntantiso and Another (EL1685/2023) [2024] ZAECELLC 6 (23 February 2024)

The court found that service of the urgent application papers on the respondent's attorneys was proper and in accordance with the Uniform Rules, as the respondent was represented by those attorneys at the relevant time. The respondent was given more than the required five hours' notice before the hearing, and no explanation was provided for her failure to oppose or attend. The procedural irregularities in the reconsideration application did not prejudice any party and were disregarded in the interests of substance over form. Rule 6(12)(c) is intended to benefit parties who were genuinely denied an opportunity to be heard, not those who wilfully absented themselves despite proper notice....

Citation
[2024] ZAECELLC 6
Parties
Applicant: Magqabi S.Z Attorneys; Applicant: Vuyisile Pythagoras Magqabi; Respondent: Asisipho Ntantiso; Respondent: Nomandla Ndabeni, The Sheriff of the High Court, East London
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
23 February 2024
Case Number
EL1685/2023
Procedural Posture
Urgent Application / Application for Reconsideration of Urgent Order
Outcome
Application for reconsideration of the order of 9 February 2024 dismissed. Costs awarded against the first respondent, including costs of the second respondent's opposition.
Judges
A.S. Zono
Legal Topics
Urgent Interdict, Stay of Execution, Service of Process, Audi Alteram Partem, Reconsideration of Order
Civil Procedure Urgent Interdict Stay of Execution Service of Process Audi Alteram Partem Reconsideration of Order

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Parties

Magqabi S.Z Attorneys

Applicant

Vuyisile Pythagoras Magqabi

Applicant

Asisipho Ntantiso

Respondent

Nomandla Ndabeni, The Sheriff of the High Court, East London

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Urgent Order

Legal Issues

  1. 1 Whether service of urgent application papers on the respondent's attorneys constituted proper service under the rules.
  2. 2 Whether the respondent was given adequate notice to oppose and attend the urgent hearing.
  3. 3 Whether procedural irregularities in the reconsideration application prejudiced any party.

Ratio Decidendi

The court found that service of the urgent application papers on the respondent's attorneys was proper and in accordance with the Uniform Rules, as the respondent was represented by those attorneys at the relevant time. The respondent was given more than the required five hours' notice before the hearing, and no explanation was provided for her failure to oppose or attend. The procedural irregularities in the reconsideration application did not prejudice any party and were disregarded in the interests of substance over form. Rule 6(12)(c) is intended to benefit parties who were genuinely denied an opportunity to be heard, not those who wilfully absented themselves despite proper notice....

Court Disposition

Application for reconsideration of the order of 9 February 2024 dismissed. Costs awarded against the first respondent, including costs of the second respondent's opposition.

Orders

  • The application for reconsideration of the order of 9 February 2024 is dismissed.
  • The first respondent is ordered to pay the costs of the application, including the costs of the second respondent's opposition.