Mamabolo and Another v Morema (2354/2016) [2018] ZALMPPHC 49 (23 August 2018)

Mamabolo and Another v Morema (2354/2016) [2018] ZALMPPHC 49 (23 August 2018)

The court found that the applicants provided a reasonable explanation for their default, as they had instructed the State Attorney to defend the action and could not have foreseen the attorney's negligence. The applicants demonstrated good prospects of success, particularly regarding the respondent's claim for loss of income, which was not substantiated by proof of earnings. The court held that the default judgment was erroneously granted without proper evidence and that negligence by the attorney should not be imposed on the applicants. Accordingly, the requirements for rescission were met, and the application was granted.

Citation
[2018] ZALMPPHC 49
Parties
Applicant: Lazi Mamabolo; Applicant: Minister of Safety and Security; Respondent: Mpho Morema
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
23 August 2018
Case Number
2354/2016
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Condonation for Late Plea
Outcome
Application for rescission of default judgment granted; applicants' failure to file plea condoned; applicants to file plea within five days; respondent to pay costs.
Judges
MF. Kganyago
Legal Topics
Rescission of Default Judgment, Condonation for Late Plea, Negligence of Attorney, Loss of Income Claim, Institution of Legal Proceedings Against State
Civil Procedure Delict Rescission of Default Judgment Condonation for Late Plea Negligence of Attorney Loss of Income Claim Institution of Legal Proceedings Against State

Case Brief

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Parties

Lazi Mamabolo

Applicant

Minister of Safety and Security

Applicant

Mpho Morema

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Condonation for Late Plea

Legal Issues

  1. 1 Whether the applicants have shown sufficient cause for rescission of the default judgment granted against them.
  2. 2 Whether negligence by the applicants' attorney constitutes a ground for rescission of judgment.
  3. 3 Whether the respondent substantiated his claim for loss of income when obtaining default judgment.

Ratio Decidendi

The court found that the applicants provided a reasonable explanation for their default, as they had instructed the State Attorney to defend the action and could not have foreseen the attorney's negligence. The applicants demonstrated good prospects of success, particularly regarding the respondent's claim for loss of income, which was not substantiated by proof of earnings. The court held that the default judgment was erroneously granted without proper evidence and that negligence by the attorney should not be imposed on the applicants. Accordingly, the requirements for rescission were met, and the application was granted.

Court Disposition

Application for rescission of default judgment granted; applicants' failure to file plea condoned; applicants to file plea within five days; respondent to pay costs.

Orders

  • Judgment by default granted on 14 February 2017 is rescinded.
  • Applicants' failure to uplift the bar and file their answering affidavit is condoned.