Mangqobe and Others v Mangqobe N.O (3027/2021) [2024] ZAECMHC 10 (23 January 2024)

Mangqobe and Others v Mangqobe N.O (3027/2021) [2024] ZAECMHC 10 (23 January 2024)

The court found that the applicants failed to establish any cogent or legally sustainable basis for rescission, variation, or setting aside of the consent order dated 20 October 2022. The applicants were represented by attorneys and counsel who agreed to the order in open court, and there was no evidence that the order was granted erroneously, in the absence of the applicants, or as a result of a mistake common to the parties. The applicants did not provide confirmatory affidavits from their legal representatives, and their case rested on hearsay and unsubstantiated allegations. The requirements of rule 42(1) and common law rescission were not met. The principle of finality of litigation...

Citation
[2024] ZAECMHC 10
Parties
Applicant: Andisiwe Mangqobe; Applicant: Cwenga Mangqobe; Applicant: Viwe Mangqobe; Respondent: Nomthandazo Patience Mangqobe N.O
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
23 January 2024
Case Number
3027/2021
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Consent Order
Outcome
Application for rescission, variation, or setting aside of the court order dated 20 October 2022 is dismissed.
Judges
M.S. Jolwana
Legal Topics
Rescission of Judgment, Consent Orders, Authority of Legal Representatives, Rule 42 Uniform Rules, Locus Standi
Civil Procedure Land and Property Rescission of Judgment Consent Orders Authority of Legal Representatives Rule 42 Uniform Rules Locus Standi

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Parties

Andisiwe Mangqobe

Applicant

Cwenga Mangqobe

Applicant

Viwe Mangqobe

Applicant

Nomthandazo Patience Mangqobe N.O

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Consent Order

Legal Issues

  1. 1 Whether the applicants have established grounds for rescission, variation, or setting aside of the consent order dated 20 October 2022.
  2. 2 Whether the applicants' legal representatives had authority to consent to the order.
  3. 3 Whether the requirements of rule 42(1) or common law rescission have been met.

Ratio Decidendi

The court found that the applicants failed to establish any cogent or legally sustainable basis for rescission, variation, or setting aside of the consent order dated 20 October 2022. The applicants were represented by attorneys and counsel who agreed to the order in open court, and there was no evidence that the order was granted erroneously, in the absence of the applicants, or as a result of a mistake common to the parties. The applicants did not provide confirmatory affidavits from their legal representatives, and their case rested on hearsay and unsubstantiated allegations. The requirements of rule 42(1) and common law rescission were not met. The principle of finality of litigation...

Court Disposition

Application for rescission, variation, or setting aside of the court order dated 20 October 2022 is dismissed.

Orders

  • The application for the rescission, variation or the setting aside of the court order dated 20 October 2022 is dismissed.
  • The applicants are ordered to pay the costs of this application, the one paying the other to be absolved on a party and party scale.