Maoka and Another v Changing Tides 17 (Pty) Ltd and Others (6851/2007) [2012] ZAGPPHC 116 (15 June 2012)

Maoka and Another v Changing Tides 17 (Pty) Ltd and Others (6851/2007) [2012] ZAGPPHC 116 (15 June 2012)

The court found that the applicants failed to provide a satisfactory explanation for their delay in seeking rescission of the default judgment, despite knowing about it since August 2007 and repeatedly paying arrears to prevent execution. The applicants acquiesced to the judgment and did not challenge its validity until after the property was sold in execution and transferred to the second respondent, who acquired real rights for value. The court held that the confession to judgment did not preclude the first respondent from seeking default judgment under Rule 31(5), and the Registrar's declaration of special executability was valid at the time, though Gundwana now applies...

Citation
[2012] ZAGPPHC 116
Parties
Applicant: PULE VICEROY HILLARY MAOKA; Applicant: DIKELEDI REBECCA MAOKA; Respondent: CHANGING TIDES 17 (PTY) LIMITED; Respondent: SAMUEL MASHABANE MTSHWENI; Respondent: SHERIFF OF WONDERBOOM; Respondent: REGISTRAR OF DEEDS, PRETORIA; Respondent: CITY OF TSHWANE METROPOLITAN MUNICIPALITY
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 June 2012
Case Number
6851/2007
Procedural Posture
Rescission Application / Final Judgment on Application and Counter Application
Outcome
Application for rescission of default judgment dismissed with costs; eviction order granted against applicants.
Judges
MNGQIBISA-THUSI
Legal Topics
Rescission of Judgment, Sale in Execution, Mortgage Bond Enforcement, Eviction, Special Executability, Prevention of Illegal Eviction Act
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Mortgage Bond Enforcement Eviction Special Executability Prevention of Illegal Eviction Act

Case Brief

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Parties

PULE VICEROY HILLARY MAOKA

Applicant

DIKELEDI REBECCA MAOKA

Applicant

CHANGING TIDES 17 (PTY) LIMITED

Respondent

SAMUEL MASHABANE MTSHWENI

Respondent

SHERIFF OF WONDERBOOM

Respondent

REGISTRAR OF DEEDS, PRETORIA

Respondent

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

Respondent

Procedural Posture

Rescission Application / Final Judgment on Application and Counter Application

Legal Issues

  1. 1 Whether the default judgment granted against the applicants was erroneously sought or granted and should be rescinded.
  2. 2 Whether the applicants have provided a satisfactory explanation for their default and shown a bona fide defence.
  3. 3 Whether the second respondent is entitled to an eviction order against the applicants.

Ratio Decidendi

The court found that the applicants failed to provide a satisfactory explanation for their delay in seeking rescission of the default judgment, despite knowing about it since August 2007 and repeatedly paying arrears to prevent execution. The applicants acquiesced to the judgment and did not challenge its validity until after the property was sold in execution and transferred to the second respondent, who acquired real rights for value. The court held that the confession to judgment did not preclude the first respondent from seeking default judgment under Rule 31(5), and the Registrar's declaration of special executability was valid at the time, though Gundwana now applies...

Court Disposition

Application for rescission of default judgment dismissed with costs; eviction order granted against applicants.

Orders

  • The application for the rescission of the default judgment granted on 2 March 2007 is dismissed with costs.
  • The first and second applicants are ordered to vacate the property situated at 1742, Orchards extension 11, Pretoria, Gauteng within 60 days from the date of this order.