Masipa v Mahlathi and Another (A264/18) [2020] ZAGPPHC 203 (4 June 2020)

Masipa v Mahlathi and Another (A264/18) [2020] ZAGPPHC 203 (4 June 2020)

The court found that the appellant was denied the opportunity to defend the action due to non-receipt of the summons, which was served on a tenant and not personally on him. His subsequent attendance at court upon receiving the notice of set down demonstrated his intention to defend. The magistrate erred in dismissing the rescission application without considering the absence of wilful default and the existence of a bona fide defence. The appellant’s defence, supported by evidence of an agreement with the second respondent and subsequent actions regarding the movables, raised triable issues that warranted ventilation in court. The judgment by default was granted in the appellant’s...

Citation
[2020] ZAGPPHC 203
Parties
Appellant: Tebogo Robert Masipa; Respondent: Mampe Agnes Mahlathi; Respondent: Mzimkulu Leonard Mahlathi
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 June 2020
Case Number
A264/18
Procedural Posture
Civil Appeal / Appeal Against Refusal of Rescission of Judgment; Review Application Considered But Disposed of by Appeal
Outcome
Appeal upheld; rescission of judgment granted; appellant permitted to defend the action.
Judges
S. A. M. Baqwa, F. Botes
Legal Topics
Rescission of Judgment, Wilful Default, Service of Process, Bona Fide Defence, Eviction, Damages for Loss of Property
Civil Procedure Land and Property Rescission of Judgment Wilful Default Service of Process Bona Fide Defence Eviction Damages for Loss of Property

Case Brief

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Parties

Tebogo Robert Masipa

Appellant

Mampe Agnes Mahlathi

Respondent

Mzimkulu Leonard Mahlathi

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Rescission of Judgment; Review Application Considered But Disposed of by Appeal

Legal Issues

  1. 1 Whether the judgment against the appellant was granted in his absence as contemplated by Section 36 of the Magistrate’s Court Act.
  2. 2 Whether the appellant was in wilful default for failing to enter appearance to defend.
  3. 3 Whether the appellant has shown good and sufficient cause for rescission of judgment.

Ratio Decidendi

The court found that the appellant was denied the opportunity to defend the action due to non-receipt of the summons, which was served on a tenant and not personally on him. His subsequent attendance at court upon receiving the notice of set down demonstrated his intention to defend. The magistrate erred in dismissing the rescission application without considering the absence of wilful default and the existence of a bona fide defence. The appellant’s defence, supported by evidence of an agreement with the second respondent and subsequent actions regarding the movables, raised triable issues that warranted ventilation in court. The judgment by default was granted in the appellant’s...

Court Disposition

Appeal upheld; rescission of judgment granted; appellant permitted to defend the action.

Orders

  • The appeal is upheld with costs.
  • The application for condonation by both parties is granted with no order as to costs.