Mkonza and Others v Western Crown Properties (Pty) Ltd and Others (87264/2015) [2016] ZAGPPHC 1236 (16 November 2016)

Mkonza and Others v Western Crown Properties (Pty) Ltd and Others (87264/2015) [2016] ZAGPPHC 1236 (16 November 2016)

The court found that the applicants, as trustees of the Mkonza Family Trust and directors of Xuma Technologies (Pty) Ltd, were properly cited and participated in all relevant proceedings, including the enforcement and contempt applications. They had knowledge of the Murphy and Mohlamonyane orders, instructed legal representatives, and deposed to affidavits. The citation of trustees 'from time to time' is legally sufficient, and the applicants' own conduct amounted to acquiescence to the court's jurisdiction. The requirements for rescission under Rule 42(1)(a) or (c) were not met, as the orders were not granted erroneously or due to a mistake common to the parties. However, the committal...

Citation
[2016] ZAGPPHC 1236
Parties
Applicant: Nkosinathi Owen Mkonza; Applicant: Boitumelo Charmain Mkonza; Applicant: Kethukhutula Mkonza; Respondent: Western Crown Properties (Pty) Ltd; Respondent: Bruce Finnemore; Respondent: Margaret Finnemore
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 November 2016
Case Number
87264/2015
Procedural Posture
Rescission Application / Judgment on Application to Rescind Contempt and Committal Order
Outcome
Application for rescission dismissed; committal order varied to correct patent error; costs awarded against applicants on attorney and client scale.
Judges
Brenner AJ
Legal Topics
Rescission of Judgment, Contempt of Court, Trustee Liability, Service of Process, Variation of Order
Civil Procedure Land and Property Rescission of Judgment Contempt of Court Trustee Liability Service of Process Variation of Order

Case Brief

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Parties

Nkosinathi Owen Mkonza

Applicant

Boitumelo Charmain Mkonza

Applicant

Kethukhutula Mkonza

Applicant

Western Crown Properties (Pty) Ltd

Respondent

Bruce Finnemore

Respondent

Margaret Finnemore

Respondent

Procedural Posture

Rescission Application / Judgment on Application to Rescind Contempt and Committal Order

Legal Issues

  1. 1 Whether the applicants were properly cited and served in the contempt and enforcement proceedings.
  2. 2 Whether the committal order was erroneously granted in the absence of the applicants or due to a mistake common to the parties.
  3. 3 Whether the applicants, as trustees and directors, had knowledge of and acquiesced to the court's jurisdiction and orders.

Ratio Decidendi

The court found that the applicants, as trustees of the Mkonza Family Trust and directors of Xuma Technologies (Pty) Ltd, were properly cited and participated in all relevant proceedings, including the enforcement and contempt applications. They had knowledge of the Murphy and Mohlamonyane orders, instructed legal representatives, and deposed to affidavits. The citation of trustees 'from time to time' is legally sufficient, and the applicants' own conduct amounted to acquiescence to the court's jurisdiction. The requirements for rescission under Rule 42(1)(a) or (c) were not met, as the orders were not granted erroneously or due to a mistake common to the parties. However, the committal...

Court Disposition

Application for rescission dismissed; committal order varied to correct patent error; costs awarded against applicants on attorney and client scale.

Orders

  • The application is dismissed.
  • The applicants are directed, both in their representative capacities and personally, de bonis propriis, to pay the costs of this application, jointly and severally, on the attorney and client scale.