Mnisi and Another v Mahlare and Others (56247/2013) [2016] ZAGPPHC 794 (9 September 2016)

Mnisi and Another v Mahlare and Others (56247/2013) [2016] ZAGPPHC 794 (9 September 2016)

The court found that the judgment was not erroneously granted as the applicants were legally represented at the time the default judgment was handed down. The failure to file a plea was due to the applicants' own attorney, and the applicants were present through legal representation. Rule 42(1)(a) only applies to judgments granted in the absence of a party affected thereby, which was not the case here. Furthermore, the existence of a bona fide defence is irrelevant under Rule 42, as established in Lodhi 2 Properties Investment CC v Border Developments. Consequently, the application for rescission and for the upliftment of the bar and condonation to file a plea must fail.

Citation
[2016] ZAGPPHC 794
Parties
Applicant: Lindiwe Lillian Mnisi; Applicant: Lindiwe Lillian Mnisi N. 0.; Respondent: Selinah Mahlare N. 0.; Respondent: Selinah Mahlare; Respondent: Registrar of Deeds, Pretoria; Respondent: Master of the High Court; Respondent: Sherrif of Court, ODI; Respondent: Motalane Kgariya Incorporated
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 September 2016
Case Number
56247/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)
Outcome
Application dismissed with costs.
Judges
NP Mali
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42, Intestate Succession, Validity of Will
Civil Procedure Land and Property Rescission of Judgment Default Judgment Rule 42 Intestate Succession Validity of Will

Case Brief

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Parties

Lindiwe Lillian Mnisi

Applicant

Lindiwe Lillian Mnisi N. 0.

Applicant

Selinah Mahlare N. 0.

Respondent

Selinah Mahlare

Respondent

Registrar of Deeds, Pretoria

Respondent

Master of the High Court

Respondent

Sherrif of Court, ODI

Respondent

Motalane Kgariya Incorporated

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the default judgment granted on 15 April 2014 should be rescinded under Rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether the applicants are entitled to have the bar to file their plea uplifted and be granted condonation to file their plea.

Ratio Decidendi

The court found that the judgment was not erroneously granted as the applicants were legally represented at the time the default judgment was handed down. The failure to file a plea was due to the applicants' own attorney, and the applicants were present through legal representation. Rule 42(1)(a) only applies to judgments granted in the absence of a party affected thereby, which was not the case here. Furthermore, the existence of a bona fide defence is irrelevant under Rule 42, as established in Lodhi 2 Properties Investment CC v Border Developments. Consequently, the application for rescission and for the upliftment of the bar and condonation to file a plea must fail.

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission of judgment is dismissed with costs.