Mnisi and Others v Mawulu Communal Property Association and Others (083533/2023) [2023] ZAGPPHC 1888 (2 November 2023)

Mnisi and Others v Mawulu Communal Property Association and Others (083533/2023) [2023] ZAGPPHC 1888 (2 November 2023)

The court found that the application for reconsideration was urgent due to allegations of non-service and non-disclosure. The applicants failed to effect proper service as directed, rendering the previous order effectively ex parte. The applicants did not provide objective evidence of contempt or misappropriation, relying instead on unsupported assertions. The answering affidavit established that the 2017 order had been complied with, and the applicants' case lacked substance. The court exercised its discretion under Uniform Rule 6(12)(c) to set aside the previous order and dismissed the application. The applicants were found to have acted mala fide and were penalised with a costs order...

Citation
[2023] ZAGPPHC 1888
Parties
Applicant: Harriet Elizabeth Mnisi; Applicant: Samson Shakoane; Applicant: Gabriel Mathebula; Applicant: Jetro Msango; Applicant: Margaret Ndlovu; Respondent: Mawulu Communal Property Association; Respondent: Luke Bob Masango; Respondent: Irvin Nqobizitha Phenyane; Respondent: Solane Mathe Malope; Respondent: Jabulile Mathethwa; Respondent: Meschack Mhlanga; Respondent: Gugile Nkwinti; Respondent: Zanele Sihlangu
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 November 2023
Case Number
083533/2023
Procedural Posture
Urgent Application / Application for Reconsideration Under Uniform Rule 6(12)(c)
Outcome
Application dismissed with costs on an attorney and client scale, jointly and severally against the first, third, fourth, and fifth applicants.
Judges
Le Grange
Legal Topics
Uniform Rule 6 12 C, Urgency, Service of Process, Costs Penalty
Civil Procedure Uniform Rule 6 12 C Urgency Service of Process Costs Penalty

Case Brief

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Parties

Harriet Elizabeth Mnisi

Applicant

Samson Shakoane

Applicant

Gabriel Mathebula

Applicant

Jetro Msango

Applicant

Margaret Ndlovu

Applicant

Mawulu Communal Property Association

Respondent

Luke Bob Masango

Respondent

Irvin Nqobizitha Phenyane

Respondent

Solane Mathe Malope

Respondent

Jabulile Mathethwa

Respondent

Meschack Mhlanga

Respondent

Gugile Nkwinti

Respondent

Zanele Sihlangu

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration Under Uniform Rule 6(12)(c)

Legal Issues

  1. 1 Whether the application for reconsideration under Uniform Rule 6(12)(c) is urgent and properly before the court.
  2. 2 Whether the previous order was granted in the absence of affected parties due to defective service.
  3. 3 Whether the applicants established contempt or misappropriation of funds by the respondents.

Ratio Decidendi

The court found that the application for reconsideration was urgent due to allegations of non-service and non-disclosure. The applicants failed to effect proper service as directed, rendering the previous order effectively ex parte. The applicants did not provide objective evidence of contempt or misappropriation, relying instead on unsupported assertions. The answering affidavit established that the 2017 order had been complied with, and the applicants' case lacked substance. The court exercised its discretion under Uniform Rule 6(12)(c) to set aside the previous order and dismissed the application. The applicants were found to have acted mala fide and were penalised with a costs order...

Court Disposition

Application dismissed with costs on an attorney and client scale, jointly and severally against the first, third, fourth, and fifth applicants.

Orders

  • The requirements relating to form, service and time periods are dispensed with; the matter is dealt with as urgent.
  • The order granted on 1 September 2023 by Davis J is reconsidered and set aside in its entirety.