Mogabule and Others v Neels Van Tonder Trust and Others (LCC04-2018B) [2019] ZALCC 14 (30 July 2019)

Mogabule and Others v Neels Van Tonder Trust and Others (LCC04-2018B) [2019] ZALCC 14 (30 July 2019)

The First Applicant failed to provide a reasonable explanation for his default and did not present a bona fide defence to the eviction application. His denials of misconduct and criminal activity were unsupported and did not raise genuine factual disputes. The procedural requirements for service and notice were met, and the application for rescission did not satisfy the good cause requirement. The Second Applicant, however, demonstrated that she is an occupier in her own right under ESTA, having resided openly and continuously on the land for more than three years. Her temporary absence due to employment did not constitute relinquishment of her right of residence. The reference to 'all...

Citation
[2019] ZALCC 14
Parties
Applicant: Moloko Piet Mogabule; Applicant: Lydia Phoisana Mogabule; Respondent: Neels Van Tonder Trust; Respondent: Kungwini Local Municipality; Respondent: Head of the Department of Rural Development and Land Reform; Respondent: Sheriff Bronkhorstspruit
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
30 July 2019
Case Number
LCC 04/2018B
Procedural Posture
Rescission Application / Application for Rescission of Eviction Order Following Default Judgment
Outcome
The application for rescission of judgment by the First Applicant is dismissed. The application for rescission of judgment by the Second Applicant is granted.
Judges
Y S Meer
Legal Topics
Rescission of Judgment, Eviction, Extension of Security of Tenure Act, Locus Standi, Default Judgment, Right of Residence
Land and Property Civil Procedure Rescission of Judgment Eviction Extension of Security of Tenure Act Locus Standi Default Judgment Right of Residence

Case Brief

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Parties

Moloko Piet Mogabule

Applicant

Lydia Phoisana Mogabule

Applicant

Neels Van Tonder Trust

Respondent

Kungwini Local Municipality

Respondent

Head of the Department of Rural Development and Land Reform

Respondent

Sheriff Bronkhorstspruit

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Eviction Order Following Default Judgment

Legal Issues

  1. 1 Whether the First Applicant has shown good cause for rescission of the eviction order granted against him.
  2. 2 Whether the Second Applicant is an occupier in her own right and entitled to rescission of the eviction order.
  3. 3 Whether the words 'all other persons claiming right of residence through him' include the Second Applicant.

Ratio Decidendi

The First Applicant failed to provide a reasonable explanation for his default and did not present a bona fide defence to the eviction application. His denials of misconduct and criminal activity were unsupported and did not raise genuine factual disputes. The procedural requirements for service and notice were met, and the application for rescission did not satisfy the good cause requirement. The Second Applicant, however, demonstrated that she is an occupier in her own right under ESTA, having resided openly and continuously on the land for more than three years. Her temporary absence due to employment did not constitute relinquishment of her right of residence. The reference to 'all...

Court Disposition

The application for rescission of judgment by the First Applicant is dismissed. The application for rescission of judgment by the Second Applicant is granted.

Orders

  • The application for rescission of judgment by the First Applicant is dismissed.
  • The application for rescission of judgment by the Second Applicant is granted.