Mokgothi N.O. and Another v Tsoga Developers CC and Others, In re; Tsoga Developers CC v Matlapele N.O. and Others (1798/2011) [2014] ZANWHC 9 (8 May 2014)

Mokgothi N.O. and Another v Tsoga Developers CC and Others, In re; Tsoga Developers CC v Matlapele N.O. and Others (1798/2011) [2014] ZANWHC 9 (8 May 2014)

The court found that the consent order granted on 16 May 2013 was not a default judgment but an order by consent after full pleadings and heads of argument had been filed. The Department had ample opportunity to assess its position and was represented by senior and junior counsel as well as the State Attorney, all of whom participated in the settlement process. The Department's assertion of lack of authority was contradicted by correspondence and affidavits, and no evidence of fraud or iustus error was presented. The legal representatives had at least ostensible authority to settle, and the Department's attempt to rescind the order amounted to an abuse of process. The application to...

Citation
[2014] ZANWHC 9
Parties
Applicant: Mokgothi Samuel Thobakgale, NO; Applicant: Member of the Executive Council, Department of Public Works, Roads and Transport, North West; Respondent: Tsoga Developers CC; Respondent: Theodor Wilhelm van den Heever, NO; Respondent: Dimokatso Arnold Mohasoa, NO; Respondent: Christo Peter van Zyl, NO
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
8 May 2014
Case Number
1798/2011
Procedural Posture
Rescission Application / Judgment on Application for Rescission and Strike Out
Outcome
The application for rescission is dismissed with costs on an attorney and client scale. The application to strike out is granted with costs on an attorney and client scale.
Judges
R D Hendricks
Legal Topics
Consent Order, Settlement Agreement, Rescission of Judgment, Ostensible Authority, Abuse of Process
Civil Procedure Commercial and Corporate Consent Order Settlement Agreement Rescission of Judgment Ostensible Authority Abuse of Process

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Mokgothi Samuel Thobakgale, NO

Applicant

Member of the Executive Council, Department of Public Works, Roads and Transport, North West

Applicant

Tsoga Developers CC

Respondent

Theodor Wilhelm van den Heever, NO

Respondent

Dimokatso Arnold Mohasoa, NO

Respondent

Christo Peter van Zyl, NO

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission and Strike Out

Legal Issues

  1. 1 Whether the consent court order granted on 16 May 2013 should be rescinded.
  2. 2 Whether the Department's legal representatives had actual or ostensible authority to settle the matter.
  3. 3 Whether the application to strike out portions of the founding affidavit should succeed.

Ratio Decidendi

The court found that the consent order granted on 16 May 2013 was not a default judgment but an order by consent after full pleadings and heads of argument had been filed. The Department had ample opportunity to assess its position and was represented by senior and junior counsel as well as the State Attorney, all of whom participated in the settlement process. The Department's assertion of lack of authority was contradicted by correspondence and affidavits, and no evidence of fraud or iustus error was presented. The legal representatives had at least ostensible authority to settle, and the Department's attempt to rescind the order amounted to an abuse of process. The application to...

Court Disposition

The application for rescission is dismissed with costs on an attorney and client scale. The application to strike out is granted with costs on an attorney and client scale.

Orders

  • The strike out application succeeds with costs on an attorney and client scale, including costs for two counsel.
  • The rescission application is dismissed with costs on an attorney and client scale, including costs for two counsel.