Mokoena and Others v Lengoabala; In re: Lengoabala v Nhlapo and Others (1166/2012) [2016] ZAFSHC 4 (22 January 2016)

Mokoena and Others v Lengoabala; In re: Lengoabala v Nhlapo and Others (1166/2012) [2016] ZAFSHC 4 (22 January 2016)

The court found that the applicants failed to meet the three common law requirements for rescission of judgment. Although there was evidence of iustus error regarding the costs order, the applicants acquiesced in the judgment by making payment arrangements and failing to act promptly. Their explanations for the delay were unreasonable, and the application lacked bona fides. Furthermore, the applicants did not demonstrate a bona fide defence with prospects of success on the merits. The court held that finality in litigation must be achieved and dismissed the application for rescission. Costs were awarded against the applicants, including wasted costs for unnecessary postponements, except...

Citation
[2016] ZAFSHC 4
Parties
Applicant: Lanny Mokoena; Applicant: Joseph Molaba; Applicant: Kanti Miya; Applicant: Kobeli Mokoena; Applicant: Lazarus Mabili; Applicant: Mojalefa Mtambo; Applicant: Joseph Nhlapo; Applicant: Daniel Motaung; Applicant: Thabo Leaba; Respondent: David Lengoabala
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 January 2016
Case Number
1166/2012
Procedural Posture
Review Application / Application for Rescission of Judgment Under Common Law
Outcome
Application for rescission of judgment dismissed with costs.
Judges
J. P. Daffue
Legal Topics
Rescission of Judgment, Common Law Requirements, Costs Orders, Acquiescence, Iustus Error
Civil Procedure Rescission of Judgment Common Law Requirements Costs Orders Acquiescence Iustus Error

Case Brief

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Parties

Lanny Mokoena

Applicant

Joseph Molaba

Applicant

Kanti Miya

Applicant

Kobeli Mokoena

Applicant

Lazarus Mabili

Applicant

Mojalefa Mtambo

Applicant

Joseph Nhlapo

Applicant

Daniel Motaung

Applicant

Thabo Leaba

Applicant

David Lengoabala

Respondent

Procedural Posture

Review Application / Application for Rescission of Judgment Under Common Law

Legal Issues

  1. 1 Whether the applicants have met the common law requirements for rescission of judgment.
  2. 2 Whether the applicants acquiesced in the judgment and thereby perempted their right to rescission.
  3. 3 Whether the costs order should be set aside due to iustus error or misrepresentation.

Ratio Decidendi

The court found that the applicants failed to meet the three common law requirements for rescission of judgment. Although there was evidence of iustus error regarding the costs order, the applicants acquiesced in the judgment by making payment arrangements and failing to act promptly. Their explanations for the delay were unreasonable, and the application lacked bona fides. Furthermore, the applicants did not demonstrate a bona fide defence with prospects of success on the merits. The court held that finality in litigation must be achieved and dismissed the application for rescission. Costs were awarded against the applicants, including wasted costs for unnecessary postponements, except...

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application for rescission of judgment is dismissed.
  • Applicants are directed to pay respondent’s costs of the application, including the wasted costs of 18 June 2015, but excluding the wasted costs of 17 September 2015, such costs to be paid jointly and severally, the one to pay, the others to be absolved.