Mosai and Another v Masike and Another (A80/2017) [2017] ZAFSHC 138 (24 August 2017)

Mosai and Another v Masike and Another (A80/2017) [2017] ZAFSHC 138 (24 August 2017)

The appeal succeeded because the magistrate granted the eviction order by default in the absence of the appellants, contrary to the agreement between the parties and without proper compliance with the PIE Act. The respondents' attorney acted irregularly by obtaining the order when the matter was not set down for hearing, and the magistrate failed to consider the procedural requirements, including notice to the municipality and the rights of vulnerable persons. The court found that good cause existed for rescission of the default judgment, and the conduct of the respondents' attorney in snatching the judgment warranted setting aside the order. The High Court substituted the magistrate's...

Citation
[2017] ZAFSHC 138
Parties
Appellant: Sephapho Jacob Mosai; Appellant: Moipone Julia Mosai; Respondent: Muhammed Mosiuwa Muhajid Masike; Respondent: Durah Masego Masike
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 August 2017
Case Number
A80/2017
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application Following Default Eviction Order
Outcome
Appeal upheld; rescission of eviction order granted.
Judges
DAFFUE, VAN SCHALKWYK
Legal Topics
Rescission of Judgment, Default Judgment, Eviction Proceedings, Prevention of Illegal Eviction Act, Deed of Sale Validity
Civil Procedure Land and Property Rescission of Judgment Default Judgment Eviction Proceedings Prevention of Illegal Eviction Act Deed of Sale Validity

Case Brief

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Parties

Sephapho Jacob Mosai

Appellant

Moipone Julia Mosai

Appellant

Muhammed Mosiuwa Muhajid Masike

Respondent

Durah Masego Masike

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application Following Default Eviction Order

Legal Issues

  1. 1 Whether the magistrate erred in granting the eviction order by default in the absence of the appellants.
  2. 2 Whether the requirements for rescission of the default judgment were satisfied.
  3. 3 Whether the eviction proceedings complied with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

Ratio Decidendi

The appeal succeeded because the magistrate granted the eviction order by default in the absence of the appellants, contrary to the agreement between the parties and without proper compliance with the PIE Act. The respondents' attorney acted irregularly by obtaining the order when the matter was not set down for hearing, and the magistrate failed to consider the procedural requirements, including notice to the municipality and the rights of vulnerable persons. The court found that good cause existed for rescission of the default judgment, and the conduct of the respondents' attorney in snatching the judgment warranted setting aside the order. The High Court substituted the magistrate's...

Court Disposition

Appeal upheld; rescission of eviction order granted.

Orders

  • Condonation is granted for the late filing of the notice of appeal; each party to pay their own costs for the condonation application.
  • The appeal succeeds.