Mothiba N.O and Others v Mothiba (10847/2011) [2020] ZAGPPHC 707 (26 October 2020)

Mothiba N.O and Others v Mothiba (10847/2011) [2020] ZAGPPHC 707 (26 October 2020)

The court found that the applicants, as duly appointed executors, have the necessary locus standi to seek amendment of the prior order. The omission of the respondent's surname in the original order was a clerical error, as the supporting affidavit and service documents reflected her full name. The respondent's points in limine regarding locus standi, non-joinder, and disputes of fact were dismissed as lacking merit. The respondent's counter-application for rescission was out of time under Rule 31(2)(b), unsupported by a bona fide defence, and failed to meet the requirements for a valid redistribution agreement. The application for rescission under Rule 42 and common law also failed, as...

Citation
[2020] ZAGPPHC 707
Parties
Applicant: Malekwe Athania Mothiba NO; Applicant: Jerome Setshedi Mothiba NO; Applicant: Makgabo Services Station NO; Respondent: Rose Rebecca Mothiba
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 October 2020
Case Number
10847/2011
Procedural Posture
Civil Application / Opposed Application With Counter Application
Outcome
Application granted; counter-application dismissed.
Judges
Ranchod
Legal Topics
Amendment of Court Order, Locus Standi, Rescission of Judgment, Administration of Estates Act, Joinder and Non Joinder
Civil Procedure Land and Property Amendment of Court Order Locus Standi Rescission of Judgment Administration of Estates Act Joinder and Non Joinder

Case Brief

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Parties

Malekwe Athania Mothiba NO

Applicant

Jerome Setshedi Mothiba NO

Applicant

Makgabo Services Station NO

Applicant

Rose Rebecca Mothiba

Respondent

Procedural Posture

Civil Application / Opposed Application With Counter Application

Legal Issues

  1. 1 Whether the applicants have locus standi as executors to seek amendment of the previous court order.
  2. 2 Whether the omission of the respondent's surname in the prior order constitutes an error justifying amendment.
  3. 3 Whether the respondent's counter-application for rescission of the prior order is competent and substantiated.

Ratio Decidendi

The court found that the applicants, as duly appointed executors, have the necessary locus standi to seek amendment of the prior order. The omission of the respondent's surname in the original order was a clerical error, as the supporting affidavit and service documents reflected her full name. The respondent's points in limine regarding locus standi, non-joinder, and disputes of fact were dismissed as lacking merit. The respondent's counter-application for rescission was out of time under Rule 31(2)(b), unsupported by a bona fide defence, and failed to meet the requirements for a valid redistribution agreement. The application for rescission under Rule 42 and common law also failed, as...

Court Disposition

Application granted; counter-application dismissed.

Orders

  • Paragraph '1' of the order granted by Claassen J on 18 May 2012 is amended by inserting the surname 'Mothiba' immediately after the names 'Rose Rebecca Motlatsi'.
  • The respondent is to pay the costs of the application.