Mphepya v Mokhonoana (1512/2018) [2019] ZALMPPHC 64 (5 December 2019)

Mphepya v Mokhonoana (1512/2018) [2019] ZALMPPHC 64 (5 December 2019)

The court found that the incorrect five-day period for filing the answering affidavit was a procedural error that did not render the application a nullity, especially as the respondent suffered no prejudice and proceeded to file her affidavit. The respondent's application for condonation was unopposed and granted. Regarding res judicata, the court held that the previous litigation involved different parties and a different cause of action (eviction versus declaratory relief), and thus the requirements for res judicata were not met. The respondent's points in limine were dismissed with costs.

Citation
[2019] ZALMPPHC 64
Parties
Applicant: Tipe Solomon Bhakoo Mphepya; Respondent: Stephina Mokhonoana
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
5 December 2019
Case Number
1512/2018
Procedural Posture
Declaratory Application / Points in Limine
Outcome
The respondent's two points in limine are dismissed with costs on a party and party scale.
Judges
Kganyago
Legal Topics
Rule 6 5 D Ii, Condonation, Res Judicata, Declaratory Order
Civil Procedure Land and Property Rule 6 5 D Ii Condonation Res Judicata Declaratory Order

Case Brief

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Parties

Tipe Solomon Bhakoo Mphepya

Applicant

Stephina Mokhonoana

Respondent

Procedural Posture

Declaratory Application / Points in Limine

Legal Issues

  1. 1 Whether the applicant's non-compliance with Rule 6(5)(d)(ii) of the Uniform Rules of Court renders the application a nullity.
  2. 2 Whether the respondent's answering affidavit should be condoned despite late filing.
  3. 3 Whether the defence of res judicata applies given prior litigation involving the property but different parties and causes of action.

Ratio Decidendi

The court found that the incorrect five-day period for filing the answering affidavit was a procedural error that did not render the application a nullity, especially as the respondent suffered no prejudice and proceeded to file her affidavit. The respondent's application for condonation was unopposed and granted. Regarding res judicata, the court held that the previous litigation involved different parties and a different cause of action (eviction versus declaratory relief), and thus the requirements for res judicata were not met. The respondent's points in limine were dismissed with costs.

Court Disposition

The respondent's two points in limine are dismissed with costs on a party and party scale.

Orders

  • The respondent's two points in limine are dismissed with costs on party and party scale.