Ncwane v Ncwane NO and Others (12939/2015) [2016] ZAKZDHC 47 (11 November 2016)

Ncwane v Ncwane NO and Others (12939/2015) [2016] ZAKZDHC 47 (11 November 2016)

The court found that the order of 18 November 1996 was erroneously granted in the absence of the applicant, as the notice of motion was served on his brother and not directly on him, and there was no evidence that the applicant was aware of the proceedings. The first respondent failed to discharge the onus of proving wilful default. Furthermore, the first respondent's husband misrepresented material facts to the court regarding ownership and acquisition of the property. The evidence did not support the claim of acquisitive prescription, as the first respondent and her husband occupied the property with the permission of the registered owners and their possession was interrupted. The...

Citation
[2016] ZAKZDHC 47
Parties
Applicant: Sthembiso Bafana Ncwane; Respondent: Ntombikayise Elsie Ncwane N.O.; Respondent: Registrar of Deeds, Pietermaritzburg; Respondent: Chief Magistrate, Verulam Magistrate’s Court
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
11 November 2016
Case Number
12939/2015
Procedural Posture
Review Application / Application for Rescission of Judgment/order Granted in Default
Outcome
Application for rescission granted; the order of 18 November 1996 is rescinded and set aside.
Judges
Madondo
Legal Topics
Rescission of Judgment, Default Judgment, Acquisitive Prescription, Notice of Motion, Fraud on the Court
Civil Procedure Land and Property Rescission of Judgment Default Judgment Acquisitive Prescription Notice of Motion Fraud on the Court

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Parties

Sthembiso Bafana Ncwane

Applicant

Ntombikayise Elsie Ncwane N.O.

Respondent

Registrar of Deeds, Pietermaritzburg

Respondent

Chief Magistrate, Verulam Magistrate’s Court

Respondent

Procedural Posture

Review Application / Application for Rescission of Judgment/order Granted in Default

Legal Issues

  1. 1 Whether the order granted on 18 November 1996 was erroneously granted in the absence of the applicant.
  2. 2 Whether the first respondent acquired ownership of the property through acquisitive prescription.

Ratio Decidendi

The court found that the order of 18 November 1996 was erroneously granted in the absence of the applicant, as the notice of motion was served on his brother and not directly on him, and there was no evidence that the applicant was aware of the proceedings. The first respondent failed to discharge the onus of proving wilful default. Furthermore, the first respondent's husband misrepresented material facts to the court regarding ownership and acquisition of the property. The evidence did not support the claim of acquisitive prescription, as the first respondent and her husband occupied the property with the permission of the registered owners and their possession was interrupted. The...

Court Disposition

Application for rescission granted; the order of 18 November 1996 is rescinded and set aside.

Orders

  • The order issued by this Court on 18 November 1996 under case number 6475/96 is hereby rescinded and set aside.
  • The first respondent is ordered to pay the costs of the application.