Ndara and Another v Weir Investments (Pty) Ltd and Others (3180/2013) [2018] ZAECGHC 70 (14 August 2018)

Ndara and Another v Weir Investments (Pty) Ltd and Others (3180/2013) [2018] ZAECGHC 70 (14 August 2018)

The court found that the applicants' failure to bring the application for rescission timeously was explained by their reliance on legal representatives and persistent efforts to obtain the record of proceedings. Rule 42(1)(a) does not prescribe a time limit for rescission applications, and the delay was not unreasonable in the circumstances. The order dismissing the application for leave to appeal was erroneously granted in the absence of the applicants, and they are entitled to have that order rescinded. The absence of the record did not render the original proceedings a nullity, but the applicants are entitled to have the application for leave to appeal reheard. The respondents'...

Citation
[2018] ZAECGHC 70
Parties
Applicant: Mzukisi Lubabalo Ndara; Applicant: Unathi Ndara; Respondent: Weir Investments (Pty) Ltd; Respondent: Firstrand Bank Limited t/a Wesbank; Respondent: Jaen van Aardt
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 August 2018
Case Number
3180/2013
Procedural Posture
Civil Application / Application for Rescission of Judgment and Condonation
Outcome
Application for condonation and rescission granted in part; order dismissing application for leave to appeal rescinded; rehearing of application for leave to appeal ordered; each party to pay its own costs.
Judges
B Majiki
Legal Topics
Rescission of Judgment, Prescription Act, Fraudulent Misrepresentation, Condonation, Leave to Appeal
Civil Procedure Commercial and Corporate Rescission of Judgment Prescription Act Fraudulent Misrepresentation Condonation Leave to Appeal

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Parties

Mzukisi Lubabalo Ndara

Applicant

Unathi Ndara

Applicant

Weir Investments (Pty) Ltd

Respondent

Firstrand Bank Limited t/a Wesbank

Respondent

Jaen van Aardt

Respondent

Procedural Posture

Civil Application / Application for Rescission of Judgment and Condonation

Legal Issues

  1. 1 Whether the absence of the record of proceedings renders the judgment upholding the special plea of prescription a nullity.
  2. 2 Whether the absence of the record of proceedings relevant to the application for leave to appeal renders those proceedings irregular and a nullity.
  3. 3 Whether condonation should be granted for the late filing of the application for rescission of the judgment dismissing the application for leave to appeal.

Ratio Decidendi

The court found that the applicants' failure to bring the application for rescission timeously was explained by their reliance on legal representatives and persistent efforts to obtain the record of proceedings. Rule 42(1)(a) does not prescribe a time limit for rescission applications, and the delay was not unreasonable in the circumstances. The order dismissing the application for leave to appeal was erroneously granted in the absence of the applicants, and they are entitled to have that order rescinded. The absence of the record did not render the original proceedings a nullity, but the applicants are entitled to have the application for leave to appeal reheard. The respondents'...

Court Disposition

Application for condonation and rescission granted in part; order dismissing application for leave to appeal rescinded; rehearing of application for leave to appeal ordered; each party to pay its own costs.

Orders

  • The applicants' failure to bring an application for rescission of the judgment of 18 August 2015 timeously is condoned.
  • The order or judgment of 18 August 2015 dismissing the applicants' application for leave to appeal is rescinded and set aside as erroneously sought or granted.