Ndlhovu and Other v Trustees for the time being of the Matsaffeni Trust (30541/2012) [2013] ZAGPPHC 555 (29 November 2013)

Ndlhovu and Other v Trustees for the time being of the Matsaffeni Trust (30541/2012) [2013] ZAGPPHC 555 (29 November 2013)

The court found that the default judgment was the result of the attorney's negligence rather than any fault of the unlawful occupiers. A reasonable explanation for the default was provided, and the applicants raised issues regarding service and constitutional rights that warranted full consideration. The court exercised its discretion to grant rescission, emphasizing the need to protect fundamental rights and ensure justice and fairness. The costs of the rescission application and the reserved costs from the leave to appeal application were ordered to be paid by the applicants' attorney personally, as the default arose from his conduct. The court declined to award punitive costs, opting...

Citation
[2013] ZAGPPHC 555
Parties
Applicant: Thomas N Ndlhovu and 25 Others; Respondent: Trustees for the time being of the Matsaffeni Trust; Respondent: Unlawful Occupiers of the Mataffin Town; Respondent: Mbombela Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 November 2013
Case Number
30541/2012
Procedural Posture
Rescission Application / Application for Rescission and Leave to Appeal Following Default Eviction Order
Outcome
Rescission of the default eviction order granted; costs awarded against applicants' attorney personally.
Judges
Mavundla
Legal Topics
Eviction Proceedings, Rescission of Judgment, Service of Process, Bill of Rights Limitation, Costs Orders, Right to Housing
Land and Property Civil Procedure Constitutional Law Eviction Proceedings Rescission of Judgment Service of Process Bill of Rights Limitation Costs Orders +1 more

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Parties

Thomas N Ndlhovu and 25 Others

Applicant

Trustees for the time being of the Matsaffeni Trust

Respondent

Unlawful Occupiers of the Mataffin Town

Respondent

Mbombela Municipality

Respondent

Procedural Posture

Rescission Application / Application for Rescission and Leave to Appeal Following Default Eviction Order

Legal Issues

  1. 1 Whether the default eviction order should be rescinded due to attorney negligence and lack of proper service.
  2. 2 Whether the unlawful occupiers have a bona fide defence with prospects of success.
  3. 3 Whether the application for leave to appeal was competent given the nature of the default order.

Ratio Decidendi

The court found that the default judgment was the result of the attorney's negligence rather than any fault of the unlawful occupiers. A reasonable explanation for the default was provided, and the applicants raised issues regarding service and constitutional rights that warranted full consideration. The court exercised its discretion to grant rescission, emphasizing the need to protect fundamental rights and ensure justice and fairness. The costs of the rescission application and the reserved costs from the leave to appeal application were ordered to be paid by the applicants' attorney personally, as the default arose from his conduct. The court declined to award punitive costs, opting...

Court Disposition

Rescission of the default eviction order granted; costs awarded against applicants' attorney personally.

Orders

  • The order granted on 12 March 2013 is hereby rescinded.
  • The applicants' attorney is ordered to pay the costs of this application de bonis propriis on a party and party scale, including reserved costs from the application for leave to appeal.