Ndlhovu and Others v Trustees for the time being of the Matsaffeni Trust (30541/2012) [2013] ZAGPPHC 337 (29 November 2013)

Ndlhovu and Others v Trustees for the time being of the Matsaffeni Trust (30541/2012) [2013] ZAGPPHC 337 (29 November 2013)

The court found that the default judgment was granted due to the negligence of the applicants' attorney, not the fault of the applicants themselves. The explanation for the default was reasonable, and the applicants demonstrated a bona fide defence with prospects of success. Given the adverse impact of the eviction order on the applicants' constitutional rights, justice and fairness required that the rescission be granted. The costs of the rescission and leave to appeal applications were ordered to be borne by the applicants' attorney personally, as his remissness necessitated the proceedings.

Citation
[2013] ZAGPPHC 337
Parties
Applicant: Thomas N Ndlhovu and 25 Others; Respondent: Trustees for the time being of the Matsaffeni Trust
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 of Default Eviction Order and Leave to Appeal
Outcome
Rescission of the default eviction order granted; costs of the application and reserved costs for leave to appeal to be paid by the applicants' attorney personally.
Judges
N M Mavundla
Legal Topics
Eviction, Rescission of Judgment, Default Judgment, Costs Order, Constitutional Rights
Land and Property Civil Procedure Eviction Rescission of Judgment Default Judgment Costs Order Constitutional Rights

Case Brief

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Parties

Thomas N Ndlhovu and 25 Others

Applicant

Trustees for the time being of the Matsaffeni Trust

Respondent

Procedural Posture

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

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  1. 1 Whether the default eviction order should be rescinded due to attorney negligence and lack of proper service.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 applicants have a bona fide defence with prospects of success.
  3. 3 Who should bear the costs of the rescission and leave to appeal applications.

Ratio Decidendi

The court found that the default judgment was granted due to the negligence of the applicants' attorney, not the fault of the applicants themselves. The explanation for the default was reasonable, and the applicants demonstrated a bona fide defence with prospects of success. Given the adverse impact of the eviction order on the applicants' constitutional rights, justice and fairness required that the rescission be granted. The costs of the rescission and leave to appeal applications were ordered to be borne by the applicants' attorney personally, as his remissness necessitated the proceedings.

Court Disposition

Rescission of the default eviction order granted; costs of the application and reserved costs for leave to appeal to be paid by the applicants' attorney personally.

Orders

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