Ndubane v Kibel and Another (13687/2012) [2014] ZAGPPHC 364 (13 June 2014)

Ndubane v Kibel and Another (13687/2012) [2014] ZAGPPHC 364 (13 June 2014)

The court found that the applicant, due to her illiteracy and lack of legal representation, did not have a fair opportunity to oppose the eviction application. Her physical presence in court did not amount to meaningful participation as envisaged by the rules. The applicant took reasonable steps to protect her interests and was let down by her attorneys. The court held that, given the constitutional right to housing and the need to protect vulnerable persons, it would be just and equitable to restrain the first respondent from evicting the applicant and other occupiers pending the determination of the rescission application. The applicant was granted leave to institute rescission...

Citation
[2014] ZAGPPHC 364
Parties
Applicant: Anna Moeng Ndubane; Respondent: Lance Kibel; Respondent: ABSA Bank
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 June 2014
Case Number
13687/2012
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Rescission of Eviction Order
Outcome
Interim interdict granted restraining eviction pending rescission application; applicant authorized to remain in occupation; costs for wasted postponement awarded against Legal Aid Board.
Judges
A L C M Lephoko
Legal Topics
Eviction Proceedings, Rescission of Judgment, Right to Housing, Default Judgment, Urgent Interdict, Legal Aid Costs
Civil Procedure Land and Property Constitutional Law Eviction Proceedings Rescission of Judgment Right to Housing Default Judgment Urgent Interdict +1 more

Case Brief

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Parties

Anna Moeng Ndubane

Applicant

Lance Kibel

Respondent

ABSA Bank

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Rescission of Eviction Order

Legal Issues

  1. 1 Whether the eviction order should be suspended pending the rescission application.
  2. 2 Whether the applicant should remain in occupation of the property pending final determination of the rescission application.
  3. 3 Whether the applicant has shown sufficient cause for interim relief.

Ratio Decidendi

The court found that the applicant, due to her illiteracy and lack of legal representation, did not have a fair opportunity to oppose the eviction application. Her physical presence in court did not amount to meaningful participation as envisaged by the rules. The applicant took reasonable steps to protect her interests and was let down by her attorneys. The court held that, given the constitutional right to housing and the need to protect vulnerable persons, it would be just and equitable to restrain the first respondent from evicting the applicant and other occupiers pending the determination of the rescission application. The applicant was granted leave to institute rescission...

Court Disposition

Interim interdict granted restraining eviction pending rescission application; applicant authorized to remain in occupation; costs for wasted postponement awarded against Legal Aid Board.

Orders

  • The first respondent is interdicted from evicting the applicant and any other occupier of the property pending final determination of the rescission application.
  • The applicant may institute an application for rescission of the eviction order within 15 days of this order, failing which the interim interdict will lapse.