Neelofar and Another v Pahad and Another (5277/2020) [2021] ZAGPJHC 596 (4 November 2021)

Neelofar and Another v Pahad and Another (5277/2020) [2021] ZAGPJHC 596 (4 November 2021)

The court held that the order granted by Vally J was in default of an answering affidavit, despite the applicants being represented in court, and was therefore susceptible to rescission under the common law. However, the interim interdict in paragraph 2 of the order had lapsed due to the first respondent's failure to institute action proceedings by the specified date, rendering rescission of that part of the order unnecessary. The application for rescission of the interim interdict was struck from the roll, and the first respondent was deprived of costs for obtaining the interdict. Regarding the final relief in paragraphs 3 and 4, the applicants failed to provide a reasonable explanation...

Citation
[2021] ZAGPJHC 596
Parties
Applicant: Sakeena Mahmoudi Neelofar; Applicant: Dr Mahmoudi Masood; Respondent: Arshad Pahad; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 November 2021
Case Number
5277/2020
Procedural Posture
Review Application / Application for Rescission of Order Granted in Urgent Court
Outcome
Application for rescission of interim interdict struck from the roll; application for rescission of final relief dismissed; costs order reduced; privileged evidence struck out.
Judges
S M Katzew
Legal Topics
Rescission of Default Judgment, Interim Interdict, Costs Order, Privileged Evidence, Municipal Building Regulations
Civil Procedure Land and Property Rescission of Default Judgment Interim Interdict Costs Order Privileged Evidence Municipal Building Regulations

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Parties

Sakeena Mahmoudi Neelofar

Applicant

Dr Mahmoudi Masood

Applicant

Arshad Pahad

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Review Application / Application for Rescission of Order Granted in Urgent Court

Legal Issues

  1. 1 Whether the order granted in the absence of an answering affidavit, but with legal representation, constitutes a default judgment susceptible to rescission.
  2. 2 Whether the interim interdict lapsed due to non-institution of action proceedings by the specified date.
  3. 3 Whether the applicants provided a reasonable explanation for their failure to deliver an answering affidavit.

Ratio Decidendi

The court held that the order granted by Vally J was in default of an answering affidavit, despite the applicants being represented in court, and was therefore susceptible to rescission under the common law. However, the interim interdict in paragraph 2 of the order had lapsed due to the first respondent's failure to institute action proceedings by the specified date, rendering rescission of that part of the order unnecessary. The application for rescission of the interim interdict was struck from the roll, and the first respondent was deprived of costs for obtaining the interdict. Regarding the final relief in paragraphs 3 and 4, the applicants failed to provide a reasonable explanation...

Court Disposition

Application for rescission of interim interdict struck from the roll; application for rescission of final relief dismissed; costs order reduced; privileged evidence struck out.

Orders

  • The application dated 2 May 2020 for rescission of paragraph 2 of the order dated 4 March 2020 is struck from the roll.
  • The application dated 2 May 2020 for rescission of paragraphs 3 and 4 of the order dated 4 March 2020 is dismissed with costs to be taxed at 50% of the taxed costs of the application.