Ngcwabe v Nontenja and Others (2359/2013) [2015] ZAECPEHC 30 (30 April 2015)

Ngcwabe v Nontenja and Others (2359/2013) [2015] ZAECPEHC 30 (30 April 2015)

The court found that the applicant failed to provide an acceptable explanation for the delay in bringing the rescission application, as the evidence showed he was advised by attorney Naidu that legal aid would not be provided and that rescission would be futile. The applicant's reliance on the Legal Aid Board was rejected. Furthermore, the applicant did not establish a bona fide defence, as the evidence demonstrated that the first respondent had paid the purchase price, had been in possession of the property for several years, and that the applicant and second respondent acted in fraud of the first respondent's rights by concluding a subsequent sale. The legal principles governing...

Citation
[2015] ZAECPEHC 30
Parties
Applicant: Edward Ngcwabe; Respondent: Justice Zolile Nontenja; Respondent: Koleka Angelina Moyakhe N.O.; Respondent: Registrar of Deeds, Cape Town; Respondent: Llewellyn Francois Sharp N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
30 April 2015
Case Number
2359/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application dismissed with costs.
Judges
Chetty
Legal Topics
Rescission of Judgment, Condonation, Successive Sales, Fraudulent Transfer, Bona Fide Defence
Civil Procedure Land and Property Rescission of Judgment Condonation Successive Sales Fraudulent Transfer Bona Fide Defence

Case Brief

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Parties

Edward Ngcwabe

Applicant

Justice Zolile Nontenja

Respondent

Koleka Angelina Moyakhe N.O.

Respondent

Registrar of Deeds, Cape Town

Respondent

Llewellyn Francois Sharp N.O.

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant provided an acceptable explanation for the delay in seeking rescission of the default judgment.
  2. 2 Whether the applicant established a bona fide defence to the claim for ownership of the disputed property.
  3. 3 Whether the conduct of the applicant and second respondent constituted fraud against the first respondent's rights.

Ratio Decidendi

The court found that the applicant failed to provide an acceptable explanation for the delay in bringing the rescission application, as the evidence showed he was advised by attorney Naidu that legal aid would not be provided and that rescission would be futile. The applicant's reliance on the Legal Aid Board was rejected. Furthermore, the applicant did not establish a bona fide defence, as the evidence demonstrated that the first respondent had paid the purchase price, had been in possession of the property for several years, and that the applicant and second respondent acted in fraud of the first respondent's rights by concluding a subsequent sale. The legal principles governing...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission is dismissed with costs.