Nieuwoudt v Rantso and Others (5361/2008) [2008] ZAFSHC 90 (4 September 2008)

Nieuwoudt v Rantso and Others (5361/2008) [2008] ZAFSHC 90 (4 September 2008)

The court found that the magistrate's ex parte granting of a final order setting aside the applicant's eviction order was grossly irregular, as the applicant was not given notice nor an opportunity to be heard. Such conduct constitutes a serious procedural irregularity, rendering the order void. The respondents' repeated and unsustainable applications to set aside the default judgment, and their attorney's conduct in seeking final relief ex parte, amounted to an abuse of process. The underlying application for setting aside the default judgment was withdrawn, causing any related orders to lapse. The applicant was entitled to have the magistrate's order set aside and to a punitive costs...

Citation
[2008] ZAFSHC 90
Parties
Applicant: Tielman Nieuwoudt; Respondent: Matthew Sehloho Rantso; Respondent: Beverly Ruth Rantso; Respondent: The Sheriff: Bloemfontein West; Respondent: Additional Magistrate, J Lerooli N.O.; Respondent: The Minister of Justice and Constitutional Development
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 September 2008
Case Number
5361/2008
Procedural Posture
Urgent Application / Application for Setting Aside Magistrate's Order
Outcome
Application granted; magistrate's order set aside; punitive costs order against first and second respondents; attorney's conduct referred to Law Society.
Judges
S. P. B. Hancke
Legal Topics
Ex Parte Applications, Setting Aside Order, Eviction, Costs Order
Civil Procedure Land and Property Ex Parte Applications Setting Aside Order Eviction Costs Order

Case Brief

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Parties

Tielman Nieuwoudt

Applicant

Matthew Sehloho Rantso

Respondent

Beverly Ruth Rantso

Respondent

The Sheriff: Bloemfontein West

Respondent

Additional Magistrate, J Lerooli N.O.

Respondent

The Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Urgent Application / Application for Setting Aside Magistrate's Order

Legal Issues

  1. 1 Whether the magistrate's ex parte final order setting aside the applicant's eviction order was irregular and should be set aside.
  2. 2 Whether the applicant was denied the right to be heard before the ex parte order was granted.
  3. 3 Whether the conduct of the respondents and their attorney constituted an abuse of process warranting a punitive costs order.

Ratio Decidendi

The court found that the magistrate's ex parte granting of a final order setting aside the applicant's eviction order was grossly irregular, as the applicant was not given notice nor an opportunity to be heard. Such conduct constitutes a serious procedural irregularity, rendering the order void. The respondents' repeated and unsustainable applications to set aside the default judgment, and their attorney's conduct in seeking final relief ex parte, amounted to an abuse of process. The underlying application for setting aside the default judgment was withdrawn, causing any related orders to lapse. The applicant was entitled to have the magistrate's order set aside and to a punitive costs...

Court Disposition

Application granted; magistrate's order set aside; punitive costs order against first and second respondents; attorney's conduct referred to Law Society.

Orders

  • The order granted by the fourth respondent in the magistrate's court under civil case number 17379/2008 is set aside.
  • First and second respondents are prohibited from bringing any further ex parte applications related to the dispute between the parties.