Nkosi and Others v Endlovini Communal Property Association and Another In re: Endlovini Communal Property Association v Nkosi and Others (1626/2020) [2021] ZAMPMBHC 45 (5 October 2021)

Nkosi and Others v Endlovini Communal Property Association and Another In re: Endlovini Communal Property Association v Nkosi and Others (1626/2020) [2021] ZAMPMBHC 45 (5 October 2021)

The court found that the order of 10 March 2021 was granted on the basis that the applicants had failed to file opposing papers. However, the applicants' answering affidavit was served and filed prior to the order, albeit with technical defects in commissioning and without a separate condonation application. The court held that the affidavit's defects did not automatically render it invalid and that condonation could be addressed within the affidavit itself. The absence of the parties and lack of oral argument further contributed to the court's unawareness of the answering affidavit. As the order was granted in ignorance of a material fact, it was erroneously granted in terms of Rule...

Citation
[2021] ZAMPMBHC 45
Parties
Applicant: Simon Duncan Nkosi; Applicant: Thobela Amosi Nkosi; Applicant: Mandlama Mavuso; Applicant: Moses Ndlovu; Applicant: Timothy Fanie Shabangu; Applicant: Esaau Sam Nkosi; Applicant: The Members of the Former Endlovini Taks Team (Steering Committee); Applicant: The Members of the Farm Hermansburg 450 GT Landgroep; Respondent: Endlovini Communal Property Association; Respondent: The Station Commander: SAPS Mbombela
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
5 October 2021
Case Number
1626/2020
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
The rescission application is granted; the order of 10 March 2021 is rescinded and set aside.
Judges
Greyling-Coetzer
Legal Topics
Rescission of Judgment, Commissioning of Affidavits, Rule Nisi, Condonation, Default Judgment
Civil Procedure Land and Property Rescission of Judgment Commissioning of Affidavits Rule Nisi Condonation Default Judgment

Case Brief

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Parties

Simon Duncan Nkosi

Applicant

Thobela Amosi Nkosi

Applicant

Mandlama Mavuso

Applicant

Moses Ndlovu

Applicant

Timothy Fanie Shabangu

Applicant

Esaau Sam Nkosi

Applicant

The Members of the Former Endlovini Taks Team (Steering Committee)

Applicant

The Members of the Farm Hermansburg 450 GT Landgroep

Applicant

Endlovini Communal Property Association

Respondent

The Station Commander: SAPS Mbombela

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the order granted on 10 March 2021 confirming the rule nisi should be rescinded due to the applicants' absence and alleged failure to file opposing papers.
  2. 2 Whether the applicants' answering affidavit was properly commissioned and filed in accordance with the regulations.
  3. 3 Whether the absence of a separate condonation application for late filing of the answering affidavit precluded the court from considering it.

Ratio Decidendi

The court found that the order of 10 March 2021 was granted on the basis that the applicants had failed to file opposing papers. However, the applicants' answering affidavit was served and filed prior to the order, albeit with technical defects in commissioning and without a separate condonation application. The court held that the affidavit's defects did not automatically render it invalid and that condonation could be addressed within the affidavit itself. The absence of the parties and lack of oral argument further contributed to the court's unawareness of the answering affidavit. As the order was granted in ignorance of a material fact, it was erroneously granted in terms of Rule...

Court Disposition

The rescission application is granted; the order of 10 March 2021 is rescinded and set aside.

Orders

  • The order dated 10 March 2021 is hereby rescinded and set aside.
  • The rule nisi granted and extended to 10 March 2021 is hereby extended to 3 March 2022.