Phakathi and Others v Ndlovu and Others (15653/2019) [2021] ZAGPJHC 621 (2 September 2021)

Phakathi and Others v Ndlovu and Others (15653/2019) [2021] ZAGPJHC 621 (2 September 2021)

The court found that the applicants were not properly served with the original application, and the order of Dosio AJ was granted in their absence. The respondents failed to rebut the applicants' version regarding non-service. The requirements of rule 42(1)(a) were satisfied: the judgment was erroneously sought or granted, it was made in the absence of the applicants, and their rights were affected. The applicants were not required to show good cause or traverse the merits of their defence. Accordingly, the court held that the applicants were entitled to rescission of the judgment.

Citation
[2021] ZAGPJHC 621
Parties
Applicant: Kettie Phakathi; Applicant: Jaine Karos; Applicant: Doctor Moyo; Applicant: Mongezi Moyo; Applicant: Thembelihle Ndlovu; Applicant: Robert Mpekere Tladi; Applicant: Piet Libohang; Applicant: Maria Mahlalela; Applicant: Jack Lesudi; Applicant: Eastleigh Court Housing Development; Respondent: Jabulani Ndlovu; Respondent: 4 others
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 September 2021
Case Number
15653/2019
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment granted; original order rescinded and set aside; costs awarded against respondents.
Judges
Majavu
Legal Topics
Rescission of Judgment, Rule 42 Uniform Rules, Service of Process, Default Judgment, Locus Standi
Civil Procedure Land and Property Rescission of Judgment Rule 42 Uniform Rules Service of Process Default Judgment Locus Standi

Case Brief

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Parties

Kettie Phakathi

Applicant

Jaine Karos

Applicant

Doctor Moyo

Applicant

Mongezi Moyo

Applicant

Thembelihle Ndlovu

Applicant

Robert Mpekere Tladi

Applicant

Piet Libohang

Applicant

Maria Mahlalela

Applicant

Jack Lesudi

Applicant

Eastleigh Court Housing Development

Applicant

Jabulani Ndlovu

Respondent

4 others

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants satisfied the requirements for rescission under rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether the original order was erroneously sought or granted in the absence of the applicants.
  3. 3 Whether the applicants had locus standi to bring the rescission application.

Ratio Decidendi

The court found that the applicants were not properly served with the original application, and the order of Dosio AJ was granted in their absence. The respondents failed to rebut the applicants' version regarding non-service. The requirements of rule 42(1)(a) were satisfied: the judgment was erroneously sought or granted, it was made in the absence of the applicants, and their rights were affected. The applicants were not required to show good cause or traverse the merits of their defence. Accordingly, the court held that the applicants were entitled to rescission of the judgment.

Court Disposition

Application for rescission of judgment granted; original order rescinded and set aside; costs awarded against respondents.

Orders

  • The application for rescission of judgment is granted.
  • The order of Dosio AJ of 2 May 2019 is rescinded and set aside.