Phakathi and Others v Van Vos Lens Property Development CC (LCC51/03) [2003] ZALCC 36 (25 August 2003)

Phakathi and Others v Van Vos Lens Property Development CC (LCC51/03) [2003] ZALCC 36 (25 August 2003)

The court found that the applicants provided a reasonable and acceptable explanation for their default, namely the failure of their legal representative to act on instructions due to an error. The applicants demonstrated a bona fide defence under the Land Reform (Labour Tenants) Act and the Restitution of Land Rights Act, as their eviction was not justified under the statutory requirements and their claims under both Acts were pending. The late filing of the rescission application was condoned, given the applicants' lack of sophistication and the circumstances of service. However, the applicants did not specifically seek restoration of possession in their notice of motion, and the court...

Citation
[2003] ZALCC 36
Parties
Applicant: Jambloed Phakathi; Applicant: Lizzie Phakathi; Applicant: Thokozane Phakathi; Applicant: Sifiso Phakathi; Applicant: Mareza Phakathi; Applicant: Mapopane Phakathi; Respondent: Van Vos Lens Property Development CC
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
25 August 2003
Case Number
LCC51/03
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Leave to Defend
Outcome
Application for rescission of default judgment granted; applicants given leave to defend eviction proceedings; applicants ordered to pay respondent's wasted costs for default judgment and eviction; no order as to costs of the rescission application.
Judges
A Gildenhuys
Legal Topics
Eviction of Labour Tenants, Rescission of Default Judgment, Land Reform Labour Tenants Act, Restitution of Land Rights Act, Service of Process, Condonation of Late Filing
Land and Property Civil Procedure Eviction of Labour Tenants Rescission of Default Judgment Land Reform Labour Tenants Act Restitution of Land Rights Act Service of Process Condonation of Late Filing

Case Brief

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Parties

Jambloed Phakathi

Applicant

Lizzie Phakathi

Applicant

Thokozane Phakathi

Applicant

Sifiso Phakathi

Applicant

Mareza Phakathi

Applicant

Mapopane Phakathi

Applicant

Van Vos Lens Property Development CC

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Leave to Defend

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment granted against them.
  2. 2 Whether the applicants have a bona fide defence to the eviction proceedings under the Land Reform (Labour Tenants) Act and the Restitution of Land Rights Act.
  3. 3 Whether the late filing of the rescission application should be condoned.

Ratio Decidendi

The court found that the applicants provided a reasonable and acceptable explanation for their default, namely the failure of their legal representative to act on instructions due to an error. The applicants demonstrated a bona fide defence under the Land Reform (Labour Tenants) Act and the Restitution of Land Rights Act, as their eviction was not justified under the statutory requirements and their claims under both Acts were pending. The late filing of the rescission application was condoned, given the applicants' lack of sophistication and the circumstances of service. However, the applicants did not specifically seek restoration of possession in their notice of motion, and the court...

Court Disposition

Application for rescission of default judgment granted; applicants given leave to defend eviction proceedings; applicants ordered to pay respondent's wasted costs for default judgment and eviction; no order as to costs of the rescission application.

Orders

  • The default judgment granted against the applicants on 17 June 2003 in case number LCC 51/02 is rescinded, and the applicants are granted leave to defend the proceedings.
  • The applicants must jointly and severally pay the respondent's wasted costs in case number LCC 51/02, being the costs for obtaining default judgment and for effecting their eviction, as taxed between party and party.