Rossouw NO and Others v Leeuwenhoek Boerdery (EDMS) BPK and Others (2627/2011) [2011] ZAWCHC 566 (4 November 2011)

Rossouw NO and Others v Leeuwenhoek Boerdery (EDMS) BPK and Others (2627/2011) [2011] ZAWCHC 566 (4 November 2011)

The court found that the applicants failed to discharge the onus of proving that the respondents placed incorrect evidence before the court or acted fraudulently with intent to mislead. The evidence of Dr Macgregor, relied upon by the applicants, was found to be contradictory and unsatisfactory on material aspects. The respondents' version, corroborated by affidavits and correspondence, was found to be more probable. The court concluded that the facts presented in the eviction application did not diverge from the true facts to such an extent that a different judgment would have been given. Accordingly, the application to set aside the eviction order on the grounds of fraud was dismissed.

Citation
[2011] ZAWCHC 566
Parties
Applicant: Willem Daniel Rossouw N.O.; Applicant: Gabriel Petrus Rossouw N.O.; Applicant: Ewald Lindeman N.O.; Respondent: Leeuwenhoek Boerdery (EDMS) BPK; Respondent: Daniel Lamprecht Van Zyl; Respondent: Christine Immelman
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 November 2011
Case Number
2627/2011
Procedural Posture
Review Application / Application to Set Aside Prior Eviction Order on Grounds of Fraud
Outcome
Application dismissed with costs, including costs of postponements.
Judges
Baartman
Legal Topics
Setting Aside Judgment, Fraud on the Court, Director Authority, Eviction Order
Civil Procedure Land and Property Setting Aside Judgment Fraud on the Court Director Authority Eviction Order

Case Brief

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Parties

Willem Daniel Rossouw N.O.

Applicant

Gabriel Petrus Rossouw N.O.

Applicant

Ewald Lindeman N.O.

Applicant

Leeuwenhoek Boerdery (EDMS) BPK

Respondent

Daniel Lamprecht Van Zyl

Respondent

Christine Immelman

Respondent

Procedural Posture

Review Application / Application to Set Aside Prior Eviction Order on Grounds of Fraud

Legal Issues

  1. 1 Whether the respondents placed incorrect evidence before the court in the eviction application.
  2. 2 Whether the respondents acted fraudulently and with intent to mislead the court.
  3. 3 Whether the facts presented diverged from the true facts to such an extent that the court would have given a different judgment if aware of the truth.

Ratio Decidendi

The court found that the applicants failed to discharge the onus of proving that the respondents placed incorrect evidence before the court or acted fraudulently with intent to mislead. The evidence of Dr Macgregor, relied upon by the applicants, was found to be contradictory and unsatisfactory on material aspects. The respondents' version, corroborated by affidavits and correspondence, was found to be more probable. The court concluded that the facts presented in the eviction application did not diverge from the true facts to such an extent that a different judgment would have been given. Accordingly, the application to set aside the eviction order on the grounds of fraud was dismissed.

Court Disposition

Application dismissed with costs, including costs of postponements.

Orders

  • The application is dismissed with costs, such costs to include those incurred by the various postponements.