Sikhosana and Others v Elundini Local Municipality and Others (2400/2011) [2015] ZAECMHC 75 (27 October 2015)

Sikhosana and Others v Elundini Local Municipality and Others (2400/2011) [2015] ZAECMHC 75 (27 October 2015)

The court found that the applicants had demonstrated that the default judgment was erroneously sought or granted in their absence, as they had taken steps to oppose the application but were let down by the Legal Aid Board. The applicants' rights and interests were affected by the judgment. The court held that, had the facts now presented been known at the time, the default judgment would not have been granted. The application for rescission was therefore granted. The absence of confirmatory affidavits from the attorneys was not decisive, as the applicants' sworn allegations were detailed and credible. Costs were awarded against the first respondent, as there was no reason for costs not to...

Citation
[2015] ZAECMHC 75
Parties
Applicant: Mashata Sikhosana & 28 Others; Respondent: Elundini Local Municipality; Respondent: The Sheriff of the High Court, Mount Fletcher; Respondent: The Station Commissioner, Mount Fletcher Police Station
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
27 October 2015
Case Number
2400/2011
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded; costs awarded against first respondent.
Judges
RWN Brooks
Legal Topics
Rescission of Judgment, Rule 42 Uniform Rules, Default Judgment, Service and Notice, Costs Award
Civil Procedure Rescission of Judgment Rule 42 Uniform Rules Default Judgment Service and Notice Costs Award

Case Brief

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Parties

Mashata Sikhosana & 28 Others

Applicant

Elundini Local Municipality

Respondent

The Sheriff of the High Court, Mount Fletcher

Respondent

The Station Commissioner, Mount Fletcher Police Station

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 9 February 2012 should be rescinded under Rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether the judgment was erroneously sought or granted in the absence of the applicants.
  3. 3 Whether the applicants' rights or interests were affected by the default judgment.

Ratio Decidendi

The court found that the applicants had demonstrated that the default judgment was erroneously sought or granted in their absence, as they had taken steps to oppose the application but were let down by the Legal Aid Board. The applicants' rights and interests were affected by the judgment. The court held that, had the facts now presented been known at the time, the default judgment would not have been granted. The application for rescission was therefore granted. The absence of confirmatory affidavits from the attorneys was not decisive, as the applicants' sworn allegations were detailed and credible. Costs were awarded against the first respondent, as there was no reason for costs not to...

Court Disposition

Application for rescission granted; default judgment rescinded; costs awarded against first respondent.

Orders

  • The judgment granted by default in this court on 9 February 2012 under Case Number 2400/2011 is hereby rescinded and set aside.
  • The applicants are directed to notify the first respondent in writing within five days of the date of this order whether they intend to oppose the application under Case Number 2400/2011.