Sokhela and Another v Mhlungu and Another (LCC41/2019 ; LCC41/2019C) [2023] ZALCC 22 (19 July 2023)

Sokhela and Another v Mhlungu and Another (LCC41/2019 ; LCC41/2019C) [2023] ZALCC 22 (19 July 2023)

The court found that the Sokhela family provided a reasonable explanation for their default, having relied on AFRA and the Department of Rural Development and Land Reform for legal assistance. The prospects of success were strong because the eviction order was granted in respect of a farm they do not occupy. The court held that the late filing of the rescission application should be condoned and that the default eviction order must be rescinded. Regarding the variation application, the court determined that substituting the farm description would alter the substance of the original order, which is impermissible. There was no ambiguity in the order; the relief sought and granted was...

Citation
[2023] ZALCC 22
Parties
Applicant: Thulani Sokhela; Applicant: Sylvia Nosipho Sokhela; Respondent: Senzele Johnson Mhlungu; Respondent: Elizabeth Maria Mhlungu
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
19 July 2023
Case Number
LCC41/2019 ; LCC41/2019C
Procedural Posture
Rescission Application / Judgment on Opposed Rescission and Variation Applications
Outcome
Rescission application granted; variation application dismissed; no order as to costs.
Judges
Ncube
Legal Topics
Rescission of Default Judgment, Eviction Order, Variation of Court Order, Condonation of Late Filing
Land and Property Civil Procedure Rescission of Default Judgment Eviction Order Variation of Court Order Condonation of Late Filing

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Thulani Sokhela

Applicant

Sylvia Nosipho Sokhela

Applicant

Senzele Johnson Mhlungu

Respondent

Elizabeth Maria Mhlungu

Respondent

Procedural Posture

Rescission Application / Judgment on Opposed Rescission and Variation Applications

Legal Issues

  1. 1 Whether the late filing of the rescission application by the Sokhela family should be condoned.
  2. 2 Whether the default eviction order granted against the Sokhela family should be rescinded.
  3. 3 Whether the eviction order can be varied to substitute the correct farm description.

Ratio Decidendi

The court found that the Sokhela family provided a reasonable explanation for their default, having relied on AFRA and the Department of Rural Development and Land Reform for legal assistance. The prospects of success were strong because the eviction order was granted in respect of a farm they do not occupy. The court held that the late filing of the rescission application should be condoned and that the default eviction order must be rescinded. Regarding the variation application, the court determined that substituting the farm description would alter the substance of the original order, which is impermissible. There was no ambiguity in the order; the relief sought and granted was...

Court Disposition

Rescission application granted; variation application dismissed; no order as to costs.

Orders

  • The late filing of the application for rescission by the Sokhela family is condoned.
  • The order of this court dated 29 November 2021, evicting the Sokhela family from the 'Boston-Kwethu Farm' is rescinded.