Sulelo v Kruger N.O. (49326/2013) [2015] ZAGPPHC 267 (11 March 2015)

Sulelo v Kruger N.O. (49326/2013) [2015] ZAGPPHC 267 (11 March 2015)

The court found that the applicant was present during the eviction proceedings and made it clear that she wished to obtain legal aid to oppose the application. The court had a duty to ensure that the applicant was aware of her rights under PIE and the Constitution, and to afford her a fair opportunity to obtain legal representation. The requirements of PIE were not fully met, as the applicant was not given a proper chance to apply for legal aid and present her defence. The court concluded that the applicant was not in wilful default and that there was a bona fide defence raised, warranting the rescission of the default judgment and allowing the applicant to oppose the eviction application.

Citation
[2015] ZAGPPHC 267
Parties
Applicant: NGR Sulelo; Respondent: G Kruger N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 March 2015
Case Number
49326/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
The application for rescission is granted; the eviction order of 23 August 2013 is set aside and the applicant is granted leave to oppose the eviction application.
Judges
C Pretorius
Legal Topics
Eviction Proceedings, Prevention of Illegal Eviction Act, Audi Alterem Partem, Default Judgment Rescission, Constitutional Right to Housing
Land and Property Civil Procedure Constitutional Law Eviction Proceedings Prevention of Illegal Eviction Act Audi Alterem Partem Default Judgment Rescission Constitutional Right to Housing

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Parties

NGR Sulelo

Applicant

G Kruger N.O.

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant was denied a fair opportunity to oppose the eviction application and apply for legal aid.
  2. 2 Whether the requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) were met before granting the eviction order.
  3. 3 Whether the applicant was in wilful default when the eviction order was granted.

Ratio Decidendi

The court found that the applicant was present during the eviction proceedings and made it clear that she wished to obtain legal aid to oppose the application. The court had a duty to ensure that the applicant was aware of her rights under PIE and the Constitution, and to afford her a fair opportunity to obtain legal representation. The requirements of PIE were not fully met, as the applicant was not given a proper chance to apply for legal aid and present her defence. The court concluded that the applicant was not in wilful default and that there was a bona fide defence raised, warranting the rescission of the default judgment and allowing the applicant to oppose the eviction application.

Court Disposition

The application for rescission is granted; the eviction order of 23 August 2013 is set aside and the applicant is granted leave to oppose the eviction application.

Orders

  • The order granted on 23 August 2013 is rescinded and set aside.
  • The applicant is granted leave to oppose the application issued on 8 August 2013.