Tshikundamalema v Mudau (HCA08/2015) [2016] ZALMPPHC 5 (10 June 2016)

Tshikundamalema v Mudau (HCA08/2015) [2016] ZALMPPHC 5 (10 June 2016)

The court found that the default judgment was erroneously granted due to a series of procedural irregularities, including the failure to serve notice of set down on the appellant's attorneys and the improper conduct of the respondent's attorneys in obtaining judgment while previous attorneys were still on record. These irregularities were not known to the judge who granted the default judgment and, had they been known, would have precluded the granting of the judgment. In terms of Rule 42(1)(a), the court held that it was empowered to rescind the judgment mero motu. The appeal was upheld, the judgment set aside, and the application for rescission granted.

Citation
[2016] ZALMPPHC 5
Parties
Appellant: Tshikundamalema Vhutshilo Jane; Respondent: Mudau Khamusi Sydney
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
10 June 2016
Case Number
HCA08/2015
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application; Full Bench Hearing After Leave Granted by Supreme Court of Appeal
Outcome
Appeal upheld; default judgment set aside; rescission granted; each party to pay own costs of appeal.
Judges
E.M Makgoba, F.E Mokgohloa, M Madima
Legal Topics
Rescission of Judgment, Default Judgment, Irregular Service, Partnership Dispute, Property Ownership
Civil Procedure Land and Property Rescission of Judgment Default Judgment Irregular Service Partnership Dispute Property Ownership

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 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Tshikundamalema Vhutshilo Jane

Appellant

Mudau Khamusi Sydney

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application; Full Bench Hearing After Leave Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Whether the default judgment granted on 23 September 2014 was erroneously granted due to procedural irregularities.
  2. 2 Whether the failure to serve notice of set down on the appellant's attorneys invalidated the judgment.
  3. 3 Whether the actions of the respondent's attorneys in obtaining judgment without proper notice constituted grounds for rescission under Rule 42(1)(a).

Ratio Decidendi

The court found that the default judgment was erroneously granted due to a series of procedural irregularities, including the failure to serve notice of set down on the appellant's attorneys and the improper conduct of the respondent's attorneys in obtaining judgment while previous attorneys were still on record. These irregularities were not known to the judge who granted the default judgment and, had they been known, would have precluded the granting of the judgment. In terms of Rule 42(1)(a), the court held that it was empowered to rescind the judgment mero motu. The appeal was upheld, the judgment set aside, and the application for rescission granted.

Court Disposition

Appeal upheld; default judgment set aside; rescission granted; each party to pay own costs of appeal.

Orders

  • The appeal is upheld.
  • The judgment of Tlhapi J in case no: 405/2011 is set aside and substituted with: 'The application for rescission of judgment or order by Makhafola J on 23 September 2014 is granted. The costs shall be costs in the cause.'