Van Wyk and Others v Van Der Merwe and Others (33476/2021) [2024] ZAGPPHC 1032 (7 October 2024)

Van Wyk and Others v Van Der Merwe and Others (33476/2021) [2024] ZAGPPHC 1032 (7 October 2024)

The court found that the urgent application and subsequent order affected the first applicant's rights to possession of the vehicle, and that he was not cited nor given notice of the proceedings. The order was erroneously sought and granted in his absence, contrary to the requirements of Rule 42. The first applicant...

Source-derived case information.

Citation
[2024] ZAGPPHC 1032
Parties
Applicant: Justus Van Wyk; Applicant: K.B. Bodibe N.O.; Applicant: B. Keevy N.O.; Respondent: Cornelius Jansen Van Der Merwe; Respondent: Minister of Roads and Transport, the Member of the Executive Council; Respondent: Gauteng Provincial Department
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 October 2024
Case Number
33476/2021
Procedural Posture
Recission Application / Judgment on Application for Rescission and Costs
Outcome
Application for rescission granted; order of 31 October 2023 rescinded and set aside; costs awarded to applicants.
Judges
Retief
Legal Topics
Recission of Judgment, Default Judgment, Service of Process, Locus Standi, Rule 42, Urgent Application
Civil Procedure Recission of Judgment Default Judgment Service of Process Locus Standi Rule 42 Urgent Application

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Parties

Justus Van Wyk

Applicant

K.B. Bodibe N.O.

Applicant

B. Keevy N.O.

Applicant

Cornelius Jansen Van Der Merwe

Respondent

Minister of Roads and Transport, the Member of the Executive Council

Respondent

Gauteng Provincial Department

Respondent

Procedural Posture

Recission Application / Judgment on Application for Rescission and Costs

Legal Issues

  1. 1 Whether the order granted on 31 October 2023 should be rescinded due to lack of notice to the first applicant.
  2. 2 Whether service of the urgent application and bar was properly effected on the second and third applicants.
  3. 3 Whether the first applicant possesses locus standi to bring the rescission application.

Ratio Decidendi

The court found that the urgent application and subsequent order affected the first applicant's rights to possession of the vehicle, and that he was not cited nor given notice of the proceedings. The order was erroneously sought and granted in his absence, contrary to the requirements of Rule 42. The first applicant was found to possess locus standi as the relief directly impacted his legal rights. Service on the second and third applicants via email was deemed sufficient, given prior conduct and absence of prejudice. The court held that the order of 31 October 2023 must be rescinded and set aside, and costs awarded to the applicants.

Court Disposition

Application for rescission granted; order of 31 October 2023 rescinded and set aside; costs awarded to applicants.

Orders

  • The order granted by Le Grange AJ on 31 October 2023 is rescinded and set aside.
  • The first respondent is ordered to pay the costs of the application, including the costs of two Counsel. Senior Counsel's costs to be taxed on scale C and Junior Counsel's fees to be taxed on scale B.