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[2014] ZAGPJHC 422
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Bienose v 52 Hopkins Street CC and Another (11451/13) [2014] ZAGPJHC 422 (17 October 2014)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 11451/13
DATE:
17 OCTOBER 2015
In
the matter between:
KELSEY
BIENOSE
..................................................................................................................
Applicant
And
52
HOPKINS STREET
CC
….....................................................................................
First
Respondent
THE
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
.......
Second
Respondent
JUDGEMENT
CARSTENSEN
AJ:
1.
The Applicant, Kelsey Bienose, seeks a rescission of judgement
granted in the absence of the Applicant on the on the 29th of
July
2013 in terms of which the Applicant was ordered to vacate
residential premises.
2.
The Applicant states that he did not receive the notice of set down
in order to explain his absence of wilful default and also
states
that the owner of the premises is not 52 Hopkins Street CC, but
rather Fifty Two Hopkins Street CC.
3.
The judgement was indeed entered into the name of 52 Hopkins Street
CC.
4.
In the notice of intention to oppose the eviction application, the
Applicant appointed an address of 21 Loriwa Court, 50 Esselent
Street, corner Court Street, Hillbrow, Johannesburg.
5.
The notice of set down was indeed served by candidate attorney Surtee
at that address. Consequently, there was proper service.
6.
In addition, the Applicant does not explain why, after serving the
notice of intention to defend, he did not file an answering
affidavit
in the eviction application from the 19th of April 2013 until the 9th
of July 2013 when, on his version, he attended
court.
7.
In regards to the defence, the Applicant admits having entered into
an oral agreement of lease with Fifty Two Hopkins Street
CC, who is
in fact the legal registered owner of the property with registration
number 1991/0136618/23. This was the registration
number used in the
main application for eviction and consequently, I am satisfied that
in the eviction application this would not
have amounted to a
defence.
8.
Consequently, the Applicant has shown no prospects of success in
respect of his defence.
9.
In the premises, I make the following order:
9.1.
the application for rescission is dismissed with costs.
P
L CARSTENSEN
ACTING
JUDGE OF THE HIGH COURT
HEARD:
13 OCTOBER 2014
DELIVERED:
17 OCTOBER 2014
COUNSEL
FOR APPLICANT: IN PERSON
INSTRUCTED
BY:
COUNSEL
FOR RESPONDENT: ADV. G REBELO
INSTRUCTED
BY: FULLARD MAYER MORRISON ATTORNEYS