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[2016] ZAGPPHC 794
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Mnisi and Another v Mahlare and Others (56247/2013) [2016] ZAGPPHC 794 (9 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number:56247/2013
DATE:9/9/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
LINDIWE
LILLIAN
MNISI
..............................................................................
First
Applicant
LINDIWE
LILLIAN MNISI N.
0
.................................................................
Second
Applicant
and
SELINAH
MAHLARE N. 0.
…..................................................................
First
Respondent
SELINAH
MAHLARE
.........................................................................
..
Second
Respondent
REGISTRAR
OF DEEDS,
PRETORIA
....................................................
Third
Respondent
MASTER
OF THE HIGH
COURT
........................................................
Fourth Respondent
SHERRIF
OF COURT,
ODI
......................................................................
Fifth Respondent
MOTALANE
KGARIYA
INCORPORATED
..............................................
Sixth
Respondent
J
U D G M E N T
MALI
J:
[1]
The first applicant in her personal capacity and the second applicant
in her capacity as executrix of the estate of the late
Mangata Sarah
Kekana seeks a rescission of judgment. The rescission is sought in
terms of Rule 42(1)(a) of the Uniform Rules of
Court. The applicants
also ask for the bar to file their plea be uplifted and that they be
granted condonation to file their plea.
[2]
The judgment was granted against the applicants in favour of the
first and second respondents on 15 April 2014. The applicants
brought
this application for rescission and the removal of the bar on 2 March
2015.
[3]
It is common cause that the default judgment was handed down in the
presence of the applicants' attorneys. The reason for the
said
default judgment is that the applicants failed to deliver their plea
and they were barred from filing their plea on or about
27 January
2014.
[4]
The judgment sought to be rescinded reads as follows:
"1.
THAT the Will of the testator dated 16 august 2010 be declared
null and void;
2.
THAT it be declared that the testator died
intestate;
3.
THAT the second plaintiff be declared the sole
heir;
4.THAT
the transfer of the property under Title deed [T46…/2013] in
terms of Section 6 of the Deed Registries Act 47 of 1937
be
set aside and that the property be returned to the deceased's
estate and Title Deed [T1…!1999] be revived;
5.
THAT the second defendant within ten after requested by the
transferring attorney to do so, sign all necessary and
relevant documentation, in order for the transferring attorney
to transfer
the property in question into the estate of
Late Mangata Sarah Kekana, and that, should the second defendant
fails and/or refuses
to
sign documentation required for
the transfer of the property in question, to the estate of Late
Mangata Sarah Kekana the sheriff
of the above mentioned court which
falls within the necessary Jurisdiction
where the
property is situated, be ordered to sign all necessary
and
relevant documentation, on behalf of the second
respondent;
6.
THAT the second defendant pay the costs of this action and
the costs of the application under case number 56247/13 on a
party and party scale, which include the costs of the urgent
application
and the default judgment
application."
[5]
It is common cause that the late Mangata Sarah Kekana ("the
deceased") was the aunt of the first applicant as well
as the
sister of the first respondent. The deceased was married, she and her
later husband had no children of their own.
[6]
The deceased left the immovable property described in the
abovementioned judgment and further identified as [1…], Block
F, Soshanguve. The first respondent sold the property to the third
party as she believed the deceased died intestate and that she
was
the rightful and sole heir of the deceased. The first respondent's
status is in fact confirmed in the abovementioned judgment.
[7]
The first respondent was informed by her attorneys that the said
immovable property was already transferred to the first applicant
(on
the basis that the deceased left a will nominating her). The property
was transferred to the first applicant under the description
of [9…]
Block A, Mabopane. The respondents instituted proceedings challenging
the validity of the will nominating the first
applicant and transfer
of the property arising thereof. It is common cause that on 15 April
2014 when the judgment was granted,
the applicant's attorney was in
court representing the applicants.
[8]
Counsel for the applicant insisted that the rescission application is
brought under Rule 42 because the judgment was granted
erroneously.
This is because the court failed to take into consideration that the
applicant had a
bona fide
defence in that the will nominating
her was a valid will and the only error was in the property
description. This is despite the
applicant/defendant barred to plead,
and that resulting to the court without any defence before it.
According to the first applicant
the court could have clearly seen
that the applicant was the nominated beneficiary and rectify the
will. I reiterate, the applicants
were legally represented.
[9]
As indicated above the judgment was obtained in the presence of the
applicants (defendant) because they were legally represented.
[10]
Rule 42(1)(a) states:
"42
Variation and Rescission of Orders
(1)
The court
may,
in addition to any other powers it may
have,
mero
motu or upon the application of any
party affected, rescind or vary:
(a)
An order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby; ..."
[11]
According to the applicants the failure to file a plea is an error
caused by her erstwhile attorney otherwise the applicants
would have
a
bona fide
defence. I do not deem it necessary to deal with
the aspect of existence of the
bona fide
defence as this
application is brought under Rule 42. In
Lodhi 2 Properties
Investment CC v Border Developments
2007 (6) SA 87
at
95
F
it was held
that the existence or non- existence of a defence on the merits is an
irrelevant consideration, and if subsequently
disclosed, cannot
transform a validly obtained judgment into an erroneous judgment.
[12]
Having regard to the above I find that the judgment was validly
obtained. It follows that the applicant's application for the
bar to
file their plea to uplifted and that they be granted condonation to
file their plea must fail.
[13]
In the result I make the following order
13.1
The application is dismissed with costs.
NP
MALI
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the Applicants:
…...................
Adv.
K. Fitzroy
Instructed
by:
.............................................
F.
S.
KABINI
& ASSOCIATES
Counsel
for the Respondent:
.....................
Adv.
M. P. Matsetela
Instructed
by:
…......................................
JORDAAN
& SMIT INC
Date
of Hearing:
…...................................
26
July 2016
Date
reserved:
…................................................................
.26
July 2016
Date
of Judgment:
..................................
09
September 2016